Women lose broadcast preference

February 20, 1992|By Lyle Denniston | Lyle Denniston,Washington BureauWashington Bureau Staff writer John Rivera contributed to this article.

WASHINGTON -- It is unconstitutional for the government to give women a special preference when they seek radio or television station licenses, a federal appeals court here ruled yesterday -- in a decision written by Supreme Court Justice Clarence Thomas.

The U.S. Circuit Court of Appeals, in a 2-1 ruling on a dispute over a Frederick County radio license, nullified a series of federal laws as well as the Federal Communications Commission's 13-year-old policy aimed at getting more women into station ownership.

Under the new decision, women are denied a special preference similar to one that the Supreme Court upheld in 1990 for black and ethnic minorities seeking licenses to operate radio or TV stations.

The Circuit Court ruled that there was too little proof that female owners of broadcast stations would put on the air more programs of interest to women and that there was thus no justification for singling them out for special treatment.

The ruling was one of the most significant decisions ever against "affirmative action" in federal government programs, and clearly is the most important constitutional ruling Justice Thomas has yet written -- either as a federal appeals judge or as a new Supreme Court justice.

He wrote this one because it was assigned to him when he was a member of the Circuit Court, and he was taking part yesterday under a special order allowing him to finish his former tasks as a judge of that tribunal.

Much of the ruling had been leaked to the press months ago in the fight over Justice Thomas' nomination to the Supreme Court, leading to speculation that he had delayed its release to improve his confirmation chances.

The decision's practical impact -- to deny women in broadcasting the same treatment that federal law and policy allows for minorities -- drew an immediate rebuke from a women's rights activist.

Donna Lenhoff, general counsel of the Women's Legal Defense Fund, said the ruling was "a blow for women from a man who now has lifetime tenure on the Supreme Court" and "only reinforces what was painfully clear in October" when feminist groups tried to block his nomination out of a belief that he would rule against women.

But the white man who had lost out in a bid for the Middletown, Md., radio license that was at issue in yesterday's case -- former Maryland broadcaster Jerome Thomas Lamprecht -- said, "We felt like it was fair that the courts instruct the commission [the FCC] that everyone ought to have an equal opportunity to be allowed to have ownership of a station."

Mr. Lamprecht, who now is president of Atlantic Coast Communications, an advertising agency in Greenville, S.C., did not win outright yesterday the license for what is now Station WAFY in Middletown.

Instead, the court nullified the FCC ruling awarding the license to a firm headed by Barbara D. Marmet of Frederick. It told the commission to consider who should get the license without considering their sex.

Ms. Marmet, owner and general manager of WAFY, said, "I intend to just keep operating this station. I don't think that it will be taken away from me because I'm a woman."

The broad outlines of the Circuit Court's decision that emerged formally yesterday were disclosed last September by a legal newspaper, Legal Times of Washington, in a story which implied that Justice Thomas was delaying release of the ruling to avoid creating more trouble for his nomination to the Supreme Court, since his views on affirmative action were then a key issue.

It took Justice Thomas and his colleagues 13 months to prepare the ruling, compared with the usual four or five months that lawyers who appear before the Circuit Court say is normal for major rulings. The ruling came more than three and a half months after Justice Thomas had become a Supreme Court justice.

Six of the 11 judges who sit on the full Circuit Court took the unusual step yesterday of calling for an official investigation by the court of last fall's leak of the coming decision. It is unclear, though, whether those six judges have the power to move forward with such an investigation, even though they make up a majority of the full court.

One of those six, Circuit Judge James L. Buckley, took part in the ruling and called for an investigation of the leak in a separate opinion. He suggested that "one or more" of the court's own law clerks were responsible for leaking the decision.

Justice Thomas said nothing about the leak controversy in his 34-page majority opinion. As a former member of the court, he would have no role in deciding whether to have the investigation.

Changing benches

Supreme Court Justice Clarence Thomas took part in the U.S. Circuit Court of Appeals ruling yesterday -- indeed, wrote it -- on the basis of a federal law allowing justices to sit temporarily on lower courts.

On Tuesday, the Supreme Court invoked that law and assigned Justice Thomas to become a Circuit Court judge for a single day. That was apparently designed to allow him to participate formally in rulings that were left over and awaiting decision from his prior time on the Circuit Court.

The women in broadcasting ruling was one of eight issued by the Circuit Court yesterday. Judge Thomas took part in all eight. He wrote the main opinion in five of them.

If any of those cases goes on to the Supreme Court, he would be expected to disqualify himself when the justices take any action on them.

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