Thomas Rejects an FCC Affirmative Action Effort : Court: He writes appellate ruling that bars preference for women on broadcast licenses as unconstitutional.

Supreme Court Justice Clarence Thomas, in an opinion written for a 2-1 majority of the U.S. Court of Appeals, declared unconstitutional Wednesday an affirmative action program mandated by Congress that gives women a preference in competing for new broadcasting licenses.

Thomas said he was “unconvinced” that increasing the number of women owners of radio and television stations would lead to more “diversity” of opinion or programming on the airwaves.

“The government has failed to show that its sex-preference policy is substantially related to achieving diversity on the airwaves,” Thomas said.

The decision marks an unusual end to an unusual case. Last September, in the midst of Thomas’ confirmation struggle before the Senate, a legal newspaper reported that he had drafted an opinion striking down the affirmative action program devised by the Federal Communications Commission. If true, it would have marked the most controversial ruling of Thomas’ 20-month tenure on the U.S. Court of Appeals in Washington.

Thomas declined to comment on the story at the time, and two days ago the Supreme Court issued a brief order that allowed him to revert for one day to his former status as a member of the appellate court. That court then issued Thomas’ opinion Wednesday, nearly 13 months after the case had been argued.

On several occasions, Congress in the 1980s ordered the Ronald Reagan Administration and the FCC to preserve the policy of giving blacks, Latinos and women a “plus factor” in competing for new broadcast licenses. In 1986, minorities owned only 2% of the nation’s 11,000 radio and TV stations, Justice William J. Brennan Jr. said in a June, 1990, Supreme Court ruling upholding the FCC’s affirmative action policy.

The Court of Appeals ruling Wednesday appears to contradict that Supreme Court decision.

Brennan, writing his last opinion for the high court, said then that Congress has the power to mandate “benign” affirmative action policies. But the 5-4 ruling, in Metro Broadcasting vs. the FCC, was sharply criticized by the court’s conservatives. They said such a preference policy violated the rights of white males to the “equal protection of the laws.”

When the Supreme Court ruling was announced, Jerome T. Lamprecht, a 27-year old Baltimore man, was appealing his failure to win an FCC license to operate an FM radio station in Middleton, Md. The license instead had gone to Barbara D. Marmet, a 57-year old Frederick County woman.

FCC officials said Marmet was given an edge because she was a local resident and a woman. Race or sex “can be a plus factor, but it is not necessarily decisive,” an FCC attorney explained.

But Lamprecht appealed, and his case was heard on Jan. 25, 1991, before a three-judge panel. Its members included Judge Abner Mikva, a liberal appointed by President Jimmy Carter; Judge James Buckley, a conservative appointed by Reagan, and Thomas, an appointee of President Bush.

“If a woman owns a station, or if women owned all the stations . . . does it make a difference in programming?” Thomas asked during the argument. Although some studies had shown that black ownership of a station makes some difference in programming, Thomas said he saw no such evidence concerning women.

He and Buckley voted to strike down the FCC’s preference for women, and Mikva dissented in Lamprecht vs. FCC.

Mikva denounced his fellow judges for having “thwarted not only the intentions of Congress and the Executive, but also the intentions of the Supreme Court. In striking down the preference policy, my colleagues have done precisely what the Supreme Court forbids them to do: they have rejected Congress’ conclusion that more female owners of broadcast stations will lead to more diverse programming.”

At the high court, the Metro Broadcasting decision is seen as an endangered precedent because two of its proponents, Justices Thurgood Marshall and Brennan, have retired. Ironically, if the Supreme Court agrees to review the Lamprecht ruling, Thomas will not be able to sit on the case, because it involves his own judgment at a lower level.

Michael Carvin, a former Reagan Administration lawyer who represented Lamprecht, applauded Wednesday’s ruling. “It is the first time that congressional mandated affirmative action has been struck down as unconstitutional,” he said.

He noted too that the Bush Administration must authorize any appeal to the high court. “They have to go through the Justice Department, and I hope they would decide not to pursue this further,” Carvin said.

Liberal groups, however, sharply criticized Thomas’s decision.

“This is precisely the kind of judicial activism that I thought the conservatives wanted to avoid,” said Andrew Jay Schwartzman, executive director of the Media Access Project.

It is “yet another grim portent of Justice Thomas’ likely impact on anti-discrimination efforts in America,” said Elliot Mincberg, an attorney for People For the American Way.

In its story last September, the Legal Times also quoted sources as saying the opinion was being held up until Thomas won approval from the Senate.

Six members of the appeals court--all Republican appointees--issued a separate statement Wednesday calling for a “formal investigation” of the leak concerning the pending case. Buckley said the Legal Times story was “too detailed”--and too accurate--to have been an inadvertent leak.

In Lamprecht’s case, the FCC must now take another look at the competition with Marmet to decide whether sex was the deciding factor in her winning the license.