Court Gets Cases That Could Let It Curb Affirmative Action in Federal Contracts

WASHINGTON —  The Supreme Court, entering the affirmative action fray again, said Monday it would decide whether the federal government may give blacks, Latinos or women special preferences in the awarding of licenses or contracts.

Last year, the court’s conservative majority put strict new limits on the use of affirmative action in the awarding of city and state contracts.

Only in the “extreme” instance, when it can be shown that minority members and women had been excluded in the past from getting contracts, may a city or state take race or sex into account in awarding new contracts, the court said.

Because most minority-preference programs were undertaken to combat “societal discrimination,” not because of a clearly documented history of exclusion, hundreds of such city and state plans were suddenly made vulnerable.

Now, the court’s conservatives have an opportunity to put the same strict limits on affirmative action in federal contracts.

In two related cases, the court will consider whether the Federal Communications Commission may foster “diversity” in the broadcast industry by giving preferences to applicants for radio or TV licenses whose ownership groups include blacks, women or Latinos.

In another broadcast-related case, the high court said that it will not consider whether the FCC must require broadcasters to present all sides of controversial issues. Instead, without comment or dissent, the justices allowed the so-called “fairness doctrine” to lapse quietly by refusing to hear an appeal.

In the last two years, congressional Democrats have sought to write the fairness doctrine into law, but they have been blocked by the Republican White House. President Ronald Reagan vetoed one fairness doctrine bill as an infringement on the First Amendment rights of broadcasters, and President Bush said last year he will do the same if a new bill comes to his desk.

Led by Reagan appointees, the FCC dropped the fairness doctrine regulations in 1987 as part of an effort to deregulate broadcasting. The doctrine was not required by law, the FCC lawyers said. Moreover, even if it were written into law, it would violate the free press rights of broadcasters, they said.

This action was a sharp break with prior broadcast regulation and created a fundamentally new view of the First Amendment and broadcasting.

The fairness doctrine regulations dated to 1949, when radio was dominant and only 51 TV stations were operating nationwide. As a condition of holding a license, broadcasters were required to cover public controversies and to give fair treatment to all sides.

In the landmark Red Lion Broadcasting case of 1969, the Supreme Court unanimously upheld the fairness doctrine against a First Amendment challenge by broadcasters. Because broadcast frequencies are in short supply, broadcasters may be regulated in the public interest, the court said.

But, in the 1980s, Reagan Administration lawyers sought to overturn that view. Because of the rapid growth in radio and TV outlets, particularly in cable broadcasting, the fairness doctrine was no longer needed or justified, they said. Now, broadcasters would be given the same First Amendment rights as newspaper publishers, they said.

A number of public interest groups challenged this view and sought a test case. One arose when a Syracuse, N. Y., television station refused to air a reply to advertisements promoting nuclear power. In response to a complaint from the Syracuse Peace Council, the FCC said that the fairness doctrine was not required by federal law, so the station had no obligation to air the conflicting view.

Lawyers for the Media Access Project, a Ralph-Nader affiliated public interest group, appealed to the high court, urging the justices to consider whether the fairness doctrine is required by law. But, without comment, the appeal was rejected. (Syracuse Peace Council vs FCC, 89-312.)

Meanwhile, the affirmative action cases that the high court will hear also pit congressional Democrats against the Republican White House.

Democratic-sponsored legislation has required that many federal contract programs give favorable or special treatment to blacks, Latinos and members of other minorities as a remedy for past discrimination. But the White House, particularly in the Reagan Administration, believed such preferences violated the equal-treatment guarantee in the Constitution.

In 1987, when Reagan appointees at the FCC sought to revoke preferential treatment for minority members, Congress quickly passed legislation forbidding any changes. The Supreme Court now must settle the dispute between the legislative and executive branches of government.

Two distinct programs are at issue. When two companies compete for a broadcast license, the FCC gives extra points to firms whose ownership groups include minority members or women. Earlier this year, an appeals court here upheld that program on a 2-1 vote because race was “only one of several factors” used in making the decision.

However, another panel of the same appeals court, also on a 2-1 vote, struck down the FCC’s so-called “distress sale” program, which allows broadcasters facing license revocations to recoup most of their investment by selling their licenses to a minority firm.

The cases of Metro Broadcasting vs. FCC, 89-453, and Astroline Communications vs. Shurberg, 89-700, will be heard in March. A ruling can be expected by July.

In other actions, the court:

--Agreed Monday to revisit a controversial policy of the Reagan Administration and to decide whether state governors may block their National Guard units from being sent on “training missions” in Central America.

In 1986, the Pentagon dispatched a number of National Guard units to Honduras to help out in road-building projects. Prominent Democratic governors said they would not consent to sending their state Guard units on such missions. In response, Congress quickly passed new legislation, signed by President Reagan, that said governors may not block such Pentagon moves. In their appeal to the Supreme Court, the governors say this legislation is unconstitutional. (Perpich vs. Dept. of Defense, 89-542.)

--Said that Oregon may impose a tax on airplanes that fly over the state, even if they never touch ground there. Oregon taxes airlines that operate in the state but also figures in its taxing formula the amount of time planes are flying over the state. Lawyers for Alaska Airlines and USAir complained that Oregon “has erected a toll booth at 35,000 feet,” but the high court upheld the state tax without comment. (Alaska Airlines vs. Oregon, 89-346.)

--Let stand a federal appeals court ruling that threw out a $9.4-million award to the family of a woman whose husband hired her killer through an ad in Soldier of Fortune magazine. (Eimann vs. Soldier of Fortune, 89-790.)

--Upheld a $100,000 fine against Twentieth Century Fox Film Corp. because one of its Midwest executives engaged in “block booking,” the practice of forcing theater owners to run a less popular film as a condition of getting a big hit.

In 1938, the Hollywood studios signed a consent decree with the Justice Department forbidding this practice. (Twentieth Century Fox vs. U.S., 89-661.)