Lead Opinion
Opinion for the Court filed by Circuit Justice THOMAS.
Concurring opinion filed by Circuit Judge BUCKLEY.
Dissenting opinion filed by Chief Judge MIKVA.
When Barbara Driscoll Marmet applied for permission to build a radio station, the Federal Communications Commission, pursuant to policy, awarded her extra credit for being a woman. Jerome Thomas Lam-precht contends that the Commission’s policy deprived him of his constitutional right to the equal protection of the laws. We agree.
I
A
The Communications Act of 1934, Pub.L. No. 73-416, 48 Stat. 1064 (codified as amended in scattered sections of 47 U.S.C.), empowers the Federal Communications Commission to grant construction permits and operation licenses for radio and television stations when “public convenience, interest, or necessity will be served thereby.” 47 U.S.C. §§ 307(a), 309(a); see also id. § 303. In 1965, the Commission first set out the general policy that it follows when it entertains mutually exclusive applications. Policy Statement on Comparative Broadcast Hearings,
In 1972, the Commission’s Review Board held that it was barred by statute from giving applicants qualitative-enhancement credit for being members of particular racial or ethnic groups. See Mid-Florida Television Corp.,
Women fared differently. In June 1978, the Review Board decided “[u]pon further reflection,” but without explanation, to give preferences to women in its comparative-licensing program. Gainesville Media, Inc.,
We hold that merit for female ownership and participation is warranted upon essentially the same basis as the merit given for black ownership and participation, but that it is a merit of lesser significance. The basic policy considerations are the same. Women are a general population group which has suffered from a discriminatory attitude in various fields of activity, and one which, partly as a consequence, has certain separate needs and interests with respect to which the inclusion of women in broadcast ownership and operation can be of value. On the other hand, it is equally obvious that the need for diversity and sensitivity reflected in the structure of a broadcast station is not so pressing with respect to women as it is with respect to blacks— women have not been excluded from the mainstream of society as have black people.
Mid-Florida Television Corp.,
Whatever the merit of these assumptions as applied to cohesive ethnic cultures, it simply is not reasonable to expect that granting preferences to women will increase programming diversity. Women transcend ethnic, religious, and other cultural barriers. In their social and political opinions and beliefs, for example, women in fact appear to be just as divided among themselves as are men. Therefore it is not reasonable to expect that a woman would manifest a distinctly “female” viewpoint.
Id., at 1199. We concluded that the policy violated the Communications Act. “Presumably, the Board thought that [its policy] was a Good Idea and would lead to a Better World. [But] a mandate to serve the public interest is not a license to conduct experiments in social engineering conceived seemingly by whim and rationalized by conclusory dicta.” Id.
A majority of the active judges in the circuit then voted to rehear the case en banc and vacated the panel’s opinion and judgment. Steele v. FCC, No. 84-1176 (D.C.Cir. Oct. 31, 1985) (en banc). After the court instructed the parties to file supplemental briefs, the Commission responded by admitting that it had assumed, with no factual support, a causal link between its preference schemes and increased diversity of viewpoints. See Brief for the Federal Communications Commission at 17-30, Steele v. FCC (D.C.Cir.) (No. 84-1176) (en banc). The Commission acknowledged that it thought its race- and sex-preference policies contrary to both the Communications Act and the Constitution, and it asked us to remand the Steele case for reconsideration. We granted the motion, and the Commission proceeded to call for comments on the wisdom and effectiveness of its policies. See Reexamination of the Commission’s Comparative Licensing, Distress Sales and Tax Certificate Policies Premised on Racial, Ethnic or Gender Classifications, 1 F.C.C. Red. 1315 (1986). (notice of inquiry), modified, 2 F.C.C. Rcd. 2377 (1987).
Soon after the Commission began to try to make a record, however, Congress ordered it to freeze. In a rider to the Continuing Appropriations Act for Fiscal Year 1988, Congress instructed that “none of the funds appropriated by this Act shall be used to repeal, to retroactively apply changes in, or to continue a reexamination of, the policies of the ... Commission with respect to comparative licensing, distress sales and tax certificates ... to expand minority and women ownership of broadcasting licenses ... other than to close [the pending reexamination] with a réinstatement of prior policy.” Pub.L. No. 100-202, 101 Stat. 1329,1329-1331 (1987). Congress has passed identical riders in each year since. See Pub.L. No. 101-515, 104 Stat. 2101, 2136-2137 (1990); Pub.L. No. 101-162, 103 Stat. 988, 1020-1021 (1989); Pub.L. No. 100-459, 102 Stat. 2186, 2216-2217 (1988). Obeying Congress’s order, the Commission continues to apply its preference policies. See, e.g., Cannon’s Point Broadcasting Co., 3 F.C.C. Rcd. 864 (1988) (reaffirming the original decision, including the sex preference, after the remand in
Disappointed applicants meanwhile continued to challenge the Commission’s policies on both constitutional and statutory grounds. In Shurberg Broadcasting, Inc. v. FCC,
B
This case began in 1982, when Jerome Thomas Lamprecht, Barbara Driscoll Mar-met, Dragon Communications, Inc., and Port Royal Broadcasting, Inc. filed mutually exclusive applications to build a radio station that would broadcast on channel 276A (103.1 MHz), out of Middletown, Maryland. Discovery ensued and ended early in 1984. The record reveals the following facts.
Jerome Thomas Lamprecht, of Baltimore, Maryland, was twenty-seven when he applied for the construction permit. Lamprecht attended the University of Maryland full-time from 1974-1977 and part-time from 1977-1984. He graduated in
Barbara Driscoll Marmet, who lived part of the time in Frederick County, Maryland, part of the time in Bethesda, Maryland, and part of the time on Amelia Island, Florida, was fifty-eight when she applied for the construction permit. In Frederick County, Marmet attended the Frederick County Symphony and workshops held by Community Commons, an organization of people who,.in Marmet’s words, are “worried about the population increase that was coming both into the county and into the city.” She received a plaque from the Frederick County Landmarks Foundation for restoring her house there. In Washington, Marmet served on a parents’ committee at the Saint Albans School for boys, as a sustaining member of the Washington Junior League, as a member of the Chevy Chase Country Club, and as fiscal officer of her garden club. Currently part-owner of Ogden & Marmet, which manages several of the real-estate properties that she controls, Marmet worked part-time from 1970-1975 as a bookkeeper for Thomas Jefferson, Inc., another Washington real-estate firm of which she was once part-owner. From 1967-1970 Marmet worked part-time as a bookkeeper for her husband, Robert A. Marmet, a communications lawyer now in partnership in Washington with their son-in-law, Harold K. McCombs, Jr., who has represented Barbara Marmet in this proceeding. Although Marmet had never worked in radio or television, she had twice before owned pieces of broadcast properties. In 1969, she bought an interest in Viking Television, one of her husband’s media clients, which was granted a permit (after Marmet sold her interest) to build a UHF television station in Minneapolis. In the mid-1970s, Marmet’s husband gave her as a gift his ownership interest in Montgomery Communications, Inc., a company that had applied for a permit to build an AM station in Gaithersburg, Maryland. Marmet’s relatives have also been involved in broadcasting. Her husband applied for a permit to build an FM station in Stamford, Connecticut, and her son-in-law applied at the same time for a permit to build an AM station there. Marmet’s son-in-law more recently applied to build an AM station in Claremont, Virginia.
Dragon Communications, Inc. was owned by Thomas Buffington of Washington, D.C.; Gary Hess of Tarpon Springs, Florida; George Christopher, Jr. of Bethesda, Maryland; and Christine DeWitt of Silver Spring, Maryland, as joint tenant with her son, H.M. Lee DeWitt. Lee DeWitt, who came up with the idea for Dragon, recruited the others, including his mother and Buffington, and remains the company’s moving force. He paid for his mother’s ownership interest in the firm. Christine DeWitt had worked as a secretary for Robert Thompson, Dragon’s lawyer, who was then at the law firm of Steptoe & Johnson. Hess lived and worked in Florida and owned quarter interests in three radio stations there. Buffington owns Thomas Buffington & Associates, an advertising and media consulting firm in Washington. He paid nothing for his interest in Dragon.
Port Royal Broadcasting, Inc. was owned by Richard Raymond Leverrier of Bethesda, Maryland; Mary Ellen Ferrel of Chevy Chase, Maryland; and Nancy Spruill South-mayd of Rockville, Maryland. Leverrier had previously worked at a television station, and his wife had filed an application competing with Dragon for a radio station in Ocean View, Delaware. Leverrier’s wife (represented by Southmayd’s husband) later was granted a construction permit for an FM station in Cfisfield, Maryland. Lev-errier’s wife also applied to build an FM
When discovery ended, the case came before an administrative law judge for resolution. Jerome Thomas Lamprecht,
Turning to the second of the Commission’s goals, service to the public, the AU reviewed the applicants’ proposals for integrating ownership and management. He gave Lamprecht and Marmet credit for 100% quantitative integration. He also gave Port Royal full credit, though he viewed skeptically Southmayd’s promise to commute from Rockville to Middletown and work forty or more hours a week for a mere 4% ownership interest in the station. Although Dragon claimed that it was entitled to 88% quantitative-integration credit, the AU awarded it only 76%, since Dragon had asked for 76% credit in its earlier submission, and since in any event there was no proof in the record that Christopher or either of the DeWitts would actually work if awarded the permit. Because Dragon was at so grave a comparative disadvantage, the AU excluded it from further consideration.
Turning to the qualitative factors, the AU enhanced Marmet’s score based on her having patronized the arts in Frederick County, her owning a home in Frederick County, and her sex. The AU enhanced Lamprecht’s score because of Lamprecht’s education in broadcasting, and his prior broadcasting experience. The AU denied Port Royal any enhancement for local residence or civic participation, since none of Port Royal’s principals lived or planned to live in or near Middletown, but he gave Port Royal a 52% enhancement because Ferrel and Southmayd are women. Finally, the AU gave Marmet and Port Royal credit for proposing auxiliary power in case of power failure. He concluded by awarding the permit to Marmet. Lamprecht finished second and Port Royal third.
Lamprecht, Dragon, and Port Royal appealed, focusing mainly on the AU’s decision to give Marmet enhancement credit for local residence and civic participation. The Review Board affirmed. Jerome Thomas Lamprecht,
Port Royal decided to bow out. Lam-precht and Dragon petitioned for review of the Board’s order, and the Comission denied the requests. Jerome Thomas Lamprecht, 3 F.C.C. Rcd. 2527 (1988). Lam-precht then appealed to this court, and Dragon and Marmet intervened.
II
In his appeal, Lamprecht argues that the Commission’s sex-preference policy violates both the Communications Act and the equal-protection component of the Fifth Amendment. He also argues that the congressional rider that restrains the Commission from rethinking the wisdom of its policy violates the constitutional doctrine of separation of powers. The Commission vigorously defends its policy, and Marmet has joined in the Commission’s defense. Dragon, which filed its brief in this court the day before oral argument — twenty-nine days after it was due — contends that the AU, the Review Board, and the Commission mistakenly held Dragon to the original statement concerning its integration proposal, rather than accepting the statement that Dragon had filed after the deadline for submissions had passed. Dragon also argues that Metro Broadcasting, Inc. v. FCC,
Before we address the merits of Lamprecht’s arguments, we explain briefly why we do not consider Dragon’s. Dragon, like Lamprecht, was denied the permit that went to Marmet. Lamprecht exercised his statutory right to appeal. See 47 U.S.C. § 402(b)(1). Dragon, in contrast, decided for reasons not revealed to intervene in Lamprecht’s case rather than appeal on its own. See id. § 402(e). Notwithstanding this unexplained (and unapologetic) lapse, in its brief in this court Dragon has raised arguments distinct from Lamprecht’s statutory and constitutional challenges to the Commission’s sex-preference policy. Except in extraordinary cases, however, see Synovus Fin. Corp. v. Board of Governors,
A
When a federal court is asked to answer a constitutional question, basic tenets of judicial restraint and separation of powers call upon it first to consider alternative grounds for resolution. See, e.g., Ash
The Communications Act authorizes the Commission to grant construction permits for radio stations if “public convenience, interest, or necessity will be served thereby.” 47 U.S.C. §§ 307(a), 309(a). Relying on TV 9 and West Michigan Broadcasting, the Commission argues that its policy constitutes “a vital part of the FCC’s public interest mandate,” and is therefore consistent with the statute. Relying on Steele, Lamprecht argues that the policy violates the Communications Act if it violates the Constitution, since a Commission policy that is unconstitutional would inherently conflict with the public interest.
We have no occasion to decide whether the Communications Act bars the Commission from preferring women in comparative licensing. In the years since Steele, Congress by law has required a preference for women. See Pub.L. No. 101-515, 104 Stat. 2101, 2136-2137 (1990); Pub.L. No. 101-162, 103 Stat. 988, 1020-1021 (1989); Pub.L. No. 100-459, 102 Stat. 2186, 2216-2217 (1988); Pub.L. No. 100-202,101 Stat. 1329,1329-1331 (1987). That the laws at issue are appropriations riders does not change their status as the law. See, e.g., Action for Children’s Television v. FCC,
B
In Metro Broadcasting, Inc. v. FCC,
(1)
Metro Broadcasting concerned two programs through which the Commission chooses the owner of a broadcast station based in part on an applicant’s race, ethnicity, or surname. In sustaining the programs against equal-protection attack, the Supreme Court applied an intermediate standard of scrutiny, holding that “benign race-conscious measures mandated by Congress ... are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.”
The Court then examined the Commission’s programs to determine whether they were “substantially related” to achieving diversity of viewpoints. In its inquiry, the Court relied heavily on both the expertise of the Commission, see, e.g., id., at 3011, and the factfinding of Congress. For proof of congressional factfinding, the Court focused closely on the debate over the Commission’s statutorily authorized lottery scheme, which, in order “[t]o further diversify the ownership of the media of mass communications,” grants “an additional significant preference” to “Blacks, Hispanics, American Indians, Alaska Natives, Asians and Pacific Islanders,” 47 U.S.C. § 309(i)(3)(A), (i)(3)(C)(ii) (though not to women, see Amendment of the Commission’s Rules,
(2)
Metro Broadcasting, together with the Supreme Court’s sex-discrimination cases, has ended debate on several matters. The first is our standard of scrutiny. The Metro Broadcasting Court held that “benign race-conscious measures mandated by Congress” do not violate the Fifth Amendment if “they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.”
Metro Broadcasting confirms that although we are “to give ‘great weight to the decisions of Congress and to the experience of the Commission,’ ”
In applying that test, the Supreme Court has repeatedly denounced “unsupported generalizations about the relative interests and perspectives of men and women,” Roberts v. United States Jaycees,
Similarly, in Weinberger v. Wiesenfeld, the Court reviewed the constitutionality of an act of Congress that gave to widows Social Security benefits not available to widowers. Congress had proceeded on the presumption that women are less likely than men to be the family breadwinners, and the Court acknowledged that Congress’s presumption was “not entirely without empirical support.” Nevertheless, as Justice Brennan explained for the Court, “such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families’ support.”
Metro Broadcasting thus reinforces the lessons of cases such as Craig and Wiesenfeld: Any “predictive judgments” concerning group behavior and the differences in behavior among different groups must at the very least be sustained by meaningful evidence.
(3)
Implicit in the government’s judgment are at least three assumptions: first, that there exists such a thing as “women’s programming” (or “Alaskan programming,” say, or “suburban teenage easy listener programming”); second, that these distinct types of programming are underrepresented on the airwaves; and third, that women who own radio or television stations are likelier than white men to broadcast these distinct types of programming. Lamprecht challenges each of these assumptions.
We decline to address Lamprecht’s first argument. The Supreme Court assumed in Metro Broadcasting that there are such things as “minority programming” of different kinds, and we assume the same with respect to “women’s programming” and other distinct programming types. We also decline to address Lamprecht’s second argument. Although the Commission might risk raising other constitutional questions if it tried to set out some “correct” mix of information or viewpoints, we follow the Supreme Court’s lead and assume that all the types of programming that women might put on the air are underrepresented. We assess, then, the last of the assumptions implicit in the Commission’s sex-conscious policy. But having considered the evidence offered to demonstrate a link between ownership by women and any type of underrepresented programming, we are left unconvinced.
The Commission’s brief cites nothing that might support its predictive judgment that women owners will broadcast women’s or minority or any other underrepresented type of programming at any different rate than will men. Nor is there any proof in the administrative record, a point that the Commission’s lawyer confirmed repeatedly at oral argument.
Whatever the study’s methodological flaws,
* Stations in which women own anywhere from 1% to 50% of the equity are just as likely to broadcast women’s programming as are stations owned principally or entirely by women. In contrast, stations in which Indians or Alaskans own from 1% to 50% are only half as likely to broadcast Indian or Alaskan programming as are stations owned principally by Indians or Alaskans. See app. table 2, at 36.
In five large cities, New York, Los Angeles, Chicago, Dallas, and Atlanta, stations with any owners of Black, American Indian, Alaskan, Hispanic, Asian, or Pacific Islander heritage are likelier to broadcast women’s programming than are stations with any owners who are women: Only one-third of stations with any women owners broadcast women’s programming, while almost three-fifths of stations with Hispanic owners, half of stations with Asian, Pacific Islander, Indian, or Alaskan owners, and more than two-fifths of stations with Black owners, broadcast women’s programming. In all cities combined, barely more than one-third of stations with women owners broadcast women’s programming, while half of stations with Indian or Alaskan owners, and more than 40% of stations with Hispanic or Black owners, do so. For stations in which the relevant group holds between one and fifty percent ownership interests, women are less likely to broadcast women’s programming than are Indians, Alaskans, Hispanics, Blacks, Asians, and Pacific Islanders. See app. table 3, at 37; app. table 4, at 37; app. table 5, at 38;
* Of the ten most-used programming formats, nine are as popular in almost precisely the same order for stations owned by “non-minorities" (again, that could include both women and men) as they are for stations owned by women. See app. table 10, at 40.
* Nor are stations owned by women much likelier to engage in minority programming than are stations owned by men, as Minority Programming reveals. Stations with women owners are barely, if at all, likelier to broadcast assorted types of minority programming than are stations owned by anyone else, and are in fact much less likely to broadcast minority programming than members of most of the relevant minority groups. Of stations owned in any part by women, just 5% broadcast Asian or Pacific Islander programming, for example, while of stations owned by “non-Asian/Pacific Islanders” (which may or may not include women) only 3% broadcast Asian or Pacific Islander programming. Stations with Hispanic owners, in contrast, are three times as likely to broadcast Asian or
To summarize: The data in Minority Programming fail to establish any statistically meaningful link between ownership by women and programming of any particular kind. The study, in short, highlights the hazards associated with government endeavors like this one. As Justice Brennan has written for the Court, “[P]roving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.” Craig v. Boren,
When the government treats people differently because of their sex, equal-protection principles at the very least require that there be a meaningful factual predicate supporting a link between the government’s means and its ends. In this case, the government has failed to show that its sex-preference policy is substantially related to achieving diversity on the airwaves. We therefore hold that the policy violates the Constitution.
Ill
We turn finally to the question of remedy. Lamprecht urges us to order the Commission to award him the permit for the Middletown station. It is well settled, however, that once we correct an agency’s error of law, we must remand for the agency to exercise its discretion, assuming, of course, that the agency retains any discretion to exercise. See generally FCC v. Pottsville Broadcasting Co.,
We have held on the record before us that the Commission’s sex-preference policy violates the Fifth Amendment. On remand, therefore, the agency must determine who, in the absence of this unconstitutional policy, should receive the permit to build the station in Middletown.
IV
As our dissenting colleague has written, “[J]ust as the FCC may not ignore the dictates of the legislative branch, neither may the judiciary ignore its independent duty to check the constitutional excesses of Congress.” Action for Children’s Television,
It is so ordered.
Appendix
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(Source: Minority Programming table 3, at 38.)
Notes
. Our dissenting colleague suggests throughout that the Supreme Court already has decided that the Commission’s sex-based policy passes constitutional muster. "[A]s a matter of law," he writes, “the constitutionality of this affirmative action program is clear — at least until the Supreme Court overturns Metro." Post, at 415. “In striking down the preference policy,” he writes, “my colleagues have done precisely what the Supreme Court forbids them to do.” Post, at 404. And "it strikes me as impossible,” our colleague writes, “to reconcile the Supreme Court’s decision in Metro Broadcasting with [this court’s] decision today.” Post, at 404. With all due respect, we think it impossible to reconcile our dissenting colleague's suggestion with the unambiguous reservation of Metro Broadcasting itself: "[T]he Commission’s gender preference policy is not before us today.”
The Commission's gender-preference policy is, however, before us today, and though its subject may challenge certain articles of faith, this case deserves the fair, careful, and dispassionate treatment that we try to accord all of the cases we decide. Our dissenting colleague nonetheless accuses us of "telling the first branch how to make national policy,” post, at 415, and of “pay[ing] lip service to Justice Brennan’s majority opinion” in Metro Broadcasting while "applying] in practice ... Justice O’Connor’s dissent,” post, at 404 thereby showing disrespect not only to a coordinate branch of government, see post, at 415 (”[J]udges who are devoted to the original intention of the framers of the Constitution ... ignore the original intentions of selected representatives in Congress.”); post, at 406 (“There is not even a pretense of deference to Congress anywhere in their opinion.”), but also to our own branch of government, see post, at 415 ("Today my colleagues thwart not only the intentions of Congress and the executive, but also the intentions of the Supreme Court.”); post, at 404 (“[A]s appellate judges, our duty is to follow Supreme Court precedents, not to anticipate them.”), and, for good measure, to the lawyers for one of the parties, in their efforts before and at oral argument, see post, at 412 ("[M]y colleagues have belittled their efforts at every turn_ [T]he questioning judge repeatedly cut off the lawyer’s attempt to explain the government’s reasoning.”). We welcome vigorous debate, of course, but with all due respect, we think our colleague’s overheated approach discouraging: not so much an invitation to invigorating debate as a bid to provoke a shouting match. One hopeful note, however: if taking seriously the responsibility of judicial review is a vice, it is a vice that fortunately is shared, at least at times, across the jurisprudential spectrum. See, e.g., Action for Children’s Television v. FCC,
. Our dissenting colleague reads Metro Broadcasting for the rule that "although courts should not defer to Congress on constitutional questions, we should defer ... to Congress on empirical questions.” Post, at 406. Of course, the point about which we disagree with our colleague and with Congress — whether sex-based preferences will advance "substantially" the goal of increased programming diversity for intermediate scrutiny purposes — is a mixed question of law and fact, neither purely constitutional nor purely empirical. We nonetheless agree with our colleague insofar as he suggests that we must review Congress’s judgment deferentially, without reweighing the evidence de novo. At times, however, our colleague hints at the far different hypothesis that deference means not just limited factual review, but none at all. See, e.g., post, at 406. We know of no support — and our colleague cites none — for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by "finding” that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison,
. Our dissenting colleague asserts that a sex-based classification might survive intermediate scrutiny even if it rests upon unsupported generalizations about men or women as a group. See post, at 406-408. He notes correctly that "the purpose of intermediate scrutiny” is to ensure that sex-based classifications are based on "reasoned analysis” rather than "archaic stereotypes,” post, at 408, possibilities that he appears rightly to regard as mutually exclusive. But an "analysis” that rests upon unsupported factual premises cannot possibly be "reasoned,” and an untrue and widely-held generalization about men or women is by definition a "stereotype.” See, e.g., U.S. Civil Rights Comm’n, Characters in Textbooks 5 (1980) (explaining that a member of a group is “stereotyped” when she is "portrayed in a stylized manner that conforms to widely accepted, but often untrue, ideas of what members of the group are like”). More to the point, unless a generalization about men or women asserted in defense of a sex-based classification is grounded in some degree of fact, the classification cannot possibly advance any legitimate state interest, much less an important one. Our dissenting colleague, however, insists that a relevant generalization is presumed true (even if unsupported) unless proved otherwise. See post, at 408, 414. On this point, our colleague is mistaken — for it is a "firmly established principle[ ]” that "the burden of showing an 'exceedingly persuasive justification’" falls on "the party seeking to uphold a statute that
In our view, Craig v. Boren establishes beyond doubt that a sex-based classification cannot survive unless the “sex-centered generalization” asserted in the law’s defense "actually comport[s] with fact.”
Our dissenting colleague cites' no case in which a sex-based classification was upheld despite the absence of a demonstrable and relevant difference between men and women. Neither Michael M. v. Superior Court,
. Our dissenting colleague tells us that we identify "women's or minority programming” as "programming specifically targeted at women or minorities,” post, at 409. We do not. Neither "women’s viewpoint” nor "women’s programming” necessarily means viewpoints or programming targeted to women or of special interest to women or concerning subjects that some may suppose women are likely to put on the airwaves, and the same is true for "minority viewpoint" or "minority programming.” Rather than presume to give content to these terms, cf. post, at 411 (calling "innocuous to the point of being obvious” the assumption that "some female programmers will choose to emphasize different subjects — breast cancer, say, or glass ceilings in the workplace”); infra note 8, we remain agnostic. We do assume, however, as did Congress, that these terms necessarily have some meaning — but whatever "women’s programming" and "minority programming” are, there is no evidence showing that women owner/managers are substantially likelier to program them than are men.
. This exchange was typical:
Judge Thomas: ... I am asking you, in the aggregate, what difference does it make, other than [that] you have a male owner or a female owner?
Mr. Pash: I think that what difference it makes, ... is that there is a reasonable expectation—
Judge Thomas: Based on what?
Mr. Pash: —a reasonable expectation based on the fact that women are a significant group, the fact that they are significant in size, they are a significant group in the society.
Judge Thomas: I understand that. I understand that women are a significant group, and I understand that they are significant in size. But what difference does it make, if a woman owns a station or if women owned all the stations, other than that they owned all the stations? Does it make a difference in programming, does it make a difference in content of the points of view, does it make a difference in the editorials? What does it make a difference?
Mr. Pash: It makes a difference ... it makes a difference in viewpoint and perspective presented on the station, and the expectation is that—
Judge Thomas: Okay. Now, what is that based on?
*396 Mr. Pash: That is based on the expectation that, because women and other groups — but in this case we are talking about women — have been historically subject to societal prejudices and particular societal attitudes that they—
Judge Thomas: So, does that mean they will have a different point of view as a result of prejudice, or they don’t own stations as a result of prejudice?
Mr. Pash: No, that means that there is an expectation that, in the aggregate, they will have a different perspective on questions, not on every question, not in every case, but—
Judge Thomas: Based on what, though? I mean how can you conclude that [women] will have a different perspective?
Mr. Pash: Well, I guess this is going to sound circular, but you can conclude they will have a different perspective, because, historically, they have been subject to prejudice and different societal attitudes, and this has led to their playing a different role in society, they are being treated differently, subject to stereotypes and so forth....
Judge Thomas: But how is this expectation any different from a stereotype, if it doesn’t have any basis in fact?
Mr. Pash: Well, I am not saying it does. I am saying it doesn’t have any basis in fact. I am saying that this record doesn’t provide factual evidence for it....
Judge Thomas: Okay. Fine. But is there any evidence that there is a difference between the stations owned by women and owned by men?
Mr. Pash: No, there is no evidence in the record.
Chief Judge Mikva: You said that three times now....
Tr. of Oral Arg. at 33-36; see also id., at 32, 38, 41-42, 44.
.Our dissenting colleague terms us “less than sporting" for failing to “call[ ] for amicus briefs on the statistical question.” Post, at 414. Any interested party could have filed an amicus brief had it chosen to, however, and we doubt that our colleague seriously means what he says — that a court generally should ask of its own accord for amicus briefing whenever (as is often the case) additional paper might prove helpful. To the extent that our colleague still disagrees with our decision not to accept the amicus brief of American Women in Radio and Television, Inc., we note for the record only that the organization submitted its brief out of time, but that neither the organization nor our colleague offered an explanation for why we should forgive the group for violating the rules of the court.
. Although he maintains that “if my colleagues want more statistics, there are plenty to support Congress’s position,” post at 414, the anecdotes that our colleague relates do not sustain his argument. Our colleague relies upon an amicus brief filed in Metro Broadcasting, by American Women in Radio and Television, that he says shows that of the recipients of the 1986 “National Commendation Awards” for presenting women in a "positive and realistic light," women made up 58.5% of the producers, 84.2% of the writers, and 92.9% of the reporter/hosts. This is interesting, but irrelevant, for reasons that also apply to our colleague’s admittedly “quick skim of the best-seller lists,” post, at 415. Congress has given a preference to women who own and manage radio and television stations, not women who write or produce or report for them. Our dissenting colleague’s statistics thus matter only insofar as they rest on certain stereotypes about how women behave. "Managers” are not necessarily “programmers"; as the Commission has made clear since it first set out its comparative-licensing scheme, an owner is entitled to integration credit if she serves as "program director” or as "station manager,” “business manager,” or "sales manager," among other jobs. Policy Statement on Comparative Broadcast Hearings,
. Unfortunately, Minority Programming does not define terms such as “women’s programming" (or “minority programming,” for that matter), but rather, relied on the reporting stations to characterize themselves. The study itself warns readers of this and other problems. See Minority Programming at 1-8; see also Spitzer, Justifying Minority Preferences in Broadcasting, 64 S.Cal.L.Rev. 293, 342-45, 345-46 (1991); Winter Park,
. Our dissenting colleague declares that "judges have no basis, except their own policy preferences,” for concluding that the degree of correlation shown here is not "enough," since the Fifth Amendment does not identify the “mystical" point at which a correlation satisfies the dictates of equal protection. Post, at 413. Our colleague is not the first to criticize the intermediate-scrutiny test for its indeterminacy. See Craig v. Boren,
Concurrence Opinion
concurring:
Our dissenting colleague’s charges notwithstanding, the majority opinion is both faithful to the Supreme Court’s holdings in Metro Broadcasting, Inc. v. FCC and respectful of Congress’s factfinding and poli-cymaking roles.
The question we are asked to decide is whether the gender preference mandated by Congress is substantially related to the achievement of greater variety in broadcasting. See Metro,
By contrast, the differences in programming between stations owned primarily by women and those owned by men are modest: an increase of from 28% to 35% in the case of women’s programming and, in the case of non-black owners, an increase of from 20% to 26% in black programming. These seven and six percentage point increases pale in comparison with the fifty-nine and sixty-four percentage point differentials to be found in the case of black- and Hispanic-owned stations.
The dissent asserts that this disparity is understandable because in the case of gender, the effect of ownership on broadcasting is more likely to be manifested in a diversity of viewpoints than in differences in programming. That may well be the case, but it has not been documented in the record before us. Further research may vindicate this intuition; but until the evidence is marshaled, it is hard to see how the preference accorded women in the FCC’s licensing process can pass constitutional muster.
At base, the quarrel between the majority and the dissent revolves around how substantial the relationship must be between ownership and program diversity in order to justify a gender-based distinction that would otherwise offend the Constitution’s equal protection principles. Our dissenting colleague disagrees with our conclusion that the indicated relationship between the gender of station owners and diversity in programming is not substantial enough to pass constitutional scrutiny. Fair enough. But lines must be drawn; and, with great respect, I do not believe that a disagreement over where it should be drawn warrants the charge that the majority is engaged in judicial activism.
This litigation deals with a sensitive subject, and it is not surprising that it should have aroused some passions. Unfortunately, this case has also proven the occasion for a most serious breach of trust. I refer to an article that appeared on September 30, 1991, in The Legal Times, which purported to report in some detail on the contents of preliminary drafts of the majority and dissenting opinions. The issuance today of those opinions in their final form will demonstrate the general accuracy of the information divulged to The Legal Times.
The seriousness of this violation cannot be overstated. Each member of this panel has been aggrieved by it, as have the parties who brought this case to us for adjudication. Moreover, because one or more of their number has been guilty of a willful breach of trust, this incident must cast a shadow over the dozen or more able young law clerks who had become privy to the preliminary drafts. I say “willful” because the information in the published reports was too detailed to have been the product of inadvertent disclosures.
We cannot, of course, repair the damage that may already have been done to one or more of the parties as a result of this premature disclosure. But we can and must take steps not only to ensure against a repetition in the future, but to demonstrate the seriousness with which we take this violation. I believe the appropriate measure is for this court to initiate a formal investigation in an effort to identify the source or sources of this disclosure, and I urge my colleagues to do so.
The hemorrhaging of confidential information has become endemic in the legislative and executive branches of our government, with untold cost to their ability to function. It is essential that we prevent
Dissenting Opinion
dissenting:
When the Supreme Court decided Metro Broadcasting in 1990, the opinion was criticized vigorously for its indulgent approval of an affirmative action program adopted by the FCC and approved by Congress. “The Court abandons [its] traditional safeguard against discrimination for a lower standard of review, and in practice applies a standard like that applicable to routine legislation,” Justice O’Connor wrote in dissent. Metro Broadcasting, Inc. v. FCC,
The Supreme Court, of course, may now decide to overrule Metro Broadcasting and to require strict scrutiny of Congress’s affirmative action policies, as the four dissenters urged. But as appellate judges, our duty is to follow Supreme Court precedents, not to anticipate them. And it strikes me as impossible to reconcile the Supreme Court’s decision in Metro Broadcasting with my colleagues’ decision today.
The Supreme Court held that Congress may require the FCC to make certain broadcasting licenses available only to minorities; yet this Court reaches the surprising conclusion that Congress may not require the FCC to adopt a far milder and far less discriminatory preference program for women. Although they pay lip service to Justice Brennan’s majority opinion, my colleagues apply in practice the more exacting scrutiny of Justice O’Connor’s dissent.
My colleagues point to only one difference between this case and Metro', the statistics in one report showed a greater correlation between minority ownership and programming diversity than between female ownership and programming diversity. This poses an interesting question for social scientists, but not for judges. The study that my colleagues invoke to strike down the preference explicitly concluded that there is a link between female ownership and programming diversity. The study showed that stations owned by women are 20% more likely than stations owned by men to broadcast “women’s programming,” and about 30% more likely than stations owned by non-minorities to broadcast “minority programming.” My colleagues do not share with us the text or history of the Equal Protection clause that tells them that a 20% or 30% increase is unconstitutional, while a larger increase is not. And even though the Supreme Court in Metro cited empirical studies offered by amicus groups rather than by the FCC or Congress, my colleagues ignore similar studies that provide more of the statistics they require.
In striking down the preference policy, my colleagues have done precisely what the Supreme Court forbids them to do: they have rejected Congress’s conclusion that more female owners of broadcast stations will lead to more diverse programming, even though Metro says repeatedly that courts should defer to Congress’s conclusions about the link between ownership and programming, as long as the conclusions reflect reasoned analysis rather than archaic stereotypes. Metro’s holding is consistent with a long line of gender cases; and this, after all, is a case about gender, not race. Applying the Supreme Court’s test, I think Congress clearly used reasoned analysis when it concluded that increasing the number of women who own and manage television and radio stations will increase programming diversity. And it would be hard to conclude that the gender preference reflects outdated stereotypes, since the FCC and Congress designed it to reduce outdated stereotypes. My colleagues are free to question the wisdom of the gender preference, but the Supreme Court forbids them (for now) from striking the policy down.
I cannot join them, and respectfully dissent.
A. The Metro Case
Mr. Lamprecht was understandably nervous when the Supreme Court agreed to hear the Metro case. He was so convinced,
The preferential treatment policy employed by the Commission to advance women is a component of its more comprehensive preference policy toward minority applicants. This Court’s ruling with respect to the constitutionality of the FCC’s minority preference policy in the case sub judice will necessarily affect, and may well prove determinative of, amicus’ s pending challenge to the Commission’s female preference scheme.
Brief of Amicus Curiae Jerome Thomas Lamprecht In Support of Petitioner at 2, Metro Broadcasting,
Mr. Lamprecht had good reason to be apprehensive. The FCC’s gender preference is far milder than its race preferences, and if the Supreme Court upheld the latter, it seemed unlikely that lower courts could strike down the former. The race policies reviewed in Metro include two separate programs — a “distress sale” policy that makes certain broadcast licenses available to minorities alone; and a preference policy that makes race a “plus factor” to be weighed with other factors in comparative hearings open to minorities and non-minorities. Metro,
The “plus factor” awarded for gender, furthermore, is less valuable than the “plus factor” awarded for race. According to the FCC, the “merit for female ownership and participation is warranted upon essentially the same basis as the merit given for black ownership, but ... it is a merit of lesser significance.” Mid-Florida Television Corp.,
The Metro decision, when it came, fulfilled Mr. Lamprecht’s worst fears. A majority of the Court reaffirmed a position that had previously won only a plurality: that “benign, race-conscious measures mandated by Congress” should be reviewed under intermediate rather than strict scrutiny.
My colleagues, however, have reached the unexpected conclusion that Metro “compels us to strike down the program.” Ante at 391 (emphasis added). Their analysis is easily summarized. They agree that the program is subject to intermediate scrutiny — that it must be upheld if it is “substantially related” to an “important governmental objective.” They concede that encouraging diverse programming is an “important” goal for the government to pursue. But they conclude that the gender preference program is not “substantially related” to the goal of broadcast diversity because they are not convinced by some of the statistical evidence Congress had before it. In my view, they turn Metro on its head.
Here is the central distinction (which my colleagues quote selectively, ante at 391-392):
Although we do not “ ‘defer’ to the judgment of the Congress and the Commission on a constitutional question," ... we must pay close attention to the expertise of the Commission and the factfind-ing of Congress when analyzing the nexus between minority ownership and programming diversity. With respect to this “complex” empirical question, we are required to give “great weight to the decisions of Congress and the experience of the Commission.”
Id. at 3011 (emphasis added) (citations omitted). The holding of Metro, in other words, is that although courts should not defer to Congress on constitutional questions, we should defer — or give “great weight” — to Congress on empirical questions. I see no difference between “great weight” and “deference,” which the Supreme Court and this Court have consistently treated as synonyms. See, e.g., Rostker v. Goldberg,
This is the central point of Metro, and my colleagues do not acknowledge it. There is not even a pretense of deference to Congress anywhere in their opinion. On the contrary, they refuse to defer to Congress because they themselves are not convinced by one report of the Congressional Research Service. But Metro does not say that courts may reject Congress’s factual conclusions if they themselves are not convinced by the statistical evidence. Nor does it say what my colleagues say it says: “Any ‘predictive judgements’ concerning group behavior and the differences in behavior among different groups must at the very least be sustained by meaningful evidence.” Ante at 393. Metro says that courts must defer to Congress’s judgement that there is a link between ownership and broadcast diversity as long as “the policies are ... a product of ‘ “analysis” ’ rather than a ‘ “stereotyped reaction” ’ based on ‘ “[hjabit.” ’ ” Metro,
B. The Gender Cases
This conclusion was not new with Metro. In a long line of gender cases, the Court has made clear that the underlying purpose of the legal test that requires a gender classification to be “substantially related” to “important objectives” is to make sure that the government is not making distinctions between men and women based on “archaic and stereotypic notions.” Mississippi University for Women v. Hogan,
The purpose of requiring that close relationship [between means and ends] is to assure that the validity of a classification is determined through reasoned analysis rather than through the mechanical application of traditional, often inaccurate assumptions about the proper role of men and women.
Id. at 725-26,
The Supreme Court, for example, has upheld logical distinctions between men and women, even when the empirical evidence was open to question. In Michael M. v. Superior Court,
In Rostker v. Goldberg,
When the Court has struck down gender classifications, it has done so because they rested on impermissible stereotypes, whether or not they were supported by statistical evidence. My colleagues misread Califano v. Westcott,
The Court has also struck down gender classifications that are supported by statistics, when it has concluded that the classifications also rested on stereotypes. In Weinberger v. Wiesenfeld,
My colleagues also read too much into Craig v. Boren,
Later cases made clear what was implicit in Craig: courts must find that gender classifications rest on offensive stereotypes, rather than reasoned analysis, before striking them down. Nothing in my colleagues’ long footnote calls this simple proposition into question. Ante at 393-395 n. 3. I agree, of course, that Congress’s gender classifications cannot be upheld if they rest on premises that are not true. But I cannot agree that a logical premise is presumptively false until Congress commissions statistics to support it. Statistics, obviously, are one way to support a premise; but the cases make clear that Congress may also rely on logic — on “reasoned analysis,” “permissible reasoning” or “legitimate inferences.” The debate, in this case, however, is essentially semantic, since when the dust has settled my colleagues do not point to any stereotypes on which Congress relied.
Rather than supporting my colleagues’ view that gender classifications must be supported by statistical evidence, Craig v. Boren warns of the dangers of their approach:
It is unrealistic to expect either members of the judiciary or state officials to be well versed in the rigors of experimental or statistical technique. But this merely illustrates that proving broad sociological propositions by statistics is a dubious business, and one that inevitably is in tension with the normative philosophy that underlies the Equal Protection Clause.
Id. at 204,
Neither Metro, nor Westcott, nor Craig, nor Wiesenfeld, in short, say what my colleagues say they say: that courts can overturn congressionally mandated gender classifications whenever they are not convinced by the statistical evidence before Congress. On the contrary, Metro, following a long line of gender cases, says that the purpose of intermediate scrutiny is to ensure that Congress’s judgments are based on reasoned analysis rather than archaic stereo-' types.
C. The Government’s Objectives
Before deciding whether reasoned analysis supports Congress’s judgment that the gender preference is ■ substantially related to its objectives, we must be clear about which objectives, precisely, Congress endorsed. “Implicit in the government’s judgment,” my colleagues suggest, is the assumption that women are more likely than white men to broadcast “women’s programming” or other targeted programming. ■ Ante at 395. In fact, Congress did not emphasize the idea of “women’s” or “minority” or any other “targeted” programming when it endorsed the FCC’s gender preference. Congress’s repeated statements on the subject show that it thought increased female ownership would promote the broader (and less controversial) goal of increasing programming diversity in general. My colleagues acknowledge the broader goal sporadically in their opinion, but in applying the intermediate scrutiny test, they focus only on the narrower goal of increasing women’s or minority programming. And they strike down the pref
As early as 1982, Congress recognized that women are “significantly underrepresented in the ownership of telecommunications facilities” and that “the American public will benefit by having access to a wider diversity of information sources” if the role of underrepresented groups in broadcasting, such as women, is increased. H.R. No. 97-765 (Conf.Rep.), 97th Cong., 2d Sess. 43, reprinted in 1982 U.S.Code Cong. & Adm.News 2288-89; cf. Random Selection/Lottery Systems—Third Notice of Proposed Rule Making,
Two years later, Senator Hollings, chair of the authorizing committee and the appropriations subcommittee for the FCC, described the repeated inclusion of the appropriations rider in subsequent appropriations bills “as an indication of Congress’ continuing support for these policies.” Minority Ownership of Broadcast Stations: Hearing Before the Subcomm. on Communications of the Senate Comm. on Commerce, 101st Cong., 1st Sess. at 3 (1989). At the same time, the Senate heard testimony that “a specific definition for the term ‘female programming’ ” was not necessary because “[t]he purpose of the female preference is to increase female ownership in order to promote viewpoint diversity. ” Id. at 78 (emphasis added).
In the 1987 appropriations rider itself, Congress endorsed the rationale of the FCC’s gender preference. See Continuing Appropriations Act for Fiscal Year 1988, Pub.L. 100-202, 101 Stat. 1329, 1329-31 (1987) (specifically approving preference policies as developed by the Commission). And the FCC had “ ‘recognized female involvement as contributing to potential diversity of programming and awarded merit in a comparative proceeding on that basis.’ ” Horne Industries, Inc.,
All this is to say that the “governmental objective” in this case, as in Metro Broadcasting, is not merely to increase programming specifically targeted at women or minorities, but to increase programming diversity in general. “Congress and the FCC have selected the minority ownership policies primarily to promote programming diversity,” the Court said in Metro, and “the interest in enhancing broadcast diversity is, at the very least, an important governmental objective.”
1. Reasoned Analysis
In addition to obscuring the government’s objectives, my colleagues ignore the Metro Court’s central conclusion that the minority preferences were “substantially related” to the objectives because “the reasoning employed by the Commission and Congress is permissible,”
We have recognized, for example, that the fair cross-section requirement of the Sixth Amendment forbids the exclusion of groups on the basis of such characteristics as race and gender from a jury venire because “[wjithout that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield petit juries with similar disposition.”
[t]he truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.
Id. at 193-94,
The jury cases, combined with Metro, make it clear that Congress’s assumptions about ownership by women and diversity of programming are permissible rather than impermissible. It is clearly “a legitimate inference for Congress and the Commission to draw that as more [women] gain ownership and policymaking roles in the media, varying perspectives will be more fairly represented on the airwaves.” Metro,
As a matter of logic, in fact, the mild gender preference that my colleagues say is unconstitutional seem much more directly related to the goal of programming diversity than the minority distress sale policy upheld in Metro. As Justice O’Connor pointed out in her Metro dissent, “the distress sale policy provides preferences to minority owners who neither intend nor desire to manage the station in any respect.”
The Court in Metro also emphasized the fact that the distress sale policy placed only a “slight” burden on non-minorities.
2. Archaic Stereotypes
In light of Metro and the gender cases, unless statistics disproved the link, I think that my colleagues could strike down the preference policy only if they held that Congress’s assumptions about female ownership and programming diversity are based on archaic stereotypes. They never suggest this, unsurprisingly, because Congress has not relied on stereotypes of any kind. It has not assumed that women “share some cohesive, collective viewpoint,” Metro,
The familiar response is that the editorial perspectives of the Washington Post and the New York Times are hard to distinguish even though the Post was, until recently, published by a woman, and the Times is published by a man. See, e.g., Steele v. FCC,
It would be hard, in any case, for my colleagues to maintain that gender preference will promote archaic stereotypes, since the FCC and Congress have concluded that
In their briefs and at oral argument, lawyers for the FCC tried to summarize the logic that supports Congress’s conclusions, but my colleagues have belittled their efforts at every turn. “The Commission’s brief cites nothing,” the majority asserts, “that might support its predictive judgment that women owners will broadcast women’s or minority programming at any different rate than will men.” Ante at 395. But the Commission’s brief cites precisely the kind of reasoned analysis that satisfied the Supreme Court in Metro. See Appellant’s Brief at 34-36 (citing, among other things, jury venire analogy and Window Dressing on the Set Report). My colleagues reproduce a long exchange at oral argument in which, they say, the Commission’s lawyer confirmed that the record in this case lacks evidence of a substantial relationship. But, as the transcript makes clear, the questioning judge repeatedly cut off the lawyer’s attempt to explain the government’s reasoning, demanding he produce “evidence” or a “basis in fact” for the conclusion. To my mind, the excerpt helps to show how starkly my colleagues have misunderstood the nature of the inquiry into substantial relationship, and in their hunger for statistical evidence, have overlooked reasoned analysis.
E. The Statistics
I am reluctant to accept my colleagues’ invitation to scrutinize the statistics strictly, since Metro tells us that Congress’s empirical conclusions deserve “great weight.”
1. The CRS Report
My colleagues have decided to reject Congress’s findings after parsing a single report prepared by the Congressional Research Service, which merited a single footnote in Metro,
I concede that if reliable data conclusively disproved Congress’s judgments, it might suggest that Congress’s analysis was not reasoned. But the CRS study not only fails to disprove Congress’s judgments, it clearly supports them. The report concludes, for example, that 35% of stations owned primarily by women are likely to broadcast “women’s programming,” while just 28% of stations owned by “non-women” are likely to do so. CRS Report at 18 (Fig. 9A). That means that the female owned stations are 20% more likely to broadcast women’s programming than stations owned by men.
The data also reveal a statistical correlation between female ownership and minority programming. Twenty-six percent of stations with female owners broadcast programming targeted to Blacks, while 20% of stations owned by “non-Blacks” do. CRS Report at 14 (Fig. 5A). In other words, stations owned in part by women are 30% more likely to broadcast Black programming than stations owned by people who are not Black. The statistical correlation between women owners and programming directed at other minority groups is about the same. See CRS Report at 15-17
To put the percentages in perspective: In the 1952 election, a landslide, Dwight Eisenhower won 55% of the popular vote, to Adlai Stevenson’s 44% (about 33.5 million votes to about 27 million). The difference between the votes received by the two candidates? Only 25%.
A correlation of that size does not satisfy my colleagues. But they do not tell us why that link does not satisfy the Constitution. The Fifth Amendment does not identify the mystical point at which an empirical correlation becomes — to use my colleague’s word — “meaningful;” and judges have no basis, except their own policy preferences, for telling Congress it could not conclude that a 20% or 30% increase in women’s or minority programming was enough to justify the gender preference.
Besides downplaying the significance of the statistical correlation in the CRS report, my colleagues make three other observations about the data. But the data do not prove what my colleagues say.
* My colleagues stress that stations in which women own less than 50% of equity are as likely to broadcast women’s programming as stations in which women own more than 50%. Ante at 397. But that is the wrong comparison. Because the preference policy goes only to women who will also manage (and who will therefore be in a position to influence programming), the more relevant comparison is between women owners who are managers and women owners who are not. And the report makes clear that there is no correlation between owning more than 50% equity and holding a management position. Of the stations reporting that at least one of their owners was also a manager, 55.8% percent said those owners held less than 50% interest in the station, while just 44.2% reported those owners held more than a 50% interest in the station. CRS Report at 39.
The right question is whether a correlation exists, on the whole, between female owner-managers and diverse programming. The report demonstrates that correlation and likely understates it, because, according to the statistics, only 18% of the female owners in the survey were also managers. CRS Report at 40. The report also understates the correlation because it asked only about programming specifically targeted at women, minorities, children and senior citizens, and not at general audiences. CRS Report at 54.
* My colleagues focus on data from five large cities — a subsection of the report— which they claim call into question the link between female owners and women’s programming. Ante at 397. But they fail to mention that data from the same cities suggests a significant link between female ownership and minority programming. About 30% of stations with female owners target Black audiences, compared to only
* My colleagues rely on the report’s finding that radio stations with at least one women owner use broadcasting formats in nearly the same order as stations owned by “non-minorities” (which includes men and women). Ante at 397. That means that stations with female owners are about as likely to use an “All News” or “Talk” or “Golden Oldies” format as stations without any minority ownership. But my colleagues’ focus on formats strikes me as irrelevant at best, and unsettling at worst. They cannot possibly expect stations owned by women to program soft, “feminine,” music, or to replace a “Country Western” format with “Adult Contemporary.” The point is that more female owner-managers will likely enhance the diversity of programming within the existing formats, and the study certainly does not disprove it.
2. Other Studies
Finally, if my colleagues want more statistics, there are plenty to support Congress’s position. When the Supreme Court in Metro noted that Congress’s conclusion about the nexus between programming and diversity “is corroborated by a host of empirical evidence,”
Nevertheless, statistical support for the gender preference is not hard to find. Despite the fact that Metro, for example, concerned race rather than gender, the Court received one amicus brief showing a clear statistical correlation between women programmers and women’s programming. An organization called American Women in Radio and Television surveyed the radio programs that had received National Commendation Awards in 1986 for presenting issues of particular interest to women or for presenting women in a “positive and realistic light.” Women represented 58.5% of the producers, 84.2% of the writers, and 92.9% of the reporter/hosts. Brief Amicus Curiae of American Women in Radio and Television, Inc. in Support of Respondents at 20-21, Metro Broadcasting v. FCC,
The statistics for producers are relevant, rather than “irrelevant,” ante at 396 n. 7, because the gender preference goes only to owners/managers who are also involved in programming decisions. The majority persistently ignores this fact, except to suggest that female owner/managers can influence programming only by hiring female producers and writers. Id. In fact, however, FCC cases make clear that the female owner/managers who receive preferences are themselves involved in programming decisions. In Coastal Broadcasting Partners, 6 FCC Rcd. (No. 14) 4242 (1991), for example, the Commission gave a preference to a female owner/manager who proposed to work full-time as Director of Programming and Public Affairs, a role in which she would “focus on program development, program acquisitions, ascertainment of needs and public affairs programs and announcements.” Id. at 4244-45. She would also serve on a programming committee responsible for “set[ting] programming policy,” and would “see to it that
If this case is appealed to the Supreme Court, I have no doubt that a host of amici will submit “a host of empirical evidence” to “corroborate” Congress’s judgment. In the meantime, a quick skim of the bestseller lists, the computer banks, and the rejected amicus brief, suggests the range of the studies they will have at their disposal. Susan Faludi’s Backlash, for example, devotes an entire chapter to the proposition that female programmers in the 1980s who tried to portray single or working women as independent professionals rather than as miserable careerists or as sex symbols, were challenged by male programmers at every turn. She gives a host of examples, and cites several studies to prove her point. Susan Faludi, Backlash, 140-168 (1991) (iciting National Commission on Working Women, “Women Out of View: An Analysis of Female Characters on 1987-88 TV Programs,” (1987); Davis, Portrayals of Women in Prime-Time Network Television: Some Demographic Characteristics, 23 Sex Roles 325-30 (1990)). Other sources include: two symposia co-sponsored by the FCC and American Women in Radio and Television, Inc., “Women in the Telecommunications Marketplace” and “The Woman Entrepreneur”; National Commission on Working Women, What’s Wrong With This Picture? The Status of Women on Screen and Behind the Camera in Entertainment TV (1990); Herbert, Study Charges Sexism in Women’s Sports Coverage, L.A. Times, Aug 30, 1990, Part F, p. 2, col. 3 (describing a study prepared by professors at the University of Wisconsin and the University of Southern California); P. Koza, Kiddie TV Study: “One Smurfette Amid a Host of Smurfs ”, United Press International, July 14, 1982 (describing a study by Boston University professors finding that programs targeted at children presented outdated stereotypes of gender roles). Again, I hardly think these kinds of studies are necessary to decide the constitutional question, but since my colleagues do, there are plenty to go around.
I must also dissent, finally, from my colleagues’ paraphrased descriptions of my positions. I do not suggest, as they claim, “that the Supreme Court already has decided that the Commission’s sex-based policy passes constitutional muster,” ante at 386 n. 1. I do not suggest “that deference means not just limited factual review, but none at all,” ante at 392 n. 2. I do not suggest “that a sex based classification might survive intermediate scrutiny even if it rests upon unsupported generalizations about men or women as a group,” ante at 393 n. 3. And I do not suggest “that a relevant generalization is presumed true (even if unsupported) unless proved otherwise,” id. I welcome, of course, a vigorous debate. But I think we should debate the more modest propositions actually contained in this dissent.
“The blind use of statistics,” Chief Justice Rehnquist has noted, “cannot be permitted to undermine the policies of Congress or erode our decisions on substantive law.” Procter & Gamble Mfg. Co. v. Fisher,