The Media's Distortion of the Supreme Court Racial Diversity Ruling
The following was submitted by Jason Aslinger, a private practice attorney in Greenville, Ohio. Portions in bold below are the added emphasized of NB managing editor Ken Shepherd. It's a long post but it's worth the read:
In the wake of last week’s Supreme Court decision regarding racial integration in public schools, the media have gone out of their way to obscure the facts for the purpose of advancing its familiar political agenda, not to mention skipped over giving readers a glimpse of the concurring opinions of Justices Thomas and Kennedy, both of which shed light on the case's significance to the average American.In a prior NewsBusters post, I called out MSNBC's Keith Olbermann for his false and race-baiting claim that the Supreme Court had “overturned” the landmark decision of Brown v. Board of Education. The subsequent commentary by the media has at least been more clever, but no less false. Undoubtedly, the press and “expert commentators” have calculated that the general public would not check their factual (and political) conclusions by reading the Court’s 185-page opinion. Without knowing the specific facts, the media distortions can not be fully appreciated. Below we'll take a look at the facts of the case as well as the reasoning from the justices, reasoning that all too often is glossed over if not outright ignored in the media.
The case in question was a consolidation of two challenges to the racial integration plans for the public school districts in Louisville, Ky., and Seattle, Wa. These school districts had integration plans which relied mostly upon race-neutral criteria, but in the case of “resolving ties,” the school district would assign a small number of students based solely upon their race.
In the Louisville example, kindergarten student Joshua McDonald was assigned to a public school ten miles from his home. His mother applied to have Joshua transferred to a school one mile from his home. Since Joshua was not a black student, and his enrollment at his desired school would disrupt the school district’s pre-determined goal for racial integration, the school district denied Joshua enrollment.
In its decision, a four-justice plurality (Alito, Roberts, Scalia and Thomas) found that Joshua McDonald had been denied equal access to the school of his choice solely on the basis of race. Ironically, the Louisville school district employed racial discrimination for the purpose of advancing racial integration.
The four-justice plurality found that even if the “ends justified the means,” racial classifications of any kind were unacceptable, unconstitutional, and therefore illegal. Justice Kennedy, concurred in the ultimate judgment, but found that certain “race-conscious” policies were acceptable as long as they didn’t arbitrarily treat individual students differently from others based upon race.
Justice Thomas also wrote a separate concurrence in which he made a point that has been ignored entirely by the mainstream media. Justice Thomas remarked that Brown v. Board of Education was about the desegregation of public schools, while the current cases were about racial imbalances, which by their nature are fluid.
The case of Brown v. Board of Education ended desegregation, but had nothing specifically to do with racial imbalances. The brave crusaders in Brown weren’t upset that black students made up an inadequate percentage of the enrollment in white schools. Before Brown, black students weren’t allowed to study with whites at all. And that is why it was completely disingenuous for Keith Olbermann to claim that Brown has been “overturned,” a sentiment echoed in a June 29 New York Times editorial:
Chief Justice Roberts, who assured the Senate at his confirmation hearings that he respected precedent, and Brown in particular, eagerly set these precedents aside.
The overall reporting on the decision smears the conservative Supreme Court as out-of-touch and hostile to racial diversity and integration. Examples abound.
From the same New York Times editorial referenced above:
The Supreme Court ruled 53 years ago in Brown v. Board of Education that segregated education is inherently unequal, and it ordered the nation’s schools to integrate. Yesterday, the court switched sides and told two cities that they cannot take modest steps to bring public school students of different races together. It was a sad day for the court and for the ideal of racial equality.
The Times further described the Court’s conservative justices as the “radical new majority,” and that “[t]here should be no mistaking how radical this decision is.”
In a July 1 piece, the Cleveland Plain Dealer editorial staff falsely claimed that “[i]n its rhetoric, the majority opinion powerfully rejects the value of racial integration.”
While the facts of the case (and particularly the lengthy decision) are less than exciting, the irony of the case and the media’s reporting is striking. The mainstream media is never hesitant to point out perceived discrimination in any number of contexts, but in this situation the plight of Joshua McDonald apparently isn’t worthy of any consideration. The reason being is that the issue is analogous to affirmative action – a favorite of the media – and the kindergartner’s race does not serve the media’s agenda in this regard.
The award for the most creative attack, however, goes to CBS News legal analyst Andrew Cohen and his June 29 article “SCOTUS Fails the Test.” Cohen first made the outrageous claim that “millions of affected parents … watched and waited all term long” for the outcome of this case. Really ?
Then he argued that the Supreme Court’s decision will cause chaos for public school officials and bring the “promise of a whole new generation of lawsuits brought by parents of students who feel they’ve been deprived of some right to attend some school for some reason having to do with race.”
Cohen’s main point is that the decision of the four-justice plurality, along with the four “tamed lions” of the dissent, all had their collective decisions muddled by the concurrence of Justice Kennedy.
Cohen summarized Kennedy’s position as follows:
Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.
While Cohen described this standard as “mealy-mouthed” and mocks Kennedy’s reliance on school officials’ “creativity,” he deceptively omitted the much more concrete standards upon which Kennedy would allow race-based classification in limited circumstances, written earlier in Kennedy’s concurrence.
Specifically Justice Kennedy wrote:
School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools; drawing attendance zones with general recognition of the demographics of neighborhood; allocation resources for special programs, recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race.
Despite Cohen’s hysteria about chaos for school officials, the outcome of this case paints a pretty clear picture.
Forward-looking race-conscious policies as specifically described by Kennedy are allowed (and by my reading are not automatically considered invalid by the majority). After-the-fact race-based classifications are not allowed.
But the bigger question is: why the distortion and criticism of Justice Kennedy?
The answer is simple in that Justice Kennedy is the new swing vote on the Court, and much to the chagrin of liberal commentators, Kennedy has voted frequently with the four conservative justices resulting in a series of 5-4 conservative decisions.
Cohen would prefer that Kennedy vote with the liberal bloc, and since he hasn’t, Cohen has now attacked Kennedy twice in two days, having also ridiculed the Justice in Cohen’s June 28 “Court Watch” blog (with the two articles inconspicuously posted on separate blogs on cbsnews.com). Maybe Cohen is just upset about the new conservative majority on the Supreme Court. Or maybe Cohen really thinks he can influence Justice Kennedy.
In either case … while it is clear that the mainstream media is resigned to gratuitous dishonest slams on the conservative Justices, Cohen has (maybe to his credit) locked onto the Court’s swing vote.