SADOW: Don’t Be Surprised If The Deseg Orders Get Tossed In That Voucher Suit

school choiceGov. Bobby Jindal might not be exactly right on why the federal government wishes to throw up an artificial impediment to derail Louisiana’s scholarship voucher program, but he and opponents by keeping the pressure on against might make the suit’s supporters think twice about pursuing the matter.

Recently, the U.S. Department of Justice sued to have the state submit for review consequences of the program’s operation to federal courts in schools districts under desegregation orders to obtain clearance before implementation of these outcomes in them. The voucher program, which allows students in poor-to-failing schools the ability to have the state pay for their attendance at another qualifying public or private school, can have the effect of marginally increasing majority-race proportions at schools under orders to reduce the incidence of school populations that had heavy compositions of students of one race. As long as this segregation is not solely created by voluntary living patterns, in these districts with a history of intentional segregation under court orders would have to have court review of any outcomes of voluntary, individual decisions made where students desire to leave a public school courtesy of the program.

While procedurally this seems neutral, in reality it invites judicial mischief. Based upon criteria spelled out in the suit, DOJ argues even the most minute adjustments can be interpreted as retrogression in affirmative district action to bring as much racial diversity to schools as possible. There’s no reason a federal judge can’t declare such minutiae as critical and violating orders even as, Jindal and others have pointed out, the impact would be likely to improve educational delivery to minority race children.

He and others express amazement that those who say they are acting on behalf of an unjustly- discriminated minority in this policy area would accept by vetting outcomes of the policy results that very likely would leave those very members worse off. But to understand Pres. Barack Obama’s DOJ and its ilk, it’s necessary to understand the judicial history behind how courts came to run school systems and its place in their ideological worldview.

When Brown v. Board of Education became rendered and obliterated the “separate but equal” doctrine, the fact was that doctrine as a guiding strategy to educational provision in many areas of the country was a fiction. Few (heavily) majority-minority public schools were equal in resources to their counterparts. But, importantly, that was not the basis on which Brown was decided. Instead, separate but equal was swept aside because the Supreme Court, unanimously, argued that the very concept of mono-racial schools, for the minority race, “has a detrimental effect upon the colored children” by generating “a feeling of inferiority as to their status in the community.” Almost six decades later, that basic reasoning has remained unchallenged: as long as non-natural forces, even if they were halted long ago, were determined (by a court) to have some sort of atavism in impact that would produce highly mono-racial schools, that alone justified continuing court supervision because the system remained in an unconstitutional state based on this reasoning.

So it’s not that the leftist Democrat-run DOJ argues that children wouldn’t get a better education under the program, it’s that this is irrelevant to the larger issue that, in its view, even the slightest retrogression, regardless of cause from or intention of, in preventing formation of greater mono-racial minority schools threatens to strengthen the inherent badness by thrusting more decisively a badge of inferiority onto blacks. And if, as Jindal articulates, DOJ follows this course in order to assist ideological allies like teacher unions, that’s only tangential in that its real goal is to assist all ideological fellow-travelers that are threatened by a program that promises to reduce federal government power to control education, local districts, and resources by its transfer to local electorates and nongovernment entities.

However, the only possible argument to justify that is to say that to remove oversight at such an  intense level as a judge deciding whether a handful of students opting out of the public school system aided by the state thereby threatens to reignite feelings of inferiority. And that’s an argument Jindal and opponents of this federal overreach ought to relish having. Because there’s no seriousness to the scenario that a majority of the Supreme Court, given the cultural, societal, political, and economic integration and advancement that all non-whites have experienced in America over the past 60 years, would say the presence of a nearly all-black school merely because of this racial composition today makes its enrollees feel “inferior” and brings about psychological harm to them – especially when any such schools have come about through race neutral policies or, as in the voucher case, even policies that have the intent if not effect of helping discrete individuals of the minority group.

In other words, fighting this in the courts threatens to overturn the entire Brown justification, setting the stage for a different interpretation to authorize federal intervention on the far narrower basis of violation of race neutral policy, not on the basis of results. For then you can’t argue that results, even if unintentional, bring about a correctable harm, because the harm no longer exists. From then on, a new judicial standard would have to evolve, perhaps based upon the contemporaneous Boling v. Sharpe that says government cannot segregate schools on the basis of race because there is no legitimate government purpose to do so. But that would weaken substantially federal government power in this area.

So do the plaintiffs really want to head in this direction? The only way to prevent with certainty that outcome is to not pursue the matter. The resistance that Jindal and others put up here thus is useful because it demonstrates the risk the plaintiffs are taking, and encourages them to act with discretion as the better part of valor to drop the suit.

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