SADOW: New Study Wipes Out Any Justification For The Voucher Suit

What we must understand is that the ideological imperative trumps all other considerations in Pres. Barack Obama’s Department of Justice’s lawsuit to limit Louisiana’s scholarship voucher program, despite the demonstration that overall this produces all benefits and no costs to the students involved.

Last week, a report produced by two doctoral students studying at the leading academic center for educational policy noted that, contrary to DOJ’s assertion that Louisiana’s program, which allows students at schools rated mediocre and below to receive state subsidies to attend another, almost all private and religious-affiliated, school, had the effect of increasing segregation by race in public and private schools, when in fact it had the opposite effect for districts under desegregation orders. DOJ sued the state in August, claiming that because the program could tilt the racial balance of a public school more towards the majority race in it and/or do the same to private schools that received such students, this could violate desegregation court orders that should mandate court review of such actions.

In a sense, both the research and DOJ positions are valid. The researchers, who used the data from a substantial portion of the voucher population created by passage of a law that took effect last school year, saw reduced segregation on the basis of schools matching their communities’ racial distributions. They discovered that, in the aggregate, “transfers made possible by the school-choice program overwhelmingly improve integration in the public schools… bringing the racial composition of the schools closer to that of the broader communities in which they are located.” They also note that “[i]n the school districts under federal desegregation orders, which are the focus of the Department of Justice litigation, L[ouisiana] S[cholarship] P[rogram] transfers improve integration in both the sending schools and the private schools that participating students attend.”

But in its suit, instead of relying on a sufficiency argument – that the program as a whole improves integration of races, as the report shows – insists on a necessity argument – that if even one school in a district under a desegregation order as a result of a program transfer becomes more mono-racial, even if there’s not much of a majority of one race over the over at that school and the increase is slight, then that must be subject to an anti-democratic judicial review. DOJ concentrates on each school, treating it as an abstract island separate from its community and from the universe of school impacted by the program’s existence. In essence, it argues that one apple that one subjective opinion considers rotten therefore ruins the entire barrel and makes the entire barrel’s contents subject to an unaccountable review using no objective criteria to determine the extent of the presumed rottenness.

Further, as previously noted, this is an entirely novel, if not invented and hyper-creative, legal argument. DOJ is not asking for a court review under existing jurisprudence, but asking that judicial power becomes expanded unilaterally to apply a framework designed to prevent the state from acting in league with private schools to discriminate through segregation to decisions made by individual families where the court uses statistical information that need not reflect discernible intent – even when documentation confirms no such intent exists – to make in its own judgment whether some kind of “discrimination” or “segregation” occurs as a result of the policy.

For these reasons, DOJ could care less about the empirical verification that the voucher program has the aggregate effect of decreasing segregation in both public and private schools where segregation orders are in effect. It wants to show that if in only one school, even if imperceptibly, even if there is no proof that private schools and the state conspired to segregate and had no part in the individual decisions made that produced that distribution, that a court should be able to use a numerical standard alone to overrule family decisions on the basis that some imagined psychologically cataclysmic event would befall both the child and the children he goes – or doesn’t go – to school with. Here there is no common sense or concern about trying to enhance the life prospects of children, there is in this attitude just the ideology of fear the program will disempower government by erosion of the government-monopoly model of education.

So while in an academic sense the study gives us valuable public policy-making information, in a practical sense all it does for the near term is expose the nakedness of the DOJ attempt to try to rein in voucher programs by any means necessary. DOJ’s motivation also may be in trying to provide cover to District Judge Ivan Lemelle who will be getting this suit and who ruled in another case involving vouchers that they could not be used because they could interfere with district financial decisions related to complying with desegregation orders.

Given his previous ruling, Lemelle may well side with DOJ on this. But, if so, the state should appeal and almost certainly would get the Fifth Circuit and/or Supreme Court to overrule both, unless they should go on flights of judicial activism bereft of constitutional underpinnings. Part of any reversal probably would call in this study, so in the long run it may be quite valuable to empower families at the expense of intrusive, powerful government.

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