While both sides claimed victories of sorts in the initial ruling regarding Louisiana’s scholarship voucher program, the basis on which the state’s gain rests is too contingent on accepting a jurisprudence that rightfully needs challenging.
Last week, federal District Judge Ivan Lemelle opined that the state’s Student Scholarships for Educational Excellence Program had a right to exist, but at the same time the state should have to turn over information to the federal Department of Justice for review that could alter some results coming from the program’s application, so long as this did not bring the program to a halt. Both parties were given a couple of months to figure out how this would work.
The case came about when DOJ initially sued to stop the program, claiming that the outcomes of the program violated the desegregation orders across a number of school districts stemming from the Brumfield v. Dodd case. There, in the early 1970s the state was found to have been colluding with private schools to create a kind of segregation, and as a result it had to introduce requirements that would prevent private schools from acting in a discriminatory manner by race in admissions to them if they received any state aid, even indirectly.
This rationale was nonsense from the start, as the voucher program had nothing to do that matter. It allows for families that have children in underperforming schools to receive state money to a certain point to pay for educating these children in another school, including private schools as an option. All private schools involved had to follow the Brumfield requirements, and the state had no role in the decisions made by individuals.
Not only did the order not apply, but also subsequent data analysis showed the contention that discrimination was occurring was exactly false. Instead, in every case there was no significant increased segregation, and in some segregation decreased. While in theory outcomes could increase segregation that should be a moot point being as neither the schools nor state were following policies designed intentionally to create greater segregation. Still, DOJ wanted to counter this by claiming no intent need be demonstrated for harm to occur, but that it should be assumed that quantitative data that showed increased segregation as a result of the decisions of individuals independently of each other automatically showed harm that at first over which it wanted to halt the program in its entirety, but then in the face of the audacious of its request and the data scaled it back to saying mandated review of program data by it to see if it should bring about judicial action to oppose the decisions made by individuals.
That argumentation depended upon rewriting the law and Constitution to legitimize that ability, replacing explicit intent with implicit numbers and additionally expanding federal authority by extending its reach to the potential of policing family decisions rather than state actions. Lemelle obliged by conjuring a federal power to prevent potential segregation even where state policy did not directly cause it, claiming this was a logical extension of all desegregation jurisprudence. It’s little surprise that Lemelle was willing to perform such overreach; in another case related to the program, he said it had to be halted because it impeded funding decisions by a local district to achieve desegregation when in fact those decisions are political choices that could be changed without causing any reduction in desegregation efforts.
Unfortunately, acquiescence to this degree of judicial activism would have reverberations far beyond this isolated area of policy. For example, this rationale could be used to justify forcing federally-charted lending institutions to take on additional needless risk in loans by saying they have an obligation to prevent mono-racial living patterns among homebuyers, privileging certain potential borrowers at the expense of others in order to promote diversity within neighborhoods.
The fig leaf to try to deceive the state from contesting the ruling is the nebulous declaration that the review process can’t shut down that program. But to buy the rationale behind the power to review does not stop logically prevent that outcome, if in a given year DOJ (which would have the final say) decides all assignments increase segregation. And even if it didn’t go that far, it could veto almost all family decisions and fall within that stricture, practically shutting down the program.
Thus, the state should not roll over and allow this vast federal intrusion into the freedom of individuals to choose how to access state-sponsored education for their children. Both DOJ’s argumentation and Lemelle’s opinion stray from the established jurisprudence in this area, and rest upon the insane notion that American society is so irredeemably racist that families choose to educate their children on that basis and the state is willing to facilitate that with a law whose practical impact may never cause any increased segregation anywhere. That is an alien concept by which to define today’s America, and the state needs to challenge that to remind that results from individual decision-making guided by unbiased and impartial policy cannot produce a discrimination designed to create state-sponsored harm.