Don't buy DOJ assertion it doesn't oppose LA vouchers

Realizing the gravity of its situation, has the federal government folded up in its attempt to impede Louisiana’s scholarship voucher program? Chances are the legal tussle may be only beginning, because the federal government insists on bending the law to fulfill an ideological purpose.

Yesterday, Pres. Barack Obama’s Department of Justice, out of the blue, released a letter to the media declaring that quick resolution was at hand concerning its lawsuit against the state. DOJ sued Louisiana over the program that allows students in underperforming schools to receive state aid to attend schools of their choices, almost always private ones, because it said about 560 of these students were in districts under court desegregation orders and that courts had to supervise these transfers even if they changed minutely the racial balance even in schools largely racially balanced.

The note, actually a reply to an inquiry by U.S. House Speaker John Boehner about the legality and purpose of the action, said that the state had turned over information that it sought, or promised it would soon, and that the federal government was awaiting court action on the suit to determine whether there was a violation. It also repeated that “we are neither opposing … nor seeking to revoke vouchers from any student.”

Hogwash. The disingenuous intent of DOJ, in mirroring Obama’s opposition to vouchers, has been clear from the start, and other parts of the letter only reinforce that. The suit itself references a couple of cases of how vouchers changed the racial balances of schools – in both cases about a percentage point for schools that were in one case a largely black school with significant minority white enrollment and in the other a largely white school with significant black minority enrollment. As noted previously, somehow this is suspicious enough – even though the balances were not changed by the state, but by decisions of individual families – to believe the state intentionally acted to create a policy that would have the effect of increasing segregation.

In other words, DOJ thinks even the smallest change that imperceptibly changes the ratio is suspect and needs court review, implying that the smallest change itself is tantamount to intentional segregation. This is reinforced by the basis on which DOJ thinks justifies it action – the 1975 Brumfield v. Dodd federal court decision. But that case does not address the actions of state government insofar as any presumed intent of state-sponsored discrimination, for that decision only declared that private school recipients of state funding had to be able to demonstrate nondiscrimination, verified as implemented by the state (following court guidance) through schools’ demonstrating policies and statistics and affirmation they have not been influenced by individuals with authority over school actions to act in a discriminatory way, and doing so annually.

Therefore, note how the DOJ request actually is a call to expand federal authority well beyond what the jurisprudence to date has suggested. Until the advent of the statewide program, compliance was measured by whether private schools receiving state aid – such as textbooks – demonstrated nondiscriminatory policy; that is, intent. But now DOJ is asking that unelected officials are given power to decide on their own, with no guarantee of impartiality, whether results using derived numbers, regardless of any proof on intent that they already may discern from existing information provided by the state, in their judgment connote discrimination.

This is the basis of the claim that the state has been holding out on information for some time – but only by making the wholly presumptuous claim that this information is mandated to be released in the first place, a claim sustained only by stretching Brumfield beyond what it has meant in this fashion. The state had no obligation to surrender any of this information because the jurisprudence does not suggest it; the only thing suggesting it is DOJ’s novel, expansive interpretation.

Worse, DOJ knows this. In the letter, it mischaracterized Brumfield by stating this “placed Louisiana under a desegregation order because the State had been directing state resources to private schools to keep its education system segregated.” (emphasis mine). In fact, the three-judge panel never stated that as a conclusion of law. It merely noted that the actions of provision of textbooks and busing to schools that could not disprove they practiced segregation meant the state and local districts were in violation of the Constitution; it never subscribed any motive to governments by this practice. Again, DOJ is trying to rewrite the Constitution on its own as a justification for its suit.

What’s not commonly known, and again suggesting this has been a DOJ vendetta against the voucher concept from the start, is for about a year, not long after the law creating the program statewide, DOJ started these efforts. The state essentially ignored them, preferring to stick with established jurisprudence that would suggest no necessity compelling it to turn over such information beyond what Brumfield already asks (or a court, not DOJ, may ask), which allowed DOJ to get a court to order earlier this year that the state divulge certain information as legally not contesting a motion equates to having to follow it. Also disingenuously, DOJ asked for information not even temporally available, which is why only now is the state providing it or will in a couple of weeks.

Besides fabricating new constitutional interpretations and DOJ’s interest from the start revealing animus about the program, the letter reinforces another tactic that uncovers the hidden agenda: the use of extreme or unrelated cases to attempt demonstration of the necessity of worthiness of its actions and interpretation. The initial filing used the example of two schools where changes were deemed questionable even as they were insignificant, a laughable reach at best. The letter, in response to Boehner’s noting that the program served to get students out of weak schools into likely better ones, tried to rebut that by pointing out the only controversial case of a school recipient of voucher students and the state money they brought with them, which was removed swiftly from the program when its deficiencies were uncovered, and intimating other vague assertions about other schools not having anything to do with academic performances.

If DOJ did not have a political agenda to discourage vouchers use and was basing its actions purely on the merits of its case, it would have found no reason to wander into this territory in its reply. Nor would it have added into the letter its opinion that judges ruled Louisiana has assisted private schools in order to practice segregation by other means. That it did both speaks volumes as to its real motives and its need to politicize the jurisprudence involved.

A continuing theme of the Obama presidency has been propagation of the “big lie,” where if something untrue is repeated often enough a majority of the public and policy-makers come to believe it, no matter how absurd. Thus, from it as a matter of course we get demonstrably false refrains about how “you can keep your doctor if you want,” “the cost curve will get bent downwards,” “sustaining a recovery requires more government spending,” “Republicans want to poison the planet, kick the sick out onto the street, have grandparents eat dog food,” etc. The letter’s protestations of innocence comports entirely to this characteristic of this theme.

So that makes it unlikely that DOJ’s attempt to pass along a narrative that Louisiana has decided to turn over information is a way of the federal government declaring victory before surrendering on the suit. Rather, it is a declaration designed to fool people into thinking its interpretation of Brumfield is valid, which if ratified then could be used as a battering ram against vouchers by making their applicability hostage to numbers that statistically discourage their use by disregarding entirely actual intent and equating outcomes solely with imagined, presumed intent.

It also may be a tactic to divert judicial thinking from reviewing the entire rationale behind the unconstitutional underpinnings of segregation, where the argumentation about this case could lead by trying to say voucher use can turn into segregation. Regardless, do not be fooled: the Obama ideologues from the start have wanted to strangle state voucher policy in the crib, and that they wish to twist the law on this account and to engage in public relations exercises to assist in this offers compelling proof as to this motive. If it walks like a duck, and it quacks like a duck ….