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.
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