Empirically defeated, DOJ clings to radical reasoning

The champions of bigger government and the government monopoly education model, having realized the data are against them in their lawsuit against Louisiana’s school voucher program, continue to cling to the hope that judicial fiat produces a radical shift in American jurisprudence to eviscerate the policy.

The Pres. Barack Obama Administration sued Louisiana and its Student Scholarships for Educational Excellence Program, which pays for students in underperforming schools to attend private and public schools that qualify for the program, on the basis that it defied desegregation orders. The remedy it initially asked for was for courts to halt the program, but it amended the suit to asking for court review to give approval for each and every use of a voucher that took a child out of a public school and into a private school in order to see whether, in the court’s opinion, this ran counter to desegregation efforts.

That alteration happened because it soon became apparent just how big of a deviation from the existing jurisprudence on the subject this suit represented. The Gov. Bobby Jindal Administration and the Board of Elementary and Secondary Education took issue with that attempt by pointing out that the presumed beneficiaries of desegregation, minority race students, were in fact the overwhelming beneficiaries of the program.

But at a deeper philosophical level, as previously noted (and subsequently incorporated in the state’s present brief in front of the courts), to accept the federal Department of Justice’s rationale that adverse, even minute, numerical changes of the percentages of races attending a set of schools in and of itself connoted a harmful effect of segregation, when there were no discriminatory policies being followed by the recipient private schools themselves and that decisions that changed attendance patterns came not from administrators but from individual family decisions, would introduce a novel, if not invalid, means through the expansion of federal government power by which to determine discriminatory harm unsupported by any previous legal precedent.

But then came the first blow exposing the empirical poverty of that argument when researchers discovered that, in the aggregate, the implementation of the voucher program had spurred greater, rather than lesser, desegregation in the school districts under desegregation orders. Still, DOJ pressed on despite having at its disposal only the flimsiest of anecdotal evidence.

Now, another study has come out that expands on the first. Using a different indicator of segregation, it notes that of the 34 districts under some kind of court order, in all but four the effect of the program was to decrease segregation or had no effect, and in the other four any change essentially was unsubstantial. Keep in mind that whatever effects occur as well are not the result of the program having some kind of bias intentionally placed in there by state government, but comes instead from the decisions by individual families over which the state has no control.

Presently coming to realize its position has become more tenuous still, DOJ appears to have shifted its emphasis to that if the courts do not find the program inherently impairs desegregation, then studies should be conducted every year of this nature. But that’s only a mealy-mouthed way of litigating the issue on a yearly basis, and it still asks that jurisprudence accept that numbers without the proof of intentional state action is the standard by which a judgment is to be made on this issue.

The fact is that consent decrees were entered into because the school districts involved had a history of policy that cause segregation by race. This state policy, as the data show, is completely neutral in its effects as to whether segregation is affected, because it is family decisions combined with existing demographics that determine any change in racial balance – the same dynamic that operates with neighborhood schools that are heavily one-race because of decisions made by families about where to live. And it certainly shows no intent by government to try to segregate because it simply does not allow government control of the process to do so. Only a runaway court intent on redefining what is and causes segregation could agree with a move to penalize the individual’s decision-making process to declare that causes breach of equality.

But that’s what DOJ banks on. And it’s a radical idea that finer and freedom-loving minds need to reject.