Gov.
Bobby
Jindal managed to be both
right and wrong in his latest communication about the U.S. Department of
Justice’s suit against Louisiana’s scholarship voucher program: the Pres. Barack Obama
Administration has shifted tactics, but its goal to rewrite jurisprudence in
the way it finds ideologically acceptable remains the same.
Earlier
this week, Jindal proffered publicly his approval that DOJ had changed its
stance on the issue, where it had withdrawn a request for injunctive relief in
the courts. While characterizing this in a way that it had dropped the suit,
technically that remains alive and set for a hearing later this week. And that
was old news in a sense, for DOJ had said it no
longer was looking to impound and delay program operation a couple of months
ago and earlier this week the court ratified that. But what was new
explains why, contrary to Jindal’s description, the suit hasn’t been withdrawn.
Previously,
DOJ had asserted it could stop the program until the courts reviewed each and
every assignment of a voucher for compliance with desegregation orders where
they existed. Now, it has proposed dropping the compulsory aspect and asks instead
that the state to send it this information before the state makes the
assignments official, hinting that it will have input into these decisions and
if it doesn’t like them it will seek relief from the courts. The court date
where conceivably the compulsory aspect could be manufactured is still on, and
for the federal government needs to be in order to keep the pressure on the
state to submit to this agreement.
While
this is a retreat, it is merely strategic. With empirical evidence making a
shambles of its argument that the program definitively causes increased
segregation, DOJ knew that the best it could do was to show the program did not
cause this actually, but potentially. However, current
jurisprudence does not allow for that. Legally, a government must be
demonstrated to have policies, potentially working in cahoots with
nongovernment schools, that intend to discriminate for the federal government
to block them. That won’t work in this instance, because the program is
race-neutral in procedures and its outcomes rely upon voluntary actions of
families, not schools or governments. Therefore, under this philosophy the
judiciary, whether at this level or beyond, should rule that no review of
outcomes is warranted.
So
the DOJ has tried to introduce a sea change into the environment to alter the
rules to let it win by enabling federal oversight to hamstring the program. It
based the suit on the idea that results alone can prove intent, where any
result that increases segregation by definition means there must have been
discriminatory intent involved, no matter how race-neutral policies may be. If
the courts would buy this, this would cause significant redefinition and
reverberations throughout all government policy dealing with civil rights.
To
use an example in another area, any lender with a federal charter must
subscribe to, among many things, demonstrated nondiscriminatory practices. That
is defined by adhering to a certain set of best practices where numerical
analysis may provide evidence of but is not the only determinant of whether
illegal lending practices occur. Let’s say you have a situation where, in an
upper-class neighborhood, few if any racial minority members receive loans to
buy houses even if they comprise a significant portion of the area population.
Those numbers could indicate a problem. But if then a review shows that, using
standard industry metrics, few if any minorities would qualify for a loan
commensurate with their risk profiles, and that there is not deviation from
those standards with the intent to discriminate on the basis of race, the
lender would not be determined to have engaged in discriminatory practices. (In
a different way, this worldview lay behind the housing
financial crisis that laid the groundwork for Obama’s election.)
But
under the DOJ redefinition sought in the voucher instance, that kind of intent and
subsequent behavior need not be proven; merely the fact that, compared to the
area’s population, disproportionately fewer minorities could get these loans would
be considered to constitute discrimination, with a remedy that lenders must
accept higher risk without commensurate return for minority applicants for a
loan of any size. For the voucher program, it would mean that the federal
government could veto decisions made by families, not by the state or schools,
whether they could send their child from a certain public school to a certain private
school using state support, if that child could exit the public school at all,
merely because of the child’s color.
With
its current request, there’s no change in this odious philosophy by DOJ; the
only difference now is that, realizing it cannot win formally in court given
the unlikelihood the change in philosophy would be ratified all the way through
the U.S. Supreme Court, it wants to bluff the state into voluntarily allowing
it, using the threat that it will keep the current case in courts unless the
state submits to admitting the federal government can intervene at any time on
specific instances with the data the state provides. Even as there’s another
incentive for it get the state to submit in order to keep the matter out of the
courts: the chance that the judiciary might use it to reduce
federal power in this policy area.
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