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.
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