Despite reports of compromise or capitulation, the U.S. Justice Department is continuing its legal assault on the Louisiana school-voucher program—wielding a 40-year-old court order against racial discrimination to stymie the aspirations of black parents to get their children the best education.
The Louisiana Scholarship Program began in 2012. It provides full-tuition scholarships to children from families with incomes below 250% of the poverty level, whose children were assigned to public schools rated C, D or F by the state, or who were enrolling in kindergarten. In the current year, 12,000 children applied for scholarships and nearly 5,000 are using them to attend private schools. Roughly 90% are used by black children.
Parental satisfaction is off the charts. A 2013 survey by the Louisiana chapter of the Black Alliance for Educational Options, a national school-choice organization, found that 93.6% of scholarship families are pleased with their children's academic progress and 99.3% believe the schools are safe—a far cry from the dismal public schools to which the children were previously consigned.
But last August, the Justice Department filed a motion to enjoin the program in dozens of school districts that still have desegregation orders from generations ago. It claimed that any change in racial composition would violate the orders. After a tremendous public backlash, Justice withdrew its motion for an injunction, insisting it did not intend to remove kids from the program.
Justice's backpedal generated a lot of publicity—but the government's underlying legal action went forward. And in November, District Court Judge Ivan Lemelle denied a motion by families of children with scholarships and the Black Alliance to intervene. The judge ruled that because the Justice Department had backed off its request for an injunction, the children were in no danger of losing educational opportunities. The parents (whom I represent) have appealed his ruling to the U.S. Court of Appeals for the Fifth Circuit.
In fact, the children are very much in danger of losing their opportunities. The Justice Department is demanding detailed annual information, including the racial composition of the public schools the voucher students are leaving and the private and parochial schools the students are selecting. If it objects to the award of individual vouchers based on those statistics, the department will challenge them.
The state of Louisiana has argued, so far to little avail, that these federal demands "will unreasonably disrupt, if not destroy, the Scholarship program," both because of the volume of information in the midst of a compressed application process and the lengthy litigation that would result from challenges to individual voucher awards.
The "preclearance" system proposed by the Justice Department is reminiscent of one struck down just last year by the U.S. Supreme Court in Shelby County v. Holder. Section 4 of the Voting Rights Act, originally enacted in 1965, required certain states and local jurisdictions with a history of racial discrimination to seek Justice Department approval before they made changes affecting voting. In language directly relevant to the Louisiana voucher litigation, the court held that the federal government could not hold states hostage "based on 40-year-old facts having no logical relation to the present day."
The motion filed by the families of children receiving vouchers to intervene in the case, and their subsequent amicus brief, specifically raised the crucial argument that the Shelby County decision requires the court to dismiss the Justice Department's legal action. It argues that the court does not have jurisdiction over the voucher program at all. The state of Louisiana has not raised that argument, however, and it will go unheard unless the parents are allowed to make it.
The vehicle chosen by the Justice Department to wage its voucher assault is Brumfield v. Dodd. This case, filed in 1971, challenged a state program that provided textbook and transportation assistance to segregated private schools in an effort to evade desegregation. The court ordered that all private schools participating in the program must prove they are nondiscriminatory.
Louisiana's voucher program already requires participating private schools to comply with Brumfield. Since the private schools must also admit students by random selection, the attempt to use Brumfield to subject the voucher program to preclearance makes little sense. More absurdly, the desegregation decrees of the past focused on state action that discriminated against blacks: the Louisiana Scholarship enables predominantly black families to select the best schools for their children.
Judge Lemelle has made no secret of his disdain for the voucher program, lamenting at a November hearing that "I just have concerns" about "the more we take monies" away from public schools, "the more chances those institutions may go away." He also quipped that Gov. Bobby Jindal is "out there on TV talking about how perfect this thing is. Nothing's perfect in this world. I hope he understands that."
The following hearing in January, at which the Justice Department and the state presented their proposals for judicial relief, was held behind closed doors. Judge Lemelle denied the parents' motion, which was opposed by the Justice Department, to monitor the proceedings. And so the very people with the greatest stake in the outcome were denied the opportunity to even witness their fate being argued and decided.
Mitzi Dillon, whose children are using vouchers to transfer from poor-performing public schools in Covington, La., to North Lake Christian, says the uncertainty causes her children stress. "They ask all the time, 'Am I going to have to change schools next year? Am I going to have to go back to that same horrible situation I was in?' That's the reason that we're really hoping that everybody comes to their senses."
Mr. Bolick is vice president for litigation at the Goldwater Institute in Phoenix. He represents families with school vouchers in the Louisiana case.