September 24, 2013 5:13PM

DOJ Backpedals on School Choice Lawsuit

In response to withering criticism and political pressure, the U.S. Department of Justice is backpedaling on its lawsuit against Louisiana's school choice program, which provides school vouchers to low-income students assigned to government-run schools receiving a D or F rating for performance. The lawsuit sought to "permanently enjoin the State of Louisiana from awarding any school vouchers to students attending schools in districts operating under federal desegregation orders" unless the state receives permission from the federal government. Now the DOJ is claiming in a carefully-worded letter to Congress that they were just looking for information:

To be clear, we are neither opposing Louisiana's school voucher program nor seeking to revoke vouchers from any student. [...] Our goal in filing a motion for further relief [...] was straightforward: The United States is seeking the court's assistance in ensuring that the information Louisiana collects in connection with its school voucher program is provided to the United States in a timely fashion and that Louisiana implements its program in full compliance with federal law, including the desegregation order in this case.

Unfortunately, the DOJ is being disingenuous. While their lawsuit would not have revoked vouchers that the state had already distributed, it would have blocked all future vouchers to students in districts under desegregation orders without federal permission. In other words, rather than leaving the choice of school in the hands of parents, parents would have to beg the federal government to allow their children to escape from failing government schools. This is problematic since the DOJ's absurd definition of segregation would prevent black students from leaving a school that the DOJ deems "insufficiently black" because there are a greater percentage of black students than black people living in the district. For example:

The [DOJ's] petition also cites Cecilia Primary School, which in 2012-13 “lost six black students as a result of the voucher program,” thereby “reinforcing the school’s racial identity as a white school in a predominantly black school district.” In the previous school year, the school’s racial composition was 30.1 percent black, which the DOJ notes was 16.4 percentage points lower than the black composition of the district as a whole. According to the NCES, in 2010-11 there were 205 black students out of a total enrollment of 758, so the school was 27 percent black. Assuming a constant total enrollment, the DOJ’s numbers suggest that there were 228 black students in 2011-12. The loss of six black students would mean the school’s racial composition shifted from 30.1 percent black to 29.2 percent black as a result of the voucher program. Again, imperceptible to the untrained eye but a grave threat to racial harmony according to the Obama administration’s Department of Justice.

Only the government could define "segregation" to include a school that is one-third black and two-thirds white or vice-versa.

The Goldwater Institute and the Black Alliance for Education Options are asking the judge to dismiss the case on behalf of four mostly minority families, arguing that "the judge doesn't have jurisdiction over the voucher program statewide, and that the program doesn't actually violate the federal desegregation orders the lawsuit claims it does." Former Department of Justice Attorney Clint Bolick of Goldwater believes that the DOJ's case is also weak on substantive grounds:

The children attending private schools with vouchers "are among the intended beneficiaries of the desegregation orders to which the United States seeks to subject the scholarship program (and, of course, they are intended beneficiaries of this lawsuit)," Bolick wrote in the motion. "It is perverse to attempt to thwart the children’s educational opportunities by invoking a desegregation degree intended to vindicate their educational opportunities." 

Since about 90 percent of participants in Louisiana's voucher program are black, the DOJ's lawsuit would primarily prevent black students from attending the schools of their choice. If the DOJ truly has the best interests of these students in mind, it will drop the lawsuit entirely.