Voucher Victory

In 2013, the U.S. Department of Justice (DOJ) launched an attempt to shut down Louisiana’s popular and successful voucher program, ultimately having to beat an awkward retreat (see “Bayou Backdown?” legal beat, Summer 2014). Last week, the U.S. Fifth Circuit gave a major legal victory to the voucher program and a humiliating defeat to DOJ.

The Louisiana Scholarship Program gives low-income children trapped in low-performing and failing schools a way to escape. Under the program, qualifying students can receive a voucher equal to either 90 percent of their district’s total per-pupil expenditure or the tuition charged by the private school chosen by the student. Begun in 2008, the program originally applied only to children in New Orleans, but it expanded statewide in 2012. Of the 7,400 students receiving vouchers last year, more than 85 percent were African American.

In its 2013 attempt to shut down the program, DOJ dusted off a dormant, decades-old desegregation case, Brumfield v. Dodd. The agency claimed that the voucher program was increasing segregation and therefore violating a 1975 remedial order from Brumfield. Unfortunately for DOJ, multiple studies showed that the voucher program was actually improving integration, and the agency withdrew its request for an injunction. Attorney General Eric Holder was reduced to publicly declaring, “I actually care about the education of children.”

Trying to save face and still limit the reach of the voucher program, Holder and DOJ asked federal district judge Ivan Lemelle to force the state to provide data on the students receiving vouchers and to give DOJ authority to veto vouchers for particular students. As Martha Derthick and I reported in Education Next, “The state and Governor [Bobby] Jindal objected, arguing that DOJ was just trying to starve what it could not strangle.” In April 2014, Lemelle ruled that Louisiana had to provide DOJ with a list of all voucher applicants and recipients, as well as racial data—but he refused to grant veto power to the agency. With DOJ unable to deny vouchers, Louisiana was content to declare victory.

But parents were not. After DOJ mounted its first attack on the voucher program in 2013, a group of black parents and the Louisiana Black Alliance for Educational Options requested to intervene in the case. DOJ officials objected, inexplicably asserting that parents’ interests in having their children receive vouchers “were remote.” Lemelle sided with DOJ, denying intervenor status to the parents.

With the assistance of the Goldwater Institute, the parents appealed that denial as well as Lemelle’s ruling requiring the state to submit racial data. The parents were concerned that the data requirement would provide the pretext for later intrusions by the feds. Just a few days after Lemelle’s April 2014 ruling, the U.S. Fifth Circuit overturned his denial of intervenor status, clearing the way for the parents to challenge his racial-data requirement as well.

On November 10, 2015, a U.S. Fifth Circuit Court of Appeals handed the parents an overwhelming victory. In a 2–1 decision, the panel overturned the district court, determining that it had no jurisdiction over the voucher program. The program, the court ruled, is “outside the scope of [the 1975 desegregation ruling] because it provides aid to students rather than to private schools.” As well, “the district court did not have jurisdiction over the program, because the aid did not go to discriminatory private schools.” The court noted that “the DOJ admits” that it was engaged in a “fishing expedition,” because it provided no evidence that the voucher program was creating further segregation.

Ultimately the court concluded that DOJ’s position was completely “disingenuous”:

DOJ’s attempt to shoehorn its regulation of the voucher program into an entirely unrelated forty-year-old case represents more than ineffective lawyering. Despite the district court’s contrary conclusion, it seems plain that DOJ’s expressed concern—how the voucher program affects statewide public schools racially—has nothing to do with the narrow issues considered in the Brumfield litigation. DOJ’s bold strategy, if upheld, would circumvent the ordinary litigation process in two ways. The reports it seeks do not fall under the auspices of discovery permitted by the Federal Rules of Civil Procedure, which authorize the compelled production of information only after a complaint alleges violations of law. Here, there was no complaint, hence no basis for DOJ to intrude into the affairs of Louisiana and its disadvantaged student population. American discovery follows the common law adversary process, not the civil law’s inquisitorial process, yet DOJ seeks to be the inquisitor. Even more disturbing, DOJ’s motion, as explained in the November 2013 hearing, essentially foretells its attempt—through pre-award “back and forth” with the state on every single voucher—to regulate the program without any legal judgment against the state.

It’s hard to imagine a more decisive rejection of DOJ’s legal claims. One hopes this decision will put an end to its attempts to undermine the educational opportunities Louisiana has created for its disadvantaged children.

Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs.

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