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Court Ruling Protects Louisiana Voucher Program, but Federal Overreach Persists

• Adam Peshek

This week, a federal judge made a ruling on Louisiana’s voucher program for low-income students in failing schools. The judge ruled that the program can continue but Louisiana must report voucher data to the Department of Justice. Both Louisiana Governor Bobby Jindal and U.S. Attorney General Eric Holder have claimed victory. So who won? The DOJ backed off any immediate attempt to block vouchers and failed to gain a role in the program’s administration. But it was given permission to monitor the program by gathering annual information on the program’s participating students and schools. This is a cause of concern, as it sets the stage for future federal interventions that could create an uncertain picture for parents seeking the best possible education for their children.

The Louisiana Student Scholarships for Educational Excellence Program

Launched in 2008, the Louisiana Student Scholarships for Educational Excellence Program awards low-income students with vouchers to attend private schools if they are enrolled in low-performing public schools. This year, around 7,500 students were awarded vouchers – 90 percent of whom are African-American. Students are eligible for the program if their family earns less than 250 percent of the federal poverty level – or about $38,000 for a single parent with one child. They also have to be attending a public school rated C, D, or F on the state’s A-F school grading scale.

The Department of Justice’s Injunction

Back in August, the DOJ filed a motion to permanently enjoin the program “in districts operating under federal desegregation orders unless and until [Louisiana] receives authorization from the appropriate federal court …” The desegregation orders, which date back nearly 40 years, require certain districts to have schools that mirror the racial makeup of the district as a whole. Therefore, a district that is 60 percent African-American should have schools reflecting that percentage.

DOJ claimed that students leaving schools under the voucher program “reinforc(ed) the racial identity of the school as a black school.” They cited two schools as their examples – one that lost five white students to voucher schools and another that lost six black students. As the Cato Institute’s Jason Bedrick pointed out, this resulted in a shift in racial composition from 29.6 percent white to 28.9 percent white in one school and 30.1 percent black to 29.2 percent black in the other. This warrants federal intervention?

Two studies have been done to examine the issue. The first, by a researcher at Boston University, found that the program actually improved diversity in 16 of the 34 districts in question, with little to no impact on the remaining districts. The other, conducted by doctoral fellows at the University of Arkansas, found that “the overwhelming majority (83 percent)” of transfer students “have positive impacts on the racial integration of the student’s sending school.”

DOJ Backs Off – Sort Of

Understandably, DOJ’s actions have been called into question from the beginning. Former Florida Governor Jeb Bush, Chairman of the Foundation for Excellence in Education, joined Governor Jindal for a press conference less than a month after the motion was filed, saying:

  • “This is another intrusion by the federal government on families’ personal decisions. Parents who wish to send their child to a better school should not have to seek approval from Washington. This move by the Obama Administration traps our kids with low expectations and low-quality schools, all in the name of protecting the system that continually fails these students. It is our moral obligation to ensure that every child has access to the best education available. America is a nation of opportunity and a quality education opens the door to opportunity…”

A week later, in a letter to House Speaker John Boehner, DOJ claimed that it never meant to keep students from using vouchers, merely that it was looking for more information. Clint Bolick, a vice president at the Goldwater Institute and attorney for several Louisiana families, responded: “The Justice Department is back-pedaling furiously on its motion. It appears, at least for now, to be abandoning its demand for an injunction. But its new approach is disingenuous. If this was really about data collection, it never would have demanded such drastic relief.”

In mid-November, DOJ dropped the injunction portion of their suit. In many ways, this was where the real victory happened. However, DOJ still requested a 45 day review period that would require Louisiana to submit a large amount of information on the demographics of the voucher program, students, and participating private schools. This requirement would significantly slow down the process, give parents little time to prepare and make administering the program unnecessarily complicated. If DOJ found concerns that could not be settled “collaboratively,” they asked that the Court step in to decide each individual disagreement. Gov. Jindal called this request “a frightening overreach of the federal government” and an “attempt to red-tape and regulate the Louisiana Scholarship Program to death.”

Attorney General Holder defended DOJ’s position, saying they “never sought to do anything with the voucher program as much as to get information… it’s a talking point that Gov. Jindal and others … think makes good political fodder, but it’s totally inconsistent with the facts.”

Apparently at the Justice Department, information gathering includes an injunction to shut down the program you’re interested in.

A Victory for School Choice?

On Tuesday, the Court decided that Louisiana has to provide much of the information that Governor Jindal called “frightening overreach” 10 days before the voucher is awarded – shorter than the 45 days requested by DOJ. Most significantly, the Court did not accept DOJ’s request that disputes go before a court– taking the most significant teeth out of the request. However, the ruling explicitly says that DOJ may use “information produced by the State in federal school desegregation cases in Louisiana” in the future. As the DOJ has already demonstrated, they don’t need much compelling information to try to block the program.

This is a victory for Louisiana students trying to escape failing schools. The program can move forward without the approval of the federal government. The required 10 day review period – while bureaucratic and threatening – will not keep the program from providing much-needed choices to Louisiana’s neediest families.

However, the fight does not end here. Governor Jindal rightfully recommends ongoing attention to this issue. If the Court’s ruling came in the form of a bill in the Louisiana Legislature, supporters of school choice would be rallying against it and few would consider its passage a victory. This is precisely why Governor Jindal offered words of caution in a press release:

  • “We have learned from this lawsuit the potential dangers of federal government overreach in K-12 education. We will remain vigilant that the Department of Justice will not take advantage of the information sharing process and use it as means to further obstruct school choice. We will continue to oppose any attempts to impede children and their parents from being able to escape failing schools and have access to better educational opportunities.”

The idea that desegregation orders should be interpreted as limiting choices for students is, on its face, ridiculous. This is especially true low-income, minority students who were the impetus for the desegregation lawsuits in the first place. As Russ Whitehurst from the Brookings Institution noted last year:

  • “The civil rights movement has been fundamentally about affording to blacks choices they would otherwise have been denied because of the color of their skin or the legacy of the lives their ancestors were forced to live under slavery and de jure segregation. But here we have the DOJ, which has historically been the force behind advances in civil rights, taking choice away from the very families the civil rights laws the DOJ is enforcing are supposed help.”

The ruling, while a win for voucher students in Louisiana, has set a dangerous precedent for federal government overreach into school choice programs.

About the author

Adam Peshek @AdamPeshek

Adam Peshek is Managing Director of Opportunity Policy at ExcelinEd, where he provides strategic support to state leaders interested in developing, adopting, and implementing policies that increase educational options for children. He has provided expert testimony in more than a dozen state legislatures and is a frequent commentator on ESAs, school choice, and education policy across the country. He is also the is the co-editor of the first published volume on ESAs, Education Savings Accounts: The New Frontier in School Choice. Adam currently resides in Atlanta, Georgia and is a Senior Fellow with the Beacon Center of Tennessee.