On November 22nd, a federal judge ruled that the U.S. Justice Department (DOJ) has the authority to examine Louisiana school voucher programs to ensure they do not promote segregation — a ruling contrary to the position of Louisiana Gov. Bobby Jindal, who wants the DOE to keep its hands off the voucher program.
U.S. District Judge Ivan Lemelle said a decades-old court decision gives DOJ the right to examine school voucher programs, but the review process can't damage the program, which might be improving racial balance in public schools. The two parties now have 60 days to create a review process. All current voucher students may stay where they are, writes Danielle Dreilinger of The Times-Picayune.
Both parties are happy with the ruling and both declared victory. "We are pleased that the court has supported the department's position in this matter. This should not have been controversial in the first place," said Jocelyn Samuels, acting assistant attorney general for the Justice Department's Civil Rights Division.
Gov. Jindal said he was pleased that the judge "made clear he does not want to disrupt the scholarship program."
Under the 1975 Brumfield v. Dodd decision, it is illegal for the state of Louisiana to give money to private schools that discriminate by race. Attorney Michael Kirk, arguing for Louisiana, conceded that the 1975 case applies to the voucher program. But he said an oversight process is already in place. The program may use only those schools that the Justice Department itself has certified as complying with Brumfield's requirements.
Lawyers from both sides said the federal government has never challenged a private school's certification.
"The only way the voucher system could be misused â¦ is if the state is providing aid to schools that segregate," Kirk said, and "every single one of the participating schools in this program does not segregate, does not discriminate."
According to Judge Lemelle, the Brumfield v. Dodd case is also about ensuring the state doesn't promote segregation in public schools, and thus the voucher program calls for new procedures.
"This case is about the Constitution and Brown v. Board of Ed," he said, referring to the U.S. Supreme Court's landmark 1954 decision outlawing "separate but equal" public schools. "The court has an obligation â¦ to take reasonable steps in the process whereby the voucher program is not being used to promote segregation."
The federal judge said the review process could not be so difficult that it scuttles the voucher program. The judge pointed to a state-commissioned analysis that shows the first two years of the program in fact improved integration. Federal lawyers are required to respond to that analysis within 30 days.
Federal attorney Anurima Bhargava said the Justice Department needs data about voucher assignments before parents are informed of their children's school placement because lawyers don't want to be in the position of removing children from their schools if they challenge an assignment.
The DOJ proposed a 45-day waiting period from when vouchers are assigned to when families are informed.
Jindal said that would "red tape" the program to death. He also said the federal review must be limited, saying: "We will draw a hard line against allowing the federal government to control the scholarship program and handpick schools for Louisiana's children."