ACRU

The Fifth Circuit Sides with Voucher Parents against Overreaching DOJ

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This column by ACRU Policy Board member Hans von Spakovsky and Andrew Kloster was published November 25, 2015 by National Review.

In 2013, the Civil Rights Division of the U. S. Department of Justice filed a motion in federal court to block the Louisiana voucher program, which allows poor students —- 90 percent of whom are black —- to get out of failing schools. Leveraging a 40-year-old desegregation case, DOJ at first sought to stop the voucher program in its entirety. After almost universal criticism, DOJ stepped back from that objective but still tried to force Louisiana to get DOJ preapproval of every single voucher award made to any student before those students could receive them.

Why? DOJ admitted that Louisiana’s voucher program was not racist, was not harming desegregation efforts, and was not being used for tuition at discriminatory schools. Instead, DOJ claimed that the flight of students from failing public schools to other public and private schools might impact future desegregation efforts.

But what it really showed was the hostility of this administration to student voucher programs that are vehemently opposed by their political allies —- teachers unions. It also demonstrated the administration’s willingness to abuse the power of the Justice Department for political purposes.

A federal district court in Louisiana bought into DOJ’s argument, but on November 10, the Fifth Circuit Court of Appeals reversed, throwing out DOJ’s claims. The decision is peppered with stinging criticism of the department and lays out clear limitations on DOJ’s use of decades-old court desegregation orders to club states into submission on issues that have nothing to do with the original cases. The decision is a victory for minority students such as Brian Ridgley, who was an elementary school student at The Good Shepherd Nativity Mission School in New Orleans. Brian started as a voucher student when the Louisiana program was just a pilot project.

Judge Edith Jones, who has often been mentioned as an ideal candidate by conservatives for the U.S. Supreme Court, penned the majority opinion. In it, the court held 1) that it had jurisdiction to hear the case, and 2) that the injunction blocking the voucher program was void for lack of subject matter jurisdiction.

The decision is procedurally complex but comes down to two major questions. First: Did the decision of the federal district court affect the voucher program or was it, as DOJ argued, simply an information-gathering exercise? Second: Did a 40-year-old court order dealing with state money going to discriminatory private schools apply to school vouchers going to poor and minority students —- vouchers that go to both public and private schools that everyone agrees are non-discriminatory?

DOJ first went to court in 2013 making broad statements about amending the old desegregation order so as to modify the preclearance process and apply it to potential voucher awards. And the district court gave DOJ what it wanted in an order that was not “carefully label[led] or describe[d],” according to the Fifth Circuit.

While the order was a bit messy, it is clear that it created a new, “burdensome, costly, and endless process” that Louisiana would have to comply with. Confronted on appeal with angry minority parents who wanted their day in court, however, DOJ changed its tune, claiming that the order was merely a discovery request, requiring the state to produce information rather than changing the rules of the game. In the words of the Fifth Circuit, DOJ’s actions in this regard were “disingenuous.”

Not only was the district court’s order novel, it was improper. As the Fifth Circuit noted, the district court order “goes beyond correcting —- and indeed has nothing to do with —- the violation originally litigated in [the case].”

The original 1975 court order allowed for continuing jurisdiction only “for the remedial purpose laid out in the order, which was to prevent future state aid to discriminatory schools.” But DOJ’s position was that the preclearance regime was necessary because voucher schools “might potentially frustrate the desegregation of public school districts in other pending cases. The DOJ admits that this position amounts to a fishing expedition.” Moreover, DOJ conceded that none of the voucher schools were discriminatory.

Finally, the Fifth Circuit held that the district court order was outside the scope of the court’s continuing jurisdiction because the voucher program “provides aid to students rather than to private schools.” This part of the holding reaffirms something voucher advocates have been saying for years in the context of Establishment Clause challenges to voucher monies used at parochial schools: Vouchers are not money to schools, but are accounts given to parents and students to be used at their direction.

There is much more to be said about this case: DOJ’s attempts to keep parents and students out of the litigation is a story in itself; DOJ opposed the intervention of the parents of the minority children who would be most affected by this attempt to stop the voucher program. But the important point is this: Louisiana’s voucher program can continue, and DOJ’s misuse of decades-old court orders will be severely limited going forward.

This is a victory for school choice, for educational opportunity, for the rule of law, and, most importantly, for the eager students such as Brian Ridgley who will now have a chance to get the quality education they deserve.