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Appeals Court Smacks Down Justice Department in La. Voucher Case

November 12, 2015

Article by Mark Walsh for Education Week

A federal appeals court has ruled that  the U.S. Department of Justice overstepped its authority in seeking to use a 40-year-old desegregation case in Louisiana to demand information about the race of students in that state’s private-school voucher program.

The 2-1 decision by a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, is a defeat for President Barack Obama’s administration and a victory for supporters of the state’s voucher program. They include a group of black families using the private-school vouchers, who brought the appeal, and Republican Gov. Bobby Jindal, who had publicly sparred with federal officials before the state agreed last year to provide information about voucher recipients.

In its Nov. 10 decision, the appeals court said the Justice Department was trying to “shoehorn its regulation of the voucher program,” which was adopted in 2012, “into an entirely unrelated 40-year-old case.”

That case, Brumfield v. Dodd, was filed in 1975 and was focused on a statewide program of transportation and textbook aid to private schools that was aimed at evading desegregation orders. That litigation lead to court orders barring state aid to private schools that discriminate based on race, and the suit remained active as private schools must fill out a form annually certifying that they don’t discriminate.

Meanwhile, 34 of Louisiana’s 64 parish (or county) school systems remain under federal court supervision for desegregation, with the Justice Department involved in 24 of those mostly dormant cases. 

In 2013, the Justice Department filed a discovery motion under the Brumfield case seeking demographic data on the recipients in the voucher program, which last school year numbered 7,000. The department was concerned that the exodus of children from some of the court-supervised public school systems was affecting racial demographics in those districts. (The department had initially sought to go further by barring the state from issuing vouchers to any student from a public school still under court supervision for desegregation.)

Jindal accused the Obama administration of being out of step with the times and opposed to efforts to help minority schoolchildren by providing them vouchers. (See this Education Week story.)

But U.S. District Judge Ivan L.R. Lemelle of New Orleans issued several rulings in 2013 and 2014 upholding the Justice Department’s efforts to monitor demographic information in the voucher program.

Jindal’s administration agreed to provide the data, but a parents’ group, the Louisiana Black Alliance for Educational Options, fought to intervene in the case, and that group appealed the case to the 5th Circuit.

In its decision this week in Brumfield v. Dillon, the 5th Circuit court held that Lemelle exceeded his jurisdiction because the voucher program is outside the scope of the Brumfield litigation.

“First, the voucher program’s potential impact on desegregation orders for public schools in separate federal desegregation cases is distinct from eliminating public funding for discriminatory private schools,” said the opinion by U.S. Circuit Judge Edith H. Jones. “Second, the voucher program aid is for students rather than private schools. Finally, even if the voucher program aids private schools, it is not being given to discriminatory private schools.”

Jones had some harsh words for the Justice Department’s tactics.

“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,” she said.

Because there was no separate legal complaint about how the voucher program might be affecting racial demographics in the districts still under court supervision, she said, there was “no basis for DOJ to intrude into the affairs of Louisiana and its disadvantaged student population.”

The federal agency “seeks to be the inquisitor,” she added, and it sought “to regulate the [voucher] program without any legal judgment against the state.”

Writing in dissent, U.S. Circuit Judge Gregg Costa said he doubted the black families had standing to intervene in the case, and he would have looked past which vehicle the Justice Department used to raise genuine concerns about losing ground in the desegregation of public schools.

“The majority opinion may well be correct that the Department of Justice should have litigated this issue in the numerous school desegregation cases still pending in Louisiana federal courts rather than this one that focused on state aid to segregation academies,” Costa said. 

“But vigilance about retrenchment in the area of school desegregation is not” misguided, he said.

Efforts to reach the Justice Department, Gov. Jindal’s office, and the lawyers for the parents’ group did not yield an immediate response on Wednesday, which was a federal holiday.

[UPDATED 3:45 PM ET] Clint Bolick, the lawyer who represents the intervening plaintiffs, said the decision was a “really gratifying win.”

“I thought that from the beginning, this was a brazen, heavy-handed effort by the Obama administration” to demand the data from the state, said Bolick, with the Phoenix, Ariz.-based Goldwater Institute.

Dena W. Iverson, a spokeswoman for the Justice Department, said via email that the department “is reviewing the decision and will determine its next steps.



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