Judge opens door for greater federal scrutiny of Jindal’s voucher program

Advocate staff photo by MATTHEW HINTON -- President Barack Obama is greeted by Louisiana Gov. Bobby Jindal on the tarmac upon his arrival on Air Force One at Louis Armstrong International Airport in New Orleans, Friday, Nov. 8, 2013. Obama traveled to the Gulf Coast region to visit the Port of New Orleans to make a case that more exports equal more jobs. After New Orleans he will go to Miami area for three Democratic fundraisers. Show caption
Advocate staff photo by MATTHEW HINTON -- President Barack Obama is greeted by Louisiana Gov. Bobby Jindal on the tarmac upon his arrival on Air Force One at Louis Armstrong International Airport in New Orleans, Friday, Nov. 8, 2013. Obama traveled to the Gulf Coast region to visit the Port of New Orleans to make a case that more exports equal more jobs. After New Orleans he will go to Miami area for three Democratic fundraisers.

The U.S. Justice Department is unlikely to halt Gov. Bobby Jindal’s private-school voucher program, but the state could ultimately face heightened federal oversight to ensure the program doesn’t hamper efforts to desegregate local school districts.

After a hearing on Friday in a lawsuit between the two sides, U.S. District Judge Ivan Lemelle ordered both the Justice Department and the state to come up with proposals that would strengthen the court-ordered vetting process that private schools in Louisiana already submit to in order to receive vouchers.

That’s at least a partial victory for the federal government, which has been arguing since August that the voucher program may result in more racially homogeneous schools if it’s not subject to greater scrutiny.

The state argues that any heightened oversight by the Justice Department, which wants a 45-day window to review voucher assignments before they go out to families, will interfere with the program’s multi-part application process.

The case has gained broad attention and given Jindal an opening to attack President Barack Obama for what he argues is a wrong-headed approach to improving education for minority students, with members of the national Republican leadership joining in the attack in the past few weeks.

At this point, it is unclear exactly what the new oversight process will look like, and Jindal’s camp also claimed victory on Friday. The Governor’s Office emphasized that any injunction to temporarily halt the program is now off the table. Lemelle also said that whatever new vetting process the two sides come up with should not put “unreasonable burdens” on the program.

Nevertheless, the judge left the door ajar for the federal government to step up its oversight if it can do so without unduly interfering with how the program operates.

“This court has an obligation ... to take reasonable steps whereby the voucher program is not being used to promote segregation,” Lemelle said. “The Constitution mandates it. This case mandates it.”

In deciding as much, Lemelle significantly broadened the scope of a 1975 court-imposed injunction that was meant to keep the state from giving money to private schools that did not allow black students to attend. That state support was seen as aiding “white flight” from newly integrated public schools.

Since then, private schools have had to prove they allow students of all races to attend in order to receive money for things such as transportation or textbooks, and schools in the state’s voucher program today go through the same application process.

Arguments on Friday turned on whether the federal government should have authority to scrutinize not just whether private schools discriminate by race, but also whether the ultimate effect of the voucher program is to hurt desegregation efforts in public schools.

The federal government argues, for instance, that if a group of white students in a majority-black school were to use vouchers to go elsewhere, the result would be to cement “the racial identity of the school as a black school.”

Jindal claims the Justice Department has things backward, since roughly 90 percent of the students who take advantage of the program are minorities, and they are making their own choices about which school to attend.

In court on Friday the state’s attorney, Michael Kirk, raised both legal and practical objections to giving the federal government a broader oversight role. He argued that the court should stick with the original, more narrow, wording of the 1975 injunction, which was meant only to guard against private schools actually barring students of one race or another.

But Lemelle pushed back, saying that the overarching concern in the original lawsuit, Brumfield v. Dodd, was to “assure compliance with the Constitution and Brown v. Board of Education,” the landmark 1954 Supreme Court decision striking down public school segregation.

That suggested Lemelle may be open to a proposal from the Justice Department that would let it raise objections when voucher assignments could produce less racially integrated public schools.

However, Kirk seemed to get more sympathy from the judge when it came to the technical challenge of giving the Justice Department 45 days before voucher assignments even go out to families.

Kirk pointed out that the state runs two separate application periods, giving students a second bite at the apple in case families who won seats in the first round decide not to accept their offer.

So rather than accept the 45-day window proposed by the Justice Department, Lemelle ordered both sides to come back with ideas for improving oversight while allowing the program to function. He gave both sides 45 days to file briefs and set a new court date to review their proposals.

The federal government did not give any indication on Friday of how it might respond. Justice Department lawyer Anurima Bhargava said the agency’s ultimate goal is to guard against impediments to desegregation without having to challenge voucher assignments after they’ve been given out. “We certainly don’t want to be taking vouchers away from students,” she said.

But Kirk continued to argue that the existing process for vetting private schools is enough, even when Lemelle pressed him to say what kind of stepped-up oversight the state could live with.

“It is at least conceivable to me that even after we try as hard as we can, we may still be where I am today, which is taking the position that we oppose any new process,” he said.