Bobby Jindal made a name for himself in the GOP by championing school choice. Upstaged by new candidates on the block, the Louisiana Governor this week dropped out of the Republican presidential race. But at least the education reformer can take heart that his private-school voucher legacy has finally been protected.
Last week a 2-1 majority of the Fifth Circuit Court of Appeals overturned a district court ruling that granted the Justice Department pre-clearance review of Louisiana vouchers. The “burdensome, costly, and endless” process imposed “a vast and intrusive reporting regime on the State without any finding of unconstitutional conduct,” wrote appellate Judge Edith Jones for the majority.
The rebuke punctuates a sordid, two-year case in which the Obama Administration sought to deny poor, black kids better educational opportunities under the pretext of promoting integration. In August 2013 Justice sued to block Louisiana’s vouchers, which the Administration claimed appeared “to impede the desegregation progress” of public schools under federal desegregation orders dating to the 1960s and ’70s.
Only students who come from families below 250% of the poverty and attend schools with a C or lower grade are eligible for the vouchers. In 2013 black students received 85% of 6,800 vouchers awarded. But Justice complained that black voucher recipients might leave their failing public schools more white.
According to a study by Boston University political scientist Christine Rossell—who has analyzed desegregation plans for more than 25 years—Louisiana vouchers “had no negative effect on school desegregation in the 34 school districts under a desegregation court order.” Justice produced no evidence to the contrary.
Switching tactics, Justice in November 2013 asked the court to allow federal oversight of Louisiana’s vouchers under a 1975 desegregation order that banned public funding of discriminatory private schools. Justice demanded that the state, prior to issuing vouchers, hand over racial data for each public school as well as applicants’ names, addresses, race, previous public school and private school preference.
In April 2014, federal Judge Ivan Lemelle imposed a tortuous federal pre-clearance review that allowed Justice to veto voucher awards. Parents of voucher recipients and the Louisiana Black Alliance for Educational Options petitioned to intervene in the case. They argued that the feds didn’t have jurisdiction over a private school voucher program.
The Fifth Circuit agreed. As Judge Jones explains, Justice can’t compel disclosure of state records without alleging illegal public aid of discriminatory private schools, which it didn’t. “DOJ admits that [its] position amounts to a fishing expedition,” writes Judge Jones, and an “attempt—through pre-award ‘back and forth’ with the state on every single voucher—to regulate the program without any legal judgment against the state.” Justice’s argument “represents more than ineffective lawyering.”
The Administration’s dubious prosecution of vouchers in Louisiana reflects its willingness to throw poor kids under the bus to curry favor with the teachers’ unions. Unlike President Obama, Mr. Jindal will leave office on the right side of history.