Thursday, September 12, 2013

What's Really at Stake in DOJ's Suit to Block Voucher Program in Louisiana

Yesterday, the Brookings Institute released an essay by Grover Whitehurst arguing that DOJ's attempt to block school vouchers in Louisiana "undermines civil rights."  (For more background on the lawsuit, see my earlier posts here and here.)  Whitehurst argues that the numbers of vouchers are too small to have any meaningful effect on the districts and that some of those using the vouchers are African American.  Thus, the net effect is to deny African Americans choice.  He then likens what the DOJ is doing--trying to control and direct the assignment of a few student based on race--to what the districts in Parents Involved in Seattle Schools v. Seattle School District were doing, which the Supreme Court struck down.

This essay shows how little some appreciate the practical dynamics and legal principles of desegregation.  Or, it shows how school choice advocates respect no rules that might stand in their way.  First, Whitehurst assumes a tremendous amount of facts (and admits to doing so) in reaching his conclusion that the voucher program poses no threat.  As I indicated in my earlier post, the point of desegregation law is to affirmatively promote integration and prevent backsliding. These are not things we can do after the fact.   Thus, one of my points was to let the legal process play out. If Louisiana is in the right, the facts will bear it out and they can move forward.  We cannot, however, take their word for it, particularly since the state did not seem to even consider the segregative impacts the program might have until now.  

Second, it comes as no surprise that some African Americans are participating in the voucher program, but his heavy focus on this point is just a sideshow to avoid the more important legal and factual issues in the case.  Just because African Americans participate does not prove the program does not have a segregative effect.

Third, integration and segregation have always been about numbers.  We know that once schools get outside of certain demographic percentages they hit tipping points that spill over into complete segregation.  Thus, every court opinion I have ever read in regard to school segregation focuses on the numbers.  Moreover, as counsel for Louisville's school district said in the oral arguments in Parents Involved, the checks that the district places on student assignments amount to placing one's "finger in the dyke."  That finger may only be holding back a small stream of water that does not seem like much to the common observer, but if the finger is removed, that small stream of water can rapidly expand and bring down the entire dyke.

Fourth, while the facts of Parents Involved and Louisiana might avail themselves to a few factual comparison-- like the one I just offered--Whitehurst's attempt to equate their legal principles and obligations is asinine.  The districts in question in Louisiana are under court order desegregation, which means they have a continuing obligation to eliminate the vestiges and continuing effects of their formerly de jure system.  In other words, they still have not remedied the effects of their past segregation.  The districts in Parents Involved, according to courts, had already remedied those continuing effects.  Thus, they are in no way legally comparable to Louisiana's districts.

Either Whitehurst suspects some of this and does not care or jumped into a field he knows little and thinks this is a blank slate upon which we might debate policy points.  Wait.  Isn't that what bloggers tend to do?

 

http://lawprofessors.typepad.com/education_law/2013/09/whats-really-at-stake-in-dojs-suit-to-block-voucher-program-in-louisiana.html

Analysis, Charters and Vouchers, Racial Integration and Diversity | Permalink

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