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La. and U.S. DOJ Continue to Spar Over Voucher Program

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This post originally appeared in the School Law blog. It was written by guest blogger Mark Walsh. 

The U.S. Department of Justice will meet the state of Louisiana in federal court on Friday in the controversy about whether the state's private-school voucher program must comply with a 1975 federal desegregation order that applies statewide.

On Monday and Tuesday, there was a flash of statements from Republican Gov. Bobby Jindal and his allies suggesting that the Justice Department had "backed off" its school choice "lawsuit."

"We are pleased that the Obama Administration has given up its attempt to end the Louisiana Scholarship Program with this absurd lawsuit," Gov. Jindal said in a Nov. 18 statement. "It is great the Department of Justice has realized, at least for the time being, it has no authority to end equal opportunity of education for Louisiana children."

Meanwhile, U.S. House Majority Leader Eric Cantor of Virginia, who along with other congressional Republicans has backed Jindal during the controversy, issued a statement on Tuesday that said, "It's encouraging that the Obama Administration has ended its current attack on school choice in Louisiana."

The Justice Department in August filed a motion as part of a 1975 case, and not a separate lawsuit, that sought to enjoin the state from issuing vouchers to students who attend public schools still under federal court supervision for desegregation unless the state gets the approval of the court overseeing the relevant desegregation plan.

The department is concerned with the voucher program's effects on racial balance in schools in some of the 34 Louisiana districts still under court-supervised desegregation plans, and it is seeking to ensure the voucher program is implemented in a way that is consistent with those plans. (My story is here.)

While the Justice Department has not withdrawn its motion or dropped its legal efforts, there is at least a kernel of truth in Gov. Jindal's statement, and the full text of the statement is more circumspect than the governor's overheated quotes.

As the governor correctly notes, U.S. District Judge Ivan I.R. Lemelle of New Orleans issued a procedural decision in the case on Monday that recounts what the federal government is asking for with its motion, which has evolved somewhat since August. 

As characterized by Lemelle, the Justice Department "is not seeking to end" the voucher program "or take vouchers away from particular students," which the department has said all along was its position. Rather, Lemelle said, the department "simply asks this court to create a process to ensure that the state provides necessary information and complies with its desegregation obligations as it implements the program."

"The court reads these two statements as the United States abandoning its previous request that the court 'permanently enjoin the state from issuing any future voucher awards to students unless and until [the state] obtains authorization from the federal court overseeing the applicable desegregation case,'" Judge Lemelle said in the Nov. 18 order.

The two sides have briefed two questions that will be argued before Lemelle on Friday: 

• Does the desegregation order in the 1975 case, Brumfield v. Dodd, apply to the state voucher program so as to require the state to get federal court authorization to implement it?

• If the desegregation order applies, is there a need to amend existing court orders to ensure a process of court review of the voucher program?

In Monday's order, Lemelle also denied a motion to allow a group of black parents whose children use the vouchers to attend private schools to formally intervene in the case.

In its court papers, the Justice Department asks Lemelle to order a "streamlined and orderly process" for the state to provide information on the assignment of students to voucher schools 45 days before finalizing such assignments and notifying families.

"The United States anticipates that it will then work amicably with the state, as it has for decades, to resolve any concerns regarding the proposed voucher assignments," the Justice Department brief, filed Nov. 15, says.

In his Monday statement, Jindal said the department's proposal is part of a "new Washington strategy to red tape and regulate the [voucher] program to death."

"The obvious purpose of this [45-day requirement] would be to prevent parents from learning that the Department of Justice might try to take their child's scholarship away if it decides that the child is the wrong race," Jindal said in the statement.

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