Making children "mere creatures of the state"

The Justice Department may be the last major American institution that values racial integration for the sake of integration. Its lawyers have worked to encase aging federal school-desegregation orders in cast iron while families—both white and black—have sought more flexibility, quality schools, and choices as to where their children will attend.

DOJ attorneys may tolerate some flexible plans aimed at voluntary desegregation, such as magnet schools and other forms of public-school choice, but there’s one form of choice it seems the Obama Administration and its legal beagles will not accept: private-school vouchers.

Late last week, lawyers with the department’s Civil Rights Division petitioned a federal judge in Louisiana to stop the Bayou State’s new voucher program from spreading throughout the thirty-plus districts operating under federal desegregation orders.  During the 2012-13 school year, Louisiana awarded vouchers to nearly 600 students from these districts, and DOJ asserts that their exit caused thirty-four public schools in thirteen districts to stray from “the desired degree of student racial diversity.”

To regain that “desired degree,” the department wants vouchers prohibited in court-supervised districts, unless the cognizant judge grants permission. That may be in keeping with the Obama Administration’s hostility to private-school choice, but it sends education policy into a time warp.

For starters, the voucher program is popular with families. Participation in the program’s second year has nearly doubled to about 8,000 students, and it boasts a 93 percent satisfaction rate among first-year participants. It’s hard to find that level of delight with any of the more than 268 desegregation orders that remain in the United States today after thirty- to forty-odd years (there were, in the years after Brown v. Board of Education, as many as 755 districts under court-ordered desegregation).

Moreover, most of these voucher participants are black and now are being welcomed in sizable numbers at schools such as Mater Dolorosa Catholic, which previously had been only 8 percent black and has resided in a school district (Tangipahoa) that has been under a desegregation order since LBJ was in the White House.

How does the Justice Department makes its case? By telling U.S. District Judge Ivan Lemelle that schools such as Independence Elementary in Tangipahoa last year lost five white students to the voucher program, making the school more predominately black. That would have shifted white enrollment at Independence Elementary from 30 percent to 29 percent (there were 143 white students out of a total 482 at Independence in 2011, according to the National Center for Education Statistics). That’s barely observable to the naked eye.

But even if DOJ just plain disapproves of this form of school choice, its petition threatens other types. Prospective charter schools, for instance, ordinarily don’t have to seek authorization from a sponsor and a federal court judge to open for business in court-supervised districts. If a judge has to approve vouchers in a district he or she oversees, how long before charters need to seek federal permission to serve students for the sake of integration? How about homeschoolers?

Then there’s the rather fundamental matter of whom the affected kids “belong” to, their parents or the government? In an epochal 1925 decision, the Supreme Court ruled that children are not “mere creatures of the state” and that a state may not “standardize its children by forcing them to accept instruction from public teachers only.” If Louisiana wants to implement a program that awards private-school tuition assistance to low-income students assigned in low-performing public schools, it’s not for federal Civil Rights Division lawyers to decide otherwise.

Perhaps the Justice Department was trying to make a statement during the fiftieth anniversary of Martin Luther King’s historic “I Have a Dream” speech. Perhaps it was simply echoing its own recent decision to try to keep Texas subject to the Voting Rights Act and the heck with the Supreme Court. But it’s no longer 1963, and legislatures have since embraced more innovative remedies to promote diversity in education than forced busing. Whether Dr. King would have approved of school vouchers will likely never be known, but it’s hard to believe that he would want young black children to be creatures of the state rather than pursuers of their own dreams.

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