Earlier this week, Jindal proffered publicly his approval that DOJ had changed its stance on the issue, where it had withdrawn a request for injunctive relief in the courts. While characterizing this in a way that it had dropped the suit, technically that remains alive and set for a hearing later this week. And that was old news in a sense, for DOJ had said it no longer was looking to impound and delay program operation a couple of months ago and earlier this week the court ratified that. But what was new explains why, contrary to Jindal’s description, the suit hasn’t been withdrawn.
Previously, DOJ had asserted it could stop the program until the courts reviewed each and every assignment of a voucher for compliance with desegregation orders where they existed. Now, it has proposed dropping the compulsory aspect and asks instead that the state to send it this information before the state makes the assignments official, hinting that it will have input into these decisions and if it doesn’t like them it will seek relief from the courts. The court date where conceivably the compulsory aspect could be manufactured is still on, and for the federal government needs to be in order to keep the pressure on the state to submit to this agreement.
While this is a retreat, it is merely strategic. With empirical evidence making a shambles of its argument that the program definitively causes increased segregation, DOJ knew that the best it could do was to show the program did not cause this actually, but potentially. However, current jurisprudence does not allow for that. Legally, a government must be demonstrated to have policies, potentially working in cahoots with nongovernment schools, that intend to discriminate for the federal government to block them. That won’t work in this instance, because the program is race-neutral in procedures and its outcomes rely upon voluntary actions of families, not schools or governments. Therefore, under this philosophy the judiciary, whether at this level or beyond, should rule that no review of outcomes is warranted.
So the DOJ has tried to introduce a sea change into the environment to alter the rules to let it win by enabling federal oversight to hamstring the program. It based the suit on the idea that results alone can prove intent, where any result that increases segregation by definition means there must have been discriminatory intent involved, no matter how race-neutral policies may be. If the courts would buy this, this would cause significant redefinition and reverberations throughout all government policy dealing with civil rights.
To use an example in another area, any lender with a federal charter must subscribe to, among many things, demonstrated nondiscriminatory practices. That is defined by adhering to a certain set of best practices where numerical analysis may provide evidence of but is not the only determinant of whether illegal lending practices occur. Let’s say you have a situation where, in an upper-class neighborhood, few if any racial minority members receive loans to buy houses even if they comprise a significant portion of the area population. Those numbers could indicate a problem. But if then a review shows that, using standard industry metrics, few if any minorities would qualify for a loan commensurate with their risk profiles, and that there is not deviation from those standards with the intent to discriminate on the basis of race, the lender would not be determined to have engaged in discriminatory practices. (In a different way, this worldview lay behind the housing financial crisis that laid the groundwork for Obama’s election.)
But under the DOJ redefinition sought in the voucher instance, that kind of intent and subsequent behavior need not be proven; merely the fact that, compared to the area’s population, disproportionately fewer minorities could get these loans would be considered to constitute discrimination, with a remedy that lenders must accept higher risk without commensurate return for minority applicants for a loan of any size. For the voucher program, it would mean that the federal government could veto decisions made by families, not by the state or schools, whether they could send their child from a certain public school to a certain private school using state support, if that child could exit the public school at all, merely because of the child’s color.
With its current request, there’s no change in this odious philosophy by DOJ; the only difference now is that, realizing it cannot win formally in court given the unlikelihood the change in philosophy would be ratified all the way through the U.S. Supreme Court, it wants to bluff the state into voluntarily allowing it, using the threat that it will keep the current case in courts unless the state submits to admitting the federal government can intervene at any time on specific instances with the data the state provides. Even as there’s another incentive for it get the state to submit in order to keep the matter out of the courts: the chance that the judiciary might use it to reduce federal power in this policy area.
Above and beyond recognizing the idea that fulfilling the request that the state should grant the federal government a veto power over programmatic outcomes over which the state has no input requires increased bureaucracy and costs, Jindal should understand this tactic is just old wine in new bottles. This shift is a sign DOJ recognizes its weak hand and the state should give no gift victories. Jindal and state officials are entirely correct in calling the bluff by refusing to promise to turn over anything.