In its much maligned decision in Shelby v. Holder, the Supreme Court declared that the Justice Department could not interfere with state legislative decisions affecting voting rights based on 60 year old data about racist practices prior to the 1965 Voting Rights Act. The Federal government should not be able to over-ride the will of the people and its elected legislatures without a compelling and overwhelming interest, and allowing the large list of states designated as subject to the Act invited abuse of power. What kind of abuse? This kind:
The U.S. Justice Department has filed a lawsuit to stop the Louisiana from distributing school vouchers to poor black families in any district that remains under a desegregation court order. Over 600 public schools are affected. The argument of Holder’s Justice Department is just as ridiculous as it reads: it is that “many of those vouchers impeded the desegregation process.” You see, if black children are able to go to better, private schools thanks to the vouchers, the percentage of whites to blacks in failing but desegregated public schools will go up, “impeding” desegregation. Can’t have that! What citizens would want politicized, absurd bureaucrats who reason like this second-guessing their legislature?
As the Washington Post noted in an incredulous editorial it called, pulling no punches, Justice Department bids to trap poor, black children in ineffective schools:
“Nine of 10 Louisiana children who receive vouchers to attend private schools are black. All are poor and, if not for the state assistance, would be consigned to low-performing or failing schools with little chance of learning the skills they will need to succeed as adults. So it’s bewildering, if not downright perverse, for the Obama administration to use the banner of civil rights to bring a misguided suit that would block these disadvantaged students from getting the better educational opportunities they are due….The government’s argument that “the loss of students through the voucher program reversed much of the progress made toward integration” becomes even more absurd upon examination of the cases it cited in its petition. Consider the analysis from University of Arkansas professor of education reform Jay P. Greene of a school that lost five white students through vouchers and saw a shift in racial composition from 29.6 percent white to 28.9 percent white. Another school that lost six black students and saw a change in racial composition from 30.1 percent black to 29.2 percent black. “Though the students . . . almost certainly would not have noticed a difference, the racial bean counters at the DOJ see worsening segregation,” Mr. Greene wrote on his blog.The number that should matter to federal officials is this: Roughly 86 percent of students in the voucher program came from schools that were rated D or F. Mr. White called ironic using rules to fight racism to keep students in failing schools; we think it appalling.”
Appalling, yes. Unethical, yes. Surprising? Not at all. The Obama Administration is in thrall to the teacher unions and the AEA, which furiously oppose school vouchers because they reduce the public’s dependence on public schools. Eric Holder’s Justice Department, which, though it is ethically obligated to be non-partisan, has been the latest in a long line of politicized DOJ’s, and one of the worst. Now, as the Post correctly notes, it is using a fake civil rights argument to score points with teachers, and the citizens of Louisiana are just pawns in the game.
While a different result in the Supreme Court’s decision in Shelby would not have changed the requirement that the Justice Department had to sue in this instance (because the issue is segregation, not voting rights), the fact that the Federal governments motives may not be pure and its willingness to bully the states not restrained by fairness or proper deference to the will of the people is vividly demonstrated here. That is why the Supreme Court was and is correct to insist that the exceptional power granted to Justice to unilaterally veto state action by states, like Louisiana, that were certifiably racist in the 1960s and 1970s be based on current data and real, not presumed, bigotry. It is the inherent tendency of the government to abuse its power that makes it essential for such extraordinary incursions like the Voting Rights Act to be monitored, based on hard facts, and fair. The Department of Justice just gave us a perfect example of why the Court’s decision was the right one, and ethical as well.
NOTE: The original version of this post incorrectly stated that Shelby forced Justice to sue regarding the vouchers, rather than just stopping the program. That was incorrect and careless. The text has been changed to address the error, and I apologize to Ethics Alarms readers.
Graphic: Texas Tribune