Three months after Louisiana passed a law expanding its school-vouchers program, the letters from the Justice Department started coming.
“We knew something was up from the boys in D.C. pretty quickly,” says John White, Louisiana’s education superintendent.
The first letter asked for detailed answers to 25 questions, requiring a list of every student awarded a voucher that year and information on how each school eligible for voucher students was complying with a suite of federal laws and regulations.
As the months passed, the letters, questions, and demands continued. In December 2012, Joan Hunt, the lawyer representing Louisiana’s government, asked what the purpose was of a new data demand, one on a different part of the state’s schools program.
The DOJ had pegged all its data requests, including this one, to a 1975 court order, still open, demanding that Louisiana’s schools be desegregated. “As far as we know, the court has not issued any orders in Brumfield v. Dodd since Jan. 11, 1977,” deadpanned Torey Cummings, a Justice Department bureaucrat, in an e-mail responding to Hunt’s request.
In a May 17 letter, the DOJ unilaterally demanded that Louisiana obtain federal-court approval every time it awards vouchers to new students in the program, prompting another exchange of passive-aggressive legalese between the state and its bureaucratic tormentors.
On July 3 at 11:00 a.m., the DOJ demanded a new set of data by July 8, which gave Louisiana that day plus the Fourth of July, Friday the fifth of July (state offices were closed), a Saturday, and a Sunday to produce it.
Finally, late in the afternoon on Friday, August 22, the DOJ went nuclear, asking a federal court to compel Louisiana to seek prior approval from the feds before it added any more students to its voucher program. The filing came during the run-up to the 50th anniversary of Martin Luther King’s March on Washington as well as on the eve of the anniversary of Hurricane Katrina, still a sensitive topic in Louisiana.
The lawsuit, which has come under heavy criticism since it was filed, rests on a central irony: It assails on the basis of racial discrimination a program that helps young black students (who are roughly 90 percent of the voucher recipients) escape failing schools.
But the aggressive, IRS-like data requests and novel legal approaches are not, it turns out, unique to Louisiana.
The same office at the DOJ recently sent a letter to Wisconsin, also home to one of the nation’s broadest school-reform movements, arguing that small religious private schools that are part of that state’s voucher program must comply with the Americans with Disabilities Act, a well-known “litigation factory,” as one reform proponent puts it.
“I think the proper interpretation of it was a shot across the bow against the voucher program,” says Josh Dunn, a political-science professor at the University of Colorado and an education expert.
The issue of using ADA compliance to target voucher programs rests on another irony, says Robert Enlow, president of the Friedman Foundation, a nonprofit dedicated to enacting vouchers in line with Milton Friedman’s vision for education reform: Vouchers for special-needs students have exploded in the past decade, helping thousands improve their educations in situations where flexibility is key.
State officials and education experts wonder if something more is on the agenda besides simple law enforcement, as both the DOJ and the Education Department have begun scrutinizing states (often led by Republican governors) implementing bold education reforms.
“They are trying to go after, it seems, the states with the largest potential marketplaces for private schools,” says Enlow. “Every day now, somebody from the Department of Education calls, b****es at you about some policy this, some policy that. No doubt about it that’s coming from the liberal establishment and mainly from the unions,” says a top state education official who asked to remain anonymous. The source also describes surprise visits by federal auditors to states with voucher programs.
Those in the education-reform movement are just beginning to see the pattern, they say, and they’re not sure who, besides the ever-present teachers’ unions, is really behind it. Both the DOJ and the Education Department are bearing down on the states, so the fire is coming from more than one direction.
The DOJ’s Civil Rights Division appears to be the epicenter for aggressive federal action. The office’s education section is led by Anurima Bhargava, formerly a top lawyer at the NAACP’s Legal Defense Fund. Bhargava, a Harvard College graduate, is a polished advocate, couching her views in innocent-sounding language. “We are facing a severe educational crisis, and it’s not the time to be taking tools off the table,” she told NPR, defending a program in Lousiville, Ky., that sent white students to a failing school an hour away to maintain the percentages of black students in a given school. Certainly, President Obama has long been a dogged opponent of voucher efforts. He has sought repeatedly to defund a small, federally run voucher program in Washington, D.C., pushing in budget negotiations for it to be killed. Only Speaker John Boehner, who attended a private, all-male Catholic high school, saved it from Obama’s scalpel.
“Barack Obama has a long-held and open aversion to school vouchers,” says Michael McShane, the author of President Obama and Education Reform: The Personal and the Political, and a scholar at the American Enterprise Institute.
In Indiana, where Governor Mitch Daniels led one of the most aggressive school-reform efforts, it wasn’t the federal government but the teachers’ unions that fought against vouchers. Union organizers there helped defeat the Republican superintendent, Tony Bennett, in 2012 and installed an anti-vouchers education administration.
Critics said teachers had used public resources to organize against the reforms. “If you’re a fan of anything-goes politics, it was a creative use of — illegal, but still creative use of — public resources,” Daniels said of the teachers’ efforts.
As one former state official who was involved in implementing a voucher program points out, only recently have broad voucher programs and other reforms started to take off, meaning that it’s not until now that DOJ would really have many targets to go after with novel adaptations of the law.
It is, it seems, the best of times and the worst of times to be a school reformer.
— Jonathan Strong is a political reporter for National Review Online.