The Education Forum: Charter Schools and Desegregation in Louisiana

THE EDUCATION FORUM

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CHARTER SCHOOLS AND DESEGREGATION IN LOUISIANA
By Clint Bolick, Vice President and Director of Litigation, Institute for Justice
Testimony before the US House of Representatives Committee on the Judiciary, Subcommittee on the Constitution
October 14, 1999

Mr. Chairman and members of the subcommittee, thank you for the opportunity to testify on the activities of the Civil Rights Division with respect to charter schools and desegregation. The Institute for Justice represents United Charter School, a charter school that has been approved by the East Baton Rouge school board but not yet allowed to open its doors. We also represent families who would like to avail themselves of the educational opportunities the school would provide. All of those families are black and of limited economic means.

Mr. Chairman, we thank you for having this hearing. For the issue we are here to discuss is vitally important: should desegregation decrees, which are intended to secure equal educational opportunities for minority schoolchildren, be used to deny educational opportunities for those very youngsters? The answer is obvious to any clear-thinking person: of course not. But tragically, that obvious answer somehow has escaped certain officials in the United States Department of Justice's Civil Rights Division, along with some ideological zealots in certain so-called civil rights organizations. So the perverse consequence is that in East Baton Rouge and elsewhere, black schoolchildren are being denied precious educational opportunities in the name of securing their civil rights. George Orwell, it seems, was off by 15 years.

This question bodes national ramifications: at least 19 states with charter school programs also have school districts that are subject to ongoing desegregation decrees. What happens in East Baton Rouge may determine whether charter schools--innovative public schools that are sponsored and operated by teachers and community leaders, and chosen by parents who want to send their children there--will be allowed to fully realize their enormous potential.

More than 500 school districts across America remain under federal desegregation orders, many of them dating back three or four decades. Though critically necessary and well-intentioned at the outset, most of the decrees have long outlived their utility, as forced busing and other misguided measures have encouraged white flight and produced school systems that are poor and heavily one-race. The recent court decision to terminate the desegregation decree in Charlotte, North Carolina is the latest harbinger that courts are recognizing to imperative of getting out of the business of running schools.

The East Baton Rouge desegregation case dates back 43 years. In other words, the grandchildren of the original plaintiffs are now attending school there. Every year, it becomes more difficult to racially balance the student population due to the dwindling number of white children. But the Court refuses to relinquish control, and the Justice Department is not about to ask it to do so.

Charter schools are one of the methods the State of Louisiana has embraced to improve educational opportunities. In Louisiana, charter schools must serve predominantly disadvantaged student populations. Two years ago, a community group with backing from SABIS International proposed United Charter School, which would serve as many as 650 students, mostly poor and black, in grades K-8. The same group operates the highly successful Children's Charter School, which has more at-risk schoolchildren than any other school in the parish. United Charter School was enthusiastically endorsed by parents and community leaders, and the school board granted the charter.

But despite the fact that three other charter schools were already operational in East Baton Rouge without having received court approval, the Justice Department's Civil Rights Division decided that United would have to secure approval. The Division then opposed the school board's motion to have the matter considered by the court, citing more pressing concerns, and then successfully opposed the school's efforts to intervene in the lawsuit to raise the matter itself. So two years later, the school still is not open. Clearly, the Civil Rights Division does not consider high-quality educational opportunities for black children a pressing concern--even though that is precisely its mandate in this area.

United Charter School would aid, not detract from, the objectives of desegregation. Not only would it provide educational opportunities for children who are intended beneficiaries of the decree, it would disproportionately attract minority students, making it easier to racially balance the other schools. Objections have been voiced to the creation of an overwhelmingly black school--but what is the nature of the objections if the school is affirmatively chosen by parents and offers a superior education?

Other examples abound. When Children's Charter School sought to expand to grades three and four, as its charter provides, the Civil Rights Division decided that it needed court approval too, plunging the school and its second graders into uncertainty. Only when the school year was about to start did the Civil Rights Division acquiesce and the court approved the expansion.

The Division also blocked another SABIS school in St. Helena parish, despite the fact that the school district is 91 percent black and impossible to racially balance given that it has only one high school, junior high, and elementary school.

The Division also attempted to shut down New Vision Charter School in East Monroe, Louisiana, but federal judge F. A. Little Jr. refused to do so.

And in South Carolina, the Division successfully thwarted a school district's efforts to convert certain schools to charter schools. The Division ordered the district to maintain existing schools and attendance zones, period. It did not even consider the proposed charter schools' effect on racial balance or educational opportunities.

The law certainly does not require such absurd outcomes. The United States Supreme Court repeatedly has ruled that desegregation decrees should be of limited duration, and that measures to maintain racial balance in perpetuity are impermissible--commands that the Civil Rights Division under "acting" Assistant Attorney General Bill Lann Lee routinely has ignored. Moreover, charter schools are intended to provide educational options above and beyond those already provided. So long as they do not frustrate the proper objectives of desegregation, what is the justification for opposing them?

What makes matters worse is that the Civil Rights Division has never articulated, in litigation or in policy, the standards it deems appropriate for charter schools in the desegregation context. As a result, in Louisiana its conduct has been appallingly arbitrary. Some schools are allowed, others are benignly ignored, others are stopped in their tracks, still others get up and running then have to go to court when they want to expand. No one knows what guides the Division's enormous and destructive discretion, and the Division refuses to tell anyone. How can someone predict--much less follow--the law if the law enforcer will not define the law? That is not law enforcement, it is despotism.

Not surprisingly, Louisiana officials have complained publicly about the "chilling effect" the Civil Rights Division's actions have created. What charter school sponsor is going to invest a massive capital outlay to start a school when the Justice Department may come in and shut it down whenever it has a whim to do so?

All that is ironic given the Clinton Administration's professed support for charter schools. President Clinton has declared that "the only way public schools can survive . . . is if all of our schools are eventually run like . . . charter schools." I agree with the president. But why then is his Civil Rights Division deploying its mighty arsenal to frustrate that vital educational reform?

If the Justice Department will not enforce the law, I ask this Committee to take steps to do so. I urge the Committee to demand of the Civil Rights Division an accounting of all of its ongoing desegregation actions, along with its plans in each of them to return control of the school districts to local officials. I also urge the Committee to take steps to move the Civil Rights Division out of the schoolhouse doors. It is a tragedy--and a travesty--that the path to educational opportunities for minority schoolchildren is blocked by the United States Department of Justice Civil Rights Division.

Thank you, Mr. Chairman and members of the subcommittee, for hearing and responding to these urgent concerns. With your permission, I append to these remarks a copy of an article on this subject I published in the Wall Street Journal, along with a copy of a letter from Louisiana officials setting forth their concerns.

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Clint Bolick is Vice President and Director of Litigation at the Institute for Justice.

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Additional Testimony on Charter Schools and Desegregation in Louisiana: