The Louisiana Department of Education’s claim that a federal judge lacked authority to halt the state’s voucher program in Tangipahoa Parish is likely to succeed on appeal, a divided three-judge panel of the U.S. 5th Circuit Court of Appeals ruled Monday.

U.S. District Judge Ivan L.R. Lemelle, of the federal district court in New Orleans, ruled Nov. 26 that the state’s voucher program frustrates the parish school district’s ability to comply with its federal desegregation order by depriving the district of needed state funds and disrupting the student population projections on which the order is based.

The state had argued that a federal court cannot interfere with a state’s financial decision-making because of state sovereignty granted under the 11th Amendment to the U.S. Constitution.

On Monday, the appellate court panel ruled that the state has a “strong likelihood” of winning its appeal on those grounds and granted a stay of Lemelle’s ruling, pending a final determination in the case.

The panel’s opinion is not binding on the group of 5th Circuit judges that will ultimately decide the appeal, the panel noted in its opinion.

All three members of the appellate panel agreed that Lemelle should have refrained from ruling in the Tangipahoa Parish case, pending the outcome of a separate state court proceeding challenging the constitutionality of the voucher program’s funding mechanism.

In the state case, 19th Judicial District Judge Tim Kelley ruled Nov. 30 that the voucher program’s use of state Minimum Foundation Program funds violates the Louisiana Constitution’s dedication of those funds to public education.

The voucher program allows students from eligible families to leave public schools rated as “C”, “D” and “F” schools under state accountability program rules and instead attend private and parochial schools at taxpayer expense.

The state has appealed Kelley’s ruling to the Louisiana Supreme Court.

While 5th Circuit Judge James Dennis said he would have sent the Tangipahoa Parish case back to Lemelle to await a final outcome in the state court case, Circuit Judges Edith Jones and Catharina Haynes instead moved the federal case forward toward a hearing.

The two-judge majority ruled that the state is likely to succeed in overturning Lemelle’s order because “a district court is not free to interfere in state spending decisions simply because raising and lowering funding levels may have some incidental impact on a federal decree.”

The evidence that the Tangipahoa Parish School Board presented at hearing was too general and speculative to demonstrate enough financial harm to support halting the voucher program, Jones and Haynes wrote in the panel opinion.

In addition, the 50 voucher students in Tangipahoa Parish who rely on the program for this year’s tuition would have to change schools midyear if the state were not allowed to continue funding the program pending appeal, the majority said.

Dennis disagreed, noting in his dissent that the temporary emergency stay the appellate court issued in December had allowed the state to pay its next tuition installment for those students.