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Debate Flares Up: Was the First Federal Education Law a Civil Rights Statute?

By Andrew Ujifusa — June 08, 2016 5 min read
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If you’ve been following our coverage of Secretary of Education John B. King Jr., you’ve read his remarks that the Elementary and Secondary Education Act of 1965 was “a civil rights law.” And so is that law’s latest version, the Every Student Succeeds Act, King says. He’s used that civil-rights language often to support how the U.S. Department of Education has approached spending and
accountability issues, among other things.

And King’s not the only one to talk about the law this way. The Leadership Conference on Civil and Human Rights, for example, refers to the first version of ESEA as a civil rights law.

But does everyone agree that the original federal education law was a civil rights law?

Kevin Kosar, a senior fellow at the R Street Institute, a Washington think tank that promotes free markets and limited government, says: No, it wasn’t. On Monday, Kosar wrote a column for the Thomas B. Fordham Institute (also a right-leaning think tank) disagreeing with King’s description of the ESEA as a civil-rights law. Calling King’s version of events “bogus history,” Kosar wrote, “ESEA was not a civil-rights law. It was an anti-poverty policy, a key part of Lyndon Johnson’s Great Society.”

As evidence, Kosar notes that the original ESEA of 1965 was a conditional-aid grant focused on the disadvantages faced by low-income children. States and local school districts were free to accept or reject the money. Redistribution, and not race, was the driving force behind the law, he says. He goes on to write:

Nowhere does the statute use the words “civil rights,” nor does it speak of equalizing spending or creating an individual entitlement to, well, anything. This stands in sharp contrast to the real civil-rights legislation of the 1960s, which explicitly conferred a legally enforceable right or privilege to persons. Title I of the Civil Rights Act of 1964 on “Voting Rights,” for example, sets forth prohibitions to protect individuals’ right to vote.

Noting that it distributes money to poor, non-poor, white and non-white children, “ESEA was an anti-poverty, redistributive policy then and it is now,” Kosar wrote.

But Kosar’s argument did not sit well with, among others, Matt Lehrich, the communications director at the U.S. Department of Education.

Mike Petrilli, the president of the Fordham Institute, shot back by arguing that King’s attempt to use “civil rights” as a shield was inappropriate.

Quick background: The Education Department has proposed ESSA regulations, which have yet to be finalized, that would require districts to show that schools with relatively high shares of students from low-income backgrounds receive the same amount of state and local per-pupil spending as the average of the districts’ schools with relatively wealthy students. King says this would ensure greater equity for needy students. But critics have said this provision is beyond the department’s power to require and could backfire.

This language would apply to the “supplement not supplant” part of ESSA, or “SNS,” which requires federal aid to supplement and not supplant state and local K-12 dollars. Petrilli wrote:

The dispute between Lehrich and Kosar continued:

The argument continued in that and other Twitter conversations.

We rang up Paul Manna, an associate professor of government at the College of William and Mary who studies K-12 policy and education history, to discuss the matter. Manna said there are two primary ways to think about this issue.

  • On the one hand, Manna told us, ESEA is not technically a civil-rights law like the Individuals With Disabilities Education Act is. IDEA created a benefit that governments are obligated to provide. If those benefits are not properly provided, people can sue to try to ensure that they are—that’s what makes IDEA fit a relatively strict definition of a civil-rights statute, Manna said. In this way, he also noted, IDEA is both a civil rights program and a grant program, since it helps states and districts pay for what IDEA requires.

By contrast, “There’s nothing in ESEA that gives parents the right to sue if something goes awry in implementation,” Manna said.

  • On the other hand, it’s no accident that Johnson and others pushed for the Civil Rights Act to be passed first, in 1964, before other pieces of legislation like ESEA, Manna told us. States that wanted access to the financial aid ESEA provided could not accept it and simultaneously ignore federal laws already on the books protecting civil rights.

“Clearly people were thinking of these things as a package,” Manna said.

Manna also referenced historical studies, such as The Hollow Hope by University of Chicago Associate Professor of Political Science Gerald N. Rosenberg, that show how the actions of Congress, civil rights movements, and presidents were more important for the progress of civil rights in education than the famous ruling in Brown v. Board of Education.

So is ESEA ultimately a civil rights law, in Manna’s view?

“Maybe not. But it’s clearly linked to a broader civil rights agenda,” Manna said.

And in a Eduwonk blog post about the subject published Tuesday, Andy Rotherham of Bellwether Education Partners came to a conclusion similar to Manna’s.

Bonus coverage: Last year, the 50th anniversary of the signing of ESEA, my co-blogger Alyson Klein wrote a detailed history of the law. She noted that King’s predecessor as education secretary, Arne Duncan, used similar language to describe the law. She also put together a timeline that covers the original law and how it changed overtime. Here’s an image from a portion of that timeline:

Photo: President Lyndon B. Johnson, seated with his childhood schoolteacher, Kate Deadrich Loney, delivers remarks after signing the Elementary and Secondary Education Act at the former Junction Elementary School near Stonewall, Texas, on April 11, 1965. Frank Wolfe/The Lyndon Baines Johnson Library-File

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