Was the Elementary and Secondary Education Act of 1965 a Civil Rights Law?

LBJ Signing the ESEA
LBJ Signing the ESEA, 1965

Newly arrived Education Secretary John B. King, Jr., is in hot water with Congress, state governors and various school reformers. The Department of Education is moving forward with rules that would turn the Every Student Succeeds Act’s “supplement not supplant” provision into a cudgel to force states to equalize school spending.

It’s easy to see why folks are ticked. Not least, there is the fact that the ESSA took years to negotiate and a ton of time was spent building a bipartisan coalition to support the legislation. President Barack Obama signed it in December, and a mere three months later, the department jammed a finger in Congress’ eye with its rulemaking, which splits supporters of the ESSA.

There also is the small matter of the law: the department’s proposed new take on “supplement not supplant” goes way beyond the plain language of the law and is contrary to its legislative history and spirit:

“A State educational agency or local educational agency shall use Federal funds received under this part only to supplement the funds that would, in the absence of such Federal funds, be made available from State and local sources for the education of students participating in programs assisted under this part, and not to supplant such funds.”

Plainly, the provision aims to ensure that states do not treat incoming federal dollars as an excuse to reduce their own spending on schools. This sort of requirement is common to federal grant programs. Sen. Lamar Alexander, R-Tenn., who knows the ESSA better than anyone, called King out. “I will use every power of Congress to see that this law is implemented the way Congress wrote it.” (Alexander, it is worth recalling, has been working on education reform since the 1980s, when King was a kid, and Alexander himself has served as secretary of the Department of Education.)

King has made matters worse by trying to justify the department’s overreach as keeping with the legislation’s history – going back to the Elementary and Secondary Education Act of 1965 – as a civil-rights measure.

“Six decades after Brown v. Board, we have failed to close opportunity and achievement gaps for our African-American and Latino students at every level of education. And in far too many schools, we continue to offer them less—less access to the best teachers and the most challenging courses; less access to the services and supports that affluent students often take for granted, and less access to what it takes to succeed academically.

“So we have urgent work to do as a country to truly provide equitable educational opportunities for all students. But we believe we stand better positioned to move forward, because of the Every Student Succeeds Act (ESSA). As you know, ESSA reauthorized the original Elementary and Secondary Education Act (ESEA) signed by President Johnson in 1965. It was a civil rights law then, as it is now.”

Perhaps King was echoing President Obama, who also has contended the original ESEA was a civil-rights law. Regardless, this rhetoric is inherently nasty—if you disagree with the new regulations, the logic goes, then you’re against civil rights. Additionally, it’s a mischaracterization. The ESEA was an anti-poverty policy, a key part of Lyndon Johnson’s War on Poverty, comprising the Economic Opportunity Act of 1964, ESEA 1965, Medicare, and more.

Seeing this is not difficult; one need only look at the text of the ESEA as enacted (it’s only 32 pages long—a short read compared to the 392-page ESSA). The ESEA was a conditional-aid grant. It offered money to state and local education agencies, who could choose to take the money or not. Its purpose was to “strengthen and improve educational quality and educational opportunities in the nation’s elementary and secondary schools.” The law offered resources “in recognition of the special education needs of children of low-income families and the impact that concentrations of low-income families have on the ability of local education agencies to support adequate educational programs.”

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. (That is what civil rights statutes do.) Title I of the Civil Rights Act of 1964 on “Voting Rights,” for example, sets forth prohibitions to protect individuals’ right to vote.

One can also consult the words of Lyndon Johnson, who labored mightily to get the ESEA enacted. “There was an old saying,” LBJ wrote in his 1971 autobiography,

“‘The kids is where the money ain’t,’ which summed up one of the major problems confronting the American educational system when I became president….  I knew what ‘school’ meant for hundreds of thousands of boys and girls: crowded facilities, double shifts, overworked and often undertrained instructors. I knew that unless the federal government could step in and render necessary assistance, many American children would be doomed to inferior education, which presaged an empty future. Not only would those children suffer but so would their country.”

When he signed the ESEA, he declared:

“From our very beginnings as a nation, we have felt a fierce commitment to the ideal of education for everyone. It fixed itself into our democratic creed … As a son of a tenant farmer, I know that education is the only valid passport from poverty … Let me urge, as Thomas Jefferson urged his fellow countrymen one time to, and I quote, ‘Preach, my dear sir, a crusade against ignorance; establish and improve the law for educating the common people.’”

Johnson held the law’s signing ceremony not at a school serving racial minorities, but at the school he attended in Johnson City, Texas. Additionally, when the act was amended in 1968, LBJ spoke not a word about civil rights. He spoke of the stuff the ESEA had purchased.

“This law has brought new help to all American schoolchildren–especially the poorest. It has brought special educational and health services to 9 million of our poorest children. It has created 3,600 new school libraries. Almost nine out of ten schoolchildren were helped by new teaching materials purchased during the first year of its library program. It has launched, all over the Nation, more than 2,200 exciting new education projects outside the classroom. Nearly 17 million children are being made richer…. The 90th Congress was not as productive as I urged it to be. It left an agenda of unfinished business. But it did not turn back or halt or destroy the progress we have begun—not one single Great Society measure was repealed. The American people have spoken up on behalf of health and education and conservation and social progress. Their voices will not be ignored. Medicare is a fact—and an unchallenged success. The War on Poverty, the Model Cities Act, a whole range of consumer laws, dozens of measures which 3 years ago were only ideas; these programs live, and their promise lives. The greatest of these is education—without which no other progress is possible.”

So, contrary to the secretary’s assertions, the ESEA of 1965 was a first and foremost an anti-poverty, redistributive education policy then, and it remains so to this day. The ESEA has delivered money and resources to every state and local education agency, for the benefit of poor, non-poor, white and nonwhite children alike. It aimed, as LBJ said, to put put the money where the kids are, and in doing so increase socioeconomic mobility.

A shorter version of this essay appeared previously on the Thomas B. Fordham Institute’s Flypaper.

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