When Being Right Feels Wrong: Yes, ESSA’s Civil Rights Protections Are Every Bit as Weak as Predicted

Are we at war with North Korea yet? Goodness, what a time to be alive.

I was fumbling for a way to describe our present state the other day, and I hit on this: For guys like me, who dreaded the radicalization and rise of the Republican Party’s base, 2017 is bittersour vindication.

As central norms of our democracy collapse, as our public institutions shudder under the weight of weak leadership, as the Republican Party demonstrates that the revanchism it cultivates in its electoral campaigns also precludes it from governing — it’s hard to take pleasure in being a successful doomsayer.

I mean, you get to be right! But you’re still just right about being doomed.

So it’s with absolutely no joy — none — that I say, when it comes to the Every Student Succeeds Act (ESSA), the sunny bipartisan jewel that replaced No Child Left Behind, I told you so. Back when ESSA was being drafted, I (with a few unpopular others) warned that it was too vague and decentralized too much authority to the states to meaningfully protect students’ civil rights. Specifically, I wrote, ESSA looked like “a clear system that serves the political needs of most members of Congress and protects a variety of special interest groups. It combines a thin veneer of civil rights equity with excruciating complexity and uncertain accountability. It takes a relatively simple federal accountability system, removes the teeth, and layers on a bunch of vague responsibilities for states.”

Folks told me that I was a killjoy, an uncompromising radical, a dinosaur in love with No Child Left Behind, that ghastly old thing. ESSA was a compromise, proof that lawmakers — in Congress, no less — could find a way to advance educational equity beyond a host of ugly debates about testing and accountability.

No, I said. I’m not trying to keep No Child Left Behind. I’m just taking the usual progressive stance: When it comes to civil rights, history is pretty clear. After the law passed, I gave a keynote speech, where I said:

In short, and in sadness, I say to you, there’s a reason that civil rights battles are so often won at the federal level. It’s not that people in Washington, D.C., are particularly compassionate or uniquely empathetic. Rather, it’s that our system is set up in a way such that civil rights fights are hard to win at the local or state level. ESSA pushes many key decisions about equity and justice in education back down to those levels.

When it comes to voting rights, environmental protections, the criminal justice system, and basically every corner of public policy, the federal government remains the most reliable source of civil rights protection for historically underserved communities.

Why should we expect education policy to be any different? Do we have any reason at all to trust states to ensure that all children get the educational opportunities that they deserve?

(Read ESSA Essentials, a weekly series updating ESSA developments in every state in the country produced by The 74 and the Collaborative for Student Success.)

Beyond closed doors, in private, ESSA backers would often concede this point. “But the politics,” they’d moan. “Sure, it’s not going to work very well, but there’s just so much anger aimed at the Common Core and standardized tests. We have to lance that boil somehow, and this is the best we can do.”

“At least the law will force more schools to pay attention to English learners,” they’d say. “That’s your focus, right?” It is. But I warned that ESSA’s English learners provisions were too vague and weak to focus any serious attention on these students. And look, lo and behold, it appears that the state of Florida — home to a quarter-million English learnersisn’t going to count these students’ progress learning English toward schools’ accountability scores.

They’d also pick odd, minor provisions that they especially liked about the law. I must have had a version of this conversation at least a half-dozen times …

ESSA Cheerleader: “Hush! ESSA still requires states to do something different with their lowest-performing schools, even if it doesn’t require anything specific.”

Conor: “Ha! Why should we trust states to make any tough decisions about what to do with those schools?”

ESSA Enthusiast: “But the law requires them to use evidence-based interventions!”

Conor: “ ‘Evidence-based’ is a fig leaf, a flimsy bit of verbal dross gracing over the fact that ESSA allows states to use hundreds of millions in federal education dollars for whatever they want.”

ESSA Defender: “Nuh-uh, the law defines ‘evidence-based’ very, very carefully.”

Conor: “It does! But definitions like that are only as powerful as the public’s ability to enforce them. No Department of Education is prepared to force states to comply with the details of that definition. And even if ED wanted to play hardball, it wouldn’t have the capacity to pull it off.”

Now, here we are, about two years after ESSA’s passage, and lo and behold, the education reform community is concerned 1) that states aren’t bothering to follow the law, 2) that the Trump administration isn’t enforcing the law, and 3) that the law’s vague equity provisions aren’t translating into anything meaningful.

Some of the law’s most bedraggled cheerleaders raise their weary heads to insist to me that the law would have worked just great and been perfectly fine, if only the Republican Party hadn’t: 1) taken back the White House, 2) maintained control of Congress, 3) revoked the law’s accountability regulations, and/or 4) been led by a movement of angry revanchists.

Ok, sure. And building an apartment complex made of toothpicks would be great and perfectly fine, if only real humans weren’t planning on living in it. If your educational equity and civil rights provisions only work when equity-minded Democrats control the government, they’re not very good provisions.

So, at an Oct. 3 congressional hearing, lawmakers complained that ESSA’s vaunted “evidence-based” requirement is no longer referenced in the forms states use to explain how they’ll hold underperforming schools accountable. I’m looking forward to hearing from the crew of ESSA Apologists how we can still count on Secretary of Education Betsy DeVos to force states to comply with that section of the law at some later, undetermined date.

In the meantime, I’ll keep reading ESSA plans — and watching for a glimmer of hope on North Korea — hoping against hope that I’m wrong. Unpleasant as that is, it beats the heck out of the alternative.

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