ESEA and the Civil Rights Act: An Interbranch Approach to Furthering Desegregation

The Civil Rights Act of 1964

A decade after the Brown decision, little progress had been made in eradicating the segregated schools in many southern states. Because Brown II in 1955 remanded segregation cases back to district courts to devise the remedy, progress towards desegregation was halting; the Court did not again issue desegregation guidance until 1968. Instead of broad desegregation guidelines, it required private resources and plaintiffs in each district to legally challenge segregation. Under the Kennedy administration, the attorney general tried to bring in the federal government by filing several desegregation suits in districts receiving federal funding but the courts did not permit them to intervene without congressional authorization. In early 1964, fewer than 20 percent of districts in the South had begun to desegregate (Orfield 1969). A U.S. Justice Department official feared that the intransigence from many states was causing the federal system to fail because it required an “endless” chain of litigation on a “case by case” approach (Marshall 1962, 6).

In early 1963, desegregation action from other branches did not appear likely, but that quickly changed illustrating how popularly elected branches are more susceptible to public opinion and events, which is a benefit of involving all branches in the desegregation effort. In April 1963, President Kennedy dismissed a suggestion that federal funds to a project be cut off because funding was being distributed in a discriminatory manner. In the same month, the House summarily defeated two such amendments to educational funding bills (Orfield 1969). In May 1963, however, nonviolent civil rights demonstrations in Birmingham, Alabama, and the vicious police response to it were broadcast via television and newspapers around the country and beyond. Seeing images of the brutality of local control in Birmingham helped the country understand the dangers of unchecked localism and the need for federal action on racial discrimination at this point in time. In public opinion polls shortly after Birmingham, a majority of respondents reported that civil rights was the most pressing item on the national agenda, which was a dramatic increase from only months earlier (Klarman 2005). Dozens of bills were introduced in Congress, many of them calling for funding only desegregated districts. The Kennedy administration, sensing the policy window open for federal intervention, sent a strengthened civil rights bill with a range of proposals to demonstrate a comprehensive response to address the continued racial discrimination African Americans faced. In his June 1963 speech announcing the bill, Kennedy noted the importance of Birmingham: “The events in Birmingham and elsewhere have so increased the desires for equality that no city or state or legislative body can prudently choose to ignore them. The fires of frustration and discord are burning in every city, North and South, where legal remedies are not at hand.” With public support firmly behind civil rights, Congress was ready to show their support for civil rights and many members advocated for a bill stronger than the president's (Orfield 1969).

Despite the initial support in the aftermath of Birmingham, southern congressional resistance to the proposed bill was fierce, and the debate and filibuster were lengthy. It was finally enacted on July 2, 1964. Segregation, of course, was prevalent in many aspects of public life and the Civil Rights Act of 1964 applied to areas such as voting and employment. Titles IV and VI bear directly on the desegregation of schools.1 Title IV specifically pertained to schools—it commissioned the Coleman report on educational opportunity and provided for technical assistance grants and training for desegregating schools. It also allowed the U.S. attorney general to initiate lawsuits to compel desegregation in local districts, which was the Kennedy administration's school desegregation priority in drafting the legislation. Although architects of Title IV intended for it to be applicable in both de jure and de facto segregated schools, language was added to obtain cloture on the Civil Rights Act that limited its applicability in de facto segregated schools (House of Representatives Subcommittee 1963; Bolner and Shanley 1974). Title VI permits, but does not require, cutting off funds from agencies that are found to discriminate on the basis of race, color and national origin.

Title VI originated from the oft-proposed Powell Amendment, first suggested in a 1947 presidential report on civil rights. The amendment was aimed at using the force of the federal government to bring about desegregation by cutting off federal funds to any institution that was not in compliance with Brown. Representative Powell and the NAACP believed in the necessity of a legislative solution as there was “no other alternative to endless litigation” after Brown (Orfield 1969, 26). Originally, drafters of the bill added Title VI at the suggestion of some members of Congress; the administration was prepared to compromise on this title in order to gain the passage of other parts of the bill (Orfield 1969). Far from being eliminated, Title VI was strengthened, although it received little attention during congressional debate. Because little federal money was available for education in 1964, Title VI was expected to have relatively little impact. The way in which it was drafted allowed federal officials to cut off funds, but such action was at their discretion—not required. The Justice Department emphasized during Congressional debate that federal agencies likely already possessed such authority to withhold funds, and this was not conferring any additional federal authority. Indeed, a Justice Department official testified that it would not be used to establish federal desegregation standards because that would require, in his estimation, military intervention. In response to concerns in the House, judicial review or administrative hearings prior to fund termination were included as a safeguard against arbitrary fund termination.

The origins of Title VI indicate that it was seen as affecting practices beyond what was prohibited by the Constitution alone (Abernathy 1981). Yet it was ambiguous enough such that actors could have different interpretations of how it should be applied. Foreshadowing future debate, after testimony from a HEW secretary suggesting an expansive interpretation of discrimination to include racial imbalance, Congress amended Title VI to allow federal agencies to determine what constituted discrimination. It removed language from Title IV that referenced action against racial imbalance (for example, de facto segregation more common outside the South), which the secretary had linked to his definition of discrimination referred to in Title VI (Bolner and Shanley 1974; Orfield 1969). Racial imbalance became a politicized term that, to its critics, came to mean achieving certain quotas of racial groups in schools regardless of the impacts such social planning had. To proponents of remedying racial imbalance, it came to mean equating racial imbalance with segregation (Bolner and Shanley 1974). The congressional compromise in wording acknowledged that as judicial interpretation of what was required by the Constitution changed, so too might the requirements of Title VI, and administrative agencies might even demand more than the Constitution. As an example, HEW had been clear in debates about the bill that they saw correcting racial imbalance as a goal of Title VI, which went beyond judicial interpretation at the time. Almost immediately after the Civil Rights Act was passed, Title VI was bolstered dramatically by the increasingly comprehensive understanding of what was required to protect the rights of black students and the passage of ESEA. Nevertheless, HEW did not fully exploit the ambiguity of Title VI to adopt an expansive understanding of discrimination as encompassing de facto segregation.

The Elementary and Secondary Education Act of 1965

The ESEA was a significant expansion in the role of the federal government in funding K–12 education, which had been the purview of state and local governments. Unlike education bills of the preceding decade that had failed to pass, this bill had several advantages. President Johnson had been elected in a landslide in late 1964, bringing with him a more liberal Congress. With the Civil Rights Act now law, the 1965 bill did not get conflated with racial politics that had made passage of previous education bills impossible (Meranto 1967, 132). A judicial review of ESEA's legislative history noted that “It is a fair assumption that Congress would not have taken this step [passing ESEA] had Title VI not established the principle that schools receiving federal assistance must meet uniform national standards for desegregation” (U.S. v. Jefferson Co. Bd. of Ed., 372 F.836 (5th Cir. 1966), 851).

ESEA was part of Johnson's broader Great Society. The Great Society, with an ambitious goal to cure and prevent poverty, contained a variety of legislative initiatives to improve the education, health, and job skills for low-income individuals. President Johnson believed that issues of educational inequality were intimately linked to race and poverty, and that blacks and Latinos were disadvantaged in the public school system as it existed (Orfield 2015). The rediscovery of the existence of poverty in America was part of a larger policy shift allowing for the passage of federal aid to education. Education was seen as key to breaking the vicious cycle of poverty and improving the lives of “the culturally deprived student” and “the socially impoverished student” (Meranto 1967, 18). ESEA can also be viewed as an indirect response to the civil rights movement by improving aid to black children, many of whom were also economically disadvantaged, without actually being race conscious (Meranto 1967). Just as the civil rights movement created an impetus for the Civil Rights Act by displaying the harsh nature of segregation, it helped create awareness about the inequalities for black students. With the erosion of segregation, white schools and administrators were now faced with the task of educating large numbers of poor African American students (Reed 2014; McGuinn and Hess 2005). For these schools, the challenges of desegregation were related to the challenges of educating students in poverty, and thus the incentive for complying with the HEW standards to continue to receive ESEA funds cannot be understated.

ESEA was signed into law in April 1965 and was almost identical to the bill Johnson proposed in his State of the Union address in January. The law's drafters were successful in giving something to everyone, which headed off both opposition to the bill's passage, but also repeal once it became clear how the ESEA and Civil Rights Act would work together to attack segregation (Orfield 1969, 2015; McGuinn and Hess 2005). A key to the design of ESEA was that money was targeted to disadvantaged students regardless of what school they attended. Federal funds from ESEA went to every congressional district and most schools, though those with higher percentages of low-income students received more funds under Title I. By allowing aid to go to parochial schools enrolling low-income children, ESEA garnered the support of Catholics, a key Democratic bloc.

Impact of the New Laws

Contemporary accounts heralded the impact of the laws as accelerating desegregation (for example, USCCR 1966). Before ESEA, in 1964, federal education funding was $176 million for the southern and border states. An addition of nearly $590 million came from ESEA in 1966, making it such that districts could not risk fund termination without substantial disadvantage (U.S. v. Jefferson Co. Bd. of Ed.).

Backlash to ESEA and Civil Rights Act Implementation

As desegregation enforcement took effect, recognition of the major changes wrought by Title VI and the expansion of federal funding under ESEA grew, but the ability of these laws to affect school desegregation in states without de jure segregation was less clear. The Johnson administration's attempt to expand Title VI enforcement outside of the South resulted in a stinging rebuke. Backlash to enforcement began, as did ultimately unsuccessful efforts to repeal the legislation. However, the Johnson administration made concessions of virtually no enforcement outside the South and selective enforcement in the South that restricted the laws’ desegregative impact, illustrating the limits of this approach even with a supportive executive.

Changed Understanding of Desegregation

Nixon anchored his 1968 presidential campaign on the “southern strategy,” in which he appeased the white South by being openly critical of policies ameliorating racial discrimination implemented during the Johnson administration, particularly HEW policies involving busing (Halpern 1995). When campaigning, Nixon attacked “forced busing” and asserted that judges and bureaucrats should not be making decisions for local districts. He also disagreed with threatening fund cut-offs to coerce local districts to carry out what federal officials thought was best (Orfield 1978). Soon after his election, Nixon faced whether to continue to desegregate the rural South and whether to develop a plan for desegregating urban areas; on both he opposed desegregation progress (Orfield 1978).

Central to the debate over de facto segregation was forced busing, which affected desegregation politics during the Nixon years. Through opposing the use of transportation for desegregation and prioritizing the good faith efforts of local officials, Nixon envisioned a limited federal role in desegregation. He acknowledged that Brown was settled law, but argued other considerations should be taken into account aside from remedying segregation “root and branch” as the Green decision required. In an extensive statement on desegregation, he said,I am dedicated to continued progress toward a truly desegregated public school system. But, considering the always heavy demands for more school operating funds, I believe it is preferable… to use limited financial resources for the improvement of education—for better teaching facilities, better methods, and advanced educational materials—and for the upgrading of the disadvantaged areas in the community rather than buying buses, tires, and gasoline to transport young children miles away from their neighborhood schools. (Nixon 1970)

He also outlined principles to govern how HEW and the Department of Justice would approach desegregation. Two included using the neighborhood school as the default student assignment and not requiring transporting students beyond “normal geographic zones for the purposes of racial balancing.” He emphasized that neither the 1964 Civil Rights Act nor the 1966 ESEA amendments required transportation for racial balance. Nixon endorsed trying to make separate but equal while emboldening local officials’ resistance to federal enforcement. Additionally, he thought that schools were not responsible for ameliorating the effects of de facto segregation.

The Executive Branch's Desegregation Efforts Recede

Congress Prevents Greater Setbacks

Although executive enforcement was weakened, Congress continued, at the very least, to prevent additional rollback of federal support of desegregation while the courts also continued for a time to expand desegregation remedies. Southerners believed that congressional politics would change when other regions were forced to desegregate, and indeed antibusing fights previously headed by southern congressmen were now led by members from Michigan, Massachusetts, Colorado, and Delaware (Orfield 1978).5 Public opinion against busing was strong causing no real threat of political loss for non-southern members of Congress if they were against busing. Despite a breakdown in the civil rights consensus in Congress, and the added challenge of the executive branch now hostile to civil rights, they were not enough to lead to major backsliding on civil rights legislation in Congress during the Nixon years. Ironically, although Congress had prevented virtually all civil rights legislation from passing for more than seventy-five years, the legislative tools used to thwart such legislation were now used to impede efforts to weaken or repeal civil rights legislation (Orfield 1978).

From 1970 through 1972, a number of antibusing amendments and a constitutional amendment were introduced in Congress. During the 1970 renewal of ESEA, the Stennis amendment sought to require a common policy to address northern and southern segregation and an end to the legal distinction between de facto segregation and de jure segregation (Orfield 1975). Because de facto segregation had no legal remedy at that time, a common policy would mean that enforcement action would be prevented in the South. The White House tacitly supported this amendment, but it was ultimately altered in congressional conference to leave Title VI obligations intact. Congress directed HEW to separately develop national policies for both de facto and de jure segregation though congressional debate made clear the lack of consensus for enforcing action to remedy de facto segregation outside the South.

Ultimately, despite Nixon administration efforts to use the legislative process to impede desegregation, Congress extended and expanded ESEA as well as funding and strengthening the Emergency School Aid Act. ESEA was finally renewed in 1974 with a variety of somewhat contradictory amendments pertaining to desegregation. The most significant was that federal courts or agencies could not require districts to implement a desegregation plan that bused students beyond the nearest school. Although it had little direct effect on courts, this provision had the potential to restrict HEW's ability to enforce the Civil Rights Act, particularly because it sought to comply with the Adams v. Richardson litigation (480 F.2d 1159).

The Courts Lead on Desegregation, for a While

The time of receding executive enforcement of desegregation coincided, for a time, with increasing judicial expectations of what was required for school districts to remedy segregation and become a unitary, desegregated district. Ultimately, the courts’ influence as a champion of desegregation began to wane as Nixon appointed four conservative justices, which changed the Court's desegregation jurisprudence through a series of 5–4 decisions. Nevertheless, drawing in part on HEW guidelines, the Court repeatedly stifled the Nixon administration's attempts to slow desegregation.

Early on, the Supreme Court furthered school desegregation and disappointed the Nixon administration's hopes that desegregation efforts would be constrained. The Fifth Circuit's U.S. v. Hinds County School Board decision (417 F.2d 852, 5th Cir.) in July 1969 required that an ineffective freedom of choice plan in a Mississippi district be replaced by the start of the school year. In August, however, HEW asked for a several-month delay in submitting proposed plans and indefinite delay in implementation (Doherty 1970).6 In its October Alexander v. Holmes County School Board of Education decision (396 U.S. 19), the Supreme Court declared desegregation delays ended and required immediate compliance. Two years later, the Court weighed in again, this time invalidating neighborhood assignment policies if they were not effective in desegregating schools, which was often the case due to segregated residential patterns. The Court endorsed a range of tools, including noncontiguous pairing of zones to help produce school diversity (Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U.S. 1). The Court's unanimous decision upholding widespread busing went against the Nixon administration's brief arguing for a slower approach to desegregation.

The Court's jurisprudence outside the South was more mixed. In its 1973 Keyes v. School District No. 1, Denver, Colorado decision (413 U.S. 189), a fractured court found Denver guilty of intentionally segregating students and required that Latinos also be desegregated. One of the missed opportunities was getting five justices to join an opinion holding no legal difference between de jure and de facto segregation, which would have had major implications for nonsouthern districts (Ryan 2010). Some justices agreed that the distinction should be abandoned but disagreed about busing, which prevented a compromise majority opinion that would have eliminated the distinction (Jefferies 1994).

In 1973, the Adams case challenged the Nixon administration's lack of Title VI enforcement, seeking to limit the discretionary power that an administrative agency has to choose how and when to enforce the sanctions of a law. The Court found the Nixon OCR had not effectively been enforcing Title VI and later, in Brown v. Weinberger (417 F. Supp. 1215), that HEW had not applied Title VI outside the South. These decisions required a tighter timeline for investigating Title VI violations and other requirements to monitor desegregation compliance, but little evidence suggests that funds were actually cut off to noncompliant districts (Halpern 1995). Although the Adams ruling limited OCR's discretion on how to allocate resources toward investigation of complaints, it could not resolve the discretionary nature of Title VI. The mechanism that gave the provision the most power—fund termination—still depended on a president's approval, which carried substantial political risk, particularly outside the South.

The judicial branch's ability to further desegregation began to diminish with the 1974 Milliken v. Bradley decision (418 U.S. 717), which overturned a metropolitan desegregation plan that would have involved the city of Detroit and dozens of surrounding suburban districts. Such a decision limited the effectiveness of efforts in many areas, outside the South in particular, where boundary lines often separated students into smaller, homogenous districts. The Milliken decision was the first since Brown that limited desegregation efforts and it began a trend of others that lessened what was required of districts to eradicate segregation. This decision, with Nixon's appointees making up the majority, combined with the nonenforcement of Title VI effectively ended the active federal role in desegregation.

Conditions Necessary for Legislation to Further Desegregation

A larger question remains as to whether some of the problems identified in the implementation of legislation mean that popularly elected branches will be fundamentally limited in their approach to desegregation. We conclude that such flaws are not inherent to federal legislation and efforts to change local practice around student assignment, though we do think it is likely to be challenging. First, the policy window for reforms is typically narrow; in this case, it took the televised assault on nonviolent protestors in Birmingham to galvanize public support in favor of unprecedented federal intervention. Even then, the bill had to overcome a lengthy filibuster before becoming law. Thus, despite widespread public support, resistance was strong enough that it was hard to marshal a majority in Congress to gain approval. ESEA had a considerably easier time gaining passage the following year, given that it was providing needed financial resources (for example, being the carrot and not the stick of enforcement).

A year later, however, the policy window had already begun to close, and efforts such as Edward Kennedy's attempt to amend Title IV of the Civil Rights Act to encompass racial imbalance failed. Later, public opinion had shifted such that cutting off funds to districts was seen as unreasonable, lessening the use of threats that were effective in Johnson's HEW. This illustrates a disadvantage of seeking to enforce minority rights through popularly elected branches of government. Today, many Americans, particularly whites, profess a colorblind ideology in which they believe that racial discrimination no longer exists and therefore race-conscious policies are not needed to address existing racial inequalities, favoring instead policies that treat everyone equally (see, for example, Bonilla-Silva 2010; Frankenberg et al. 2015). Such beliefs make it difficult, unlike in the 1960s, to justify support for federal intervention to redress persisting (and rising) inequality.

We also saw the technical challenges of lacking expertise to implement the laws. HEW repeatedly revised its guidelines as southern districts found new ways to resist desegregation. Though judges deferred to HEW's expertise, analysts questioned what experience HEW had in enforcing desegregation guidelines on such a wide scale. Given extremely limited staff capacities, the Office of Education focused on the worst districts or those that refused to submit a plan (Orfield 1969). Even if the plan was ineffective, districts were likely judged to be in compliance (USCCR 1966). Of course, judges were no more likely to have expertise than federal officials in judging the merits of desegregation plans. A benefit of HEW enforcement is that although enforcement proceedings could be drawn out, given that threats of cut-off were often enough to motivate action, they were quicker than many legal cases that extended years before plans were implemented. Thus, the Civil Rights Act and ESEA, along with executive enforcement, came at a critical time to step into the void caused by the slow, piecemeal judicial process after Brown. They, in turn, promoted more far-reaching actions by the judiciary in subsequent years.

Finally, an important lesson is that it is unlikely that either piece of legislation would have had a remotely similar impact alone—it was through their combined effects that segregation was overcome in the South. This suggests future efforts to affect desegregation must be cognizant of ensuring that legislation is complementary and comprehensive to change local practice. Moreover, the story of federal desegregation efforts in the two decades after Brown illustrates the strengths and weaknesses of each branch in terms of responsiveness to certain kinds of arguments, decision-making process and criteria, and public–interest group influence, particularly in regard to protecting the rights of a minority group.

Moving Forward: Addressing De Facto Segregation

Many current-day challenges preventing further school integration have their origins in the pushback to Civil Rights Act and ESEA enforcement. The federal government has done little to further desegregation in the last four decades. In the 1960s, all branches of the federal government struggled with questions of how to treat de facto segregation outside the South. These questions splintered the congressional civil rights consensus, and HEW was unclear about technical and political aspects of proving de facto violations. The Supreme Court's first desegregation decision outside the South came in 1973, after the civil rights era had ended. Even then, the Court failed to clarify that both de jure and de facto segregation required districts to remedy such segregation (Ryan 2010). The consensus that the federal government should intervene to address de jure segregation led to the South being the most integrated region for black and white students by 1970, which remains true today (Orfield and Frankenberg 2014). Meanwhile, the legacy of the ambiguity about addressing de facto segregation through enforcement or judicial remedy means that de facto segregation remains high. The North is the most segregated region for black students, and the only region where segregation has risen since the late 1960s (Orfield and Frankenberg 2014). Many areas also have high levels of segregation between districts instead of within districts—another dimension of de facto segregation.

Moreover, as the civil rights consensus dissolved in the late 1960s, although congressional allies staved off possible setbacks to civil rights enforcement during the Nixon administration through tactical moves, less focus was on challenging the narrative questioning the need for desegregation. The shift in enforcement under Nixon to focusing on equalizing resources rather than integrating black and white schools—a shift subsequently adopted by the courts—changed the framing about educational equality. Today, local politics reflect this framing and, at a time of economic stress with little overt federal support for integration, many districts are cutting transportation for students that is needed to ameliorate the effects of persisting residential segregation. Brown remains a cherished legal decision, but the federal effort to enforce the right it enshrined has been whittled away and whether the rights remain in practice is questionable for many students.

Our analysis suggests several avenues for the federal government to further desegregation. First, it could provide rhetorical framing of—public support for—the need for policies to address racial segregation in an ostensibly postracial society. This has been done occasionally during the Obama administration, most prominently in the form of guidance about how districts could voluntarily pursue integration. The minimal funding to provide districts the opportunity to retain social science or legal expertise in designing new assignment plans came before this guidance and thus many districts adopted policies that may result in less integration (Frankenberg et al., 2015). Yet, as discussed, such messages from the federal government could give localities political cover to implement more far-reaching policies. Our second recommendation stems from the lack of coordination: one reason these two laws were so effective was that they worked in tandem and with other branches. Federal policy should be aligned such that it does not create incentives working against school integration (for a discussion of federal policy conflicting with integration, see National Coalition for School Diversity 2014). Third, though enforcement efforts were limited in various ways during the first decade after the Civil Rights Act was passed—and despite a subsequent Supreme Court decision that has further limited the right of individuals to sue under Title VI—filing Title VI complaints with the federal government may still be a useful tool, particularly as the Obama administration recently outlined an expansive interpretation of complaints they would consider (see U.S. Department of Education 2014). Finally, a longer-term effort to clarify our understanding of discrimination to include de facto segregation could address Title VI's ambiguity and reinvigorate federal efforts to expand access to high-quality integrated schools.

Legislative and enforcement efforts played an under-recognized role in furthering desegregation across the South, but became more limited in their direct effect as the public perceived a lessened need for such efforts where segregation was de facto. Nevertheless, these efforts had a long-lasting impact and an indirect judicial impact in subsequent years. Together, they provide useful lessons for our contemporary understanding of how the federal government could continue to help increase the diversity of public schools.