UPDATED SEPT. 16

Two education civil rights bills that represent some of the top K-12 priorities for Democrats are poised to be approved by the House this week.

On Tuesday, the House passed the Strength in Diversity Act. The bill, introduced by Rep. Marcia Fudge, D-Ohio, would essentially revive Obama administration grants that would support local efforts to increase diversity in schools, revise school attendance boundaries, and create public school choice zones, among other initiatives. The Trump administration nixed these Obama grants.

A Senate version of the bill drew support from former 2020 Democratic presidential hopefuls like Sen. Cory Booker of New Jersey, Sen. Bernie Sanders of Vermont, Sen. Elizabeth Warren of Massachusetts, and Sen. Kamala Harris of California, who is now the Democrats’ vice presidential nominee.

“Segregated schools are inherently unequal,” Fudge said on the House floor when discussing her bill. “Sixty-six years since the landmark decision in Brown v. Board of Education, the promise of equal access to education has yet to be realized.” The House passed the measure by a vote of 248-167.

Meanwhile, on Wednesday the chamber passed the Equity and Inclusion Enforcement Act from Rep. Bobby Scott, D-Va., the chairman of the House education committee. That legislation would allow private parties to file legal complaints under the Civil Rights Act of 1964 against policies they say disproportionately hurt students of color regardless of their explicit intent, a doctrine often referred to as disparate impact.

It would also create “monitors” to ensure that schools enforce the law and to investigate claims of discrimination, and establish a new assistant secretary position at the U.S. Department of Education to handle enforcement and evaluation of related issues.

Democrats promoted both bills in part by saying that they represented the first time in roughly three decades that the House held a vote on legislation with new funding for school integration. Both pieces of legislation were introduced last year. Although the bills will likely pass the House, which is controlled by Democrats, they are virtually certain to stall in the Republican-controlled Senate. And the White House said Monday that President Donald Trump’s advisers would recommend that he veto the Equity and Inclusion Enforcement Act if passed by Congress.

‘You’ve Got a Problem’

During a Monday interview, Scott said his Equity and Inclusion Enforcement Act would help families and others fight against “policies that have clear discriminatory impact” at the local level, regardless of the intent of school boards and other officials. The bill would overturn the U.S. Supreme Court’s 2001 ruling in Alexander v. Sandoval that private parties do not have a right to bring claims of disparate impact under Title VI of the Civil Rights Act.

Asked about the prospect of Republican Senators declining to take up the bill, he responded, “Let them explain why a local civil rights group can look at segregated schools in their jurisdiction, and point to policies and practices that contribute to the segregation, [but] shouldn’t have a right to a day in court to prove that these policies are adding to the segregation of the public schools.”

In its veto threat, the Trump administration said the bill would bring back the “divisive” agenda of the Obama administration and help people like trial lawyers, but not students. “Granting a private cause of action for enforcement of such regulations would inevitably lead to a massive expansion of litigation involving recipients of Federal financial assistance, diverting resources toward litigation and away from education,” the veto threat said.

The Trump administration also said the bill would open up schools to legal liability “based on cleverly aggregated and manipulated statistics, rather than facts that establish actual wrongdoing.”

As for the Strength in Diversity Act, Scott said it would not only support local initiatives, but would provide them protection against legal challenges like the kind brought against diversity initiatives in the Louisville, Ky., and Seattle districts.

“I don’t know that there are any magical ways of doing it,” Scott said, when we asked him about any particular approaches or initiatives in this area that he considered promising. “When the schools are as segregated now as they were in the 1960s, then you know that you’ve got a problem.” (Scott pointed to a federal report from 2016 indicating a growth in the share of schools that were high-poverty and enrolled mostly Black and Hispanic students.)

Groups like AASA, the School Superintendents Association, the American Federation of Teachers, and the National Coalition on School Diversity have backed the bill. This past summer, we spoke to the author of the Senate version, Sen. Chris Murphy, D-Conn., about why protests against racial injustice underscored the importance of the Strength in Diversity Act.

Republicans said Tuesday they agreed that racial segregation in schools was repugnant and should be addressed. But Rep. Rick Allen, R-Ga., the ranking member of the House education subcommittee for K-12, said on the House floor that the bill was misguided and did not truly focus on equal education for children. “This partisan proposal would create another federal program while ignoring existing priorities,” Allen said.

Democratic presidential nominee Joe Biden, who took some heat from Democratic primary rivals over his record on school integration efforts, has pledged to bring back Obama-era efforts to increase school diversity. “I think he would be in favor of initiatives that desegregate the schools and against initiatives that can be proven to contribute to the segregation of public schools,” Scott said of Biden.

Scott also provided a decidedly pessimistic update on coronavirus relief negotiations. He said that a Senate Republican bill—which includes several school choice measures and would condition most K-12 aid on schools resuming in-person instruction to some extent—is not a serious proposal because it has too little money for schools and no money for state and local money, in contrast to the House Democrats’ HEROES Act.

“I don’t know how you negotiate with people who are willing to do nothing,” he said.

Not surprisingly, Senate Majority Leader Mitch McConnell, R-Ky., took a different view of the case after Democrats’ blocked the Senate GOP bill last week.

Every Senate Democrat just voted against hundreds of billions of dollars of COVID-19 relief. They blocked money for schools, testing, vaccines, unemployment insurance, and the Paycheck Protection Program.

Their goal is clear: No help for American families before the election.

— Leader McConnell (@senatemajldr) September 10, 2020

Photos from left: Rep. Bobby Scott, D-Va., speaks during a news conference unveiling the Patient Protection and Affordable Care Enhancement Act on Capitol Hill in Washington on Wednesday, June 24, 2020—Manuel Balce Ceneta/AP; Rep. Marcia Fudge, D-Ohio, Chair, Democratic National Convention wave as she walks on stage during the first day of the Democratic National Convention in Philadelphia, Monday, July 25, 2016—J. Scott Applewhite/AP. (Diptych by Andrew Ujifusa for Education Week)