I once heard a Montclair High School student describe how he could tell whether a class was an AP or honors course by glancing into the room: If the students inside were almost all white, it was AP or honors; if the students were mostly Black and brown it wasn’t.

That’s Montclair, a plush district in Essex County that is externally diverse but internally segregated. The 6,700 students are half White, one-third Black, and one-tenth Hispanic, yet the achievement gaps are enormous because getting into the school building is not equivalent to getting into classrooms with high expectations. But the State does nothing and the U.S. Education Department, under the leadership of Education Secretary Betsy DeVos, is silent.

That’s not the way our federal education law, the Every Student Succeeds Act (ESSA), is supposed to work.

And that is why Shavar Jeffries, President of Education Reform Now (and native of the gritty South Ward of Newark), told the Senate Committee on Health, Education, Labor, and Pensions (HELP) this morning (testimony here) that “too many states [have] yawning achievement gaps [that] persist along lines of income, race, nationality, and disability as well as deficits in equal educational opportunities that contradict the core purposes of ESSA.”

Montclair Public Schools District is his primary example.

For those playing catch-up, at the end of the Obama Administration Congress passed ESSA as a replacement for our previous federal education law, No Child Left Behind. NCLB had sharp federal teeth, with consequences for states that fail to abide by strict accountability measures. ESSA is NCLB Lite, de-fanged and  gummy, gambling that states will play by the rules and, if by chance they don’t, the federal Education Department will intervene. All hail local control!  Wanna guess how that’s going?

It’s going wrong in two ways: 1) some states aren’t playing by the rules and 2) DeVos, to all appearances, doesn’t care.

Jeffries told the HELP Committee, “The theme of today’s hearing—’States Leading the Way’ —in too many respects remains more an expression of aspiration than a description of fact.”

Here’s a fact: Education Reform Now (ERN) put together a list of more than 30 parts of ESSA where, says Jeffries, “Congress made its intent crystal clear and yet the U.S. Department of Education approved state plans that fail to adhere to them.” For example, Jeffries recounts this statement from  Former House Education and Workforce Committee Chairman John Kline (R-MN): “Arizona and New Hampshire recently passed laws that violate ESSA by permitting individual school districts to choose which assessments to administer…such violations undermine ESSA in its entirety.”

And that’s the problem with ESSA: It assumes everyone plays by the rules.

But they don’t.

Let’s look more closely at Montclair. Click on this link to see the NJ DOE data for the district’s high school. In English Language Arts, 66.8 percent of students met or exceeded the bar for proficiency. Pretty good, right? Look more closely at the disaggregated data that breaks enrollment into subgroups: white students, Hispanic students, African-American students, economically-disadvantaged students, English Language Learners, students with disabilities, etc. At the high school 81.1 percent of white students met the bar for proficiency but only 37.7 Black students did. That’s the “yawning achievement gap” that Jeffries references, a devastating 44 points.

The disproportionality doesn’t end there. Jeffries continues,

Black students are five times more likely to be suspended than White students; and Black students are substantially less likely to be assigned to honors or Advanced Placement courses as White students. The New Jersey State Department of Education, however, doesn’t recognize the yawning and persistent gaps at Montclair High School – where Black students have not made significant progress and where outcomes on most indicators last year slightly declined – as worthy of its attention.

Indeed the state doesn’t flag the failure of Montclair Public Schools to address the achievement gap. If you click here for the School Performance Report category of “Accountability Summary by Student Group,” you’ll see that while Black students failed to meet targets in three out of five categories, the DOE has checked off “No” in the column called “At Risk for Consistently Underperforming Student Group.”

Jeffries: “The state’s first report card issued last year under ESSA does not even deem Black students at Montclair High as at-risk of being an ‘underperforming subgroup’ let alone identify Montclair as a school in need of what ESSA defines as ‘targeted assistance.’”

Now, let’s not beat up on Montclair too much. It’s one of 591 school districts in NJ and has no shortage of peers with similar achievement gaps. The community recognizes the problems and has participated in numerous attempts at remediation. Nonetheless, the inequity persists.  Christa Rapoport, who chairs the Montclair Civil Rights Commission, told a reporter that Black families with means who “don’t want their kids ignored”  just send them to private school — she calls it “bright flight.”

At a recent School Board meeting trustee Franklin Turner said that “systemic bigotry was at the root of so many black students not getting the attention and guidance they needed.” The reporter covering the meeting notes the “long discussion about the effect of racism and how white administrators without any background in the issue should recognize the problem and deal with it.”

This past June Superintendent Kendra Johnson told the School Board that Black and Hispanic student participation in AP classes has “fallen sharply” and “their presence in high-honors courses is also wanting,” dropping four points from last year.

A law is only as good as its implementation. Without strict state and federal oversight, ESSA is not an aspirational civil rights law that identifies educational inequities for remediation but a shell game that condones disregard for children left behind. Jeffries worries that “[h]istory indicates that decisions will often be made based not on what is in the best interests of students, but rather what the path of least resistance is for those charged with carrying them out” and requests those in charge “at the very least monitor this process closely and make course corrections that provide incentives – if not requirements – for meeting the underlying purposes of the ESSA statute.”

Meanwhile, Black and brown students in Montclair — and countless other districts — will be relegated to staring through windows of classrooms that offer equal educational opportunities. That wasn’t supposed to happen under ESSA. But it is happening, as ERN’s research verifies. The question now is if anyone in a position of power cares.