Overview
Every school year the process of placing
students in special schools, programs, and activities according
to their abilities and/or disabilities is a subject of heated
debate. This is especially true now that school systems are
required to: (1) measure and monitor student academic
performance, (2) disaggregate student test data, and (3) provide
extensive remedial programs for underachieving students in
response to the mandates of No Child Left Behind,
20 U.S.C. 6301, et seq. (2002). Suffice it to say, there is a
major effort both nationally and in the states to ensure that
children who for what ever reason have been in the past
underserved and/or disadvantaged be provided access to high
quality educational opportunities.
While it remains a legal fact that the
discretionary authority of local boards of education and school
officials to assign students to special programs, classes, and
schools remains in tact, the enactment of various civil rights
statutes (federal and state) and decisions handed down by courts
(federal and state) over the past fifty years have consistently
mandated that such assignments and placements shall not in any
way be discriminatory. Russo (2004) This is especially true
where there exists a resulting effect that demonstrates a
disproportionate impact on race, or disability, or gender.
The purpose of this commentary is to focus
on the general concept of ability grouping and associated
legal and policy issues. The commentary will not attempt to
examine and discuss specific sub-issue areas such as the impact
ability grouping on students with educational disabilities.
Ability Grouping: What Does it
Mean?
More than two decades ago, my old friend
and legal scholar Joseph Bryson and a colleague devoted an
entire book to the subject of ability grouping. In their
treatise the authors define ability grouping as: “…the practice
of prejudging students’ ability on some type of intelligence
tests and past educational performance, and then assigning two
or more students to a particular instructional setting for a
sustained period of time.” Bryson and Bentley (1980) The authors
then define two specific types of ability grouping. First, there
is achievement grouping which involves grouping students
“based on scores students make on achievement tests and on their
past performance.” Second, tracking is the “practice of
assigning…students to a specific curriculum such as general,
vocational, business, or college preparatory…. The assignment
may be based on intelligence tests, achievement tests, past
performance, teacher judgments, or a combination of these.”
Bryson and Bently (1980) Of the two types of ability grouping
the tracking process has been the most litigious.
Ability (Achievement) Grouping
2005-2006: Disaggregated Data and Subgroups
As a general rule, “courts have supported
ability grouping in theory unless racial and cultural bias is
shown.” Lunenburg and Ornstein (2004) At the same time, past
case law and the opinions of legal scholars also have made it
clear that student ability grouping criteria and evaluation
processes that discriminate against children on socio-economic
status must cease.
As mentioned above, there is a current
emphasis on grouping students according to academic achievement
and ability. Public school systems must identify student
populations who need some form of remedial and compensatory help
to achieve academically in school. Thus, disaggregation of
student standardized test data is crucial in the process.
Disaggregated Data. As one legal
resource defines the term, “Disaggregated data is data from
schools or school divisions which has been broken down by group
so that performance of individual groups can be identified
separately from the performance of the entire student
population.” Kaminski, et al. (2005) Making specific
reference to the Adequate Yearly Progress (AYP) mandate
of No Child Left Behind, the authors make it clear that
disaggregated student data are categorized and grouped into the
following subgroups: economically disadvantaged, students from
major racial and ethnic groups, students with disabilities, and
LEP (Limited English Proficient) students. Kaminski, et al.
(2005)
Integration and Mainstreaming v
Resegregation. Today’s emphasis on data-driven management,
coupled with the above mentioned requirement that underserved
student populations be specifically identified and provided for,
places public school officials in an awkward position. This
situation is made more complicated by a related movement in
which some advocates insist that separate classes, programs, and
schools be designed and implemented for specific populations of
students. There are those who claim that bona fide
reasons exist for grouping students according to race (e.g.,
schools for African-American males), or gender (e.g.,
single sex classes, programs, and schools for female students),
or disability (e.g., schools for students with
autism).
Recently, Jack Boger, Director of the
University of North Carolina Legal Center for Civil Rights, made
the following comments regarding a California controversy in
which a local public school system (in a effort to ensure that
students not be left in racially isolated schools) used race
as a factor in approving student transfers from one school to
another: “If a willing school board wants to consider race as a
factor, shouldn’t it be able to do so, if after all, nobody is
denied a fourth grade or a seventh grade education, just denied
a certain school?” He then continued, “In a sense, if the school
can’t do that, it is denying the choice of all parents who want
their children in racially diverse schools.” NSBA Legal Clips
(December 15, 2005)
Will it be that the extensive efforts of
the past fifty years to integrate and mainstream all students
into a more diverse school environment will be abandoned as
public school systems turn down a path toward separating
students into distinct groups, where academic potential,
performance, and achievement (especially in
reading, mathematics, science, social studies, and English) are
the principal placement criteria; with socio-economic status,
geographic location, and other such factors functioning as
collateral criteria?
Issues and Related Case Law
In the late 1960’s ability grouping became
a subject for judicial intervention. The first case of
consequence involved the Washington, D.C. school system. In
Hobson v Hansen (1967), federal judge J. Skelley Wright held
that the tests, methods, and procedures relied on to place
students in ability groups (Honors, General, and Special tracks)
were discriminatory and therefore violated the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. Judge Wright was convinced that a student’s chance
of being enrolled in a particular ability group was directly
related to his/her socio-economic background.
Three years later, a federal district court
in California had before it a grouping plan used in the Pasadena
public schools. In this case the court was convinced that the
degree of racial segregation found in the school system was a
direst result of student ability grouping. At the time
elementary school students were grouped as either gifted or
below average. Secondary students were grouped as fast, regular,
or slow. In ruling against the school system the court focused
on the following facts: student placement decisions were
primarily based on (1) standardized achievement and intelligence
testing results, (2) teacher and administrator recommendations,
and (3) parental requests. Spangler v Board of Education
(1970)
In subsequent cases, the courts
consistently have ruled that ability grouping plans that result
in a segregation of specific types of students in low ability
groups, where the present segregation can be directly traced to
a past pattern and practice of illegal segregation, or to
current socio-economic condition, or to educational disability
are highly “suspect” under an Equal Protection analysis.
Parents in Action on Special Education v Hanlon
(1980), and Billings v Madison Metropolitan School District
(7th Cir. 2001)
At the same time, however, simply because a
student ability grouping process does impact on a particular
class of students does not doom it to failure when taken into
court. Two factors are of critical importance. First, the court
will probe the intent of separating students into groups.
Where the intent is to identify students who need help and
remediation so that they can achieve and succeed academically,
and ultimately graduate from high school, the grouping system
likely will pass muster. Second, if the court determines that
the grouping criteria relied on are neutral and the
process followed is fair the system likely will succeed.
San Francisco NAACP v San Francisco U.S.D. (9th
Cir. 2002) A good example of a related case in which the court
upheld a public school system’s student assignment plan because
“racial classification” was not the primary criterion, see
Anderson v City of Boston (1st Cir. 2004)
This past year the United States Court of
Appeals for the Ninth Circuit upheld a local public school
system’s student assignment plan where race was a factor. In
Parents Involved in Community Schools v Seattle School District
No.1 (9th Cir. 2005), the court held that the
plan did not violate the Equal Protection Clause of the
Fourteenth Amendment. The evidence demonstrated that the school
system’s process did not create racial quotas, and that the
assignment plan was narrowly tailored to achieve racial balance
in the schools. More specifically, the court was convinced that
the school system’s intent was to help students gain access to
the educational and social benefits of diverse schools.
Policy Implications
Over the past five years (mainly in
response to new federal and state legal mandates), public school
officials have been busy working to early identify
students who are: (1) educationally underserved, (2) in need of
specialized help, and (3) at risk of failure (academically and
socially). In doing so, local school officials have moved to
place students in distinct groups and/or categories, so that
specialized remedial and compensatory help can be effectively
designed and implemented. Thus, local school systems have had to
turn away from integration/mainstreaming models relied on for
the past fifty-years, and create new student assignment and
placement models that separate students into ability
(or disability) groups. To put it another way, if
students need remedial and/or compensatory help with
mathematics, or reading, or science, or English, then they must
be early identified, placed in specialized settings, and not
left to flounder, underachieve, and ultimately fail.
In effect this new “ability (achievement)
grouping era” in public education is forcing school officials to
revisit and revise existing policies and procedures and, where
necessary, to create new ones more conducive to the task at
hand. However, the pitfalls and mistakes of past ability
grouping efforts must be avoided. To assist in this task the
following suggestions for policy are offered for consideration.
Local school officials must make it clear that:
- The
intent of the school board is to provide all students
(especially those who have been in the past underserved
and/or disadvantaged) with equal access to appropriate and
meaningful educational opportunities.
- The
school board, administrators, classroom teachers, and staff
shall work to early identify and assist students who need
specialized help to achieve and succeed in school, both
academically and socially.
- Parents
will be informed and involved in the identification,
assignment, and placement processes
- No
student will be assigned or placed in any school, program,
or class solely based upon race, or ethnicity, or gender, or
disability, or socio-economic status.
- Students
who need specialized services and settings will be assigned
and placed in schools, programs, and schools based upon
research-tested criteria.
-
Specialized assignments and placements of students will be
implemented solely for the purpose of providing the help and
assistance necessary to: (1) meet the particular needs of
students, and (2) nurture academic achievement and social
progress in students.
- Student
progress will be continuously monitored and evaluated.
- The
intent of the school board is to transition students who
need specialized assistance and services, in specialized
settings, back into the mainstream of the student
population.
I have little doubt that a new era of
ability (achievement) grouping students is upon us and new legal
and policy issues will spring to life. However, if it is made
clear at the outset that local school systems are implementing
such processes not solely to comply with federal and state
statutory mandates, but rather to help all students (especially
those who heretofore have been underserved and/or disadvantaged)
achieve and succeed in school (both academically and socially),
past history will be overcome. It is important to remember that
in order to make a Fourteenth Amendment Equal Protection case,
the complaining party has the burden to show that public school
officials possessed an unlawful discriminatory intent. Helping
all students achieve and succeed academically in school
certainly does not fit that description.
Resources Cited
Anderson v City of Boston, 375 F.3d 71 (1st
Cir. 2004)
Billings v Madison Metropolitan School
District, 259 F.3d 807 (7th Cir. 2001)
Bryson, Joseph E. and Charles P. Bentley,
ABILITY GROUPING OF PUBLIC SCHOOL STUDENTS (The Michie Company,
1980)
Hobson v Hansen, 269 F.Supp. 401 (D.D.C.
1967)
Kaminski, Kate R., et al., VIRGINIA
SCHOOL LAW DESKBOOK (LexisNexis, 2005)
Lunenburg, Fred C. and Allan C. Orenstein,
EDUCATIONAL ADMINISTRATION: CONCEPTS AND PRACTICES, Fourth
Edition (Thomas-Wadsworth, 2004)
No Child Left Behind Act, 20 U.S.C. 6301,
et seq. (2002)
NSBA Legal Clips (December 15, 2005)
Parents in Action on Special Education v
Hanlon, 506 F.Supp. 831 (N.D.Ill. 1980)
Parents Involved in Community Schools v
Seattle School District, No.1, 426 F.3d 1162 (9th
Cir. 2005)
Russo, Charles J., REUTTER’S THE LAW OF
PUBLIC EDUCATION, Fifth Edition (Foundation Press, 2004)
San Francisco NAACP v San Francisco U.S.D.,
284 F.3d 1163 (9th Cir. 2002)
Spangler v Board of Education, 311 F.Supp.
501 (C.D. cal. 1970)
Richard S. Vacca
Senior Fellow CEPI
Note: The views expressed in this
commentary are those of the author. |
