Ability grouping - Education Law
Ability grouping refers to the organizing of elementary and secondary students into classrooms or courses for instruction according to actual or purported ability. This entry briefly reviews the history of ability grouping in American public education and how the law has treated challenges to this practice in various types of settings, primarily when such grouping results in significant levels of segregation or discrimination based on race. Legal constraints on ability grouping based on language, disability, and gender are also identified. The entry concludes with a review of policy features that may help predict the legal vulnerability of ability grouping practices and of factors that school officials may find important to consider as they contemplate grouping students to foster excellence without sacrificing equity in the current era of accountability fostered by the No Child Left Behind Act (2001).
Grouping students by ability for purposes of instruction has been a source of debate in American public education almost since the inception of the practice in the late 1860s. Over the past 140 years, ability grouping has experienced various levels of support and adoption. In the first quarter of the 20th century, for instance, ability grouping experienced a rise in popularity that coincided with the universal schooling movement and the introduction of intelligence testing and scientific management strategies into public education. This period of growth was followed by a decline in popularity during the 1930s and 1940s, as the progressive education movement questioned not only the effectiveness of grouping but also its appropriateness in a democratic society. However, by the late 1950s, ability grouping experienced a resurgence in the post-Sputnik era as the nation rallied to match the technological accomplishments of the Russians.
It was during this same period, of course, that Brown v. Board of Education of Topeka (1954) triggered a revolution in race and schooling policy in America, a revolution that was intended to bring White and Black students together in common educational settings, notwithstanding the grossly different educational opportunities each group had been afforded historically and the widely held stereotypes regarding their relative academic abilities. Ability grouping expanded dramatically through the 1960s, coming to represent a means of circumventing desegregation by substituting within-school segregation for what had existed between schools at the time of Brown. From at least this historical juncture, race and grouping practices have been inescapably intertwined. Research findings during the post-Brown period, including Jeannie Oakes’s influential study, Keeping Track, have confirmed not only that ability grouping tends to segregate students along racial and socioeconomic lines but also that those channeled into lower classes are frequently provided a substantially different curriculum and set of learning experiences—thereby locking in lifelong inequality. Like many other educational controversies over the past half century, the issue of student grouping has been almost as likely to be tested in the courtroom as in the classroom.
Legal Challenges and Parameters
Tracking, an extreme form of ability grouping, first gained legal attention in a case challenging the practice in the District of Columbia Schools, where students were assigned to one of four tracks from college prep to basic education and completed virtually all their course work within such a differentiated curriculum. Black students disproportionately were relegated to the lowest of these tracks. Evidence also indicated that once assigned to a track, students were not re-evaluated on a regular basis and rarely enjoyed mobility to a higher track, even though the school district justified the use of tracking as a means of remedying student deficiencies. In Hobson v. Hansen, affirmed under the name Smuck v. Hobson (1969), the Court of Appeals for the D.C. Circuit ruled that ability grouping as it was practiced in the D.C. Schools violated the due process clause of the Fifth Amendment.
The Hobson court was clear that ability grouping is not unlawful per se. It is a policy option available to many school districts, as long as officials can justify such grouping as reasonably related to a legitimate school or educational objective. On the other hand, where its adoption or method of implementation can be characterized as arbitrary, capricious, or discriminatory, as was found to be the case in Hobson, ability grouping is unlawful and may be prohibited.
Much of the ability grouping litigation has involved districts with a history of unlawful segregation that consequently were under an affirmative duty to desegregate at the time ability grouping was introduced or expanded. In the late 1950s and early 1960s, federal courts presiding over such districts tended to examine the use of ability grouping on a case-by-case basis to determine if its adoption was motivated by a segregative purpose. By the mid-1970s, however, the Fifth Circuit ruled in McNeal v. Tate (1976) that school districts under a Fourteenth Amendment legal obligation to desegregate may not employ ability grouping that results in significant levels of building, classroom, or course segregation until the district has been declared unitary or it can demonstrate either that the assignments do not reflect the present results of past segregation or that they will remedy such results through better educational opportunities.
By contrast, in districts without such an affirmative duty to remedy unconstitutional segregation, the courts place the burden on the plaintiffs proceeding under the equal protection clause of the Fourteenth Amendment to demonstrate not only that ability grouping resulted in significant segregation but that grouping was adopted in part to achieve that end, as illustrated in People Who Care v. Rockford Board of Education (1997).
Although equal protection principles have been relied on heavily, ability grouping has also been challenged under Title VI of the 1964 Civil Rights Act, a general antidiscrimination law that bars discrimination on the basis of race and national origin in programs and services operated by recipients of federal financial assistance. Under Title VI, where ability grouping results in significant levels of classroom segregation, the district may find itself in noncompliance, unless it can demonstrate that it has selected the least segregative instructional approach from among equally effective educational alternatives.
While ability grouping litigation has most often involved contentions of racial segregation and discrimination, questionable grouping practices on the basis of national origin or language may also be challenged under Title VI. Ability grouping policies or processes that operate to discriminate on the basis of student gender or student disability are also prohibited by Title IX of the Educational Amendments (1972) and Section 504 of the Rehabilitation Act (1973) respectively. Such claims may arise when ability grouping contributes to substantially disproportionate enrollment of certain populations of students in a particular classroom or course or when selection criteria or procedures contribute to the erroneous classification or placement of such students.
Examples of discriminatory grouping policies or practices have included assigning Black or limited- English-proficient students to special education classes and programs based on the use of an IQ test normed on an exclusively White population, or when the test is administered in a language other than one the students can understand. Such practices have been held to violate both Title VI and Section 504 of the Rehabilitation Act of 1973. Similarly, a federal appeals court has invalidated, on the basis of Title IX, a selective high school’s admissions policy where different cutoff scores were used for male and female student applicants in order to balance the gender of the student body. Since 1975, the Education for All Handicapped Children Act (1975), now known as the Individuals with Disabilities Education Improvement Act (2004), have limited ability grouping by requiring students with disabilities to be educated in the least restrictive environment, presumed to be the regular classroom with supplemental aids and services, unless their education cannot be satisfactorily achieved in such a setting.
Features That Affect Case Outcomes
The outcomes of cases involving ability grouping have varied, frequently turning on consideration of not only the district’s historic context or intentions of the school officials but also particular features of the grouping policies and practices being employed. To minimize the potential for a successful challenge, schools must carefully craft policies and procedures governing the grouping of students for instruction. This may be especially important as the No Child Left Behind Act (2002) compels examination of subgroup performance and remedial measures targeted specifically to those not making adequate yearly progress.
These significant factors include the nature and scope of the grouping; the criteria used in assigning students to groups, including the appropriate use of testing; the manner and consistency with which grouping is implemented; the extent of its segregative impact on protected populations; the provisions for and frequency of re-evaluations; the quality and effectiveness of remedial services in obtaining desirable educational outcomes; and the degree of actual student mobility that results. Relying on these types of considerations, the law has demonstrated its willingness, albeit reluctantly, to intervene in instructional grouping controversies, at least where certain conditions and factors are present. While courts seldom order the outright abolition of grouping based on actual ability, they occasionally have precluded its utilization for a limited period of time. More commonly, however, courts have required changes be made to the criteria or procedures used to group students so as to ensure they are placed on the basis of actual rather than perceived ability.
See also Brown v. Board of Education of Topeka; Hobson v. Hansen; No Child Left Behind Act
Oakes, J. (1985). Keeping track: How schools structure inequality. New Haven, CT: Yale University Press.
Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff’d, sub. nom., Smuck v. Hobson, 408 F.2d. 175 (D.C. Circuit, 1969) (en banc).
Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.
McNeal v. Tate County School District, 508 F.2d 1017 (5th Cir. 1975).
No Child Left Behind Act, 20 U.S. §§ 6301 et seq. (2002).
People Who Care v. Rockford Board of Education, 1400 et seq. Supp. 905, 912–13 (N.D. Ill. 1994), aff’d in part, rev’d in part, 111 F.3d 528 (7th Cir. 1997).
Rehabilitation Act of 1973, Section 504, 29 U.S.C. § 794(a).
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
Title IX of the Educational Amendments of 1972, 20 U.S.C. §§ 1681 et seq.