Academic Grouping
Running Head: Academic Grouping
Equal Protection Rights: Effect vs. Intent in Academic Grouping
Daniel Fram
University of Mississippi
Mississippi Teacher Corps
June, 2008
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Academic Grouping
The Issue
At least since Thomas Jefferson spoke of “life, liberty, and the pursuit of happiness,” Americans
have spoken of a certain “dream” peculiar to our nation, that all men, or citizens, or people, here have
the opportunity to improve the circumstances of their lives. The issue at stake is equality of
opportunity, as contrasted with the stratification by class, race, or religious segregation predominate in
older, European societies. Education, though not guaranteed by the U.S. Constitution, has taken on an
enormous, even central role in the preservation of this dream. We have come to place our hopes for
true social mobility in the establishment of free and equal educational opportunities, and we continue to
fight legal battles to secure them.
While the fight over inter-school racial segregation is more familiar to most Americans, intraschool segregation continues to aggravate racial grievances. The practice of grouping students
academically has a special relationship to the issue of segregation, due to the tendency for academic
groups to coincide with racial ones. The courts have had a mixed reaction to this problem, from
intolerance where school boards appeared to pursue segregation intentionally by this means, to latitude
where the purpose of the grouping could be defended on pedagogical grounds. The purpose, effect, and
logic of this practice have been discussed ever since the early days of desegregation, and litigation
continues to this day.
History
Grouping prior to the establishment of a unitary system
The Fifth Circuit, responding to the Supreme Court's directive (Alexander v. Holmes County
Board of Education, 1969) that “all deliberate speed” was henceforth exhausted and that all districts
were to begin operation of unitary systems immediately, enjoined grouping by ability in Singleton v.
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Jackson, which consolidated multiple cases involving the integration plans of southern school districts
(Jerome Singleton v. Jackson Municipal Separate School District, 1969). In a brief directive for
Marshall County/Holly Springs, MS, the court denied school districts any use of achievement testing
for school placement until unitary status had been clearly achieved. (Singleton, 1969)
This suit seeks to desegregate two school districts, Marshall County and Holly Springs, Mississippi. The district
court [**12] approved plans which would assign students to schools on the basis of achievement test scores. We
pretermit a discussion of the validity per se of a plan based on testing except to hold that testing cannot be
employed in any event until unitary school systems have been established (emphasis added).
(Singleton, 1969)
Thus, the court recognized testing as possible maneuver against integration. Although the
Marshall County case involved the assignment of students to separate schools on the basis of ability,
subsequent decisions quoted it as precedent where the assignment of classes was at issue. McNeal v.
Tate discussed the purpose of the injunction against testing for the assignment of pupils within classes,
identifying the parameters under which the practice would be considered unlawful (Kelly McNEAL et
al., Plaintiffs-Appellants, v. TATE COUNTY SCHOOL DISTRICT; 1975).
This court determined that the effect of racial segregation within classes was to be considered
suspect where the district labored under the history of a dual system (McNeal, 1975). On the one hand,
the educational practice of academic grouping was consistently vindicated as sound in itself (McNeal,
1975); judges have characteristically refrained from pronouncing upon educational practice where the
wisdom of practitioners might be argued superior to their own. However, the McNeal court did find it
reasonable to forbid grouping where the effect of racial segregation proceeding from that grouping
could be logically tied to immediate vestiges of past discrimination or where the grouping tended to
immediately re-segregate students who had only recently been integrated within a school (McNeal,
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1975).
The McNeal decision formulated the basic parameters by which judges should consider the
legality of grouping. Where there was a historic “lack of educational equality,” the court assumed that
classroom groupings would “predictably cause students from the inferior system to immediately be resegregated within the lower classroom sections (McNeal, 1975).” Therefore, the school districts must
not employ grouping until they have operated unitary systems for a
sufficient period of time to assure that the underachievement of the slower groups is not due to yesterday's
educational disparities. Such a bar period may be lifted when the district can show that steps taken to bring
disadvantaged students to peer status have ended the educational disadvantages caused by prior segregation.
(McNeal, 1975)
However, this statement was not intended as a hard-and-fast rule governing all cases of
grouping. The effect and intent of school practices must be evaluated “with punctilious care” in the
light of the district's history, but evidence may be presented to show that a given system of grouping is
in the best interest of the students (McNeal, 1975).
If it (ability grouping) does cause segregation, whether in classrooms or in schools, ability grouping may
nevertheless be permitted in an otherwise unitary system if the school district can demonstrate that its assignment
method is not based on the present results of past segregation or will remedy such results through better
educational opportunities. (McNeal, 1975)
Ultimately, the first question is whether the district is operating “an otherwise unitary system
(McNeal, 1975).” Ability grouping on its own, is defensible. As in many aspects of the history of
segregation, the important question is whether the current practice is directly caused by the deficiencies
or practices of the old, dual system. Even if so related, the district may still argue that the use of ability
grouping is actually a remedy to the former disparities (McNeal, 1975).
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Academic Grouping
The reasoning here was that black students had been denied the same quality of education as
white students and were therefore nearly guaranteed lower achievement as a group for some time. The
primary task was to provide them with the opportunity previously denied them, to help them to “catch
up” (McNeal, 1975).
It is tempting to pause here to wonder whether this logic is consistent. On the one hand, it is
clearly likely, from the behaviors of multiple segregated school districts, that ability testing was
sometimes intended to maintain segregation. Such an intent is clearly unlawful under Brown v. Board
of Education of Topeka (S.Ct.1955). On the other hand, it is not nearly so clear what could be expected
of the demand to help black students catch up. The Brown court declared that any sort of separation
would be equivalent to inequality of opportunity. However, the pedagogical case for separation is
based on the presumption that those who struggle need the resources of specialized instruction to
promote their advancement. What was supposed to happen in mixed classrooms, where the court
implicitly presumes that the gap in abilities is acute and severe? Is it realistic and likely that significant
gains were made during the totally integrated phase? Or did black students, unprepared for the
challenges of the white classroom, remain woefully behind without the benefit of remediation?
The schools were instructed to make efforts at eliminating the gap before implementing any
separately-conferred remediation; what kind of efforts might those have been? In the most positive
hope, schools might have raised funds to provide supplemental teachers and aides for struggling
students within normal classrooms, but it's hard to believe that such a road was taken, and it may have
been too little to help, even so. Even by stating the problem in these terms, the court has implicitly
suggested that, while officially it takes no issue with the idea of grouping, it actually expects grouping
to result in static relative achievement; the wise get wiser and the ignorant do not learn.
This line of reasoning had already led a district court judge to condemn the use of ability groups
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Academic Grouping
in a prior case, Hobson v. Hansen (Julius W. HOBSON v. Carl F. HANSEN, 1967). What particularly worried
that court was the lack of fluidity to the grouping. Once tested, students tended to remain locked in a
given ability group with no hope of advancement. The judge went so far as to suggest that this
tendency was a natural, predictable result of any academic grouping system, thanks to the stigmatic
result of the low-achieving label.
...teachers acting under false assumptions because of low test scores will treat the disadvantaged student in such a
way as to make him conform to their low expectations . . . creating a self-fulfilling prophecy based on false
assumptions that black students are intellectually inferior. (Hobson, 1967)
Such a statement would seem to preclude any use of ability groups where any degree of racially
segregative effect could be discerned. It might almost go further. Whereas the majority of the courts
who have considered the issue have distanced themselves from pedagogical recommendations, the
Hobson court's opinion seems to suggest that there is no pedagogical defense for academic grouping at
all (Hobson, 1967).
Segregative Effect
In contrast to the strong opinion of the Hobson court, the reasoning employed by the appellate
courts in more recent cases has shied away from pedagogical recommendations where plaintiffs argued
that ability grouping produced segregation within a school. In 1981, the U.S. Court of Appeals for the
Fifth Circuit discussed the general rules for ability grouping.
Thus, as a general rule, school systems are free to employ ability grouping, even when such a policy has a
segregative effect, so long, of course, as such a practice is genuinely motivated by educational concerns and not
discriminatory motives. However, in school districts which have a past history of unlawful discrimination and are
in the process of converting to a unitary school system, or have only recently completed such a conversion, ability
grouping is subject to much closer judicial scrutiny. (Elizabeth and Katherine CASTANEDA, by their father and
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next friend, Roy C. Castaneda v. Mrs. A. M. "Billy" PICKARD, 1981)
From this it appears that the segregative effect of a given policy is not, in itself, sufficient to justify an
equal protection claim. The motives behind the policy must be examined (Castaneda, 1981). This sets a
higher bar for the plaintiff, since proofs of a district's motives will generally be more difficult to
establish than statistical information about racial disparities. Only where the district still operates
under historically-grounded suspicions will a judge consider the burden of proof to rest upon the school
district from the beginning. Thus,
a relatively recent history of discrimination may be probative evidence of a discriminatory motive which, when
coupled with evidence of the segregative effect of ability grouping practices, may support a finding of
unconstitutional discrimination. (Castaneda, 1981)
This court envisions historical precedent to be the main proof of discriminatory intent, as opposed to
further evidence of prejudice in the instant case in question.
All the same, the historically discriminatory district may still be allowed the use of ability
grouping, depending upon the severity of the segregative effect of the grouping.
Even under these circumstances, however ability grouping is not always impermissible. If the statistical results of
the ability grouping practices do not indicate "abnormal or unusual" segregation of students along racial lines, the
practice is acceptable even in a system still pursuing desegregation efforts. (Castaneda, 1981)
Therefore, each judge is left to determine extent of the statistical abnormality between proportions of
black students enrolled and proportions enrolled in lower-track classes. The Castaneda court compared
the statistical results of ability grouping in the instant district to a standard observed in the previous
case of Shannon v. Morales (1975). The judgment of insufficient abnormality to censor given in
Morales was based upon the data that one -and-a-half as many white students were assigned to high-
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Academic Grouping
track classes as were enrolled in a given a grade. Where forty percent of a grade's students were white,
the high-track classes were sixty percent white, and this was judged acceptable (Shannon v. Morales, 1975).
Castaneda, in comparison, judged the statistical results of ability grouping in Raymondville to be
unacceptable (Castaneda, 1981). That district assigned between two-and-a- third and two-and-two-thirds
as many whites to high ability classes as were enrolled in a given grade, with the more extreme
variation in the higher grades (Castaneda, 1981). Raymondville enrolled only half as many whites total as
were enrolled in the school considered in Shannon, which may have made the discrepancy seem all the
more extreme (Castaneda, 1981). However, it is difficult not to notice that the tipping point between
acceptable and unacceptable racial effects of ability grouping is not well-defined between the marks of
one-and-a-half and two-and-a-half. Thus, if the high track classes have twice as many whites as are
enrolled (a 50% white school with 100% white students in the high track), it is still difficult to say what
the courts will decide.
A mere six years after the order that school districts must desegregate immediately and create
unitary systems, the Supreme Court established, in Washington v. Davis, that the segregative effects of
measuring achievement cannot be used alone to prove a violation of the fourteenth amendment
(Washington v. Davis, 1976). Where the District of Columbia used a test which tended to thwart AfricanAmerican applicants as a bar to employment in its police force, the court ruled that such a practice was
legitimate as long as no intent to discriminate could be proven (Washington, 1976). This decision raised
the standard for plaintiffs who sought to prove discriminatory practices in employment and also
affected decisions involving school districts. Whereas the Hobson court had considered a noxious
racial effect sufficient grounds for action, the courts would subsequently be much more cautious to
reason from effects to discriminatory intent.
The “effects” noted in the Washington case were threefold:
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"(a) The number of black police officers, while substantial, is not proportionate to the population mix of the city.
(b) A higher percentage of blacks fail the Test than whites. (c) The Test has not been validated to establish its
reliability for measuring subsequent job performance." (Washington, 1976)
These effects were considered insufficient to prove discrimination under the fourteenth amendment by
the majority opinion of the court (Washington, 1976). The test in question was designed to assess verbal
ability, and the majority were particularly sympathetic to that aim:
it is untenable that the Constitution prevents the Government from seeking modestly to upgrade the communicative
abilities of its employees rather than to be satisfied with some lower level of competence, particularly where the
job requires special ability to communicate orally and in writing. (Washington, 1976)
Is “communicative ability” testable in a standardized way? According to the Mississippi State
Frameworks for English, students must be able to modify their speech to accommodate differing
audiences and purposes (Miles, R; 2007; Competencies 1.g and 3.a). Which audiences and purposes are most
relevant to the speech of a police officer? The court record shows that the city in question had a
substantial black population, otherwise the discrepancy between that population and their
representation on the police force could not have come into question (Washington, 1976). The majority
opinion seems to assume that there is a universal standard for communicative ability that stands outside
of context, but if the question is one of how to speak to given audiences from diverse backgrounds
under circumstances of pressure and even violence, it's possible that the advanced communicative
ability of the judges themselves would be of no use.
This quandary gets at the heart of the question as to whether the test reliably predicted job
performance, which question was probed at length by Justice Brennan in his dissent (Washington, 1976).
While not explicitly taking on the issue elaborated above, Brennan went to great length to question the
validity of the test requirement, and avowed himself dissatisfied with the majority's reasoning on the
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Academic Grouping
subject. (Washington, 1976)
Thus, there is no proof of a correlation - either direct or indirect - between Test 21 and the performance of the job
of being a police officer. (Washington, 1976)
Meanwhile, Justice Stevens, in his concurring opinion, attempted to mitigate the effects of the
ruling, recommending that the case not be used as a hard and fast precedent for the interpretation of
intent requirements in fourteenth amendment cases and suggesting that the individual facts of each case
should be considered carefully. (Washington, 1976)
My point in making this observation is to suggest that the line between discriminatory purpose and discriminatory
impact is not nearly as bright, and perhaps not quite as critical, as the reader of the Court's opinion might assume. .
. . . I agree, of course, that a constitutional issue does not arise every time some disproportionate impact is shown.
On the other hand, when the disproportion is . . . dramatic . . . it really does not matter whether the standard is
phrased in terms of purpose or effect. Therefore, although I accept the statement of the general rule in the Court's
opinion, I am not yet prepared to indicate how that standard should be applied in the many cases which have
formulated the governing standard in different language. (Washington, 1976)
Regardless of these modifications to the opinion in Washington, the lower courts tended to be
less impressed by racial impact claims in the schools during the 1980s, giving schools discretion to use
achievement tests and ability groups even where there was a history of segregation. In Georgia State
Conference of Branches of NAACP v. State of Georgia, the U.S. Court of Appeals for the Eleventh
Circuit approved the use of ability grouping, despite the fact that such grouping had been used at least
since the late 1960s in the school districts in question, and the fact that none of the districts in question
had been declared unitary (NAACP, 1985). Thus, the presumption of intent to discriminate would appear
to have been strong.
Essentially, they claim that ability grouping schemes which result in racial disproportionality cannot be
implemented until a school district has operated as a unitary system without such programs for some indefinite
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period of time. This stance is not without support in this circuit's precedent. In McNeal, we stated that the "rationale
of both Singleton and Lemon would bar the use of [achievement grouping] until the district has operated as
a unitary system without such assignments for a sufficient period of time to assure that the underachievement of the
slower groups is not due to yesterday's educational disparities." McNeal, 508 F.2d at 1020-21 (emphasis added).
(NAACP, 1985)
However, the court reasoned that the length of time, in itself, since the days when black students
had attended inferior schools was sufficient to insure that ability grouping would no longer perpetuate a
once-intentional, segregative effect (NAACP, 1985). In essence, the court argued that a difference of ten
years between the McNeal decision and the instant case, despite the continual use of grouping
throughout that era, prevented a conclusion that grouping was currently a discriminatory practice.
To buttress this argument, the court also defended the proposition that the grouping employed
was for the benefit of the disadvantaged students, a remediation of their under-achievement (NAACP,
1985).
This stance is in direct conflict with the view of the Hobson court, a view that the U.S. Court of
Appeals was not required to consider. While maintaining that the courts have no obligation to
fundamentally decide upon the merits of pedagogical practice, the judges quoted expert testimony to
support the view that grouping can indeed be employed as a method for repairing past inequities
(NAACP, 1985).
The plaintiffs had attempted to suggest that random grouping of students would achieve the
same pedagogical goals without creating the segregative effect. They quoted the district court's finding
that there
is no evidence in the record which supports a conclusion that either homogeneous or heterogeneous grouping is
clearly more effective in providing an appropriate education. (NAACP, 1985)
The appellate court, however, seems to have reasoned that the evidence in the record supported a
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decision in favor of homogeneous grouping. The district court's statement they interpreted not as a
position of indifference, but as a justification for permitting the district to conduct homogeneous
grouping if that seemed advantageous (NAACP, 1985). Considering the contrasting statements of two
expert witnesses on the subject, the court apparently found Barbara Lerner, the expert in favor of
homogeneous grouping, more convincing than Robert Calfee, the expert opposed. (NAACP, 1985) In
effect, then, the court did consider itself sufficient to judge of pedagogical practice, if it so chose.
Robert Calfee cautioned the court against the potentially adverse effects of grouping that had
been the source of disapproval in Hobson (NAACP, 1985). Over the course of his research into the
attitudes of educators with respect to underachieving students, Calfee has written to caution his readers
against the tyranny of low expectations.
There were a few teachers (4 percent) who expressed moderate disagreement with the belief that low achievers can
learn, and a significant number (30 percent) who were uncertain about learning capacity. One may question
whether teacher expectations are a particularly potent factor in student learning, but it seems unlikely that the
teacher who believes that students won't or can't learn will expend much effort trying different instructional
techniques. . . . one wonders what will happen with teachers who accept failure before beginning. (Calfee, 1979,
p.121)
Barbara Lerner is proud that her testimony overcame this concern. To her mind, the movement
of the NAACP to outlaw ability grouping was too egalitarian and likely to shortchange the brightest
students.
I certainly have no quarrel with his claim that we've been shortchanging our brightest students: in the 1980s,
when egalitarian zealots tried to make achievement grouping unconstitutional, my testimony as an expert witness
for the defense (in NAACP v. Georgia) helped convince the courts to rule against them. (Lerner, B. 1995)
In distinction to Calfee, Dr. Lerner is primarily concerned with enforcing standards of
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achievement. Her major worry is that an over-emphasis on the self-esteem of students will prevent us
from holding them accountable when they fail, hence lowering the bar for achievement overall (Lerner,
B. 1995).
From this perspective, the stigma and other social issues of segregated achievement groups,
even if the groups, and hence the stigmas, are identifiable by race, are not important in comparison to
the need to be realistic with students who have not mastered the skills they need.
The great trashing of academic and disciplinary standards in American schools in the 1970s had a thalidomide-like
effect on American kids. I argued in Commentary, National Review, and elsewhere that it made them dumber and
more prone to violence, that it made all our kids fail, and made black kids fail spectacularly. (Lerner, B. 1995)
Fundamentally, the NAACP court established a turning of the tide towards wider latitude for
school districts. Even in the historical context of court-ordered desegregation, where the district still
labors under inconclusive status, with evidence of significant segregative effect, the courts may still
find that defendants have no obligation to consider alternative pedagogical practices that would result
in less segregative results, merely because one out of two expert witnesses makes a case that
homogeneous grouping is educationally sound.
Flexibility and Multiple Sources of Input
Some guidance on the parameters of an educationally sound system of ability grouping comes
from the 1989 case of Quarles v. Oxford (which closely resembled a case of ability grouping upheld in
court the year before, Horace Willie Montgomery v. Starkville Municipal Separate School Dist., 1988).
The appellants here urged the court to reconsider the unitary status of the Oxford School system,
appealing the district court's ruling that Oxford school system had achieved unitary status and
dismissing the longstanding desegregation order under which the district had been operating (Robert Earl
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QUARLES v. OXFORD MUNICIPAL SEPARATE SCHOOL DISTRICT, 1989).
The plaintiffs alleged the continued practice of “state-imposed segregation” on four counts: (1)
achievement grouping; (2) discipline; (3) employment and (4) one-race programs and extracurricular
activities (Quarles, 1989). The history of litigation involving the Oxford district tended to show that,
since receiving the order to desegregate in 1970, Oxford had moved swiftly and effectively to erase its
former dual system and had made more progress than most districts towards truly unitary schools
(Quarles, 1989). Because of this history, and because the judge saw no procedural reason for
overruling the district court's judgment, the plaintiffs were taxed with the burden of showing that the
district court's findings were “clearly erroneous (Quarles, 1989).”
The court began by applying the criteria established in Castaneda v. Pickard, Shannon v.
Morales, and McNeal v. Tate County School District. Under these criteria the plaintiff must first show
that the effect of the grouping is to segregate.
Once evidence of a significant segregative effect resulting from the use of achievement grouping is introduced, a
school system may justify its continued use by demonstrating that its practices (1) are not based [**10] on the
present results of past discrimination or (2) will remedy such present results through better educational
opportunities. Id. 3 (Quarles, 1989)
The plaintiff then has a chance to show that another practice would meet the district's pedagogical or
remedial purpose while having less of a discriminatory effect.
The district court had found that Oxford's achievement grouping system "is neither intended nor
does it have the effect of having significant racial impact upon the makeup of the classrooms in the
various schools of the system (Quarles, 1989)." This judgment was not based upon an absence of racial
impact, for the appellate court called it “undisputed” that there was “a high concentration of white
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students in the upper level groups and of black students in the lower level groups (Quarles, 1989).”
Statistical findings on this fact are not present in the transcript, but remarks seem to indicate that the
judge considered the impact “minimal (Quarles, 1989).” More importantly, it was the lack of a causal
connection between the effect and the history of segregation that persuaded the district court to rule that
“neither the present grouping system nor the present disparate impact, however minimal that might be,
is causally related to the former segregated system (Quarles, 1989).” Again, the overall achievement
of the Oxford's students and the reluctance of the court to criticize ability grouping per se supported the
court's decision, highlighting the implication that the courts will judge of the seriousness of effects in
light of the probable causes and intentions.
The Quarles court also reviewed the form of Oxford's achievement grouping, which the Office
of Civil Rights had taken a hand in shaping. In so doing, the court established several criteria for
examining the intentions and effects of achievement grouping practices. In particular, the court noted
with approval that Oxford's achievement grouping is “limited,” affecting only students in the third
through eighth grade (Quarles, 1989). Furthermore, the standardized tests, as opposed to subjective
evaluations by teachers or staff, are used to determine student placement during these grades (Quarles,
1989). The student's placement in English and mathematics is determined by a test in each subject area
and has no consequences for his or her placement in the remaining subject area (Quarles, 1989).
Subject areas beyond English and mathematics are balanced by race and gender, so that there is no
question of a fundamental refusal to mix the races.
The high school offers advanced classes to all students without entrance requirements, of which
few or none of the African-American students take advantage (Quarles, 1989). The court found no
reason to suspect that racial discrimination was a cause in this occurrence (Quarles, 1989), though it
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surely does suggest cause for some kind of concern. At any rate, the court declined to even consider
the effect of grouping at the high school in light of the self-selection process employed, deeming
tracking taken on by the student's volition to be no tracking at all (Quarles, 1989).
Quarles seems to establish fluidity, considered as including multiple sources of input and
opportunities for review of a student's placement, as final criteria for acceptable ability grouping
programs. The judge supported his decision with careful explanation of the fluid character of Oxford's
tracking system, noting that “Oxford's students are not locked into [*755] place, or tracked, in the
grouping system (Quarles, 1989).” The review of a student's placement is threefold: the student may
retake the standardized test for placement once per year, the teachers of the student may recommend
changes during the year, and the parents of the student may make a request for changes after
consultation with the student's teachers and principal (Quarles, 1989). The court showed off these three
forms of review as safeguards against discriminatory placement and as proving the likelihood that,
despite evidence of racial stratification, there is substantial opportunity for movement within the system
(Quarles, 1989).
After considering all of the evidence, the district court determined that there is an "impressive" degree of
movement among achievement levels by [**14] black students as well as by white students. (Quarles, 1989)
The court was, characteristically, unimpressed with testimony that better pedagogical techniques could
supplant the ability grouping system to the effect of greater integration (Quarles, 1989).
As noted, the court in Quarles relied to some extent on similarities of fact between the instant
case and those of Montgomery (1988). While it is odious to be redundant, the reasoning employed in
this corresponding case deserves some small comment. Justice Van Graafeiland, who wrote for the
majority in Montgomery (1988), similarly reminded his petitioners of the legality and respectability of
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achievement grouping, which he distinguished from ability grouping. Before considering this
distinction, it is interesting to note that in supporting this practice, he went beyond the precedent of
Castaneda and called on testimony from an expert witness that “other Mississippi school districts
group in this manner (Montgomery, 1988).” Perhaps this is an example of deference to local control,
but the practices employed in Mississippi, well-known for its resistance to the dictates of Brown and
other civil rights rulings, seem ill-chosen for the defense of solid practice.
In addition, Mr. Van Graafeiland cites Albert J. Harris' How to Increase Reading Ability ("The
major part of reading instruction in the elementary schools of the United States is carried on in
groups.") to prove that homogeneous grouping is a well-established strategy (Montgomery, 1988).
Indeed, the first edition of Harris' book was published in 1941. In his section on homogeneous
grouping, Harris considers many variations of this practice, seen as attempts at rectifying the older
practice of skipping quick pupils ahead into higher grades and holding back slower pupils (Harris,
1941, p.333).
All of these plans have as their main idea the grouping of children in each grade on the basis of their abilities.
Grouping is usually done on the basis of intelligence tests, the recommendations of teachers, or a combination of
the two. Typical plans divide the children in each grade into three classes (bright, average, dull) . . . (Harris, 1941,
p.333)
The text itself does tend to establish the commonness of the practice; however, Harris'
acceptance of the use of intelligence tests for the purpose of measuring ability is greatly at odds with
the next point Van Graafeiland makes, for the judge is at pains to emphasize the distinction between
“ability” and “achievement” grouping.
Like the district judge, we are impressed particularly with the testimony of Dr. Saterfiel, whose qualifications as an
expert were unassailable. Dr. Saterfiel drew a clear distinction between "achievement" grouping, which was used in
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the district, and "ability" grouping, which was not used. He said that ability grouping is done on the basis of
intelligence determined by some sort of IQ test and that the students are grouped according to their apparent
intellectual abilities. Achievement grouping, on the other hand, groups children according to specific common
needs and objectives based on their skill mastery of a subject at the time of grouping. All the students in a group,
he said, are studying "common content." In Dr. Saterfiel's opinion, achievement grouping is far superior to
ability grouping. (Montgomery, 1988)
While the testimony of Dr. Saterfiel does indicate advantageous circumstances in the instant
district, the discrepancy between his point and Harris' point of view would seem to dismantle the
evidence that “achievement” grouping, as opposed to “ability” grouping, is common practice. Thus, it
seems fair to conclude that the courts' examination of homogeneous grouping practices purely as a
pedagogical technique, remains somewhat superficial. Barring decisions made in the immediate wake
of the civil rights era, the courts have mostly refrained from condemning homogeneous grouping as a
constitutional violation.
Current litigation
Monroe County; The Continuing Effort to Eliminate Segregation “Root and Branch”
In May of this year, 2008, the American Civil Liberties Union filed a complaint on behalf of the
students of Monroe County against that school district's superintendent, board members, and middle
school principle in the United States District Court for the Southern District of Alabama (Nicky
Williams et al. v. Monroe County Board of Education, 2008). The united students allege violations of
the Speech Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment,
and Title VI of the Civil Rights Act of 1964 (Williams, 2008). In essence the plaintiffs charge the
principal, Lana Wilson, and all of the members of the district's governing bodies with racial hostility,
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discriminatory practices, and censorship of public speech for the redress of grievances (Williams,
2008). They specifically charge the defendants with “segregating students into different classrooms on
the basis of race (Williams, 2008).”
Facts
At least two of the plaintiffs, who are held out as class representatives by the plaintiffs of this
case, allege that they have been placed in racially-identifiable or all-black classes during their time at
Monroeville Jr. High School (Williams, 2008). They further claim that many classrooms within the
school are “virtually all white” or “all African American,” despite the fact that statistical evidence from
the National Center for Education Statistics reveals an approximately 78 percent African American and
22 percent white student population (Williams, 2008). The school counselor unilaterally assigns
students to classes, which are tracked according to academic rigor (Williams, 2008). The plaintiffs
allege that African American students are disproportionately assigned to lower-performing or poorperforming classes, while the most academically advanced classes are virtually all white; they further
allege that the current counselor makes assignments on the basis of race; again, there is no standardized
assessment or other input used by the counselor in making these decisions (Williams, 2008). Parents
have no influence on the process and no opportunity to review the criteria employed by the counselor
(Williams, 2008). A Ms. Yates, the parent of a student named in this case, was denied access to records
in this context (Williams, 2008). On demanding reasons for the racial composition of classes, she was
ordered to leave the school grounds (Williams, 2008).
Analysis
Now that the courts have found so many justifications for the use of ability – or achievement –
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grouping in schools, what may the plaintiffs of the Montgomery case use to build a case that the
practice violates their rights of equal protection? From the above considerations, it seems that much of
their work will stand or fall with judgment upon the overall environment of the school. If the overall
attitudes and practices of the principal, superintendent, and school board are found to racially hostile
and discriminatory, especially with regard to transgression of the plaintiffs' first amendment right to
petition for the redress of grievances, then the court may consider the fourteenth amendment claims in
the light of preceding prohibitions against segregative effects within a dual system or a system still
operating within the historical context of segregation. If the court sees the practice of ability grouping
as the vestige of prior attempts at segregation, the practice may be enjoined on those grounds alone. Of
course, the plaintiffs must establish more precisely the discriminatory effect.
With a 78 percent African American and 22 percent white student population, the Shannon and
Castaneda standards imply that greater than 44 percent white enrollment in the highest classes may be
necessary to show that the discrepancy is “abnormal.”
Of key importance is the detail that groupings are created at Monroeville Jr. High School by
purely subjective means; a single counselor is responsible for placement, no standards are openly
applied, and no parental review is tolerated (Williams, 2008). This fact could certainly be used to
establish the discriminatory intent of the district, which could lead to an enjoinder against any grouping
system for a specified period of time. More ambiguously, the court might consider the pedagogical
soundness of the practice, in which case only a modification to the practice might be ordered.
Conclusion
Following a period of intense scrutiny and supervision of the desegregation of schools, a time in
which judges drew meaningful relationships between academic grouping by ability and the effects of a
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Academic Grouping
pernicious history of deprivation on the skill levels of African-American and other minority groups, the
courts have receded toward a cautious position of self-limitation with respect to the continuing
inequities of education. Although certain egregious cases, such as the current suit against Monroeville
Jr. High School, have some chance of finding sufficient grounds for action, the general mood of the
courts seems to focus on the limited responsibility the educational systems carry to alter socioeconomic
ills. Sufficient time for the disintegration of segregation's effects they have set as already passed,
though it is only one generation, or at the most two that have had the opportunity to grow to maturity
within supposedly unitary systems. Even within this recent golden age, many if not most school
districts have employed ability groupings that tended to segregate students on the basis of race,
intentionally or not. Whether this practice has any real benefit to the disadvantaged students has never
been established. For the most part, the courts have deemed such assessments outside of their
jurisdiction. At some point, one might ask why ability (or achievement, if you will) grouping has not
had a greater effect on the gap between white students and students of color in all this time. Why have
the courts stopped at demanding the absence of discrimination? Why not a positive duty to remedy
prior deficits of instruction? The courts have answered that it is unreasonable to hold a district in
contempt on the basis of factors that it cannot control, and it is highly unlikely that they will reverse the
quantity of precedent which holds ability grouping to be constitutionally sound. Yet, pedagogically,
ability grouping continues to raise questions about the nature and purpose of education to our eyes. If
homogeneous grouping predetermines a lower or higher course of achievement, rather than remedying
the disadvantages children bring with them to school, its only defense is elitism. If it predetermines
stereotypical expectations for minority groups, it would seem to perpetuate the heritage of the dual
system. Little, fundamentally, has been done since the late 1960's enforcement of integrated school
districts to ensure that African-American children are brought into the mainstream of education. If Dr.
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Lerner is right, the answer is higher expectations and time. If, on the other hand, the families who
continue to bring lawsuits on this issue understand the situation best, the disadvantaged are still
swimming against the current, getting further behind.
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