Silent segregation in our nation's schools

Harvard Civil Rights-Civil Liberties Law Review

Volumn 34, Issue 2, 1999, Pages 515-545

  Losen, Daniel J ^a,b,c  

^a TUFTS UNIVERSITY   (United States)

^b LESLEY UNIVERSITY   (United States)

^c GEORGETOWN UNIVERSITY   (United States)

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EID: 8344225294     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (224)

1. "Ability grouping" will be used as a catch-all phrase. This Note uses "tracking" to refer specifically to within-school ability grouping practices, most common in junior and senior high, whereby students take all of their academic courses on a certain level. "Gifted and talented" refers to specialized programs most often found at the elementary and junior high level.
2. See PROFESSIONAL STANDARDS & PRACTICE, NATIONAL EDUC. ASS'N, ACADEMIC TRACKING 8 (1990) [hereinafter NEA]; see also Jomills Henry Braddock II, Tracking the Middle Grades: National Patterns of Grouping for Instruction, 71 PHI DELTA KAPPAN 445-46 (1990) (discussing a national survey of middle-grade schools that showed that more than two-thirds of the nation's schools serving early adolescents used some between-class ability grouping).
3. See PROFESSIONAL STANDARDS & PRACTICE, NATIONAL EDUC. ASS'N, ACADEMIC TRACKING 8 (1990) [hereinafter NEA]; see also Jomills Henry Braddock II, Tracking the Middle Grades: National Patterns of Grouping for Instruction, 71 PHI DELTA KAPPAN 445-46 (1990) (discussing a national survey of middle-grade schools that showed that more than two-thirds of the nation's schools serving early adolescents used some between-class ability grouping).
4. Even ability grouping proponents acknowledge the harm to minority and poor students placed in the low track. See, e.g., Tom Loveless, The Tracking and Ability Grouping Debate (last modified July 1998) .
5. See Debra Viadero, On the Wrong Track?, EDUC. WK. ON WEB (Oct. 14, 1998) ; see also Douglas Maclver & Stephen B. Plank, Improving Urban Schools: Developing the Talents of Students Placed at Risk, in WHAT CURRENT RESEARCH SAYS TO THE MIDDLE LEVEL PRACTITIONER 243, 246 (Judith L. Irvin ed., 1997).
6. See Debra Viadero, On the Wrong Track?, EDUC. WK. ON WEB (Oct. 14, 1998) ; see also Douglas Maclver & Stephen B. Plank, Improving Urban Schools: Developing the Talents of Students Placed at Risk, in WHAT CURRENT RESEARCH SAYS TO THE MIDDLE LEVEL PRACTITIONER 243, 246 (Judith L. Irvin ed., 1997).
7. See Kevin G. Welner & Jeannie Oakes, (Li)Ability Grouping: The New Susceptibility of School Tracking Systems to Legal Challenges, 66 HARV. EDUC. REV. 451, 459 (1996).
8. "[T]he practice of homogeneous ability grouping for all subjects is more often found in schools with sizable (more than 20%) enrollments of African American and Hispanic students." JOMILLS HENRY BRADDOCK II, CENTER FOR RESEARCH ON EFFECTIVE SCHOOLING FOR DISADVANTAGED STUDENTS, TRACKING: IMPLICATIONS FOR STUDENT RACE-ETHNIC SUBGROUPS 6 (1990).
9. Researchers have found that with the exception of Asian Americans, minorities, compared with whites, are enrolled in low tracks at a significantly higher rate, and in high tracks at a lower rate. See Jomills Henry Braddock II & Marvin P. Dawkins, Ability Grouping, Aspirations, and Attainments: Evidence from the National Educational Longitudinal Study of 1988, 62 NEGRO EDUC. 324, 326-29 (1993).
10. 269 F. Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hansen, 408 F.2d 175 (D.C. Cir. 1969) (en banc).
11. Hobson, 269 F. Supp. at 511. On appeal, the Court of Appeals ruled that an ability grouping system per se was not barred from use in the D.C. public schools. See Smuck, 408 F.2d at 186.
12. Nationwide, only 68 complaints about ability grouping and tracking were filed from fiscal years 1993 to 1995. See U.S. COMM'N ON CIVIL RIGHTS, 1 EQUAL EDUCATIONAL OPPORTUNITY PROJECT SERIES 218 (1996) [hereinafter EEOP].
13. 42 U.S.C. § 2000(d)(1)-(4) (1994).
14. See Telephone Interview with Arinita Ballard, Region IV Program Manager, Office for Civil Rights (Oct. 30, 1997); Telephone Interview with Rebecca E. Hoover, National Office, Office for Civil Rights (Nov. 14, 1997); and Telephone Interview with Barbara Shannon, Region IV Director, Office for Civil Rights (Oct. 27, 1997).
15. Many schools attempting to detrack face internal resistance from teachers and external resistance from some parents. See, e.g., Viadero, supra note 4 (citing a study by Adam Gamoran showing that of 24 schools attempting to make their curricula more equitable, only one - a small high school with small classes - succeeded in detracking in all subjects).
16. "[W]hen Black students find a greater chance of school desegregation, they are also likely to find a somewhat greater chance of classroom resegregation." NETWORK OF REGIONAL DESEGREGATION ASSISTANCE CTRS., RESEGREGATION OF PUBLIC SCHOOLS: THE THIRD GENERATION 37 (1989).
17. See Robert E. Slavin, Ability Grouping and Tracking in Elementary Schools: A Best-Evidence Synthesis, 57 REV. EDUC. RES. 293 (1987); see also POLICY, ENFORCEMENT. & PROGRAM SERV., OFFICE FOR CIVIL RIGHTS, ABILITY GROUPING TECHNICAL ASSISTANCE RESOURCE PACKAGE app. at 1-12 (1992) [hereinafter ABILITY GROUPING PACKAGE].
18. see also POLICY, ENFORCEMENT. & PROGRAM SERV., OFFICE FOR CIVIL RIGHTS, ABILITY GROUPING TECHNICAL ASSISTANCE RESOURCE PACKAGE app. at 1-12 (1992) [hereinafter ABILITY GROUPING PACKAGE].
19. See COMMITTEE ON APPROPRIATE TEST USE, HIGH STAKES: TESTING FOR TRACKING, PROMOTION AND GRADUATION 93-95 (Jay P. Heubert & Robert M. Hauser eds., 1999) [hereinafter HIGH STAKES].
20. "See id.
21. See, e.g., Nicola A. Alexander, Race, Poverty, and the Student Curriculum, 1975-1995: Implications for Public Policy (visited Apr. 8, 1999) .
22. For example, a parent may not know a sixth grade math placement could effectively forestall enrollment in calculus in high school. See JEANNIE OAKES, MULTIPLYING INEQUALITIES 45 (1990).
23. See EEOP, supra note 10, at 93-95.
24. By the 1920s, ability grouping had gained popularity as a means of coping with the new diversity of students attending school, and as a way to separate those students "destined for college" from those "destined for low-level jobs." Popular scientific theories of intelligence, and particularly Social Darwinism, influenced public schools to develop separate curricula tracks. See STEPHEN J. GOULD, THE MISMEASURE OF MAN 368 (1996); JEANNIE OAKES, KEEPING TRACK 16-17, 25 (1985).
25. By the 1920s, ability grouping had gained popularity as a means of coping with the new diversity of students attending school, and as a way to separate those students "destined for college" from those "destined for low-level jobs." Popular scientific theories of intelligence, and particularly Social Darwinism, influenced public schools to develop separate curricula tracks. See STEPHEN J. GOULD, THE MISMEASURE OF MAN 368 (1996); JEANNIE OAKES, KEEPING TRACK 16-17, 25 (1985).
26. See Harry Passow, Forward to BEYOND TERMAN at xiii (Rena F. Subotnik & Karen D. Arnold eds., 1994).
27. See GOULD, supra note 21, at 368.
28. See Rena F. Subotnik & Karen D. Arnold, Longitudinal Study of Giftedness and Talent, in BEYONDTERMAN, supra note 22, at 1.
29. See OAKES, supra note 21, at 36 (citing LEWIS TERMAN, INTELLIGENCE TESTS AND SCHOOL REORGANIZATION 27-28 (1923)) (noting Terman's determination that 80% of new immigrants were feeble minded).
30. See Note, Teaching Inequality: The Problem of Public School Tracking, 102 HARV. L. REV. 1318, 1320 (1989).
31. See OAKES, supra note 21, at 24.
32. See ABILITY GROUPING PACKAGE, supra note 15, at 3.
33. 347 U.S. 483 (1954).
34. See MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION, EXCLUSION, AND AMERICAN LAW 24 (1990).
35. RICHARD J. HERRNSTEIN & CHARLES MURRAY, THE BELL CURVE: INTELLIGENCE AND CLASS STRUCTURE IN AMERICAN LIFE (1994).
36. See HIGH STAKES, supra note 16, at 103-04, 282.
37. See Shing-Ying Lee, Mathematics Learning and Teaching in the School Context: Reflections from Cross-Cultural Comparisons, in GLOBAL PROSPECTS FOR EDUCATION, DEVELOPMENT, CULTURE AND SCHOOLING 46, 74 (Scott G. Paris & Henry M. Wellman eds., 1998).
38. See id.
39. See, e.g., Robert E. Slavin, Achievement Effects of Ability Grouping in Secondary Schools: A Best-Evidence Synthesis, 60 REV. OF EDUC. RES. 471 (1990).
40. See generally OAKES, supra note 21. Clearly [low-tracked] groups are not equally valued in the school . . . individual students in these groups come to be defined by others - both adults and their peers in terms of these group types. A student in a high achieving group is seen as a high achieving person and in the eyes of many, good. And those in the low achieving groups come to be called . . . dummies, sweat hogs or yahoos. Id. at 3.
41. See id. at 9.
42. See id.
43. Cf. OAKES, supra note 21, at 6 (discussing assumptions underlying ability grouping practices). But see HIGH STAKES, supra note 16, at 102 (noting that low-track classes that are effective are usually run by exceptional teachers with small classes and extra resources).
44. See NEA, supra note 2, at 3.
45. See 20 U.S.C. § 1400(c) (1994).
46. See Peggy S. Bittick, Comment, Equality and Excellence: Equal Education Opportunity for Gifted and Talented Children, 36 S. TEX. L. REV. 119 (1995).
47. See generally ROBERT COOPER, DETRACKING IN A RACIALLY MIXED, URBAN HIGH SCHOOL (Center for Research on the Educ. of Students Placed at Risk Report No. 12, 1997) (discussing alternatives to tracking); ANNE WHEELOCK, CROSSING THE TRACKS (1992) (discussing methods of untracking). But see Dominic J. Brewer et al., Detracking America's Schools: The Reform Without Cost?, 77 PHI DELTA KAPPAN 210, 210-15 (1995).
48. See generally ROBERT COOPER, DETRACKING IN A RACIALLY MIXED, URBAN HIGH SCHOOL (Center for Research on the Educ. of Students Placed at Risk Report No. 12, 1997) (discussing alternatives to tracking); ANNE WHEELOCK, CROSSING THE TRACKS (1992) (discussing methods of untracking). But see Dominic J. Brewer et al., Detracking America's Schools: The Reform Without Cost?, 77 PHI DELTA KAPPAN 210, 210-15 (1995).
49. See generally ROBERT COOPER, DETRACKING IN A RACIALLY MIXED, URBAN HIGH SCHOOL (Center for Research on the Educ. of Students Placed at Risk Report No. 12, 1997) (discussing alternatives to tracking); ANNE WHEELOCK, CROSSING THE TRACKS (1992) (discussing methods of untracking). But see Dominic J. Brewer et al., Detracking America's Schools: The Reform Without Cost?, 77 PHI DELTA KAPPAN 210, 210-15 (1995).
50. The difference between truly flexible differentiated instruction within a content area and harmful ability grouping practices is that students in rigid ability groups are easily identifiable as members of a particular group, whereas students in flexible curriculum programs frequently move in and out of content specific ability groups as they achieve requisite academic goals or express the desire to do so. See Robert E. Slavin, How Title I Can Become the Engine of Reform in America's Schools, in HARD WORK FOR GOOD SCHOOLS: FACTS NOT FADS IN TITLE I REFORM 86 (Gary Orfield & Elizabeth H. DeBray eds., 1999).
51. See, e.g., Loveless, supra note 3 (arguing that the total gains or losses from tracking are not known, and that rigid tracking is not a widespread problem). However, the evidence is at best inconclusive. For example, Loveless first states that no reliable national surveys of ability grouping in elementary schools have been conducted, yet boldly concludes in the same paragraph that "[t]racking between classes remains rare at the elementary school level." Id.
52. See Subotnik & Arnold, supra note 24, at 6-8.
53. For example, in one 1984 study, black males were shown to be three times more likely than white males to be assigned to classes for the mentally retarded, yet only half as likely to be in gifted and talented programs. See Carnegie Corp. of N.Y., Renegotiating Society's Contract with the Public Schools, 29 CARNEGIE Q. 1, 1-4 (1984).
54. See, e.g., Brewer et al., supra note 43, at 215.
55. Subotnick & Arnold, supra note 24, at 2.
56. See NEA, supra note 2, at 3 (citing CARNEGIE FOUND. REPORT, THE CONDITION OF TEACHING: A STATE BY STATE ANALYSIS 77 (1999) (finding that 63% of all U.S. teachers feel that "tracking students by ability is a useful way for schools to deal with diversity")).
57. See MARK G. YUDOF ET AL., EDUCATIONAL POLICY AND THE LAW 562 (3d ed. 1992).
58. Although the reliance on such psychometrics to determine academic ability is highly problematic, achievement and IQ tests have been shown to have some predictive value in terms of academic success, especially for white middle-class male students. See, e.g., ROBERT L. HAYMAN, JR., THE SMART CULTURE 253-306 (1998).
59. See HIGH STAKES, supra note 16, at 93-94.
60. See ABILITY GROUPING PACKAGE, supra note 15, at 11 (describing a 1990 study by the National Center for Fair and Open Testing, concluding that standardized tests are inherently biased against minorities and children from low-income families).
61. See generally HOWARD GARDNER, THE UNSCHOOLED MIND (1991) (emphasizing the need for schools to recognize other intellectual capabilities that often go ignored, such as verbal and mathematical intelligence, in their curriculum).
62. 709 F. Supp. 345 (S.D.N.Y. 1989).
63. See id. at 362.
64. 20 U.S.C. §§ 1681-1688 (1994).
65. See Shariff, 709 F. Supp. at 348.
66. See, e.g., HIGH STAKES, supra note 16, at 114-22.
67. See Telephone Interview with Arinita Ballard, supra note 12; see also OAKES, supra note 21, at 12.
68. See OAKES, supra note 21, at 13.
69. See EEOP, supra note 10, at 235.
70. See Patrick Welsh, Fast-Track Trap: How "Ability Grouping" Hurts Our Schools, Kids and Families, WASH. POST, Sept. 16, 1990, at B1.
71. See HAYMAN, supra note 52, at 296 (citing a recent study showing that "a white student is 3.2 times more likely to be assigned to a gifted class than is a black student").
72. See Telephone Interview with Barbara Shannon, supra note 12; see also Welsh, supra note 64, at B4 (quoting a D.C. school administrator as saying "[s]chools desperately need the middle class"). But see GARY ORFIELD & SUSAN EATON, DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF BROWN v. BOARD OF EDUCATION (1996) (making a forceful argument that "white flight" is best characterized as a consistent trend among the white middle class toward suburbanization and not primarily a reaction to desegregation).
73. See generally JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA'S SCHOOLS (1992).
74. See Welsh, supra note 64, at B1.
75. See Brewer et al., supra note 43, at 211.
76. 347 U.S. 483 (1954). For evidence of increase in ability grouping, see Welner & Oakes, supra note 5, at 452.
77. See Brown, 347 U.S. at 494.
78. Id. But see Angela Dickens, Note, Revisiting Brown v. Board of Education: How Tracking Has Resegregated America's Public Schools, 29 COLUM. J.L. & Soc. PROBS. 469 (1995-1996) (arguing that Brown established a right to education).
79. See Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), aff'd sub nom. Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) (en banc).
80. See Hobson, 269 F. Supp. at 511-14. Dr. Hansen, the superintendent of the D.C. schools, had developed a system that ostensibly provided each child with the optimum level of education, enhanced the prospects for remediation and provided students who did not fit precisely into a single track an "individually tailored" education. See id. at 442-92.
81. See id. at 444-45.
82. 426 U.S. 229 (1976).
83. See id. at 239 (holding that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the government from invidious discrimination).
84. See id.
85. Id. at 242.
86. Id.
87. 851 F. Supp. 905 (N.D. Ill. 1994), rev'd, 111 F.3d 528 (7th Cir. 1997).
88. See People Who Care, 851 F. Supp. at 912-15, 1005; see also Welner & Oakes, supra note 5, at 463 n.11.
89. See Welner & Oakes, supra note 5, at 463 (quoting Magistrate's Comprehensive Remedial Order, January 26, 1996); see also People Who Care, 851 F. Supp. at 934.
90. See People Who Care, 111 F.3d at 535-36.
91. W. at 536.
92. 408 F.2d 175 (D.C. Cir. 1969) (en banc), aff'g Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967).
93. People Who Care, 111 F.3d at 536; see also Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) (reversing lower court's finding of equal protection violation for testing schemes for special education placement).
94. 364 U.S. 339 (1960) (finding that an Alabama law redefining city boundaries was intended to disenfranchise African Americans). See also, e.g., Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266-68 (1977) (holding that circumstantial evidence used to support an inference of segregative intent includes the discriminatory impact of acts, omissions, or policies of the defendant; the history of events leading to conduct maintaining or exacerbating racial imbalance in schools; departures from regular procedures and policies used by the decision makers; and evidence concerning the decision making process).
95. In many northern cities, desegregation orders were based on evidence of segregative intent absent de jure segregation. See, e.g., Keyes v. School Dist. No. 1, 413 U.S. 189, 208 (1973).
96. See Welner & Oakes, supra note 5, at 454.
97. See EEOP, supra note 10, at 156.
98. 508 F.2d 1017 (5th Cir. 1975).
99. See id. at 1020.
100. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 271 n.21 (1977).
101. "[C]ourts presume any government action creating racially segregated schools to be innocent" absent proof of intent. ORFIELD & EATON, supra note 66, at 19.
102. Motions seeking a court determination that a defendant school district has achieved "unitary status" have been "flooding the courts." See Welner & Oakes, supra note 5, at 456 (citing Freeman v. Pitts, 503 U.S. 467 (1992), as a prime example).
103. See id.
104. See Diaz v. San Jose Unified Sch. Dist., 633 F. Supp. 808 (N.D. Cal. 1985); see also Keyes v. School Dist. No. 1, 413 U.S. 189, 201 (1973) (holding that absent statutory segregation in a state, a school district violates the Constitution when "school authorities have carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers and facilities within the school system").
105. 503 U.S. 467 (1992).
106. See Green v. County Sch. Bd., 391 U.S. 430 (1968) (deliniating "root and branch" desegregation requirements).
107. United States v. Gadsden County Sch. Dist., 572 F.2d 1049, 1050 (5th Cir. 1978) (emphasis added).
108. See id.
109. 775 F.2d 1403 (11th Cir. 1985).
110. See id.; see also Price v. Austin Indep. Sch. Dist., 945 F.2d 1307 (5th Cir. 1991) (ruling that once the school system had been held "unitary," the burden shifts to the plaintiff to show that a newly adopted student assignment plan with a disparate impact on minorities is intentionally discriminatory).
111. See NAACP, 775 F.2d at 1414 (upholding lower court's determination that "lower achieving students [were] being succesfully remediated").
112. See Improving America's Schools Act of 1994, 20 U.S.C. § 8903 (1994) (calling for high expectations for all students); HIGH STAKES, supra note 16, at 105 (referring to congressional findings).
113. 843 F. Supp. 1296 (E.D. Ark. 1994).
114. See id. at 1304 (holding that the district's old policy of ability grouping and its continued practice of ability grouping in kindergarten through third grade violated the urteenth Amendment rights of African American children, but allowed newly introduced tracking practices at the upper levels).
115. See id. at 1302-03 (noting that even the defendant's expert could not present a credible educational justification for ability grouping).
116. See, e.g., People Who Care v. Rockford, 111 F.3d 528, 536 (7th Cir. 1997) (noting that deference to local control severely diminishes the chance that equal protection or substantive due process challenges that primarily rely on the effects of ability grouping would survive judicial review without a strong link to intent).
117. See Welner & Oakes, supra note 5, at 455.
118. 438 U.S. 265 (1978).
119. See id. at 287 (Powell, J., plurality opinion).
120. See YUDOF ET AL., supra note 51, at 553.
121. See, e.g., Simmons v. Hooks, 843 F. Supp. 1296, 1302 (E.D. Ark. 1994). But cf. Debra P. v. Turlington, 730 F.2d 1405, 1416-17 (11th Cir. 1984) (affirming the lower court's holding that vestiges of intentional segregation did not cause a test's disproportionate impact on blacks, and that the use of the test as a diploma sanction would help remedy vestiges of past segregation).
122. See NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985) (holding that even if school system is not unitary, achievement grouping may be permitted if it will remedy past discrimination and/or achieve better educational results); see also Quarles v. Oxford Mun. Special Sch. Dist., 868 F.2d 750, 755 (5th Cir. 1989) (holding tracking system educationally justified because of substantial upward mobility afforded to students in low tracks).
123. 42 U.S.C. § 2000(e)(1)-(17) (1994).
124. See, e.g., Young v. Montgomery County Bd. of Educ., 922 F. Supp. 544, 549 (D. Ala. 1996) ("The elements of a Title VI disparate impact claim under 34 C.F.R. § 100.3(b)(2) derive from cases decided under Title VII.").
125. 401 U.S. 424, 432 (1971).
126. 490 U.S. 642, 658-60 (1989).
127. 463 U.S. 582 (1983).
128. See id. at 592; see also id. at 621 (Marshall, J., concurring) (concluding that "reasonable administrative interpretation" that does not contradict statute should not be overriden).
129. See id. at 591-93.
130. See id.
131. See id. at 602-03; see also YUDOF ET AL., supra note 51. at 553.
132. See, e.g., Larry P. v. Riles, 793 F.2d 969, 982-83 (9th Cir. 1984) (upholding lower court finding of Title VI violation in which the appellees had relied on the regulations and the Department of Health, Education, and Welfare's interpretative guidelines).
133. 922 F. Supp. 544 (D. Ala. 1996).
134. See id. at 545.
135. Id. (emphasis added).
136. Id. at 549.
137. 776 F. Supp. 1518 (D. Ala. 1991) (holding use of minimum ACT test score as admission requirement for teacher education programs violated Title VI because the tests were not educationally justified).
138. See Young, 922 F. Supp. at 549; Groves, 776 F. Supp. at 1523; see also Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 584 n.2 (1983); NAACP v. Georgia, 775 F.2d 1403, 1417 (11th Cir. 1985).
139. 444 U.S. 130 (1979).
140. Id. at 142 (holding a prima facie disparate impact case pursuant to the Emergency School Aid Act regarding teacher assignments, based on evidence flowing from a compliance investigation under Title VI, could be established solely on the basis of statistical evidence).
141. 53 Educ. L. Rep. (West Publ'g Co.) 1433 (Apr. 17, 1986); see also ABILITY GROUPING PACKAGE, supra note 15, at 29-31; EEOP, supra note 10, at 158 (stating that "OCR's civil rights enforcement activities have rested on an effects theory since the time of the May 1970 memorandum that reflected OCR's first administrative interpretation of Title VI").
142. 53 Educ. L. Rep. (West Publ'g Co.) 1433 (Apr. 17, 1986); see also ABILITY GROUPING PACKAGE, supra note 15, at 29-31; EEOP, supra note 10, at 158 (stating that "OCR's civil rights enforcement activities have rested on an effects theory since the time of the May 1970 memorandum that reflected OCR's first administrative interpretation of Title VI").
143. See Guardians, 463 U.S. at 592, 593-94 (plurality opinion). Cf. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (holding that an agency regulation based upon permissible construction of a statutory term was enforceable).
144. Professor William Eskridge has stated that "the current Court accepts the general idea of deference to agency interpretations of statutes but in practice is not as deferential as the Burger or Warren Courts, particularly in cases where the current Court believes the statute's plain meaning is contrary to the agency interpretation." Letter from William Eskridge to Daniel Losen (Apr. 13, 1999) (on file with author).
145. See Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (holding that statistical evidence was insufficient to establish a prima facie case for violation of Title VII).
146. See 42 U.S.C. § 2000e-2(k)(1)(A)(i) (1994); see also Atonio v. Wards Cove Packing Co., 10 F.3d at 1485, 1491 (1993). Congress specifically addressed Wards Cove in the statement of findings in the 1991 Amendments, narrowing the Court's holding. See 42 U.S.C. § 1981 note (1994) (Congressional Findings).
147. There may be "no discernable difference to the standard used in Atonio and the 'substantial educational justification' requirement derived from ability grouping case law." Office of Civil Rights, Ability Grouping Investigative Procedures Guidance 6 (Oct. 1994) (draft memorandum, on file with the Harvard Civil Rights-Civil Liberties Law Review).
148. See, e.g., Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 n.5 (6th Cir. 1996); City of Chicago v. Lindley, 66 F.3d 819, 828-29 (7th Cir. 1995); New York Urban League, Inc. v. New York, 71 F.3d 1031 (2d Cir. 1995).
149. See 20 U.S.C. § 6301(b) (1994). These special needs are based on educational deficits resulting from poverty and language barriers, and are not the same as those addressed under the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. §§ 1400-1491 (1994 & Supp. III 1997), and other provisions for students with disabilities.
150. Investigations by advocacy groups revealed hundreds of schools spending the money inappropriately. See, e.g., EEOP, supra note 10, at 16 (citing U.S. COMM'N ON CIVIL RIGHTS, RACIAL ISOLATION IN THE PUBLIC SCHOOLS (1967)).
151. See 20 U.S.C. § 6311 (b) (1994).
152. See id. at §§ 6301-6338 (1994 & Supp. III 1997).
153. See EEOP, supra note 10, at 149.
154. See, e.g., 20 U.S.C. § 6312 (f) (1994) (referring to "the shared responsibility of schools, teachers, and the local educational agency" in deciding how to use Title I funds).
155. See 20 U.S.C. § 6317(a), (c) (1994 & Supp. III 1997).
156. See 20 U.S.C. § 6311 (b)(1)(E)(8)(A) (1994).
157. See 20 U.S.C. § 6318d (1994).
158. See 20 U.S.C. § 6317(d)(6)(B)(i)(I) (1994).
159. Experienced teachers suggest that elementary schools frequently decide these matters. A wide variation in pedagogical practice, therefore, will be found in a given district. the junior and senior high levels, tracking is usually a LEA decision, but this is not necessarily always true for districts with more than one school, or experimenting with schools within schools. See HIGH STAKES, supra note 16, at 15.
160. See 20 U.S.C. § 6319(d) (1994).
161. See 20 U.S.C. § 6314 (1994).
162. See David J. Hoff, Focus of Title I Shifting From Pullout Efforts, 17 EDUC. WK., Mar. 11, 1998, at 1 (quoting educational consultant Phyllis P. McClure).
163. See 20 U.S.C. § 6314(b)(1)(B)(i) (1994).
164. Id.
165. See 20 U.S.C. § 6319(c)(4) (1994).
166. Id. § 6319(c)(4)(C).
167. See id. § 6318.
168. See Thomas W. Payzant & Jessica Levin, Improving America's Schools for Children in Greatest Need, in NATIONAL ISSUES IN EDUCATION: ELEMENTARY AND SECONDARY EDUCATION ACT 61 (John F. Jennings ed., 1995).
169. See id.
170. OCR has jurisdiction to enforce a number of federal civil rights statutes where a school or other educational entity receives federal funds. See EEOP, supra note 10, at 3.
171. See EEOP, supra note 10, at 150 (citing OFFICE FOR CIVIL RIGHTS, U.S. DEP'T OF EDUC., FY 1994 ANNUAL REPORT TO CONGRESS app. A (1994)).
172. See id. at 206.
173. See id.
174. See supra text accompanying note 159.
175. See Telephone Interview with Michael Longo, Assistant Superintendent, Secondary Education, New Bedford Public Schools (Mar. 26, 1999).
176. See Memorandum from Thomas J. Hibino, Regional Director, Office for Civil Rights, Region I, to Constantine Nanopoulos, Superintendent, New Bedford Public Schools (May 1, 1995) (on file with author) (regarding Compliance Review No. 01-92-5004).
177. See Telephone Interview with Thomas Mela, Senior Attorney, Office for Civil flights (Mar. 26, 1999).
178. See Telephone Interview with Michael Longo, supra note 186.
179. See Telephone Interview with Thomas Mela, supra note 188.
180. Under disparate treatment analysis, there must be proof of intentional discrimination. See EEOP, supra note 10, at 155; see also 34 C.F.R. § 100.3(a) (1998).
181. See EEOP, supra note 10, at 156. OCR has taken the position that ability grouping practices that create racially identifiable classrooms are a pretext for discrimination and a Title VI violation. See Memorandum from Michael Williams, Assistant Secretary for Civil Rights and Director, Office of Civil Rights, to the Office of Civil Rights Senior Staff (Oct. 1994) (on file with author) (citing Dillon County Sch. Dist. No. 1, 53 Educ. L. Rep. (West Publ'g Co.) 1433 (Apr. 17, 1986)) [hereinafter Williams Memorandum].
182. The first step in an OCR review of an ability grouping practice is to establish a prima facie case that the practice has a disparate impact on the group in question. Racially iable classrooms and/or tracks are those classrooms that have approximately 20% variance from the school population by race, gender, or other categories. Schools that are overwhelmingly minority or majority do not fall under the auspices of the OCR for ability grouping investigations. The approximate figure of 20%, however, is not an absolute figure, but is followed by a more technical statistical analysis that enables the investigator to rule out chance and other complicating factors. See generally Office for Civil Rights, U.S. Dept. of Educ., Statistical Appendix for Ability Grouping Investigative Plan: FY 1991 Compliance Review (1991) (draft manuscript, on file with author).
183. See EEOP, supra note 10, at 156.
184. In evaluating a proffered justification, OCR looks at the following: (1) Is there any attempt to use, consistently and systematically, objective criteria? (2) Are students cross-tracked by individual subject matter? (3) Does the lower track have as its purpose remediation, and, if so, is remediation achieved? (4) Do students stay in their assigned ability groups for more than the academic subjects? See Williams Memorandum, supra note 192, at 8.
185. See EEOP, supra note 10, at 164.
186. See id. at 209-10.
187. See Interview with Arinita Ballard, supra note 12; Interview with Rebecca Hoover, supra note 12; Interview with Barbara Shannon, supra note 12.
188. See EEOP, supra note 10, at 209.
189. See 42 U.S.C. § 2000d-1 (1994).
190. See EEOP, supra note 10, at 209-12.
191. See Telephone Interview with Arinita Ballard, supra note 12.
192. For example, removing funding for literacy programs for "at risk" impoverished children places those children more "at risk."
193. See Interview with Arinita Ballard, supra note 12; Interview with Barbara Shannon, ote 12.
194. See 42 U.S.C. § 2000d-1 (1994).
195. See EEOP, supra note 10, at 151.
196. The following criticisms were based on interviews with Dennis Parker and staff members at the United States Commission on Civil Rights but are not official representations of the viewpoint of any agency or institution. See Interview with Dennis Parker, Attorney with NAACP Legal Defense Fund (Nov. 25, 1997) (speaking only for himself); see also EEOP, supra note 10, at 202, 212.
197. See EEOP, supra note 10, at 171.
198. According to Dennis Parker and staff at the United States Commission on Civil Rights, the fact that OCR has not issued formal or final policy guidance on this issue is a major problem. Not only is this frustrating to lawyers, but schools could benefit from greater clarity. See Interview with Dennis Parker, supra note 207.
199. Absent intentional discrimination, compensatory relief is not available under Title VI. See Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582, 602-03 (1983).
200. See, e.g., EEOP, supra note 10, at 168-75; Interview with Dennis Parker, supra note 207.
201. See Interview with Dennis Parker, supra note 207.
202. See EEOP, supra note 10, at 176, 178.
203. See Eastern Division, Office for Civil Rights, FY 1998 Enforcement Docket (May 22, 1997) (on file with author).
204. Internal evaluations of overall efficiency turn on the number of cases resolved, and this pressure to resolve cases logically creates an impetus to settle.
205. See Minutes of the Meeting of the United States Commission on Civil Rights (Aug. 15, 1997) (on file with author) (recording that the commissioners deadlocked 4-4 on the history chapter linking ability grouping practices to racism).
206. See Telephone Interview with Barbara Shannon, supra note 12.
207. 20 U.S.C. §§ 1681-1688 (1994).
208. See Telephone Interview with Neena Chaudhry, Staff Counsel, National Woman's Law Center (Apr. 14, 1999).
209. See id.
210. 29 U.S.C. § 794 (1994).
211. See William Celis III, Wheelchair Warrior Lays Siege to Schools, N.Y. TIMES, July 28, 1993, at A15.
212. See EEOP, supra note 10, at 149.
213. See, e.g., 20 U.S.C. § 1414(a)(1)(C) (Supp. III 1997).
214. 854 F.2d 127 (5th Cir. 1988).
215. See id. at 130.
216. Id.
217. Alternatively, the strategy could backfire, giving rise to a negative attitude among investigators toward ability grouping cases or swamping the agency. Under either scenario, many cases would be closed or settled without technical assistance being offered and with diminished monitoring in the future. But this is an unrealistic outcome if one assumes that the complaints that are brought are well-founded.
218. For example, no complaints to OCR from 1993 through 1995 raised an issue relating to underrepresentation of minorities in math or science; these issues accounted for 27 of the 2,259 issues raised in OCR's compliance reviews. See EEOP, supra note 10, at 218.
219. See HIGH STAKES, supra note 16, at 102.
220. See id.
221. See EEOP, supra note 10, at 196 ("[P]eople don't understand that they are being cheated out of a right, because they don't know they have that right.") (quoting Telephone Interview with George Cole, Special Project Team, Dallas Enforcement Office, Office for Civil Rights, (June 26, 1996)).
222. See Telephone Interview with Rebecca Hoover, supra note 12. OCR's case tracking system is not available to the public. See EEOP, supra note 10, at 215.
223. See Telephone Interview with Rebecca Hoover, supra note 12.
224. Telephone Interview with Arinita Ballard, supra note 12.