Tracking and Ability Grouping in American Schools: Some Constitutional Questions

Abstract

Citing the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, the Warren Court in 1954 struck down the “separate butequal” concept of educational equity. In doing so, the court made two rulings with far-reaching consequences for the conduct of schooling in the United States. First, the separation of students by race was determined to be inherently unequal. Second, the court required that education be made available to all on equal terms.’ The impact of these rulings, especially in view of the changing notion of what constitutes equal educational opportunity and the vigor with which the judicial system has attempted to translate these concepts into practice, has been felt in nearly all areas of public education. It is likely, too, that aspects of educational practice not yet challenged on these grounds in the legal system will be subject to scrutiny by the courts in the future. It is also likely that many of these challenges will involve the distribution of educational resources and opportunities to various groups of students within schools rather than focusing only on between-school inequities. In view of the legal realities impinging on the conduct of education, ability grouping and tracking, which has already received some attention from the courts, will probably be subject to further legal action.* The purpose of this article is to examine, from a constitutional perspective, the bases on which ability grouping and tracking might be challenged as barriers to equal educational opportunity. Findings from educational research on ability grouping, commentary from law review journals, and the texts of cases themselves are included as a part of this inquiry into the direction such legal challenges might take. Three approaches are followed in the analyses of the legal literature. First, those concepts likely to influence both the character of a legal challenge to ability grouping and the direction of the court’s responses to such a challenge are identified. Second, those cases in which tracking has already been considered by the courts are examined to determine legal precedents for future court action. Third, cases that might be considered analogous-those dealing with related issues-are reviewed to identify legal approaches that might be adopted in a challenge to ability grouping and tracking.

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