Schools as Sorters: The Constitutional and Policy Implications of Student Classification

Abstract

During the past two decades, courts have sought to define with particularity the meaning (or, better, meanings) of equal educational opportunity. Only recently, however, have courts examined withinschool practices-ability grouping, special education placement, exclusion of "ineducable" children-which classify students on the basis of academic performance or potential. In this Article, Professor Kirp assesses both the plausibility of treating student classification issues in equal protection and due process terms, and the policy consequences of such treatment. * This Article emerges from extended discussions over a considerable period of time with colleagues at Harvard and, more recently, the University of California (Berkeley). The Harvard Center for Law and Education participated in several of the cases discussed in this Article-Ordway v. Hargraves, Stewart v. Phillips, Pennsylvania Association for Retarded Children v. Pennsylvania, Mills v. Board of Education, Guadalupe Organization, Inc. v. Tempe Elementary School District-which were filed during the period that I was Director of the Center; those suits led me to consider more general conceptual approaches to the classification issue. That thinking has been substantially strengthened by the yoeman work of my research assistants Cari Milofsky, of the Department of Sociology, University of California (Berkeley), who introduced me to the welter of social science discussions of school sorting, and Kent Jonas, of the Class of 1972, Boalt Hall, University of California (Berkeley), who persistently reminded me of the relevance of the law to this inquiry. Associates both at Berkeley and elsewhere graciously undertook the arduous task of reading and criticizing earlier drafts of this Article. To them

Is Good Law Good Education?

“…Yet one such observor who has an outstanding track record of speaking out on matters of educational equity is not bothered by this development (Kirp, 1973;Kirp, Buss, & Kuriloff, 1974). …”

Chapter 5: Social Science Research in Educational Equity Cases: A Critical Review

“…The court held that lack of intent did not exonerate the school system. As has been pointed out in several analyses of this case (Kirp, 1973;Shea, 1977), the court confused the issues of achievement and innate learning ability when it stated that the purpose of the track system was to classify students according to their innate ability to learn, and concluded that it could only be legitimately maintained if it accurately reflected these innate abilities.…”

“…In large city school systems, less than 10 percent ever return to regular classrooms. Kirp (1973) argues that given the stigma attached to such assignment, court suits challenging assignment to special education classes should reverse procedural burden such that the school officials are required to show that the special education program accomplishes what it is supposed to do: that it sufficiently benefits students to justify the inevitable stigma attached to such placement.…”

Intelligence Testing and Chicanos: A Quality of Life Issue

“…This is clearly a questionable conclusion, and a good deal of evidence suggests that it is false (see especially, Bowles and Gintis, 1976:102-148;Kirp, 1973;Thurow, 1972). This is clearly a questionable conclusion, and a good deal of evidence suggests that it is false (see especially, Bowles and Gintis, 1976:102-148;Kirp, 1973;Thurow, 1972).…”