Finding the Bad Old Days

Michael Petrilli wrote an extremely aggravating article suggesting we tell unqualified kids they aren’t ready for college and go to CTE and then a much improved follow up that acknowledges the racial reality of his idea.

In his first piece, Petrilli only mentions race once:


This is a common trope in articles on tracking, a nod to “the bad old days” right after the end of segregation, that time immediately after Brown and ending sometime in the late 70s, or when Jeannie Oakes excoriated the practice in Keeping Track.

In the bad old days, the story goes, evil school districts, eager to keep angry racist white parents from fleeing, sought a means of maintaining segregation despite the Supreme Court decision and the Civil Rights Act. So they pretended to institute ability grouping and curriculum tracks, but in reality, they used race. That way the district could minimize white flight and still pretend to educate the poor and the brown. That’s why so many brown kids were in the low ability classes, and that’s why so many lawsuits happened, because of the evil racist/classist methods of rich whites keeping the little brown people down.

The bad old days are a touchstone for anyone proposing an educational sorting mechanism. So you have Petrilli advocating a return to tracking, who tell us the bad old days are a thing of the past: yeah, we used to track by race and income, pretending to use ability, but we’ve progressed. Districts pretended to use IQ, but they were really using culturally biased tests to commit second-order segregation. Today, we understand that all races and all incomes can achieve. Districts don’t have to distort reality. The bad old days are behind us, and we can group by ability secure that we aren’t discriminating by race.

Before ed school, I accepted the existence of the bad old days, but then I noticed that every reading asserted discrimination but didn’t back it up with data. Since ed school, I’d occasionally randomly google on the point, looking for research that established discriminatory tracking back in the 60s and 70s. And so the Petrilli article got me googling and thinking again. (What, buy books? Pay for research? Cmon, I’m a teacher on a budget. If it’s damning, the web has it.)

I first reviewed Jeannie Oakes, reaffirming that Oakes holds tracking itself, properly applied, as the operative sin. Discriminatory tracking isn’t a main element of Oakes’ argument, although she points out that “some research” suggests it occurred. Oakes’ third assumption, that tracking is largely made on valid decisions (page 4) is accepted at face value. So the grande dame of the anti-tracking movement has completely neglected to mention the bad old days—which, at that time, would have been contemporary.

On I move to Roslyn Mickelson, who does charge Charlotte Mecklenburg schools with discriminatory tracking.


In Capacchione v Charlotte-Mecklenburg, Judge Richard Potter eviscerates her expert testimony, finding faults with her credibility, her accuracy, and her logic.

Mickelson’s research shows that high achieving scorers in year one are not consistently placed in high achieving classes six years later. While both whites and blacks with high scores end up in low tracks and vice versa, more whites get high placement than blacks. But generally, her data shows something I’ve documented before, that achievement falls off each year because school gets harder.

Both whites and blacks experience the falloff, even though Mickelson seems to think that the pattern should be linear. The achievement scale simply gets larger as kids move up in grade levels, and fewer blacks make the top tier. This is consistent with cognitive realities.

There might be a smoking gun in research. But I couldn’t find it.

Then I suddenly realized duh, what about case law? If districts were tracking by race, there’d be a lawsuit.

I started with three legal articles that discussed tracking case law: 1, 2 and 3. They were all useful, but all failed to mention a significant case in which the district routinely used different standards or sorted directly by race or zip code.

From these articles, I determined that Hobson vs. Hanson was the original tracking case, and that the McNeal standard was for many years (and may still be) the test for ability grouping.

So I created a reading list of cases from the late 60s to the early 90s:

Only two of these cases involved schools directly accused of using race to sort students. In Johnson v. Jackson, the schools were forced to integrate in the middle of a school year. The black kids were ported over to white schools and the classes kept intact. The court ordered them to fix this. From first integration order to the fix order: 4 months.

The second case, Rockford, was decided in the early 90s, and the judge directly accuses the district of intentionally using race to ability group. However, Jeannie Oakes was the expert witness, and the judge drank every bit of Koolaid she had to offer and licked the glass. Oakes is presented as an expert witness, with no mention that she’s an anti-tracking advocate. Her testimony appears to be little more than readings from her book and some data analysis.

The proof of “intentional racism” was pretty weak and largely identical to Mickelson’s described above. Major difference: the judge accepted it.

Leaving aside these two cases, I couldn’t find any case in which the district was found to misuse the results of the test, either by using different racial standards or ignoring the tests entirely. The tests themselves were the issue.

In the south, school systems that weren’t “unitary” (that is, were previously segregated districts) couldn’t use ability testing. Since blacks would have lower scores based on past racial discrimination, the use of tests was discriminatory, an intent to segregate.

For school systems that were found to be unitary, ability testing isn’t in and of itself invalid and racial imbalance isn’t a problem (see Starkville case for example).

In all these cases, I couldn’t find a district that was tracking by race. They were guilty of tracking by test. Everyone knew the tests would reveal that blacks would have lower ability on average, and therefore ability grouping was by definition invalid in previously segregated schools. This was an era in which judges said “The court also finds that a Negro student in a predominantly Negro school gets a formal education inferior to the academic education he would receive, and which white students receive, in a school which is integrated or predominantly white.” (Hobson)

Once the system is declared unitary, or that was never an issue, the record is mixed. When judges did accept the results as valid, they ruled in favor of the school districts (Starkville, Hannon). In Pase v Hannon, the judge actually reviewed the test questions himself and determined they were unbiased with few exceptions, all of which were far above the IQ level in question.

In California, on the other hand, where de jure segregation wasn’t an issue*, the mere existence of racial imbalance was still a problem (Pasadena, Riles). In Riles, Judge Robert Peckham banned all IQ testing of blacks in California for educational purposes. He later extended the ruling even if black parents requested testing, but later withdrew that order. Peckham’s reasoning is much like the other judges who believed in cultural bias:

Even if it is assumed that black children have a 15 percent higher incidence of mild mental retardation than white children, there is still less than a one in a million chance that a color-blind system would have produced this disproportionate enrollment. If it is assumed that black children have a 50 percent greater incidence of this type of mental retardation, there is still less than a one in 100,000 chance that the enrollment could be so skewed towards black children.

Notice the reasoning: of course it’s not possible that blacks have a 50% greater incidence of an IQ below 75. Except it’s worse than that.

This image is from The Bell Curve (borrowed from here) reflecting the frequency of black/white IQ distribution:


As many blacks as whites populate the sub 75 IQ space, but the population distribution being what it is, blacks are far more likely to have low IQs.

When Charles Murray researched this for The Bell Curve:

In the NLSY-79 cohort, 16.8 percent of the black sample scored below 75, using the conversion of AFQT scores reported in the appendix of TBC and applying sample weights. The comparable figure for non-Latino whites was 2.2 percent. In the NLSY-97 cohort, the comparable figures were 13.8 percent for blacks and 2.7 percent for non-Latino whites. (Charles Murray, personal communication)


Blacks didn’t have a 50% higher chance of an IQ below 75 when Peckham made his ruling, but rather a several hundred percent higher chance, a chance that is still in the triple digits today.1 Peckham couldn’t even begin to envision such a possibility, and so no IQ testing for blacks in California.

(As for the lower frequency of blacks in the “trainable” mentally retarded division, as it was called then, an interesting but rarely discussed fact: Low IQ blacks are often higher functioning that low IQ whites. They are less likely to be organically retarded, and more likely to be capable of independent living. This despite the fact that their IQ tests and academic outcomes are identical. Arthur Jensen discovered this phenomenon, and I highly recommend that article; it’s fascinating. I wonder if the difference is somehow related to crystallized vs. fluid intelligence, but haven’t read up enough on it.)

So there it is. Obviously, if I missed a key case in which a major district was found to have deliberately tracked kids by race, please let me know.

I couldn’t find the bad old days of discriminatory sorting. What I found, instead, was a judicial rejection of IQ and other ability tests, coupled with an inability to conceive of the actual distribution patterns of cognitive ability.

Please understand my limited objective. Many Southern districts did everything they could to avoid integration. See, for example, US v Tunica, where the school tried to assign students based on test scores, but were denied because of the achievement testing ban and required to reassign students and teachers to achieve integration. The teachers refused assignment to integrated schools and resigned, white parents withdrew their kids, then the white schools set up shop at local churches, classes largely intact. Money? Not an issue. They used taxpayer dollars, since the district paid the teachers who resigned and the kids took all their school books with them.

But believe it or not, there’s no mention that the district was only pretending to use test scores, actually assigning students by race. And this is a place where I’d expect to find it. Opposition to integration, absolutely. Achievement testing used as a way to minimize racially mixed classes? Sure.

In many other cases, schools or districts instituted tracking as a genuine attempt to educate a much wider range of abilities, or even had a tracking system in place before integration.

The inconvenient realities of cognitive ability distribution being what they are, the test scores would be depressingly indifferent to intent.

Then there’s the messy middle, the one that Mickelson probably found in Charlotte and Oakes found in Rockford and any one looking at my classrooms would find as well. All tracked classrooms are going to have inconsistencies, whether the schools use tests, teacher recommendations, or student choice. The honors classes fill up or a teacher suddenly dies or all sorts of other unforeseen situations mean some kids get moved around and it’s a safe bet high income parents bitch more about wrong assignments than poor parents. Go through each high score in a “regular” class and each low score in a tracked, and each one of those test scores will have a story—a story usually doesn’t involve race or malign intent. The story occasionally does involve bad teachers or district bureaucracy, but not as often as you might think.

Teacher recommendations are supposed to mitigate the testing achievement gap but teachers are moralists, particularly in math, as I’ve written before. It doesn’t surprise me that new study shows that controlling for performance, blacks are less likely to be assigned to algebra as 8th graders by teacher recommendation. I can’t tell you the number of bright Hispanic and black kids I’ve run into (as well as huge number of white boys, including my son) who don’t bother with homework and have great test scores. So their GPA is 2.7, but their test scores are higher than the kids who got As–and the teacher recommendations.

Parents: some parents insist that their kids need to be in the top group to be challenged. Others feel that their kids do better when they feel secure, able to manage the challenge. Then there are the parents who don’t give a damn about their kids’ abilities but don’t want them in a noisy classroom with kids who don’t give a damn about education. White and Asian parents are disproportionately represented in the first group, black and Hispanic parents take up more than their share in the second, and all parents of all races worry about the last.

So let’s stop using teacher recommendation, stop allowing parents or students to ask for different placement. Test scores are destiny.

But test scores today still reflect the same reality that the judges assumed, back then, could only be caused by racism or bias.

The tests haven’t changed. The kids haven’t changed much.

The judges are another story.

Richard Posner, in a much-quoted 1997 decision on an appeal to the People Who Care v Rockford did what he has done before–made my point with much greater efficiency:

Tracking is a controversial educational policy, although just grouping students by age, something no one questions, is a form of “tracking.” Lawyers and judges are not competent to resolve the controversy. The conceit that they are belongs to a myth of the legal profession’s omnicompetence that was exploded long ago. To abolish tracking is to say to bright kids, whether white or black, that they have to go at a slower pace than they’re capable of; it is to say to the parents of the brighter kids that their children don’t really belong in the public school system; and it is to say to the slower kids, of whatever race, that they may have difficulty keeping up, because the brighter kids may force the pace of the class. …

Tracking might be adopted in order to segregate the races. The well-known correlation between race and academic performance makes tracking, even when implemented in accordance with strictly objective criteria, a pretty effective segregator. If tracking were adopted for this purpose, then enjoining tracking would be a proper as well as the natural remedy for this form of intentional discrimination, at least if there were no compelling evidence that it improves the academic performance of minority children and if the possible benefits to the better students and the social interest in retaining them in the public schools were given little weight. The general view is that tracking does not benefit minority students…although there is evidence that some of them do benefit… All this is neither here nor there. The plaintiffs’ argument is not that the school district adopted tracking way back when in order to segregate the schools. It is that it misused tracking, twisting the criteria to achieve greater segregation than objective tracking alone would have done. The school district should be enjoined from doing this not, on this record, enjoined from tracking.

The Charlotte-Mecklenburg case mentioned above cited Posner’s reasoning. The third of my case law articles discusses Holton v Thomasville II, which doesn’t mention Posner but does say that racial imbalance in ability grouping isn’t of itself evidence of discrimination, and points out that the time for judicial interference in educational decisions is probably over:


Most districts ended tracking out of fear of lawsuits. It may be time for parents to demand more honors classes, test the limits.

So what does this have to do with Petrilli? Well, less than it once did, now that Petrilli has acknowledged the profound racial implications of his suggestion.

But if the bad old days of racial tracking never really existed, then Petrilli can’t pretend things will be better. Yes, we must stop devaluing college degrees, stop fooling kids who have interest but no ability in taking on massive loans that they can never pay off. And with luck even Petrilli will eventually realize as well that we have to stop forcing kids with neither interest nor ability to sit in four years of “college preparation” courses feeling useless.

So what comes next? Well, that’s the question, isn’t it?

*Commenter Mark Roulo points out that California did commit de jure segregation against Hispanics and was ordered to stop in Mendez v. Westminster. See comments for my response.

1See Steve Sailer’s comment for why black IQs might have been biased against lower IQ blacks and the 97 data more representative.

About educationrealist

28 responses to “Finding the Bad Old Days

  • Handle

    The most famous quote from Brown is contained in this passage

    To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone. The effect of this separation on their educational opportunities was well stated by a finding in the Kansas case by a court which nevertheless felt compelled to rule against the Negro plaintiffs:

    “Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.”

    Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. Any language in Plessy v. Ferguson contrary to this finding is rejected.

    We conclude that in the field of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal.

    Well, maybe. We have schools today that run the whole spectrum in terms of demographic profiles – from 99% black to 99% white and all other groups and everything in between . We should be able to run some kind of regression analysis and see, all else being equal, to what extent integration actually matters for ‘educational and mental development’.

    The null hypothesis is that it wouldn’t make any difference. A 90-IQ kid with a decent family is probably going to end up with the same test scores no matter what school you put him in. Shouldn’t we have good data on this now? It seems to me that if we did, and if it showed a strong improvement from integration, the NYT would be screaming it from the rooftops daily, with the volume knob stuck on 11.

    But judges are famous for making these kinds of broad-brush assertions, whether or not they correspond to any ontological reality or empirical evidence. Posner’s the exception that proves the rule.

  • Phil Harmoniker

    A short explanation of whites vs blacks at IQ 70:


    Summary – whites at 2SD below average usually have something else wrong with them (causing them to do less well in life), /also/ causing their low IQs. Blacks at 70 are -1SD, and normal (for blacks).

    • educationrealist

      I covered that. The difference you describe is called organic vs. familial retardation. It’s also covered at the westhunter site. For the life of me, I don’t see why James Thompson and Greg Cochrane call it “funny looking”.

      What’s fascinating is that academically, they are equal. So IQ doesn’t predict success, since the blacks at that IQ can hold down jobs and live by themselves far more often than whites.

      • momof4

        The term “funny-looking kid (abbreviated to FLK) has been in use in the medical field for well over 50 years (probably not recently) to denote a kid who just “looks different” from other kids and who should likely be evaluated further.

      • educationrealist

        Good to know. I still think we should knock it off.

      • Jim

        I think for example that some of the “familiar retarded” have normal or near normal face recognition abilities. Often the “organically redarted” may not. The term “funny looking” simply refers to the fact that the physical appearance of the “organically retatrded” is often unusual.

        “Organic redartation” is probably generally due to some kind of trauma or “insult” (as they say) that occurred in fetal development that massively screwed up the neurological system. “familiar redartation” is just not the genotype associated with much intelligence.

        Someone who is “familiarly redarted” basically has a Model-T neurological system. People who are “organically redarted” had some kind of major mishap in the development of their neurological system.

      • anonymousskimmer


        It isn’t “familiar”, it’s familial (FAMILY). And for various regions and families it’s possible the familial retardation is non-genetic (e.g. iodine deficiency due to iodine-deficient foods or land – does McDonald’s, et al, use iodized salt?).

        Iodine deficiency often leads to the “unusual looks” once called cretinism (wikipedia it).

      • Jim

        annonymousskimmer – Sorry for the misspelling. I’m a little confused by your mentioning “unusual looks” in connection with iodine deficiency and then describing iodine deficiencey as of the familial kind which is not usually associated with “funny appearance”. I would consider iodine deficiency to be a type of “organic redartation”, possibly a pretty common form. Iodine is utilized by the body in thyroid hormones which regulate gene expression in many different body cells so iodine deficiency could have wide-spread negative consequences and not just neurological ones.

        In general environmental trauma or “insults” tend to be more damaging than genetic defects. For example heart murmurs which are caused by infectious diseases are usually much worst than heart murmurs caused by genetic defects. A genetic defect might result in a heart valve being slightly mishapen and not quite fitting but a bacterial infection of a heart valve tears the hell out of it.

        Similarily people with “familial redartion” have basically a less than “state of the art” neurogical system while people with “organic redartation” had a major mishap in their fetal development which resulted in extensive neurological damage as well as non-neurological effects – “funny looks” for example. Someone with “familial redartation” is just not very bright but otherwise has normal appearance and is often pretty normal in such things as face recognition ability.

      • anonymousskimmer

        I’ve only recently become aware of the impacts of iodine on intelligence, so caveat emptor.

        Prior to the formation of noticeable goiters, iodine deficiency can have an impact on adult intelligence regardless of formative iodine exposure.

        I’ve seen a couple of different definitions of “organic retardation”. Fetal/child deficiencies is included in some of them but not others.

        I really wondered whether a population adapting to a say, low iodine environment could develop adaptations that allow them to “look” normal while still suffering intelligence, etc… impacts of the dietary deficiencies. Part of the Flynn effect has been postulated to derive from such deficits. And it wouldn’t be too difficult to argue that Level II abilities would be those first impacted as the body and genes adjust to survive and increase reproductive fitness.

        And we’re still learning about heritable epigenetic effects. Which has who knows what impact on things.

  • momof4

    I went to a small-town high school that had three tracks; college-prep, secretarial and general and 100% of the students were white. It was possible to take courses from other tracks; only a few college-prep kids took the full load of math, science, Latin and French, although few from other tracks took college-prep courses – but it was possible. Deliberate tracking, with kids/families choosing the track, and no racial/ethnic component whatsoever. Most of the schools in the state did the same.

  • momof4

    It should also be mentioned that, in the early days of the desegregation era, most black kids came from two-parent, married families (as did most kids of all ethnicities), so it’s unlikely that the behavioral issues seen today (with heavy concentrations in urban areas) existed then. Today, caring parents of all colors and flavors seek to remove their kids from chaotic, even dangerous, publics – often to charters. Even if they do nothing else better (curriculum, instructional methods) than traditional publics, charters don’t tolerate disruptive behaviors. ,

    Even outside of upper-NW DC, there are some decent elementary schools in gentrifying areas, but the only good MS and HS are in NW – with some room for kids from other areas. From what I’ve read, there’s a big drop-off in middle/upper-middle class kids between ES and MS. Either the kids get sent to a private school or the family moves to the suburbs with good schools when the kid enters MS. Lots of that is driven by behavior; parents want kids to have peers whose families have similar academic/behavioral patterns to their own and by MS, peer culture is increasingly important. Maybe the MS-HS situation will be better by the time the Petrilli offspring hit that stage.

  • Roger Sweeny

    Mickelson’s numbers literally don’t add up. 92 plus 110 does not equal 152. But 42 plus 110 does equal 152. And 42 is 27.6% of 152. So I’m thinking those lines should read:

    Among grade 8 students in the top decile (90-9th percentile), 27.6% of whites (N=42 of 152) and 81.3% of blacks (N=13 of 16) were in regular English classes, while 72.3% of whites (N=110 of 152) but only 18.7% of blacks (N=3 of 16) were in the top English track (AP or PreIB).

    That’s a big difference. It doesn’t show motive (either of the teachers/administrators or of the students) but it does show that a much lower proportion of good black students than good white students were in “top English track” classes and that a much greater proportion of good black students than good white students were, instead, in regular English classes.

    That is, assuming that 6th grade CAT scores are an accurate measure of “good student” in 8th grade–or to use Mickelson’s term, that “student achievement” as measured by 6th grade CAT scores is an accurate predictor of how a student can do in 8th grade English (and beyond?).

  • Mark Roulo

    “In California, on the other hand, where de jure segregation wasn’t an issue, the mere existence of racial imbalance was still a problem…”

    California had ‘Mendez v. Westminster’. The Wiki writeup suggests that there was de jure segregation, and that it was an issue for some folks. Am I missing your point?

    • educationrealist

      This piece was already so damn long, and I couldn’t figure out a way to include it without explaining at length why it didn’t apply.

      1. It was against Hispanics, not blacks, and most of the case law begins with blacks.
      2. California was violating its own laws, so wasn’t actually practicing de jure segregation against Mexicans. That was, as I understand it, the crux of the 9th court decision—the state needed to follow its own laws, and its own laws only allowed for de jure segregation against Native Americans and Asians.
      3. Shortly afterwards, California banned segregation.
      4. All of this was before Brown.

      For all those reasons, I just left the case out.

      • Mark Roulo

        Makes sense. I think it might be important because the same problem (if we track based on test scores there will be a disturbing racial component) will manifest itself in California with Hispanics in the role of the unfairly treated minority. And we’ve been here before (much like the rest of the country with Black students). Doesn’t really change your point, or course … 🙂

  • Steve Sailer

    A technical note: the NLSY-79 AFQT test (given in 1980 to a nationally representative cohort of youth chosen in 1979) was probably biased against lower IQ blacks and especially against lower IQ black males due to its immense length (105 pages). In the mid-1990s a study discovered that a disproportionate number black males who were doing badly after, say, 40 or 50 pages of the test had given up in discouragement and bubbled in the rest of the way. This likely turned a lot of, say, 78s into 68s. This helps account for the anomalously large white-black gap (18.6 points) on the NLSY-79.

    In contrast, the NLSY-97 was done on computers and the difficulty of later questions were adjusted dynamically based on how test-takers did on the earlier questions. This technology did a better job of keeping test-takers engaged all the way through. The white-black gap was 14.7 points.

    I believe Murray wrote about this in Commentary about 7 years ago, but I don’t see it online.

  • anonymousskimmer

    Nice article. Thanks for the info.

  • anonymousskimmer

    “Arthur Jensen discovered this phenomenon, and I highly recommend that article; it’s fascinating. I wonder if the difference is somehow related to crystallized vs. fluid intelligence, but haven’t read up enough on it.”

    I’m reading the article now. If it is related to crystallized vs. fluid intelligence, I’d guess it to be the crystallizing ability vs. the fluidizing ability. Possibly culturally selected as the ability to memorize and use received wisdom vs. the throwing out or adapting of received wisdom to new circumstances (possibly by not fully taking in the received wisdom in the first place, who knows).

    One could see how certain climates/environments, and societal structures (including language), would select for either/or. And how they would select for weak or strong correlations between the two (ie. as mentioned by Jensen wrt “Asians” [I hope that isn’t as homogenous a group as he implies with that broad name]).

  • Steve Sailer

    Judge Posner is a rarity in that he lets himself notice patterns. The usual procedure is to simply assume that the racial gap being litigated over in the East Dumptruck School District is some unique and bizarre aspect of East Dumptruck, instead of a near universal pattern across the country.

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