Tag Archives: segregation

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.