ACLU’s plan to fix racial disparities in schools doesn’t add up

The American Civil Liberties Union of New Jersey and the Civil Rights Project (CRP) at UCLA have filed a complaint with the federal Department of Education’s Office of Civil Rights urging an investigation into the South Orange-Maplewood School District (Essex County).

ACLU and CRP allege that the district engages in discriminatory practices at Columbia High School by disproportionately disciplining black and Hispanic students and routinely placing them in lower-level classes. This practice, the complaint says, stems from “subconscious racial biases of teachers making recommendations for placement.”

The solution offered by the civil rights groups? Place all of South Orange-Maplewood (SOMW) high school students, regardless of interest or ability, in high honors and Advanced Placement classes. Such a remedy makes great copy, but it’s educationally unsound.

The first accusation, disproportionate discipline, is clearly backed up by facts. According to the data presented in the suit, the district’s middle and high schools suspended 14.7 percent of black students, 6.5 of Hispanic students, and 2.7 percent of white students last year. Equally disturbing is the district’s rate of suspension for students with disabilities: 21.3 percent, more than twice the state average. For black students with disabilities, the high school suspension rate was an alarming 30.6 percent. At a Board meeting earlier this month, Superintendent James Memoli conceded as much, telling the crowd that “these problems and issues are real, and that we are going to deal with them.”

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The second part of the complaint from the civil rights groups is more complex. Data does indeed show that black SOMSD high school students are disproportionately placed in lower level classes. For example, while white students comprise less than 50 percent of Columbia High School, “over 70 percent of lower-level classes are filled by black students and over 70 percent of the higher level classes are filled by white students. Students have described knowing the level of the classroom by looking through a window and noting the racial composition of the class.”

And here’s where it gets complicated. ACLU-NJ and the Civil Rights Project don’t dispute that district has made great efforts to rigorously disregard race when placing students in ability groups, even going as far as to eliminate all tracking in middle school. The district’s good intentions are unassailable.

However, the groups charge, ability grouping in itself is “paternalistic” and “racist,” relics of a twentieth century conspiracy to “separate the affluent white establishment that was destined for college from the immigrant populations and minorities who were consigned to industrial and low-skilled labor.”

Intentions are irrelevant. It’s all about outcome. Another name for this approach is “disparate impact theory,” which holds that even if a policy or practice is facially neutral and applied evenly, it is still discriminatory if the results are racially disproportionate. South Orange-Maplewood may direct teachers and administrators to disregard race when placing students, but the district is still violating the law if a lower percentage of black students end up in A.P. English or Honors Calculus.

ACLU’s proposal to remedy the district’s disproportionality in discipline and tracking is to place all high school students, regardless of interest or ability, in high-level honors and A.P. courses.

Excerpts from the complaint:

“The Resolution Agreement shall include open enrollment in all high school courses except for necessary pre-requisites (e.g., completion of English I before English II).”

“At all levels, the heterogeneous classes replacing the leveled system shall be taught at the advanced honors or accelerated level, thereby challenging all students. This proposal is not a “watering down” but a “leveling up.”

“Open selection with less emphasis on teacher input will alleviate the subconscious racial biases of teachers making recommendations for placement.”


ACLU and the Civil Rights Project claim that vast volumes of research prove that ability tracking is educationally unsound, resulting in no benefits for either low-performing or high-performing students; their resolution is best for schoolchildren.

But that’s not true; the research is decidedly mixed. While there is certainly evidence that black and Hispanic students are disproportionately placed in lower-level classes, a recent New York Times article notes that ability grouping helps teachers “tailor the pace and content of instruction much better to students’ needs” and that “teachers and principals who use grouping say that the practice has become indispensable, helping them cope with widely varying levels of ability and achievement.”

ACLU may be more interested in using SOMW as a test case for this new application of disparate impact theory. The jury’s out on whether it’s appropriate for schoolchildren in South Orange-Maplewood.


Laura Waters is vice president of the Lawrence Township School Board in Mercer County. She also writes about New Jersey’s public education on her blog NJ Left Behind. Follow her on Twitter @NJLeftbehind.

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