Ability Segregation

This Article focuses on the practice of assigning students to separate schools, tracks, and courses according to their academic ability, a practice I call ability segregation. Starting with the recent New York City controversy over the elimination of selective programs in the city’s public schools, the Article discusses ability segregation’s role in reinforcing racial segregation. However unlike most scholarship and previous legal challenges to ability segregation, which take issue almost exclusively with the racial imbalance it creates, the article argues that ability segregation is discriminatory even when it does not result in racial segregation. <br><br>The article offers three legal frameworks for analyzing ability segregation and ultimately argues that it should be prohibited. First, I argue that ability segregation can be challenged according to the disparate impact doctrine. The dismal NYC statistics vividly illustrate the prevalent reality of racial exclusion caused by selective admission policies, a phenomenon well documented in the literature. The disparate impact created by ability segregation cannot be redeemed by appeal to an educational necessity, since it does not create educational benefits for children of low ability, and is not indispensable for developing excellence. The second framework for challenging ability segregation suggested in the article is disability discrimination doctrine, which includes the right of students with disabilities to receive reasonable accommodations for ensuring successful inclusion. Disability discrimination doctrine should be applied to non-disabled children with low ability, thus providing accommodations according to a pragmatic determination of need (and potential benefit) rather than diagnosis. Finally, and most fundamentally, the article argues that ability constitutes a discriminatory classification in itself (at least in the educational domain). To substantiate this claim, the article analyzes the various theories that explain the moral wrongness of discrimination, and argues that these apply to academic ability. <br><br>Examining the three legal frameworks, the article concludes that although separating students according to their ability is embedded in our K-12 education system, the practice is, in fact, discriminatory.