(Li)Ability Grouping: The New Susceptibility of School Tracking Systems to Legal Challenges

Abstract

In this article, Kevin Welner and Jeannie Oakes assert that educators and education advocates have developed a greater awareness of the harmful effects and pedagogical indefensibility of tracking. They also note that detracking advocates are increasingly giving litigation serious consideration in their search for policy tools to promote reform. The authors argue that courts can play an important role in advancing detracking, and that educational researchers are vital to these efforts. They survey four recent cases and discuss the presentations made by the researchers who served as experts on the cases. Then, based on their review of case law, including these recent cases, as well as their review of desegregation literature, Welner and Oakes conclude that these top-down mandates, while unlikely to achieve all of their intended goals, can play an indispensable role in initiating detracking in schools and districts where such reforms are otherwise highly unlikely.