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Draft O.C.R. Memo Outlines Grounds For Probing

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Ability-Grouping Practices By Liz Schevtchuk Armstrong

Washington--Elementary-school ability grouping that fosters segregation violates federal regulations if it cannot be justified on educational grounds or if it is inconsistently applied or subjective, according to a draft of an Education Department memorandum intended to aid federal civil-rights enforcement.

"The presence of racially identifiable classrooms is the most common racially disproportionate effect in ability-grouping cases," the draft memo states.

"A 'prima facie' case is established when a racially neutral practice, such as assignment to classes on the basis of ability or achievement, has a racially disproportionate effect," the memorandum adds.

The memo is addressed to senior staff members of the office for civil rights from Michael L. Williams, assistant secretary of education for civil rights.

A draft investigative plan included in the memorandum directs ocr. investigators to "find out why" a school system "is using any criterion or practice identified as causing segregation."3

If the district "cannot offer such a justification," the plan adds, it is violating federal regulations.

Mr. Williams said last year that investigating ability-grouping practices would be among his priorities, pleasing civil-rights advocates, who (contend that the issue was considered "off limits" under the Reagan Administration. (See Education Week, Sept. 5, 1990.

At a Dec. 12 news briefing, approximately six months after he was confirmed as the head of the ocr, Mr. Williams said guidance and model investigative plans for compliance reviews would be drafted for each priority area included in his "enforcement strategy." (See Education Week, Jan. 9, 1991.)

The draft memo obtained by Education Week, which is dated Nov. 13, 1990, is apparently among those efforts, although ocr officials would not confirm that.

"I don't even know what you have," one ocr spokesman said last week, responding to a request for information on the memoranum. Even if shown a copy, he added, ocr officials would "still deL cline to comment."

After citing various legal preceH dents, the ocr memorandum de scribes which ability-grouping poli cies might be deemed infringements of Title VI of the Civil Rights Act of 1964.

Title VI bars discrimination on the basis of race, color, or national origin in federally funded programs and gives the federal government power to initiate inquiries and order remedies, including termination of a ( recipient's federal aid.

The memorandum defines ability grouping as arranging students by groups in grade levels or classes on the basis of their estimated capacity to learn. Such practices have come under fire for singling out minority children for placement in low-abili ty tracks.

Mr. Williams's memorandum cautions that the investigative plan does not apply to grouping pupils in individual classrooms.

While geared toward ability grouping in elementary schools, the information also could be applied to upper-level students who are grouped without having a choice, the memorandum explains.

The ocr "will generally find that ability-grouping practices which have a segregative effect vio late the Title VI regulation" in five major situations, Mr. Williams's memorandum states. Those violaL tions are when the recipient:

"Is unable to proffer an educa tional justification for its system";

Uses practices that "do not sub stantially serve its legitimate edu cational goals";

Employs criteria for assigning a student to a specific ability-grouped class that "do not adequately measure the student's abilities in that subject";

Has not applied its criteria con sistently, the inconsistency "has sigHnificantly increased segregation," and there is no "legitimate educational justification ... for the inconsistent application";

Uses subjective measures, such as teacher recommendations, which have "a significant segregative effect" and are based on no well-defined standards.

Furthermore, the memorandum states, "depending on other evidence in the case, ocr may also find a violation when the recipient states that ability grouping is designed to serve a particular educational goal, such as increasing student achievement," but has made no effort to gauge if ability grouping works.

"In such cases," the memorandum continues, the practice "may well be a pretext for discrimination, unless the system is in fact producing educational benefits."

Moreover, the points enumerated are "not intended to be an exclusive 4list of situations in which a violation may be found," the document advises.

Included in the memo is a suggestion that schools adopt alternatives to "block," or all-day, ability grouping. For example, students might be grouped for a limited portion of the day to cover certain subjects, the memorandum recommends.

"Recipients have justified block-rouping by arguing that students feel more secure if they are grouped in a single class for an entire day, or ... that it is easier for parents to deal with a single teacher instead of several," the document explains. "These justifications are legally insufficient, and unless the recipient has another justification for block-grouping, or unless the block-grouping is producing educational benefit, [it] is in violation of the Title VI regulation."

One civil-rights advocate, Suzanne Ramos, legislative lawyer for the Mexican-American Legal Defense Fund, agreed with the ocr's skepticism on block-grouping. The notion that students should be grouped only 4on a limited basis, if at all, "is certainly very accurate," she said.

"We object, basically, to any kind of grouping at all," Ms. Ramos said.

The ocr document suggests that investigators review whether students can move out of an ability group and that they judge whether a class is racially identifiable by using the ocr's "20 percent rule of thumb": whether the percentage of children of a particular race in a class differs by more than 20 percentage points from the percentage of children of that race in that grade at that school.

If students are grouped in order to help them increase their achieveL ment levels, investigators should find out if test scores have increased, the document says.

"Generally, if a student has shown a gain of two percentile points ... ocr will view the student as having shown academic gain," the memoran dum states. It does not explain the choice of two percentile points as a sign of progress.

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