Racing on Two Different Tracks: Using Substantive Due Process to Challenge Tracking in Schools

Tracking is a widespread educational practice where secondary schools divide students into different classes or “tracks” based on their previous achievements and perceived abilities. Tracking produces different levels of classes, from low ability to high ability, based on the theory that students learn better when grouped with others at their own level. However, tracking often segregates students of color and low socioeconomic status into low-tracked classes and these students do not receive the same educational opportunities as white and/or wealthier students. Students and parents have historically challenged tracking structures in their schools using an Equal Protection Clause framework. However, this legal framework does not currently provide much relief for students in schools without a history of intentional discriminatory practices. Alternatively, the Due Process Clause can potentially provide another framework for plaintiffs to challenge tracking. Though the Supreme Court has rejected a fundamental right to education, it has recognized the possibility of a fundamental right to a minimally adequate education. Furthermore, other state constitutions have recognized a fundamental right to education or at least a minimally adequate education. According to the standards that currently govern the doctrine for a minimally adequate education, social science evidence focused on tracking’s impacts shows that this educational practice likely violates that right. Challenging tracking in states that recognize such rights under a substantive due process claim may provide a more effective litigation strategy