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Washington and Lee Journal of Civil Rights and Social Justice




Even before the recent coronavirus pandemic, race, ethnicity, and socioeconomic status played a powerful role in allocating opportunity—in the public schools and elsewhere. The pandemic laid bare the dimensions of this inequality with a new and alarming clarity. In this essay, I first focus on the landscape of educational inequity that existed before the coronavirus forced public schools to shut down. In particular, I explore patterns of racial and ethnic segregation in America’s schools and evaluate how those patterns relate to additional challenges based on socioeconomic isolation. In addition, I consider the role of language and immigration status in shaping educational opportunity. As I explain, children with the greatest educational need often attend schools with the fewest resources, thus compounding disadvantage.

Next, I explore how the pandemic has exacerbated existing inequities. I show how the switch to remote learning intensified patterns of segregation and isolation by confining students to homes that are readily identifiable by race, ethnicity, poverty, and other indicia of disadvantage. As a result, the burdens of shifting to online learning did not fall equally on all students. On the contrary, already disadvantaged children faced the most obstacles to remote learning. At the same time, schools that serve these students generally had less in the way of resources to respond to the abrupt school closures. As a result, these schools struggled to ensure that students could access the curriculum and engage with teachers.

Finally, I offer some observations about the appropriate way to address academic setbacks that undoubtedly occurred due to the pandemic. Parents and guardians already have filed suit challenging the uneven switch to online learning that occurred in spring 2020. Other lawsuits are sure to follow. These actions allege that the school closures denied students a right to education, whether because they suffered an absolute deprivation of education, did not receive an adequate education, or were denied an equal education. The success of these cases will depend on how courts evaluate inputs, including technological support, curricular content, and one-on-one access to teachers. Also critical will be the weight that courts attach to outputs, as measured by learning losses during the closures. However, because many schools suspended accountability testing during the pandemic, traditional indicia of academic performance may be unavailable.

When courts make these determinations, I argue that judges should be mindful of whether disadvantaged children have a meaningful opportunity to compete with their privileged peers, given pre-pandemic inequities and pandemic-related learning losses. To make this determination, courts must consider a robust set of metrics that go beyond the conventional focus on average achievement scores. Of particular significance will be whether there is meaningful overlap in distributions of academic performance at schools serving vulnerable students and those serving advantaged students. Without that overlap, these students inhabit separate educational worlds that preclude any authentic opportunity to compete.

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Washington and Lee University School of Law

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