By David Sciarra
Governors in every state have ordered school closures to stop the spread of COVID-19, many for the remainder of the school year. States have also ordered students, like all citizens, to shelter at home. It is unclear when and under what conditions schools across the country will re-open.
In the wake of states shuttering schools, local districts are making efforts to continue educating students by remote and digital means. Initial reports show many districts are unprepared and under-resourced for the herculean task of transitioning their entire enrollment from classrooms to home instruction through internet-connected, computer-based learning platforms. These reports also show stark disparities between high poverty and wealthier districts in the availability and effectiveness of remote instruction and serving students with disabilities, English language learners, and other students requiring additional supports. These disparities are attributed to the “digital divide,” that is, the lack of internet connectivity and devices in homes, often exacerbated by housing instability, food insecurity and other barriers.
Of course, states possess legal authority to order physical school closures in response to a public health emergency, as has occurred with COVID-19. But, after closing buildings, do states remain legally obligated to continue providing education through alternate means? Or is it permissible for states to let local districts decide whether, how and to what extent students are educated during the lengthy period of COVID-19 school closures?
The answer to the first question is undisputed: all state constitutions contain an explicit guarantee of a free public education. These constitutional provisions – called “Education Articles” – vary in their wording, details and emphasis. But they all obligate states to establish, maintain and support a uniform system of public education that is free and accessible to all children within their borders. And most state supreme courts have interpreted these education articles to require the provision of sufficient or adequate resources to give all students a meaningful opportunity to succeed in school.
The answer to the second question is also clear: states cannot delegate to local school districts their overarching constitutional obligation to educate all students. School districts are created by state legislatures and exist solely to carry out the state’s obligation to provide public education at the community level. States, not school districts, are the governmental units constitutionally responsible for operating their public education systems and supporting and maintaining those systems.
The obligation to provide public education imposed by state constitutions means that states cannot abandon the education of resident children, either altogether or in some portions of the state, or simply leave it to local districts to determine if and how much education children will receive. As the New Jersey Supreme Court put it, a state “cannot shirk its constitutional obligation under the guise of local autonomy.” Or, as New York’s highest court has said, school districts are “creatures of the state” and the state “remains responsible” whenever a district “sabotage[s]” a “constitutionally-mandated” education to students.
These core constitutional principles must guide our national response to the impact of the COVID-19 pandemic on public education. In the wake of closing physical school buildings and classrooms, states are legally mandated to educate all students while they are sheltering at home, regardless of student need or the conditions in the district in which they are enrolled. And this affirmative duty means that states cannot simply pass the buck to school districts to figure out how to respond to the impact of COVID-19 on their students and teachers, nor to shoulder on their own the responsibility for continuing instruction by remote, digital means.
To fulfill their Education Article duty during the COVID-19 school closure, the states, through their education agencies (SEAs), must take these minimum proactive steps:
- Issue robust emergency guidance to school districts requiring the continuation of student learning through remote means and equitable opportunities for all students to access remote learning. The guidance must be comprehensive, addressing the full range of challenges faced by school districts, including addressing the specific legal rights and needs of students requiring interventions and supports, such as students with disabilities, English language learners, homeless students, students in foster care and those academically at-risk.
- Provide intensive assistance to those districts serving high enrollments of low-income students and students of color to address the “digital divide” resource gaps that disproportionately affect these groups of students and impede delivery of remote instruction, including lack of internet access and devices and the need for online learning platforms, professional supports for teachers and other crucial assistance.
- Collect data from districts on the extent of the “digital divide” with a focus on low-income students and students of color and make the data publicly available on a rolling basis.
- Launch and implement a statewide campaign to make certain every student in need has access to meals and other supportive services while at home.
- Issue guidance on district use of federal CARES Act emergency relief funds, prioritizing digital resource gaps and publicizing district plans for use of those funds.
- Begin planning, through a statewide task force or work group, for appropriate supports to be in place when schools reopen, including the need for significant resources to compensate for student learning loss during school closure and support services for students experiencing trauma.
- Ensure all public funds, including federal funds, are used exclusively to maintain and support the public education system and are not diverted to private virtual schools, tutoring services or other private education uses.
States are constitutionally obligated to make certain all children, no matter their life circumstances, have access to learning opportunities during the pandemic, and that students return to schools that are fully resourced and ready to meet their short- and long-term educational needs. Information on these resource needs will be crucial to inform the difficult budgetary decisions legislators and governors must make in the coming months, given the staggering fallout from the pandemic on state and local revenues.
The bottom line is this: states cannot close school buildings and then fail to educate children or permit and tolerate educational disparities among districts or vulnerable student populations. The constitutional obligation to provide public education belongs to the state, and only the state, and this responsibility cannot – and must not – be left to local district discretion, conditions or circumstances.
David Sciarra is ELC Executive Director. Wendy Lecker and Jessica Levin, ELC Senior Attorneys, contributed to this article.
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