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Excerpted From: Victor M. Jones, Covid-19 and the “Virtual” School-to-Prison Pipeline, 41 Children's Legal Rights Journal 105 (2021) (252 Footnotes) (Full Document)


VictorMJonesOn March 11, 2020, the World Health Organization (WHO) classified the COVID-19 disease as a global epidemiological pandemic, prompting an emergency response by countries that are members of WHO, including the United States. Two days later, the executive branch of the U.S. federal government declared the COVID-19 pandemic a national emergency, and the president began issuing executive orders concerning the administration of the federal government. Governors followed suit, doing the same at the state level. According to the Centers for Disease Control and Prevention, the global COVID-19 outbreak is the deadliest epidemiological pandemic to reach the United States since the 1918 influenza pandemic, which was also caused by the H1N1 virus.

A survey conducted by UNICEF found that 94% of all countries implemented some form of remote learning for children in response to the COVID-19 pandemic. Like many public entities throughout the United States, public school districts either closed their facilities altogether and began providing virtual school instruction or offered a hybrid learning experience in which children attend both in-school and virtual school instruction. Ongoing studies already indicate that federal and state responses to the COVID-19 pandemic--including shutting down schools and reliance on virtual instruction, social distancing protocols requiring separation from peers and community, and the adverse economic effects sustained by many families--all may impact the social and emotional well-being of youth.

Because the first twenty-five years of life are critical for brain development, growing up during this “once in a lifetime” deadly pandemic may create mental health and behavioral consequences for youth. While the pandemic can serve as an opportunity for innovation when school leaders address these challenges, for some school districts, discipline has been more of the same. School districts are engaging in disciplinary practices that prevent students from accessing virtual school instruction. These actions continue notwithstanding strong multidisciplinary research establishing that exclusionary discipline--suspensions, expulsions, school-based arrests, referrals to law enforcement, and unilateral transfers to alternative schools-- are not only ineffective in reducing behavioral infractions in schools, but also lead to poorer academic outcomes and a greater likelihood of juvenile justice system involvement for impacted students and to civil rights violations for students of color and students with disabilities.

This article explores the use of exclusionary discipline practices in the era of virtual school instruction, or the “virtual” school-to-prison pipeline. Part I provides an overview of exclusionary discipline practices, how these practices impact students who are subjected to them, and the disproportionate use of these practices against students of color and students with disabilities. Part II will discuss virtual school discipline in the era of the pandemic, analyzing cases of children who have garnered national attention for receiving suspensions and/or expulsions for their alleged behavior during virtual school instruction. Part III will provide a discussion of the legal issues arising out of virtual school discipline, focusing on the potential and actual constitutional and civil rights violations resulting from the use of exclusionary practices. Lastly, Part IV will give recommendations to school districts for balancing the need to provide virtual instruction in the midst of a global pandemic with the need to cultivate a safe learning environment, while following the mandate to protect the civil rights of traditionally marginalized groups of children.

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School districts should use this novel time period for innovation and revisit the manner in which students are educated, including their approach to defining and addressing disruptive classroom behaviors. In the era of the COVID-19 pandemic, the need for trauma-informed practices in schools is paramount. The lives of children have been turned upside down; their way of existence, including the ways that they learn, grow, and interact with their peers, has been altered by the pandemic. School districts must keep this critical consideration in mind when providing education to children. When families are fighting to maintain their health and stability, the last thing a child or parent should have to worry about is whether an unintentional action caught on a computer camera during virtual school instruction can lead to disciplinary actions that bode adverse and potentially lifelong consequences.

J.D., Loyola University New Orleans College of Law; Ed.M., Harvard University; B.A., Xavier University of Louisiana.

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