Educators’ and Students’ Rights During COVID-19

A children’s rights attorney and a policy analyst from the Southern Poverty Law Center explain educators’ rights to workplace safety, students’ rights to education access and what it might take to advocate for both.
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The discourse surrounding back-to-school season this year often presents a false dichotomy: Either we can serve marginalized students or we can protect students, educators and their families from COVID-19. 

Educators, of course, know better than anyone that this is untrue. In fact, these two outcomes are intertwined. Schools that cannot retain, value or protect educators will not have the means to reach each student. Schools that cannot protect educators from COVID-19 cannot hope to protect support staff, students and caregivers. 

The stakes are incredibly high. And in the midst of an economic downturn, resources run low. The pandemic recession led to nearly 500,000 lost public education jobs by April; the National Education Association predicts that number could eventually hit close to 2 million

Meanwhile, teachers are resigning. Families of color, seeing their communities suffer disproportionately during this pandemic, are opting out of in-person learning. So are students who will not put their families at risk.

Many educators, students and families are wondering what rights they have to fight dangerous reopening plans. Others are wondering what rights students have to an equitable education as schools tweak distance learning plans. 

To better understand the high-stake equity and civil rights concerns surrounding school reopenings, we spoke with colleagues from the Southern Poverty Law Center: Regional Policy Analyst Katherine Dunn and Managing Attorney Bacardi Jackson, who works in SPLC’s Children’s Rights practice group. Their work and findings in Florida and across the South speak to national trends and concerns.

Together, they collaborated to answer these critical questions facing schools, educators, students and families trying to navigate learning during a pandemic.

What equity concerns do you have in terms of which educators and school staff members will be most impacted by forced reopenings or unsafe working conditions? 

Educators face tremendous risks during this pandemic—their health and safety, foremost, as some schools physically reopen for the fall and they risk contracting COVID-19. 

Many schools still do not have the resources to purchase appropriate PPE or social distancing equipment. Some districts—like Bradley County, TN—are designating their employees as essential, allowing them to come to work even if they’ve been exposed to the virus. …

These risks are already becoming real. In early August, a student was wrongfully suspended from her Georgia high school for sharing a photo of her crowded school hallway out of concern for her safety and the safety of her school community; several days later, the school reported nine cases of COVID-19 among students and staff.

As reported by USA Today, poorer schools sit in communities with the highest infection rates. Notably, of course, the highest rates of infection and poverty coincide with [the districts most populated by people of color]. This necessarily means educators who serve schools in poorer and predominantly Black and brown communities are facing a greater risk. Likewise, bus drivers, cafeteria workers and other staff who provide services for students experiencing poverty face the same increased risks.

Meanwhile, these are also the schools that will likely face the greatest difficulty following CDC guidelines during reopening because parents in these communities tend to have fewer opportunities to work from home. In wealthier communities, where more parents have the option to work from home and where districts offer different attendance options, schools will have fewer students attending in person and more flexibility to create safer environments. 

In addition, nearly a third of public school teachers are 50 or older and therefore face a greater risk of severe infection and death if they contract COVID-19.

What federal and state-level rights do educators and school staff members have in regard to workplace safety, health and working conditions? 

Teachers in over half of the states, Puerto Rico and the Virgin Islands may be protected by [Occupational Safety and Health Administration, or] OSHA-approved state plans. ...

States that have teachers’ unions may have additional options available under their collective bargaining agreements. 

In addition, teachers with disabilities and health vulnerabilities may look to traditional protections (including requests for accommodations) under the ADA. 

The racial disparities exacerbated by COVID-19 could also potentially be the bases for novel employment claims related to discrimination, given that schools situated in predominantly Black communities are subject to greater health risks for teachers. 

Finally, there may be various whistleblower retaliation claims and other retaliation claims that may protect educators and school staff who speak out about dangerous conditions. 

What federal and state-level rights do students have in regard to receiving an equitable, high-quality education and having a safe environment in which to learn?

Every state ensures their students a right to education in their constitutions. States have a constitutional duty to provide this education, whether or not school buildings are physically open or if students are receiving their education online. 

State constitutions require that this education meet certain requirements. In Florida, for example, the state is obligated to provide safe and secure schools, as well as uniform, efficient and high-quality education—even during a pandemic. The Florida Education Association (FEA), representing educators across the state, challenged the Florida governor’s attempts to open schools before it is safe to do so as violating this provision.

Under federal law, schools have responsibilities to administer education to students without discriminating. For example, Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin in public schools. Because the pandemic disproportionately impacts students—more often students of color—who do not have internet access or technology to engage in distance learning, schools must take steps to ensure all students are able to continue their education during school closures. Similarly, schools must provide equal access to English language learners at all times, including during school closures.

For more on how you can advocate for students’ Title VI rights, see our feature story “Saving Title VI.”

Federal law also provides protections for students with disabilities, who may face challenges in education during the pandemic. The Individuals with Disabilities Education Act (IDEA) requires students with disabilities to receive a free appropriate public education and related services, such as speech or occupational therapies. Additionally, Section 504 of the Rehabilitation Act of 1973 prohibits federally funded programs from discriminating against students with disabilities. 

Students hold these rights, and states and schools are obligated to these legal requirements, even during the COVID-19 pandemic. 

Which students and families do you fear will face the most barriers or negative consequences as a result of Florida’s reopening and similar plans nationwide? 

A majority of Florida’s students are low-income, and a majority are students of color. When schools closed in the spring, our team conducted an open-source review of school districts across the state. We found that in the absence of clear leadership and guidance, and with limited resources to navigate this crisis, school districts struggled to ensure all students could continue learning and receive meals, health supports and technology. ...

We found disproportionate barriers for students with disabilities and English language learners. For example, information about plans for instruction during closures was not available in languages beyond English in many districts, and students with disabilities were left with no guidance as to how to continue receiving services they need to learn.

According to Dunn and Jackson, an SPLC review of 67 school districts in Florida revealed a lot of equity and access concerns, including: 

  • Only three school districts in Florida provided a laptop or tablet to every student for the purpose of distance learning. Three other districts had already given devices to every student as part of regular instruction prior to school closures. 
  • 22.4 percent of districts did not facilitate internet connection for students at all, including not providing information about affordable internet available through service providers.
  • 52 percent of districts had no information or guidance about school closures and distance learning clearly and publicly available in a non-English language. 
  • 58 percent of districts did not provide a non-English option for navigating or interacting with the district hotline.
  • In 58 percent of districts, public communications did not proactively provide any guidance about distance learning and instructional continuity plans specific to ELLs.
  • 41.7 percent of districts did not publicly provide any information, contacts or resources for counseling or mental health services that students may access during school closures.
  • 47.4 percent of districts did not proactively provide any guidance about instructional continuity for students with disabilities and IEPs through their website or other communications.
  • 25 percent of districts relied on parents of children with disabilities to initiate contact with their child’s school to make case-by-case arrangements regarding their child’s IEP and educational services. 
  • None of the school districts in Florida included the needs of undocumented students in their instructional continuity plans.

Given the complexity of this issue—with both educators’ and students’ rights illustrating the need for a reimagined education and social safety net model—what action do you hope to see from lawmakers and policymakers? 

The COVID-19 pandemic lays bare the historic and systemic inequities in education in this country. Many states—Southern states in particular—have underfunded our public schools for decades and yet expect our public schools to keep students and families learning, nourished, healthy and supported throughout this crisis. 

Yet federal leadership has pushed to use this pandemic to advance their education privatization agenda. Our Children’s Rights team is representing public school parents, districts and the NAACP in a challenge to Education Secretary Betsy DeVos’ illegal mandate that districts share more of their emergency education funding with private school students than the law requires.

More than ever, communities are recognizing and appreciating the role of public schools in their communities, and policymakers should respond by investing in schools so that they actually have the resources they need to ensure all students can learn, grow and thrive—during pandemics and afterward.

About the Author

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