Defending plans to reopen schools at the deadliest, most infectious period of this pandemic yet, some officials have invoked the right to education in their state constitutions.

A West Virginia Department of Education spokesperson recently remarked that the inequities of remote learning are “a derogation of the right to a thorough and efficient education,” unwarranted absent “a health and safety justification,” before adding definitively, “schools are safe.”

In West Virginia and other states, education clauses have been invoked in lawsuits by parents, teacher unions and other interest groups seeking to either to reopen schools or keep them remote — clauses that guarantee an adequate and equitable education, according to most courts that have previously interpreted them.

This focus on educational disparities is necessary; the choice between in-person and remote learning is not.

The principal determinants of educational disparities and deprivations affecting most West Virginia children, at least, are poverty and unfair school funding. Simply returning children to in-person learning will do little to address those endemic forces of educational injustice.

Still, if remote learning is exacerbating these inequities, then surely it should be eliminated, right? That was the unanimous judgment of the West Virginia Board of Education this week, which voted to prohibit school districts from maintaining remote-only learning plans (excluding voluntarily-enrolled virtual platforms).

Does the right to education compel that judgment? Not if eliminating remote learning risks lives unnecessarily or provokes more harmful inequities.

Because COVID-19 related death in children is rare, the risk to their lives is often heavily discounted. No matter that children are increasingly testing positive, possibly more so with the UK variant, they can become so sick that they require hospitalization. Others have no symptoms yet potentially face long-term health consequences, and Black and Hispanic children are disproportionately afflicted with severe COVID symptoms, including multisystem inflammatory syndrome in children (MIS-C).

But what of the risk of death to adults – are schools operating in-person safe? The evidence is still frustratingly conflicted and most often based on incomplete data.

Seemingly, for every study that purports to show that in-person instruction does not contribute to community spread, another shows just the opposite.

One new study from Michigan and Washington state takes both positions: In-person instruction does not “significantly contribute to COVID spread in communities when there are low or modest pre-existing case rates in the population,” but in-person instruction does “lead to community spread when preexisting case rates in the counties in which school districts are located are high.”

Like so many rural communities, COVID-19 in West Virginia is no longer just “high,” it is now widespread. And it could be worse than the dashboard numbers suggest because the state still lacks a regimen of testing to capture asymptomatic cases, particularly among schoolchildren, and its contact tracing has been woefully inadequate, in part due to low participation.

Absent reliable data from testing and tracing, it will be especially difficult “to sort out where the infections are originating from” when the “community prevalence is just so high,” the Washington Post reported.

None of this is to say that schools cannot be made safe. I suspect that, when this is all over, we will discover that wealthy, well-resourced schools were able to manage the risk whereas poor schools were not.

But that gets us back to the square-one inequities created by poverty and unfair school funding.

Without addressing those first-order inequities, forcing a return to in-person schooling when it is yet unsafe might provoke second-order inequities greater than those engendered by remote learning. 

The plight of our teachers springs foremost to mind.

Why? Because decades of empirical research confirms that teacher quality is the most influential educational resource affecting student achievement within a school’s control.

It’s game over if we lose our quality teachers. But that is the risk of discounting their legitimate concerns over safety and teaching conditions during this ongoing pandemic.

A recent survey reports that 59 percent of educators do not feel secure in their school district’s health and safety precautions, and 27 percent say they are considering leaving their job, retiring early, or taking a leave of absence because of the pandemic.

Long before the pandemic, states were struggling with teacher shortages. If even a fraction decides to leave the profession now, educational inequities will abound for years to come – far outlasting the current health crisis.

Bottom line though is this: Equity is not a zero-sum game. It calls for weighing and balancing to ensure that all are included and all stand to benefit, especially the neediest among us.

For equity’s sake, the West Virginia Board of Education has thrown a constitutional weight down on that scale in favor of in-person instruction. It has good intentions and reasons for doing so — chief among them the physical, social and emotional harms to children deprived of the protection of schooling. The Board wants to mitigate the devastating impacts to children wrought by this pandemic (and our bungled response to it), and rightfully so.

But make no mistake, these living, breathing tragedies existed before remote learning and will continue after. Eliminating remote learning now as an option just subjects poor counties to the potential that those tragedies will turn deadly – all because poor communities lack the capacity to offer the virtual or online-with-a-live-teacher options (i.e., without broadband access and laptops for every student) enjoyed by the wealthier counties, and more directly, wealthier parents? Does it come down, yet again, to the haves and the have nots?

Convinced that schools are safe, it is hardly surprising that the Board has decided to compel at least two days of blended, in-person instruction per week. Yet recent science suggests that masks alone are insufficient protection, if distances of less than six feet cannot be maintained. If that is the reality of a full-density classroom, then it is unsafe, by CDC standards. And by the Board’s new policy, that could empower school districts “to close individual classrooms or schools when a specific health need related to that classroom or school is identified.”

Look, we all share the fervent desire to get kids back into the schoolhouse. But a school is more than its house, and its mission far greater than academics. By law, the core purpose of public education is to democratize schoolchildren — to develop their civic skills and dispositions, to instill in them the moral and social obligations of citizenship.

We do not model responsible citizenship by needlessly risking the lives of members of the school or larger community — not when promising vaccines provide hope that our suboptimal learning models will be temporary (weeks, perhaps), not when there are ways to improve our instructional methods and mitigate the attendant harms in the meantime, and not when there are resources to reach our most vulnerable, neediest students, if only we could summon the political will and courage.

Nor do we model equal citizenship to our students by silencing the voices of their teachers — not when a third of teachers are aged 50 or older and one in four teachers have preexisting conditions increasing their risk of severe COVID, not when we expect teachers to bear the brunt of all the COVID learning losses and trauma once they return, and not when we have repeatedly disrespected our teachers, most recently in West Virginia inciting two statewide strikes.

Rather, we can model the best of democratic citizenship for our children by taking care of each other — selflessly acting in the interests of all children, their teachers and their communities.

Surely that is a lesson worth imparting at a time when those civic dispositions and virtues are so desperately needed in the life of our state and country.

So, yes, remote learning is a derogation of the right to a thorough and efficient education. But so is in-person learning during a pandemic. In truth, we have derogated that right for decades since it was recognized as fundamental.

There is a cruel irony to invoking that right now, of all times, when we can realistically make the least progress towards its demands and guarantees. That is not an excuse to cast aside the right to education, even temporarily. We cannot. But we should be more careful about where we direct our righteous indignation.

State governments bear the ultimate responsibility for providing and maintaining a constitutionally adequate and equitable education. Expect that solemn responsibility to be tested as states develop their education budgets for the foreseeable future.

For now, we must get through this pandemic together, valuing what matters most, and then pledge to commit ourselves, on the other side, to a period of reconstruction for educational justice.

This commentary was originally published on Joshua Weishart’s personal website, the WV ED Law Blog. It was adapted for the broader 100 Days audience and updated to account for more recent developments.

Joshua Weishart is a professor of law at West Virginia University College of Law where he devotes his research and scholarship to education rights, with a particular focus on state constitutional demands of educational adequacy and equity.

Creative Commons License

This article was originally published by 100 Days in Appalachia, a nonprofit, collaborative newsroom telling the complex stories of the region that deserve to be heard. Sign up for their weekly newsletter here.