Mask Mandate Bans Discriminate Against Students with Disabilities by Maria Kardasis

Posted on February 13, 2022 by Miranda Johnson

Thirteen-year-old Greyson Schwaigert is forced to risk his life to receive an adequate education. Greyson suffers from a rare genetic disorder, which means that COVID-19 poses a threat to his life. On top of that, Greyson has a developmental delay, so he does not understand that he must wear a mask for his safety. Greyson can only receive the special education services and socialization that he needs through in-person school. Therefore, his safety depends on the actions of those around him. His safety is being endangered due to the Tennessee Governor’s decision to issue an executive order that allows parents to opt their children out of mask mandates.

Greyson’s mother, Brittany Schwaigert, is a named plaintiff in a class action lawsuit challenging the Governor’s opt-out order. Schwaigert is one of many named plaintiffs in class action lawsuits across various states, including Florida, Utah, Texas, and South Carolina, who have sued governors for similar executive orders.

The class actions do not demand that schools institute a mask mandate, but rather the class actions ask that schools require masks according to regional health data measurement. Studies from the Centers for Disease Control and Prevention (“the CDC”) have shown that schools that do not require students to wear masks were more likely to have COVID-19 outbreaks. Such studies demonstrate that mask wearing reduces the spread of COVID-19.

Beyond the class actions that have been filed, the Office for Civil Rights, within the United States Department of Education, launched an investigation as to whether prohibitions on masking discriminate against students with disabilities.

The Americans with Disabilities Act (“the ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) require school districts to provide disabled students with a free appropriate public education (“FAPE”). A FAPE consists of specialized instruction to meet the unique needs of a child. Allowing any student to opt out of the mask mandate is a violation of the ADA and Section 504 because such a policy fails to provide a FAPE for disabled students who need in-person instruction. When a student must risk his life to obtain the requisite education, there is something wrong.

Mask-Wearing Exemptions Should Only Apply Where Necessary

Students are exempt from the mask-wearing policy if mask wearing is unsafe due to physical, developmental, or behavioral impairments. These categories that warrant mask-wearing exemptions are, however, quite narrow. Pediatric providers may determine that a student is medically unable to wear a mask if the child has a medical contraindication and/or the child is developmentally disabled, physically or mentally, such that they are unable to remove a mask if needed. Some examples of conditions that might make students unable to wear a mask are developmental delays, limited physical mobility, severe autism, and structural abnormalities of the head and neck.

The exemptions to mask-wearing should remain narrow. If students could opt out of mask-wearing for any reason or no reason at all, then that would increase the spread of COVID-19 and put the lives of students with pre-existing conditions at risk.

Some students who are exempt from mask-wearing need to attend in-person school to receive a FAPE. If a school is offering in-person education to other students, then students with an Individualized Education Plan (“IEP”) or a 504 Plan may not be denied access to an in-person education. Nevertheless, remote learning is recommended for children who are at high risk of infection due to a weakened immune system.

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These rules do not address what happens when a child has a compromised immune system, cannot wear a mask, and needs in-person learning. Although the student’s compromised immune system makes him at high risk of infection, he cannot receive a FAPE through remote learning because the special education services are only available in the school itself. The student’s parents are faced with two options: 1) have their child do remote learning and be safe from the virus, but unable to receive a FAPE or 2) learn in school and receive a FAPE, but be unsafe from the virus. No one should have to choose between health and education.

Time is of the Essence to Save Children’s Lives

The courts need to prioritize this issue and act quickly because the lives of students who have a compromised immune system, cannot wear a mask, and need in-person learning are at risk. A federal judge blocked the Tennessee Governor’s order from being enforced, but that ruling is only temporary. While other judges should follow this judge’s example to protect students while litigation is pending, that is not enough. Students and their families need a long-term solution. State legislatures should require students to wear masks and/or regularly get tested for COVID-19 where they attend schools with students who have compromised immune systems, cannot wear masks, and need in-person learning to receive a FAPE.

Yet we should not solely rely on these institutions. Classmates of disabled students have a responsibility to protect the health of their peers who are unable to take precautions on their own. While there are school officials who are defying their governors’ bans on mask mandates, that is not the case everywhere in the country. Parents should be cognizant of whether any of their children’s classmates have a pre-existing condition coupled with a disability that prevents them from wearing a mask. If parents learn that some of their children’s classmates fit into that category, then they should regularly test their children for COVID-19 and/or instruct them to wear masks and practice social distancing. Parents should do this regardless of whether the law requires it or health metrics suggest it because the nature of this virus is such that it often spreads before the data is able to reflect that. While there are some concerns that requiring children to wear masks in school will harm their social and emotional development, protecting the lives of students with disabilities and pre-existing conditions takes precedence.

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Community members can aid in this endeavor by changing the framework for how COVID-19 in children is discussed. The dominant narrative is that the young, especially children, are not seriously affected by COVID-19 like older folks are. Community members can challenge this narrative by explaining that some children have pre-existing medical conditions and could become severely ill or even die upon contracting COVID-19.

“We hear all the time, ‘Oh, only kids with pre-existing conditions are the ones that get sick and die,’” Schwaigert said. “Well, that’s my kid. That is my child. He has a lot of pre-existing conditions, and he matters.”

Time will tell if the courts, communities, and classmates across this nation will heed this health crisis and take prompt protective measures to ensure that disabled students receive the education they are owed by law while remaining safe.

Maria Kardasis is a law student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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The Fight for (and against) Implicit Bias Training by Claire Bufalino

Posted on February 13, 2022 by Miranda Johnson

Racism – unconscious bias – implicit bias – critical race theory – anti-racism – anti-anti-racism. Everyone has something to say about these terms and where they belong in our culture. Implicit bias has become the most recent idea to suffer the consequences of a polarized political environment. The battle over implicit bias—what is it? who has it? what should we do about it?—has now infiltrated the nation’s public school system.

What is Implicit Bias?

Two psychologists, Mahzarin Banaji and Anthony Greenwald, developed the theory of implicit bias 25 years ago. They conducted a simple experiment in which Dr. Banaji quickly sorted positive and negative words and faces of Black and white people using two keys on her keyboard. She found that when Black faces were paired with the same key as negative words and white faces paired with positive words, it was easy to sort them quickly. However, when they switched the pairing, sorting Black faces together with positive words and white faces with negative words, the task was not as simple. This was how they discovered that our decisions are guided by unknown forces.

This experiment became the Implicit Association Test (IAT), which measures the strength of associations between concepts, like race or gender, and evaluations or stereotypes. The IAT debuted in 1998, and millions of people have since taken the test, inspiring a wealth of further research on implicit bias. Now scientists understand that most of our brain processing happens unconsciously. Therefore, the part of our brains responsible for this processing must work automatically and quickly, and it makes many implicit associations to do that. Thus, implicit bias is the result of a critical part of our brain functioning, and nobody is immune to it.

Politicizing the Issue

In the past 5–10 years, this research has shaped public discourse about race and discrimination. Hillary Clinton brought the issue to the forefront of the 2016 presidential race, arguing that “implicit bias is a problem for everyone.” This led to swift political backlash where the accusation of bias was equated with an accusation of racism.

Photo by Rolande PG on Unsplash

Despite proponents’ attempts to depersonalize the issue by stressing that everyone has bias, and therefore no one is blameworthy, opponents have largely succeeded in conflating understandings of explicit racism with implicit bias, triggering the defensiveness of many white Americans.

Fast forward to 2020, when, in the wake of the murders of Breonna Taylor, George Floyd, and other Black Americans by police officers, and during a global pandemic that disproportionately affected people of color and those in poverty, the United States experienced an unprecedented reckoning with centuries of systemic racism and inequality. As a result, the discussion resurged about the need for anti-discriminatory policies in workplaces and educational institutions, ones that break down systemic racism and implicit bias, not just overt discrimination. Again, the backlash was quick, decrying the liberal agenda that invents harm where it doesn’t exist. The current battle over this issue is playing out in the public school system.

Implicit Bias in Education

Implicit bias exists everywhere, and K–12 education is no exception. It is most prevalent in school discipline, with students of color, especially Black students, and students with disabilities being disciplined more frequently and harshly than their white peers. Black students account for 15.5% of all public school students, but they represent 39% of school suspensions and 36% of expulsions. These disparities only worsen at the intersections of race, gender, and disability. This overrepresentation is not due to higher rates of misbehavior by Black students but is the result of structural and systemic issues, like implicit bias. A 2016 Yale study found evidence of this bias against students as young as preschool when, by using eye-tracking technology, researchers found that preschool teachers show a tendency to more closely observe Black students, especially boys. Racial bias is also evident in the fact that students of color are more likely to be disciplined for subjective offenses like “disrespect” or “excessive noise,” while white students are more likely to be disciplined for objective offenses like smoking or vandalism. The expectation that Black boys will exhibit more challenging behaviors leads teachers to monitor and stress control over their behavior far more than white students. Teachers are as susceptible to bias as anyone else.

In 2016 and 2017, as the idea of implicit bias came to the forefront of public discussions, articles provided guidance to educators on how to combat their own biases and dismantle systemic inequality. In 2020 and 2021, the calls to require implicit bias training for educators have increased and, once again, so has the conservative backlash. The counterattack began with Donald Trump’s charges that schools were spreading lies to children by teaching about slavery and racism. Capitalizing on this momentum, recent attacks by Republican-controlled state legislatures against teaching critical race theory (CRT) in schools present an additional challenge.

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Twelve states have enacted bans against teaching CRT and other “divisive concepts.” Most recently, the Wisconsin State Assembly passed a bill that would prohibit schools from teaching students and training employees on topics related to critical race theory, including systemic racism and implicit bias. This bill and others like it not only prevent educating students on racism, but also prevent schools from educating teachers on their own biases.

Illinois has been no exception to the political conflict. In February, Illinois adopted “culturally responsive teaching and leading standards,” which require teacher training programs to cover concepts like implicit bias, historical inequities, social-emotional development, and student advocacy. Prior to its adoption, conservative media outlets criticized the standards as “woke indoctrination” and “more like racism than its opposite.” These arguments rely on the idea that critical race theory and implicit bias training teach educators and students to see race where they wouldn’t have before and promote reverse discrimination. This ignores the well-documented disparities between students of color and white students, in discipline but also in test scores, advanced class placement, and almost every other aspect of education. By centering the fragility of white educators, parents, and children rather than the outcomes of all students, these critics increase the risk that disparities will only get worse.

Moving Past Politics

It is essential to move beyond the politicization of this topic to see how it can fundamentally change the school environment. Studies show that when students witness their classmates face serious discipline for trivial offenses, it affects academic performance and creates an atmosphere of anxiety. Exclusionary discipline also costs districts across the country $35 bill annually. Training will not only save money, but more importantly, it works. One study of 2,000 middle schools showed that a 45-minute workshop paired with one 25-minute online module on “empathetic discipline” was enough to cut suspension rates in half. Note that this training doesn’t tell teachers not to discipline students when they misbehave, but it teaches them to do so with empathy, searching for the underlying cause of the behavior and addressing that instead of the child’s identity. This not only alters teachers’ actions but students’ as well. The same study found that intervening with just one of a student’s teachers affected their interactions with every other teacher as well.

As with many others before it, the term “implicit bias” has transformed into a political tool, a scare tactic used to label administrators as woke leftists prepared to leave their white students behind. In reality, implicit bias training consists of programs like the one described above that train educators to make small changes in the way they approach all of their students. It consists of simple tools that offer to transform the school community. It benefits everyone.

And so it is up to every member of the school community to reshape the narrative around this issue. That may mean that the administration labels the training something else, such as “empathetic discipline training”. Or a group of parents shows support at a school board meeting. Or a teacher implements strategies in their own classroom and shares what they’ve noticed with their colleagues. Depoliticizing and changing the narrative around implicit bias training is on all of us.

Claire Bufalino is a law student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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What Does the Mahanoy Decision Mean for Off-Campus Speech and Title IX?, by Jenny Lee

Posted on October 18, 2021 by Miranda Johnson

Can schools discipline students for what they post online? While the classic lawyer’s answer—“It depends”—still applies, the window has just gotten a bit narrower. In June, the Supreme Court ruled in favor of a former high school cheerleader who was suspended by her JV team for posting “F—k school f—k softball f—k cheer f—k everything” on Snapchat over the weekend after she didn’t make the varsity squad. In an 8-1 majority opinion in Mahanoy School District v. B.L., Justice Stephen Breyer stated, “The school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus. America’s public schools are the nurseries of democracy.”

Mahanoy’s ruling was narrow. The Court held that while public schools may have a special interest in regulating some off-campus speech, the school’s interest in this case wasn’t enough to override the student’s free speech interest. Here, the student Snapchatted with a private circle of friends while off campus outside of school hours, and her post didn’t contain specific threats or abuse targeting a member of the school community.

Still, the decision raises many new questions for schools, educators, and administrators who need to balance the “nurseries of democracy” with their practical interest in ensuring that the school environment is safe and healthy for their students, whose off-campus activities often spill into their relationships on campus.

For instance, while the Court’s ruling in Mahanoy didn’t involve sex-based harassment, Title IX practitioners may wonder in particular how Mahanoy might apply in such cases. With so much communication passing back and forth between students via social media or text, to what extent can—and should—schools regulate online sex-based harassment? And how do schools address virtual sexual misconduct without infringing on a student’s right to free speech?

 What free speech protections do students have under Title IX?

Ever since the Obama Administration issued the 2011 OCR Dear Colleague letter declaring sexual violence a form of sex discrimination, public debate around Title IX—a federal civil rights law prohibiting sex-based discrimination in any school or educational program that receives federal funding—has primarily focused on sexual harassment and assault at schools and college campuses.

Under the Trump Administration, OCR rescinded Obama-era Title IX guidelines and issued new Title IX regulations in 2020, emphasizing greater due process protections for individuals accused of sexual harassment. Furthermore, the new regulations explicitly affirmed that nothing under Title IX should restrict any First Amendment rights. The Department of Education’s summary of the new regulations reminded schools and colleges that Title IX “provides First Amendment protections appropriate for educational institutions where students are learning, and employees are teaching. Students, teachers, faculty, and others should enjoy free speech and academic freedom protections, even when speech or expression is offensive.”

In theory, then, Title IX shouldn’t restrict any speech that is protected under the First Amendment. In practice, however, the line is less clear-cut. An educational institution’s obligation to respond to allegations of sexual harassment is weighed differently under Title IX, under other laws and policies, and by the courts. Understanding how to proceed with an allegation while avoiding infringing on a student’s free speech rights can be a tricky balancing act, especially after Mahanoy.

Applying the SPOO test under Title IX

So, what happens if Student A sends Student B sexually harassing messages via text or on Snapchat? If Student B receiving the messages makes a complaint, can your school do anything to address or stop it from happening again?

The answer is unclear. Under the current Title IX regulations, such conduct needs to meet the definition of sexual harassment as unwelcome conduct that is so “severe, pervasive, and objectively offensive” (SPOO) that it denies a student equal access to an educational program or activity.

If it’s one Snap, it’s highly unlikely. In an earlier Dear Colleague letter from 2003, OCR clarified that “the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment.”

Photo by Sara Kurfeb on Unsplash

But how many Snaps are “pervasive”? How does one determine how “severe” and “objectively offensive” a text is? And what does it mean to deny a student access to education? What’s more, the current regulations restrict a school’s jurisdiction under Title IX to contexts where the school exercises “substantial control” over both the respondent and the harassment. While several abusive direct messages between students in a Zoom class leading one of the students to drop out of class might meet these criteria, it’s unlikely that a few texts between students would—especially if all the communication takes place off campus. 

 

What do the courts say?

Of course, Title IX isn’t the only law that addresses sexual harassment in schools and colleges. Under Title VII of the 1964 Civil Rights Act, a broader “severe or pervasive” standard (compared with Title IX’s “severe and pervasive”) is used to determine a hostile environment in the workplace. And schools can—and should—have their own misconduct policies in place to address issues including sex-based misconduct that fall outside the limited jurisdiction of schools under the current Title IX regulations.

To make things more complicated, courts have offered differing perspectives on a school’s liability for off-campus misconduct.

Outside the Title IX context, the Supreme Court articulated in Tinker v. Des Moines Independent Community School District that public school officials can only punish students for on-campus speech if the speech would “materially and substantially” disrupt school activities.

The Court’s recent decision in Mahanoy didn’t extend the “substantial disruption” test to off-campus or online speech, nor address whether the analysis would have been different if the student had targeted a person based on a protected class.

However, federal courts in several jurisdictions, following a key Supreme Court decision in Davis v. Monroe County Board of Education, have ruled that schools may in fact be held liable under Title IX for failing to address student-on-student sexual harassment off-campus if such failure causes further harassment, or even vulnerability to harassment. In June, the Biden Department of Justice submitted a statement of interest in a Title IX-related case agreeing with this view. In the brief, the DOJ argued that alleged victims of sexual harassment may sue their school if the school’s lack of response to their complaint made them vulnerable to potential future harassment, even if they are never harassed again.

Indeed, the Biden Administration is strongly signaling a return to the Obama-era approach to Title IX, which will likely raise new debates around protections for off-campus speech.

In the recent landmark case Bostock v. Clayton County, the Supreme Court held that discrimination against “sex” under Title VII is not limited to biological sex, but also includes gender identity and sexual orientation. While the outgoing Trump Administration issued an OCR memo on January 8 this year arguing that Bostock does not apply to Title IX, President Biden almost immediately issued an Executive Order on January 20 reversing Trump’s policy and directing all federal agencies to implement Bostock, including in Title IX.

The Biden Administration’s redefinition of sex under Title IX as including gender identity and sexual orientation—thus potentially including anti-LGBTQ+ speech under sex-based harassment—opens up a whole new set of questions for schools and colleges as they grapple with the limits of regulating student speech in a virtual world.

Key takeaways for Title IX and off-campus speech

There is clearly continuing tension among the laws and court decisions when it comes to a school or college’s responsibility to address sexual harassment in off-campus speech, though the Mahanoy decision serves as a caution to schools who wish to do so.

If you are wondering how the recent Supreme Court decision in Mahanoy might affect your institution, note that the decision limits, but does not abolish, a K-12 school’s ability to discipline student speech off-campus. (Also note that the decision does not apply to higher education institutions.) And while the Biden Administration intends to rescind the current Title IX regulations and issue new regulations that includes protections for individuals based on sexual orientation and gender identity that may implicate off-campus speech, the 2020 Title IX regulations aren’t going anywhere soon.

Therefore, it’s important to make sure that your institution’s sex-based misconduct and free speech-related policies and procedures remain compliant with the current Title IX regulations, and that your appropriate personnel are fully trained in Title IX and First Amendment issues. If your institution has questions about the potential impact of Mahanoy or the intersection of Title IX and the First Amendment, please consult with legal counsel.

Jenny Lee is an educator, Title IX administrator, and a student at Loyola University Chicago School of Law and wrote this blog as part of the Education Law Practicum.

Posted in Educational policy, Federal intervention, First Amendment | Tagged | Comments Off on What Does the Mahanoy Decision Mean for Off-Campus Speech and Title IX?, by Jenny Lee

After COVID, Foster Youth Need Educational Advocates More Than Ever, by Joanne Curley

Posted on October 3, 2021 by Miranda Johnson

Across the country, a child is removed from their home and placed in foster care every two minutes. Not all children in foster care have endured the same level of maltreatment, but they all experience some level of trauma when they are uprooted from the only home and family they know in addition to the trauma of abuse or neglect that led to the removal.

Restrictions implemented during the pandemic often meant that foster youth could not see their biological family. And services that were put in place to help families reunify stalled as service providers grappled with how to provide services in a remote setting. The heavy emotional toll COVID-19 exacted on children in foster care led to many foster youth experiencing increased anxiety and depression during the pandemic.

Social distancing and remote learning led to feelings of isolation. While many foster youth have mental health needs, the pandemic restrictions caused a sharp reduction in access to those support services.

Photo by Wadi Lissa on Unsplash

As a Court Appointed Special Advocate, I work with local service providers when advocating for youth in foster care. The mental health providers in our community report the current wait time to begin new services is at least six months. There are anecdotal reports of some youth waiting for services since March 2020.

We all know it is going to take the country time to recover from the pandemic. But for a youth in a mental health crisis, waiting six months or more to get help has the power to negatively impact them for a lifetime.

Placement in Foster Care Has Negative Impacts on Education

Youth in foster care often fall through the cracks of the education system. In fact, data from a 2018 national survey show that foster youth are twice as likely to have truancy issues or face out of school suspension, are three times as likely to be expelled, and tend to score significantly below their peers on standardized tests. And, while most foster youth say they want to attend college, only 3% earn bachelor’s degrees.

The challenges of remote learning during the pandemic were even more significant for youth in foster care. Many did not have a computer or access to internet. The presence of a supportive adult to assist with remote learning was also missing for many foster youths.

We know COVID has affected the education of most children, but it is too early to understand its full effects. Statistical models have been developed to assess the potential impact of COVID-19 on educational outcomes. These models predict that learning loss will be more significant for youth who did not have a conducive learning environment, such as a quiet space with minimal distractions, the technology devices needed for remote learning, high-speed internet, and parental academic supervision. This learning loss is likely to translate to a 15-20% widening in the gap in educational outcomes like those seen in the 2018 data noted above. High school dropout rates are also expected to increase by up to 9%. That translates to an estimated 1.1 million students in ninth through eleventh grade.

Photo by Redd on Unsplash

Helping Students in Foster Care Succeed

There are important steps that we must take as we return to in person learning in the fall to ensure the gap in educational outcomes seen in foster youth does not widen:

  • We need to focus on policies and practices that are specifically designed to identify and meet the educational needs of youth in foster care. One example is the Blueprint for Change. The Blueprint provides a framework for both individual advocacy and for system-wide reform. The Blueprint helps promote educational success for youth in foster care by establishing eight goals for success along with benchmarks for each to track progress.
  • The judicial oversight of youth in foster care must include an assessment of needs and support optimal educational outcomes. Several states have already adopted judicial rules that do just that. For example, Pennsylvania has adopted Rules of Juvenile Court Procedure that requires consideration of the child’s educational needs at every step in the judicial process surrounding involvement in the child welfare system. Tools and checklists are also available to assist judges in ensuring the educational needs of foster youth are met.
  • Collaboration is critical to supporting children in foster care. One of the provisions of the Every Student Succeeds Act (“ESSA”), which was enacted in 2016, requires schools to work with child welfare agencies to ensure the educational stability of children in foster care. Several States, including Illinois, now require local education agencies to appoint a foster care liaison who, among other things, collaborates directly with the child welfare agency regarding the needs of foster youth. As schools plan for the fall, building on these collaborations will be important to ensure the educational needs of children in foster care are met. Other adults, such as the foster parent, the child’s attorney, child advocates, and biological parents as appropriate, should be included in discussing the individual needs of a particular youth.
  • Finally, we must ensure that schools are trauma informed as we prepare for a return to school in the fall. A trauma informed school means that school staff understand trauma and its impacts so they are able to recognize and respond appropriately. The main goal is to prevent re-injury or re-traumatization by acknowledging pre-existing trauma and its triggers and avoiding stigmatizing students through punishment. Two states that have incorporated trauma informed practices in their schools are Massachusetts and Washington. In other areas of the country, including Illinois and Wisconsin, the State Board of Education is promoting the use of trauma informed practices by including resources on websites.

Addressing Educational Disparities with The American Rescue Plan Act

The American Rescue Plan Act (“ARPA”) signed by President Biden in March of this year, includes over $170 billion in education funding. Most of that funding is earmarked for safely reopening the in-person operation of K-12 schools and addressing the impact of COVID-19. While school districts have flexibility in how they use most of their allocated funding, some of the money will be used for learning recovery grants, summer enrichment programs, and after-school programs.

The U.S. Department of Education’s COVID-19 Handbook, Volume 2: Roadmap to Reopening Safely and Meeting All Students’ Needs provides recommendations that address the social, emotional, and mental-health needs of students. The recommendations also include strategies for addressing the achievement gap that has continued to widen in the wake of the pandemic. Because the recommendations are generally directed towards building equity for underserved communities, they also apply to youth in foster care.

With the infusion of significant federal dollars from the ARPA, we have a real opportunity to close the education gap for vulnerable youth, including those in foster care. Every child deserves a chance to succeed. Our future as well as theirs depends on it.

Joanne Curley is a Court Appointed Special Advocate and a student at Loyola University Chicago School of Law. She wrote this blog post as part of Loyola’s Education Law Practicum.

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Transgender Youth Participation in Sports: Their Right Under Equal Protection, by Lilian Winters

Posted on October 3, 2021 by Miranda Johnson

Sports. We follow them, watch them, and, above all, we talk about them. We shout at the screen during an intense play and cheer among the crowd as our team scores. We talked about Kaepernick taking a knee and Lance Armstrong doping.

But recently, one sports topic has been dominating the conversation: transgender participation.

Photo by Lena Balk on Unsplash

Transgender Participation in Sports

The law is pretty clear when it comes to locker room use. Transgender youth are permitted to use whichever locker room that conforms with their gender identity.

But what about when transgender youth want to actually play a sport? Do they play on a team that conforms with their gender assigned at birth? Or, do they play on a team that conforms with their gender identity?

Well, the courts have begun to answer these pressing questions.

Idaho’s Fairness in Women’s Sports Act

In March of 2020, Idaho signed into law the Fairness in Women’s Sports Act which officially banned transgender women from participating in sports teams that correspond to their gender identity. Naturally, some students took issue. Lindsay Hecox sued the state of Idaho with a Jane Doe to challenge the law.

Hecox v. Little                                                                                   

In Hecox v. Little, the state filed a motion to dismiss in August of 2020. The state argued that the court lacked jurisdiction to review the matter, and that Hecox failed to present sufficient evidence of any legal violation. In response, the court denied the motion on both grounds. The court went a step further and also issued an injunction preventing the Idaho’s law from going into effect.

The court stated that the state failed to identify a legitimate interest served by the legislation. Without any legitimate interest served by the law, the law would fail to meet one of its constitutional requirements. Not surprisingly, the court reasoned that Hecox is likely to prevail on her equal protection claim and provided four justifications summarized below:

  1. Transgender women have historically been discriminated against and disfavored.

A study conducted by TransEquality found that 86% of transgender youth experience harassment, 48% experience homelessness, and 25% live in poverty. Idaho’s law unconstitutionally furthers discrimination of transgender athletes by subjecting them to invasive sex disputes.

  1. Under the act, transgender women would be barred from participating in any school sport.

 

The Idaho law prohibits transgender women from participating in both women’s and men’s sports, preventing transgender women from “equal athletic opportunities.” The court reasoned that forcing transgender women to participate in sports that do not correspond with their gender identity is “equivalent to gender identity conversion.” Gender identity conversion has been deemed dangerous and unethical by every major medical association.

 

  1. Transgender women cannot “displace” cisgender women in athletics.

While the ratio of males to females is one to one, less than 1% of the population is transgender. Therefore, the court reasoned that transgender women “have not and could not displace” cisgender women in athletics, as the state alleges.

  1. Transgender women do not have a significant advantage over cisgender women after testosterone suppression.

The court addressed the physical differences between men and women generally. However, the court reasoned that there is insufficient evident to support a finding that transgender women who suppress their testosterone have a significant advantage over cisgender women.

Where are we heading?

The state appealed the preliminary injunction and the issue went before the 9th US Circuit Court of Appeals. While the appellate court has yet to render its decision in Hecox v. Little, the outcome is likely to be in favor of Hecox and Doe. Unfortunately, the outlook isn’t resoundingly positive for transgender athletes. The Trump administration previously filed a brief in support of the state’s argument in Hecox v. Little. Subsequently, the Biden administration withdrew that brief. However, when legal counsel for both the state and Hecox presented oral arguments in May of 2021, the Biden administration remained silent on the matter. So, it is still unclear whether the current administration fully supports Hecox’s position. Moreover, across the country, 33 states are set to pass legislation banning transgender participation in sports in 2021. So, despite Hecox v. Little providing a glimmer of hope for transgender athletes, many similar lawsuits are looming across the nation.

Sports are woven into the fabric, or should I say jersey, of American society. Naturally, transgender athletes have become a part of the spirited dialogue surrounding sports in the last few years. Hopefully, we can soon talk less about resistance toward integrating transgender athletes into our current athletic systems and begin to use our words to advocate for transgender athletes’ right to equal athletic opportunity.

Lilian Winters is a student at Loyola University Chicago School of Law and wrote this blog as part of the Education Law Practicum.

 

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School’s Out: The Importance of Time Spent Outdoors During the School Day, by Kathleen McGivney

Posted on October 2, 2021 by Miranda Johnson

 

Our usual way of life was upended during the pandemic. People stayed home from work and school and found themselves looking for anything to do. For many, the answer was simple – go outside. There is evidence that exposure to nature increases quality of life and can be a tool in the treatment of mood disorders. For children, time spent outdoors is crucial to break up the school day, and improves executive function, socialization, and increased appreciation for nature.

Schools Need Green Spaces

Children spend on average about  4-7 minutes per day outside, almost half as much time as 20 years ago. Studies show that just sixty minutes of unstructured play improves a child’s physical and mental health. During the pandemic, some schools held classes outdoors. In Massachusetts, teachers used the school’s garden as a venue for science class. In New York City, administrators turned a school’s roof into a classroom. The pandemic has shown us how schools can creatively provide outdoor spaces for students. Equipped with the knowledge that the outdoors offers such invaluable benefits to students, we cannot accept a school day without the option for students to interact with nature.

Schools should implement green schoolyards, which are multipurpose, environmentally-focused areas that incorporate playgrounds, gardens, wooded areas, and other green spaces. These spaces can be used for unstructured playtime and during class time as well. Studies show green spaces facilitate friendships among students and increase the likelihood of rigorous physical activity. They also report relatively low levels of teasing and bullying as compared to other school settings. Additionally, in some instances, these spaces can be open to the public after school hours, cultivating a sense of community.

Access to Nature is Important for Cognitive Development

A 2019 study conducted by researchers at the University of Illinois, found that a child’s access to nature promotes wellbeing by improving attention and stress levels, self-discipline, and enjoyment of learning for students. Further, in a study conducted by researchers at North Carolina State University, it was found that time spent in nature was beneficial for children with disabilities like ADHD as it increased attention and diminished disruptive behaviors throughout the school day.

Access to Nature Must be Equalized

In the United States, it’s not surprising that wealthy people have more access to outdoor recreational space. In Illinois, about 85% of nonwhite and low-income people live in “nature-deprived” areas. Additionally, children have far less access to nature than the rest of the population, and there’s even less access for children from low-income backgrounds. So, it’s important that any measure that aims to increase outdoor activity in schools accounts for these disparities.

Children’s Connection to Nature and Climate Change Education

Connection to the outdoors and environmental education will also inevitably lead to children’s curiosity and worry about climate change. Furthermore, studies have found that children’s connection to nature in their early years predicts a higher likelihood that they will take action to care for the environment in the future. Parents may worry that teaching children about the changing climate will place too much stress on their children. However, rather than viewing this as a negative, this will be an opportunity to teach meaning-focused coping in children, which includes teaching the ability to face risk and uncertainty and believe that their own actions can make a difference. Prioritizing students’ connection to nature will prepare them for the future. As climate change progresses, it will be imperative that everyone is conscious of the effects that it will have on the environment.

Policymakers Need to Act

Schools possess an invaluable opportunity to connect students with nature, not only for students’ own mental health but also for the future health of the planet. A new Illinois law requires a half hour of unstructured play time for students up to fifth grade. This is an important step in the right direction that could be further enhanced by a more expansive program with an emphasis on nature. Connecticut’s No Child Left Inside program provides students and teachers with a variety of programs in their state parks like educational curriculums and teacher workshops.  Additionally, the Public Health Law Center at Hamline University School of Law put out policy language that can be used as a model to require green space in schools:

It’s time for schools and policymakers to stop overlooking the importance of access to the outdoors in student’s lives. We must make outdoor time a priority and a requirement to improve the well-being and success of all students.

Kathleen McGivney is a student at Loyola University Chicago School of Law and wrote this blog as part of the Education Law Practicum. 

 

Posted in Educational equity, public education, school curriculum | Tagged | Comments Off on School’s Out: The Importance of Time Spent Outdoors During the School Day, by Kathleen McGivney

Did you know that School Recess has Healing Power!?, by Viswa Senthilkumar

Posted on June 19, 2021 by Miranda Johnson

Parents, educators, and legislators are focused on post-COVID “learning loss” instead of healing and learning from the loss. When my brain is too tired from constantly working for hours, I give it a break. There is a coffee/tea break, lunch break, and break-out sessions at work. When winter strikes, the plants and trees in my garden take a break. Even nature takes a break in four seasons. As adults, we agree that short breaks during an entire workday are essential for our overall well-being, more so now than ever before.

What about school children? Should we prioritize or sideline recess when they return to school? Do they deserve a break during the state-mandated 5-6 hours of structured learning?

What is School Recess?

Recess in its true sense during the school day is a short window of time for unstructured free play. It is that sacred time of the day when children could unwind, slow down, breathe deeply, rest, reflect, socialize, jump around, be a free spirit, or do nothing.

Why is School Recess Important?

The role of recess in children’s physical, mental, emotional, and academic development has been a topic of much research and debate. The American Academy of Pediatrics has published a policy statement on the cognitive, academic, social, emotional, and physical benefits of recess on the whole child. CDC (Centers for Disease Control and Prevention) recommends critical strategies for planning recess during the school day. It has taken decades for the National PTA to pass resolutions on the benefits of school recess. Studies have proven that unstructured recess during the school day leads to creativity, social responsibility, and less disruptive classroom behavior.

How did School Recess Become Dispensable?

With demands growing each year on public schools to raise test scores, school boards and educators have undervalued recess as a waste of time instead of instruction. In addition, there are issues concerning the management of recess time. Schools face budget constraints to engage paraprofessionals to supervise recess. Responsible volunteers are difficult to find to manage recess. Liability concerns from unstructured playtime and potential legal action from children hurting themselves are some of the justifications for cutting recess time. Lurking stranger danger during recess on public school grounds could also be a concern. Further, bullying could be avoided when students are given little to none outside classroom time, helping to avoid areas such as hallways, locker rooms, playgrounds, and bathrooms. These are only a handful of the “convenience” concerns against school recess – ones that pale in comparison to its actual importance and value.

A School Recess Policy? Really!?

Believe it or not, Article 31 of the UN Convention on the Rights of the Child recognizes the child’s right to rest and leisure and engage in play and recreational activities appropriate to their age. Interestingly, the United States is a signing party not bound by ratification of this Convention.

A monumental effort was required to force state legislatures to either mandate or suggest a school recess policy of 20 precious minutes. It is a shame that we need to legislate upon something so obvious and essential. Although states have recess policies in place, it is primarily up to the school districts to implement them.

Does Illinois Have a School Recess Policy?

Somewhat rewardingly, effective July 1, 2013, the 98th Illinois General Assembly passed a bill requiring public schools to provide a minimum of 20 minutes of recess for children grades K through 5 for unstructured outdoor (weather permitting) or indoor play that may include organized games. It is up to the school board to provide a daily recess for students in grades 6 through 8. School boards are prohibited from withholding recess as a disciplinary action. High school students are not even under the tent for any recess, let alone policy. Is this efficient and sufficient?  How about a minimum of 60 minutes of recess spread out during the school day, including a 25-minute lunch break?

Remote Learning and Recess Loss?

Remote learning has turned recess upside down and non-existent. There are plenty of virtual recess ideas, but are those the same as unstructured outdoor or indoor recess? In the remote learning model, outdoor recess is either nil or limited to the back yard or front yard. Indoor recess is mostly doing chores or moving about from one room to another. Recess during the pandemic and remote learning is stressful for both students and parents, mainly working parents.

Should Reopening Schools Skip Recess?

Absolutely not. School recess is more critical now than ever before. School recess should be prioritized during the post-pandemic return to school. The Global Recess Alliance has created a list of suggested adaptations for recess. When children return to school, they will bring mixed emotions of excitement, exhaustion, isolation, anger, trauma, nervousness, confusion, and anxiety. Recess would be an excellent outlet and buffer for children to express themselves freely and adjust to the new norms of in-person, remote, and hybrid learning environments.

With CPS Reopening, is it Recess or Timeout?

The CPS reopening FAQ page mentions recess as a sub-heading with zero information.  CPS is gearing up to welcome back its students to the district’s novel school term with in-person, remote, and hybrid learning modules. A CPS mom, who is also my colleague at work, expressed anxiety and concern about the school’s recess policy under the hybrid learning module.  She knows that her 2nd grader will get 45 minutes of recess during the 7-hour school day for two regulated bathroom breaks, a lunch break, and some free playtime.  Recess does not include any unstructured outdoor or indoor free play. Students should remain at their desks in the homeroom during recess. They can only stand by their desk and no walking or running around. Students should bring their toys, books, and things to self-play during recess. Students should use a sneeze guard at their desks and wear masks all day except during lunch. This type of recess policy seems more like a timeout than recess which would deter parents from the in-person learning module.

School Recess Cohorts and Pods! Brilliant!!

I hope that by now, you will all recognize and realize the healing power of recess. The pandemic has kept students confined and hibernating at home for several months. Recreational screen time dominated unstructured indoor or outdoor playtime. Students returning to the hybrid learning environment will bring with them plenty of pent-up cabin fever. Returning students will now be more stressed than ever and anxious to figure out how to socialize with their peers safely. During the pandemic, some returning students may have experienced the loss of loved ones, suffered displacement, experienced trauma, and other socio-emotional issues. Both parents and students are worried about how they will adjust to the new learning system’s demands. Therefore, it is more critical now than before to prioritize recess for students.

Under the new cohort or pod instructional system at CPS, educators, legislators, and community members should consider integrating “recess” pods. A recess pod or cohort would consist of a designated space for a small group of peers for a short time window of 25 minutes. Teachers and staff could use a phone app to customize and reserve the recess pod depending on the student’s peer group. Recreational, unstructured activities that exclude screen time or simple, organized games should be the recess pod’s primary focus. Any activity from simple stretches to small talk would suffice. The recess pod would be available on a rotational basis so that every student, teacher, and staff could join a small group of their peers for some unstructured, safe free playtime during the school day. The recess pod may exist indoors or outdoors in designated sanitized areas of the school playground or gym or through a partnership with the local library or park district or community gym sponsorship. After all, a modern fundamental right to recess is the need of the hour.

Viswa Senthilkumar is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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Student Surveillance – Beneficial or Dystopian?, by Essence Hill

Posted on June 16, 2021 by Miranda Johnson

Imagine being transported to an elementary school twenty years ago. Before the average student had personal cell phones. The only camera on campus was perched at the front door of the building to monitor who entered and exited. Teachers were able to monitor students’ progress and encourage learning without the assistance of extensive surveillance technology.

Fast-forward to the present, year 2021. Flying cars and other flashy symbols of the Jetson “utopia” seem like distant fantasies, but technology has progressed in other ways. Students with disabilities have access to material that would have been wholly unavailable if not for the creation of learning assistance technology. Virtual learning would have been impossible or extremely burdensome without contemporary technological advancements. Despite the benefits of aspects of modern technology, surveillance of students at all grade levels has raised concerns from privacy experts, educators, and parents.

Impetus for School Surveillance

Due to an upsurge in traumatic events associated with schools that sometimes result in death, administrators have been forced to reimagine security. School shootings are more frequent than ever, occurring every 77 days or so in America in comparison to 122 in 2000. Mental illness amongst youth has also increased; suicide is the second leading cause of death amongst adolescents aged 12-18. It is no surprise that schools have begun investing in any measure they can to prevent these tragedies.

A popular solution is digital monitoring, which school officials typically justify as compliance with the Children’s Internet Protection Act that requires schools to adopt an internet safety policy that addresses the safety and security of minors. Edtech industry leaders, such as Gaggle and GoGuardian, collectively serve thousands of schools across the country, including Chicago Public Schools. When digital surveillance was first introduced, it was primarily limited to monitoring school-owned devices but has since expanded to any student activity associated with school-issued accounts. The scope of school digital surveillance services includes, but are not limited to social media tracking, browser data mining, and keystroke logging. In illustration, a student could send a message on their school-issued account expressing the desire to self-harm and the school would be alerted immediately.

At the collegiate level, schools such as Syracuse University, implemented technology that tracks students’ location via Bluetooth. SpotterEdu, founded by a former college basketball coach, is one of the most prominent software services in the industry; currently operational on over thirty campuses nationwide. Inconspicuous Bluetooth beacons installed in classrooms and other gathering spaces send signals to the school whenever a student comes within proximity of one. If a student is late for class, the program can alert the professor and any other pertinent school staff. Syracuse professor Jeff Rubin hailed the software for its’ impact on student attendance. This new method of holding students accountable for showing up to class has been so successful for Professor Rubin that attendance reached unprecedented highs.

SpotterEdu and similar technologies can also be used to monitor students’ mental health. For instance, a student that never gets near the Bluetooth beacon in the school dining hall could indicate the student has an eating disorder. Another company stated they collect approximately 6,000 location data points per student each day. Some software takes location-tracking one step further and monitors how long a student remains in a space.

Photo by Lianhao Qu on Unsplash

Although the data collected assists schools in managing the success of the student body at large, many schools segregate the data for a more focused analysis on students of color and other demographics that universities may deem as high-risk. However logical it might be to closely monitor students of color in an attempt to boost academic success, the surveillance of people of color has traditionally led to criminalization.

Increased Surveillance Post-Pandemic

For schools where in-person learning is offered, adequate contract tracing and other protocols to quell the potential for a Covid-19 outbreak within a school is detrimental to remaining open. So strong is the desire to remain open that some districts have shelled undisclosed amounts of money on air purifiers with a $900 retail price.

Others have responded to the imminent threat of a schoolwide Covid-19 outbreak by partnering with companies that provide extensive tracking services. One company has the following on their website: “AI-precise tracking and micro-geofencing enables automatic live and historical tracing of individuals with an elevated temperature throughout the entire network with unparalleled accuracy and privacy”.

On the same company’s ‘Reopen Schools Safely” page is a dystopian video introduction to some of the benefits and mechanics of the tracking system. The technology claims it possess the capability though Bluetooth-enabled badges among other equipment to enforce social distancing by geofencing, provide “precise” 3D locations on the campus, and collect and display health data for each student and staff member. As long as the school maintains control over student information and does not share data without the permission of the student’s guardian, they are allowed to utilize these types of services.

In the event of a hostile or unwelcome individual on campus, the system can be used to send warnings to everyone within the school network. After an uptick in school shootings only allayed by a virus-induced pandemic, investing in student safety is understandable. Combatting growing instances of mental health issues through the often praised method of data collection and analysis is also expected amidst a larger society that promotes data as a one-size fits all solution.

Despite the purported benefits, increased surveillance of students is associated with negatively impacting the students’ interpersonal development and fortifies the school-to-prison pipeline. Marginalized students were disciplined at disproportionate rates for decades and the adoption of contemporary technology exacerbates the phenomenon even further. For example, a district in Alabama implemented a social media monitoring system that resulted in 14 expulsions. The student population was only 40% African American yet 12 of the expulsed were Black. Female students and students with disabilities are also more likely to be negatively impacted by the same software that is supposed to protect them. Elizabeth Laird, senior fellow for student privacy at the Center for Democracy and Technology writes:

“Both machine-learning algorithms and human analysts are at risk of misunderstanding what students write – particularly if the human analysts are older, or from different cultural backgrounds than the students they are monitoring, experts said. If digital surveillance companies scanning students’ emails and chats misinterpret their jokes or sarcasm as real threats, that ‘could expose students to law enforcement in a way they have not been in the past’”.

School districts are expending millions of dollars on high-tech surveillance and there are still no independent studies affirming the alleged positive benefits. We must consider alternative ways to strengthen school safety and mitigate the risk of viral outbreaks that have not been proven to overexpose students to law enforcement. 

Essence Hill is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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Zoombombing: An Inside Job, by Cat Bishir

Posted on December 19, 2020 by Jennifer Babisak

I remember my first zoombomber like it was yesterday.

“So, I think we’re ready to go into breakout rooms now, but let me first explain the directions.”

*Ding dong* A student had entered the waiting room. Strange. I thought this student was already in the classroom, but here he was again. Must have fallen out? I pressed “admit.”

“So, for this activity, the person with the last name closest to ‘A’ will share the document to everyone in the group.”

A voice cut in, “I think you mean the person with the most re***ded last name! Ha ha ha…”

I couldn’t believe it. I had let in a Zoombomber.

I felt attacked. This kid had copied one of my students’ names so that I would think he was legitimate. Worse, he had used a discriminatory word in front of my brand-new students. In truth, he dropped a few “F-bombs” before I was able to remove him, but these honestly didn’t upset me as much as the “R-word.” How had I let this happen?

In a typical school year, I would have had plenty of time to establish rapport with my students. I use a variety of activities designed to foster community in our classroom. However, starting this year online, it has been difficult to cultivate a sense of belonging while we’re all staring at our own screens.

Now one of the first things this class will remember is that I allowed them to be assaulted by an outsider. Not an admirable start to our year.

Zoombombing 101

What is a ‘“zoombomber” anyway? The word is a new one, and one of the many not-so-charming aspects of life in 2020. “Zoombombing” derives its name from the video-teleconferencing site, Zoom, and happens when an outsider intrudes on meetings to embarrass or scandalize the unsuspecting guests.

Typical attacks might feature an unknown person using their microphone to spout profanities or their video feed to share pornographic or offensive images while viewers either attempt to look away or gawk at the intrusion. Public meetings varying from official government hearings, to school board meetings, and even one man’s doctoral dissertation defense have been interrupted by these gauche displays of indecency.

While zoombombing is happening in a wider public context, there is a particular need to address the impacts of zoombombing in schools. Because so many schools under COVID-19 restrictions are using Zoom to implement online learning, zoombombing is a daily threat. A quick search of the headlines shows a significant uptick in the number of stories about zoombombing attacks since March, when most schools retreated to remote learning.

Since this August, every teacher I’ve talked to has experienced at least one zoombombing episode. Some of them have been shockingly personal. In a department meeting last week, my colleague said that a zoombomber snuck into his class and made disturbing comments about the teacher’s children. Already a disruption, sometimes zoombombing can cross the line into criminal behavior. 

Zoombombing as Cyberbullying

Zoombombing is a new addition to the laundry list of online threats schools address. One of the key features of zoombombing is the often offensive nature of the material being shown or shouted. Teachers and administrators have high incentive to prevent these types of attacks on underage Zoom users. Nonetheless, teachers are finding it hard to prevent zoombombers from sneaking in under the names of their legitimate students.

How are zoombombers getting the links and names of peers in the class? Obviously, zoombombing is often an inside job. A student in the class is sharing codes or may create accounts on different devices to plague teachers and peers. A fellow teacher shared with me today that he received an email from a distraught parent saying that his son was being bullied in several of his classes. It seems that zoombombers were following the student’s schedule just to torment him. Zoombombing is another route to cyberbullying.

Taking Action Against Zoombombers

Technologies exist to cut down on the number of zoombombers gaining access to classrooms. Zoom has taken an active role by putting in place some virtual safeguards, from user authentication to waiting rooms, and these changes have certainly helped.

Additionally, schools and universities have gotten much more savvy about using the platform. Training videos help teachers use simple techniques to spot zoombombers before they enter and explain how to quickly oust them once discovered. My own zoombomber was on our screens for maybe 20 seconds before I sent him packing. Even so, a lot of damage can be done in a few seconds.

Administration has stepped up their investigations in order to determine who these zoombombers are. In our school, teachers have been asked to report the incidents in the hope of narrowing down which classrooms are experiencing frequent zoombombings. The hope, according to our Deans, is to determine which students are responsible for sharing out Zoom codes and encouraging these attacks. However, a punitive reaction may not actually help in these situations.

Administrators can help by considering a restorative justice approach to dealing with students who share Zoom codes. Instead of cracking down, or bringing legal charges against students, perhaps school climate should be addressed. Matt Davis, a writer at Edutopia, reminds us, “[restorative justice] programs have helped strengthen campus communities, prevent bullying, and reduce student conflicts.” As remote learning continues, restorative justice could help to rebuild school communities despite the challenges of COVID-19.

The Underlying Cause? It’s Personal.

Nonetheless, schools still need to address the underlying cause of zoombombing attacks. My guess? Zoombombings are likely caused by student feelings of anger and disconnection due to remote learning. COVID-19 has changed life as we know it, bringing on feelings of uncertainty and discomfort as our society tries to stay six feet apart. Zoombombing is another symptom of this larger epidemic, one that undermines our connections to one another.

That brings me to my top piece of advice to eradicate zoombombers from your classroom: Teachers, get to know your students. I admit, I don’t know this crop of students very well yet. I try to present a smiling face and cheery disposition as they enter my Zoom classroom, but how much can I really know them through this small screen?

Teachers who prioritize getting to know their students can likely prevent zoombombing by ensuring they have a strong classroom environment, even online. Make space for social-emotional learning time: create assignments like a personal introduction video or my “Get To Know You” Gameboard (*feel free to use it!). And when you view these activities, leave a personal message back for each student. Is there something you have in common? Make that connection!

Truly, zoombombing is personal. If most zoombombings are perpetrated by students already in the class, teachers have to make sure the class knows how much they care. To defeat these zoombombers, you need a “guy on the inside.” Guess who? That’s right, teachers, you!

Cat Bishir is a social studies teacher and a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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Should COVID-19 Bring the End of Standardized Testing?, by Lilia Valdez

Posted on December 18, 2020 by Jennifer Babisak

Worldwide, 2020 has been different for plenty of reasons. With the cancellations of all normalcy, it is fair to assume that effects of COVID-19 on young people around the world will take years to understand, and even longer to move past. When schools went remote in the Spring, it only made sense for standardized testing to change and adjust for the times we were living in.

As students completed the fall semester, educators asked: What is the appropriate method for gauging student’s understanding? Studies show that the testing system we had did more harm than good. On the other end of this pandemic, the psychological trouble students will have may be exacerbated by the need to take a test which determines how much they have learned.

The question we should really be asking is: Is testing students showing us what it is we need to fix? Most educators would say: No! The time before exams is spent vastly different among schools and students in different area codes. The passage of the No Child Left Behind Act in 2008, and its update through the Every Student Succeeds Act in 2015, created environments where every student from third through eighth grade takes exams to show how well state standards are being met.

Photo by Avel Chuklanov on Unsplash

Districts in lower income neighborhoods spend time prepping students for a testing environment and instructing them on the best methods to approach the exams, instead of spending time focusing on the actual standards that will be found on the exam. These exams have also been used to keep minority students out of classes with more challenging content and within the confines of low-level remedial courses.

Equity Disparities in Standardized Testing

Equity disparities appear in the method of standardized testing within multiple avenues. The expectations and emphasis placed on these students creates a stress and anxiety which contributes to poor test performance. The questions themselves are often created with bias toward those of different races, cultures, and socio-economic backgrounds. The designers of these exams rely on questions and ideas that assume background knowledge more often held by middle-class white students. The exam itself depends on this type of question in order to create a wide range of scores and create a disparity amongst the students.

This is not shocking, as most studies have shown that standardized tests should not be used to evaluate the quality of education. The reality is that standardized tests are sold by large corporations, which are attempting to gain revenue from their shareholders. It is difficult to assume that these individuals are creating neutral exams that will have a holistic approach to the issues and needs of students. Furthermore, in the time of COVID-19, where communities of color are contracting the virus at higher rates and are experiencing worse health outcomes, the gaps between affected students and their peers are guaranteed to grow. Using this time of uncertainty to contribute to the issues in the education system seems not only tone-deaf but also cruel.

Alternative Approaches to Assess Student Knowledge

As students begin to return to school, FutureEd out of Georgetown University created a Blueprint for Testing, which helps explain approaches schools can take in order to assess students during the pandemic and during their return. In the study, the point is made that assessment is important and may matter more than ever due to the uncertain instruction of virtual learning. Though assessment is necessary, testing itself may not be the solution. One suggestion made throughout the study states that if educators cannot identify clear, constructive actions to take based on assessment results, standardized testing should not be occurring. Instead, school sites should prioritize assessments closest to the method of instruction that students are experiencing. This creates a clear appraisal of where students stand and how they can be assisted.

After the immediate effects of COVID-19 pass, it would be in the education’s system best interest to attempt to develop alternatives to standardized testing. Some alternatives are those of sampling or multiple measures of assessment. The closest to the system currently in place is that of sampling, where standardized tests still occur, but every year a sampling of students is tested. The alternative of multiple measures allows for a creation of various streams of analysis on the issue and in turn creates a better indicator of success linked to grades, retention, and employment.

The reality is that students will be in a different space when they return to school sites, and the education system should likely reform their methods of analysis to ensure that the system they are implementing produces the best results for all students involved.

Lilia Valdez is a student at Loyola University Chicago School of Law and wrote this blog post as part of the Education Law Practicum.

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