By: Violet Soliz
COVID-19 is the unwelcome student in our nation’s classrooms. In Spring 2020, schools across the United States shut down and transitioned to remote virtual learning as a direct result of the pandemic. Nearly a year later in March 2021, many schools are still completely remote for the school year as COVID-19 continues to impact the country. COVID-19 has brought many of the nation’s systemic inequities, including education inequities, to the forefront. As a result of the pandemic, many students across the country are experiencing food insecurity and an increased amount of stress and anxiety. COVID-19 has especially impacted vulnerable populations of students, including minority students, low-income students, and students with disabilities. Academic and economic disparities already exist for these students, and COVID-19 has only exacerbated some of the issues these populations face, including the school-to-prison pipeline.
The phenomenon in which students are funneled out of school and into the criminal justice system is known as the school-to-prison pipeline. Zero-tolerance school discipline policies, policies and practices that mandate predetermined punishments for student misconduct and misbehavior regardless of the surrounding circumstances, and the presence of law enforcement officers (“LEOs”) in schools contribute to the school-to-prison pipeline. If a student engages in disruptive behaviors at school, she may be removed from class by a LEO and subject to discipline, such as suspension, expulsion, or being sent to a juvenile detention center. The majority of students who are arrested at school are arrested for nonviolent offenses. Although zero-tolerance policies and the presence of LEO’s at schools are widespread across the country, studies show that juvenile incarceration does not decrease youth from reoffending and may increase recidivism rates for youth offenders.
The school-to-prison pipeline disproportionately affects minority students and students with disabilities. Seventy percent of students who are arrested in school are Black or Hispanic. Black students are 3.5 times more likely than their white peers to be suspended or expelled for the same behavior or misconduct. Black students are only eighteen percent of students nationwide, but account for forty-six percent of suspensions. Additionally, students with disabilities make up only 8.6 percent of the student population in the United States but represent thirty six percent of incarcerated youth.
Societal inequities compound the school-to-prison pipeline. Black and Hispanic students are more likely to live in poverty than white students. Students who experience food insecurity, the lack of financial resources to access food, go to school hungry and are more likely to have social and behavioral problems at school. Additionally, students with poor mental health are more likely to engage in disruptive behaviors at school. These societal inequities can isolate students and cause them to act out in school and be punished and arrested for their actions.
Although COVID-19 has taken students out of schools and away from the presence of LEOs, the school-to-prison pipeline has not disappeared. In May 2020, a fifteen-year-old Michigan student was arrested and sent to a juvenile detention center because she did not complete her online homework, a violation of her probation. In August 2020 in Colorado, a twelve-year old’s school sent the police to the student’s home after the student played with a toy gun during his virtual art class. A nine-year-old Louisiana fourth grader was suspended for six days in October 2020 when his teacher saw a BB gun in his background during virtual learning.
Recognizing that COVID-19 is affecting how schools discipline students, both the U.S. Senate and U.S. House of Representatives introduced the Counseling Not Criminalization in Schools Act in July 2020. The Act would prohibit the use of federal funds for LEOs in preschool, elementary, and secondary schools. Additionally, the Act would replace LEOs with personnel and services that support mental health and trauma-informed services. The Act would also establish a federal grant program to award grants to schools to reform school safety and disciplinary policies. The purpose of this grant program would be to shift schools away from the use of the criminal justice system and towards evidence-based and trauma-informed practices. Furthermore, the Act would prohibit the use of grant funds for establishing or enforcing zero-tolerance discipline policies, purchasing or installing surveillance equipment, such as metal detectors or arming teachers or other school staff with weapons. By diverting federal funding from supporting police presence and zero-tolerance school discipline policies in schools, the Act would combat the disproportionate incarceration of historically marginalized students. Furthermore, the Act could improve student academic performance because students would remain in school, not in jail. The 116th Congress originally introduced the Act, and with the 117th Congress now in session, Congress should act quickly to get its version of the bill introduced and passed in both Chambers so President Joe Biden can sign it into law.
Some States and large cities are also taking steps to mitigate the school-to-prison pipeline during the pandemic. Effective the 2020-2021 school year, California will no longer suspends students for “willful defiance,” when a student disrupts school activities or defies school staff. Virginia recently passed two laws that prevent students from being charged with disorderly conduct during school, at school-sponsored events, or on buses, and removes the requirement that school principals report student acts that qualify as a misdemeanor to law enforcement. Portland, Oregon’s Board of Public Education voted over the summer to remove LEO’s from the city’s high schools.
COVID-19 will have long-lasting effects on students, but the effects do not have to be detrimental. Studies have shown that greater educational achievement leads to reduced crime and incarceration levels. When schools return to in-person learning, schools should focus on intensive tutoring to get students caught up in core subjects, such as math, reading, and writing, to overcome COVID-19 related learning loss. COVID-19 could potentially exacerbate the school-to-prison pipeline when students across the country return to school with unresolved trauma but no, or a lack of, access to mental health services. To address the trauma and stress that students experience during COVID-19, schools should hire qualified counselors and mental health professionals to support student mental health and well-being. Schools should also prioritize social and emotional learning and utilize restorative justice practices to create equitable school environments. Finally, schools should adopt policies that prohibit muting a student or not allowing the student in the virtual classroom as a disciplinary measure because these actions remove the student from the educational environment, the virtual equivalent of suspension.
For the vulnerable populations of students who already face disproportionate access to education, the long-term effects of COVID-19 will hurt them the most if these effects go unchecked. It is crucial for schools and state and federal legislatures to create initiatives for education reform, specifically those aimed at eliminating the school-to-prison pipeline, to ensure that students remain in school and not behind bars.
 See generally Issue Brief 77: School Discipline During COVID-19: Inclusive And Supportive Strategies For Schools As They Re-Open, Child Health and Dev. Inst. (Oct. 13, 2020), https://www.chdi.org/index.php/publications/issue-briefs/school-discipline-during-covid-19-inclusive-and-supportive-strategies-schools-they-re-open (discussing the different forms of trauma students are experiencing as a result of COVID-19 that could lead to student misbehavior); Children Struggling with Hunger Come from Families Who Are Struggling, Too, Feeding Am., https://www.feedingamerica.org/hunger-in-america/child-hunger-facts (last visited Feb. 3, 2021) [hereinafter Children Struggling with Hunger] (reporting that 17 million children are experiencing food insecurity as a direct result of the pandemic).
 See e.g., Oscar Lopez, School Discipline In The Era Of COVID-19, ACLU Pa. (May 28, 2020), https://www.endzerotolerance.org/single-post/2020/05/07/school-discipline-in-the-era-of-covid-19 (highlighting the difficulties vulnerable populations of students face during remote learning).
 Marilyn Elias, The School-to-Prison Pipeline, Teaching Tolerance Mag. (2013), https://www.tolerance.org/magazine/spring-2013/the-school-to-prison-pipeline.
 See generally id. (reporting that police in Meridian, Mississippi routinely arrest students at school and transport them to juvenile detention centers for minor classroom misbehaviors).
 See Edward P. Mulvey, Highlights From Pathways To Desistance: A Longitudinal Study Of Serious Adolescent Offenders, U.S. Dept. of Justice (March 2011), https://www.ncjrs.gov/pdffiles1/ojjdp/230971.pdf (demonstrating how community-based services are effective for youth who have committed serious offenses).
 Elias, supra note 3.
 See id.
 Emma Dorn et al., COVID-19 And Student Learning Tn The United States: The Hurt Could Last a Lifetime, McKinsey & Company (June 2020), https://www.mckinsey.com/industries/public-and-social-sector/our-insights/covid-19-and-student-learning-in-the-united-states-the-hurt-could-last-a-lifetime.
 Children Struggling with Hunger, supra note 1.
 See generally School-to-Prison Pipeline, ACLU, https://www.aclu.org/issues/juvenile-justice/school-prison-pipeline (last visited Feb. 3, 2020) (analyzing how schools criminalize student misbehaiors).
 Jodi S. Cohen, A Teenager Didn’t Do Her Online Schoolwork. So a Judge Sent Her To Juvenile Detention, ProPublica (July 14, 2020, 5 AM), https://www.propublica.org/article/a-teenager-didnt-do-her-online-schoolwork-so-a-judge-sent-her-to-juvenile-detention.
 Jaclyn Peiser, A Black Seventh-Grader Played With A Toy Gun During A Virtual Class. His School Called the Police, Wash. Post (Sept. 8, 2020, 6:38 AM), https://www.washingtonpost.com/nation/2020/09/08/black-student-suspended-police-toy-gun/.
 Gisela Crespo, 4th Grader Suspended For Having A BB Gun In His Bedroom During Virtual Learning, CNN (Oct. 4, 2020, 2:49 PM), https://www.cnn.com/2020/09/26/us/student-suspended-gun-virtual/index.html.
 H.R. 7848, 116th Cong. (2020); S. 4360, 116th Cong. (2020).
 H.R. 7848; S. 3460.
 H.R. 7848; S. 3460.
 H.R. 7848; S. 3460.
 H.R. 7848; S. 3460.
 H.R. 7848, 116th Cong. (2020); S. 4360, 116th Cong. (2020).
 Cf. School Police Funding Letter to Biden, ACLU (Feb. 25, 2021), https://www.aclu.org/sites/default/files/field_document/2021.02.25_school_police_funding_letter_to_biden_final.pdf (urging President Biden to sign an executive order to work with Congress to eliminate federal funding for police in schools and to endorse the Counseling Not Criminalization in Schools Act).
 Carolyn Jones, How School Discipline – And Student Misbehavior – Has Changed During The Pandemic, EdSource (Nov. 17, 2020), https://edsource.org/2020/how-school-discipline-and-student-misbehavior-has-changed-during-the-pandemic/643758.
 Va Code Ann. § 18.2-415 (2020); Va Code Ann. § 22.1-279.3:1 (2020).
 Portland School Board Votes To Remove Resource Officers From High Schools, WMTW (July 1, 2020, 4:50 PM), https://www.wmtw.com/article/portland-school-board-votes-to-remove-resource-officers-from-high-schools/33018543.
 Dorn, supra note 11.
 See generally, Stephanie Shafer, Overcoming COVID-19 Learning Loss, ED Week (Aug. 19, 2020), https://www.edweek.org/ew/issues/reopening-schools/overcoming-covid-19-learning-loss.html (highlighting the importance of intensive tutoring for students during COVID-19).
 See John Bailey & Frederick Hess, A Blueprint For Back To School, Am. Enter. Inst. (May 2020), https://www.aei.org/wp-content/uploads/2020/05/A-Blueprint-for-Back-to-School.pdf (suggesting ways for schools to address COVID-19 once schools begin to transition from virtual to in-person learning).
 See e.g., Paul J. Hirschfield, The Role Of Schools In Sustaining Juvenile Justice System Inequality, Princeton Uni. (2018), https://files.eric.ed.gov/fulltext/EJ1179204.pdf (recommending strategies schools can employ as alternatives to juvenile incarceration).
 See Jones, supra note 24 (noting that muting or moving a disruptive student to a break-out room resembles suspensions since both acts remove the child from the learning environment); see also Kalyn Belsha, Virtual Suspensions. Mask Rules. More Trauma. Why Some Worry A Student Discipline Crisis Is On The Horizon, Chalkbeat (Aug. 21, 2020, 7:14 PM), https://www.chalkbeat.org/2020/8/21/21396481/virtual-suspensions-masks-school-discipline-crisis-coronavirus (analyzing how excluding students from the virtual classroom can be harmful to students).