Covid-19 and the Virtual School-to-Prison Pipeline

Covid-19 and the Virtual School-to-Prison Pipeline

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COVID-19 and the “Virtual” School-to-Prison Pipeline
Victor M. Jones*
INTRODUCTION

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On March 11, 2020, the World Health Organization (WHO) classified the COVID19 disease1 as a global epidemiological pandemic,2 prompting an emergency response by
countries that are members of WHO, including the United States.3 Two days later, the
executive branch of the U.S. federal government declared the COVID-19 pandemic a
national emergency, and the president began issuing executive orders concerning the
administration of the federal government.4 Governors followed suit, doing the same at the
state level.5 According to the Centers for Disease Control and Prevention, the global
COVID-19 outbreak is the deadliest epidemiological pandemic to reach the United States
since the 1918 influenza pandemic, which was also caused by the H1N1 virus.6


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J.D., Loyola University New Orleans College of Law; Ed.M., Harvard University; B.A., Xavier
University of Louisiana. Jones is a civil rights attorney based in New Orleans, Louisiana, whose work
focuses on children’s rights and disability rights. Through engaging in integrated advocacy (litigation,
public policy, and public education), Jones has educated hundreds of teachers, parents, and lawmakers
about immigrant children’s rights, special education laws, student discipline laws and due process, and
children’s Medicaid. His work in children’s civil rights issues has been profiled at the local, state, and
national level. Prior to practicing law, Jones was a public school kindergarten teacher and a graduate
student studying risk and resiliency in children and adolescents. He would like to thank his wife Nikkole
and daughters Nola Grace and Zora Olivia for their sacrifices and unwavering support, and his mentor,
Andrea Armstrong (Law Visiting Committee Distinguished Professor of Law, Loyola University New
Orleans College of Law) for being a friend. Jones dedicates his article to the children of Jefferson Parish
Public Schools System whom he represented in virtual school expulsion proceedings, and all children,
especially Black and Brown youth, who are, like he was as a child, subjects of the school-to-prison
pipeline.
1
About COVID-19, CTRS. FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019ncov/cdcresponse/about-COVID-19.html (last updated Sept. 1, 2020).
2
WHO Director-General’s Opening Remarks at the Media Brief on COVID-19, WORLD HEALTH ORG.
(Mar. 11, 2020), https://www.who.int/director-general/speeches/detail/who-director-general-s-openingremarks-at-the-media-briefing-on-covid-19---11-march-2020.
3
Countries, WORLD HEALTH ORG., https://www.who.int/countries (last visited Mar. 21, 2021).
4
Derek Hawkins et al., Trump Declares Coronavirus Outbreak a National Emergency, WASH. POST (Mar.
13, 2020), https://www.washingtonpost.com/world/2020/03/13/coronavirus-latest-news/; Shelby Brown et
al., Trump’s COVID-19 Relief Executive Actions: Everything Happening Now, CNET (Aug. 26, 2020),
https://www.cnet.com/personal-finance/your-money/trumps-covid-19-relief-executive-actions-everythinghappening-now/.
5
State Emergency Declarations and COVID-19, ASS’N OF STATE & TERRITORIAL HEALTH OFFS. (Mar. 5,
2020), https://www.astho.org/StatePublicHealth/State-Emergency-Declarations-and-COVID-19/03-05-20/.
6
1918 Pandemic (H1N1 Virus), CTRS. FOR DISEASE CONTROL & PREVENTION,
https://www.cdc.gov/flu/pandemic-resources/1918-pandemic-h1n1.html (last updated Mar. 20, 2019); see
also Alexandra Minna Stern et al., The 1918-1919 Influenza Pandemic in the United States: Lessons
Learned and Challenges Exposed, 125 PUB. HEALTH REP. 6, 6 (2010) (“After the pandemic subsided in the
winter of 1920, at least 50 million people had died worldwide, including approximately 550,000 in the
United States.”).

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3903737

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A survey conducted by UNICEF found that 94% of all countries implemented some
form of remote learning for children in response to the COVID-19 pandemic.7 Like many
public entities throughout the United States, public school districts either closed their
facilities altogether and began providing virtual school instruction or offered a hybrid
learning experience in which children attend both in-school and virtual school instruction.8
Ongoing studies already indicate that federal and state responses to the COVID-19
pandemic—including shutting down schools and reliance on virtual instruction, social
distancing protocols requiring separation from peers and community, and the adverse
economic effects sustained by many families—all may impact the social and emotional
well-being of youth.9
Because the first twenty-five years of life are critical for brain development,10
growing up during this “once in a lifetime” deadly pandemic may create mental health and
behavioral consequences for youth. While the pandemic can serve as an opportunity for
innovation when school leaders address these challenges, for some school districts,
discipline has been more of the same. School districts are engaging in disciplinary practices
that prevent students from accessing virtual school instruction.11 These actions continue
notwithstanding strong multidisciplinary research establishing that exclusionary
discipline—suspensions, expulsions, school-based arrests, referrals to law enforcement,
and unilateral transfers to alternative schools—are not only ineffective in reducing
behavioral infractions in schools, but also lead to poorer academic outcomes and a greater

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COVID-19: Are Children Able to Continue Learning During School Closures?, UNICEF (Aug. 2020),
https://data.unicef.org/resources/remote-learning-reachability-factsheet/.
8
Mark Lieberman, How Hybrid Learning Is (and Is Not) Working During COVID-19: 6 Case Studies,
EDUC. WEEK (Nov. 11, 2020), https://www.edweek.org/leadership/how-hybrid-learning-is-and-is-notworking-during-covid-19-6-case-studies/2020/11. This is not the first time that the United States has
implemented remote learning for children. In 1937, students engaged in remote learning by way of “radio
school” lessons in response to the 1937 polio pandemic. Katherine A. Foss, Remote Instruction Isn’t New:
Radio Instruction in the 1937 Polio Epidemic, CONVERSATION (Oct. 5, 2020),
https://theconversation.com/remote-learning-isnt-new-radio-instruction-in-the-1937-polio-epidemic143797.
9
See Andreas Kluth, An Epidemic of Depression and Anxiety Among Young Adults, BLOOMBERG (Aug. 22,
2020), https://www.bloomberg.com/opinion/articles/2020-08-22/coronavirus-millennials-are-suffering-anepidemic-of-depression; Impact of COVID-19 on Youth Mental Health, STRESS & DEV. LAB, HARV. UNIV.,
https://sdlab.fas.harvard.edu/impact-covid-19-youth-mental-health (last visited Mar. 21, 2021). See also
Victor Jones, In Moments of Uncertainty, Let Us Grown-Ups Not Forget That This World Belongs to
Children, LENS (Mar. 18, 2020), https://thelensnola.org/2020/03/18/in-moments-of-uncertainty-let-usgrown-ups-not-forget-that-this-world-belongs-to-children/ (discussing the impact of disruption from inschool learning due to the COVID-19 pandemic).
10
Tell Me More, Brain Maturity Extends Well Beyond Teen Years, NPR (Oct. 10, 2011),
https://www.npr.org/templates/story/story.php?storyId=141164708.
11
Carolyn Jones, How School Discipline – and Student Behavior – Has Changed During the Pandemic,
EDSOURCE (Nov. 17, 2020), https://edsource.org/2020/how-school-discipline-and-student-misbehavior-haschanged-during-the-pandemic/643758.

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likelihood of juvenile justice system involvement for impacted students and to civil rights
violations for students of color and students with disabilities. 12
This article explores the use of exclusionary discipline practices in the era of virtual
school instruction, or the “virtual” school-to-prison pipeline. Part I provides an overview
of exclusionary discipline practices, how these practices impact students who are subjected
to them, and the disproportionate use of these practices against students of color and
students with disabilities. Part II will discuss virtual school discipline in the era of the
pandemic, analyzing cases of children who have garnered national attention for receiving
suspensions and/or expulsions for their alleged behavior during virtual school instruction.
Part III will provide a discussion of the legal issues arising out of virtual school discipline,
focusing on the potential and actual constitutional and civil rights violations resulting from
the use of exclusionary practices. Lastly, Part IV will give recommendations to school
districts for balancing the need to provide virtual instruction in the midst of a global
pandemic with the need to cultivate a safe learning environment, while following the
mandate to protect the civil rights of traditionally marginalized groups of children.
AN OVERVIEW OF EXCLUSIONARY DISCIPLINE PRACTICES IN SCHOOLS

A. Origins and Implementation of Exclusionary Discipline Practices

The U.S. Department of Education’s Civil Rights Data Collection (CRDC), 13 a
biannual national survey of public school districts, defines exclusionary discipline to
include detentions, in-school and out-of-school suspensions, expulsions, unilateral
transfers to alternative school, school-based arrests, and school-based referrals to law
enforcement.14 Essentially, exclusionary discipline occurs when a child is removed from
the classroom setting where instruction is provided due to a behavioral infraction.15
Exclusionary discipline practices are implemented and promulgated through three
interrelated policy mechanisms. The first is the federal Gun-Free Schools Act of 1994,16
12

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Deborah Fowler et al., Making the Case for a School-and-Neighborhood Desegregation Approach to
Deconstructing the School-to-Prison Pipeline, 42 U. ARK. LITTLE ROCK L. REV. 723, 726-27 (2020); Erin
M. Carr, Educational Equality and the Dream That Never Was: The Confluence of Race-Based
Institutional Harm and Adverse Childhood Experiences (ACEs) in Post-Brown America, 12 GEO. J. L. &
MOD. CRITICAL RACE PERSP. 115, 133 (2020).
13
Civil Rights Data Collection, OFF. FOR CIV. RTS., U.S. DEP’T OF EDUC.,
https://www2.ed.gov/about/offices/list/ocr/data.html (last updated Mar. 24, 2021).
14
OFF. FOR CIVIL RIGHTS, U.S. DEP’T OF EDUC., 2017-18 CIVIL RIGHTS DATA COLLECTION: GENERAL
OVERVIEW, CHANGES, AND LIST OF DATA ELEMENTS 5-6 (2018),
https://www2.ed.gov/about/offices/list/ocr/docs/2017-18-crdc-overview-changes-data-elements.pdf.
15
Amity L. Noltemeyer & Caven S. Mcloughlin, Changes in Exclusionary Discipline Rates and
Disciplinary Disproportionality Over Time, 25 INT’L J. SPECIAL EDUC. 59, 59 (2010),
https://eric.ed.gov/?id=EJ890566 (“Exclusionary discipline involves the use of suspensions, expulsions,
and other disciplinary action resulting in removal from the typical educational environment; it is frequently
used as a consequence for inappropriate student behavior.”).
16
The Gun-Free Schools Act of 1994, Pub. L. No. 103-382, 108 Stat. 3907, 3907–08 (2000) (codified at 20
U.S.C. §§ 8921–8923 (2000)), amended by No Child Left Behind Act Pub. L. No. 107-110, 115 Stat. 1762,

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which ushered in the era of “zero tolerance” policies in schools by “mandat[ing]
predetermined consequences or punishments for specific offenses,” and “requir[ing] all
states to pass legislation mandating a one-year expulsion for any student found carrying
firearms on school property.”17 The Act was conceived in response to growing fears
surrounding school shootings, coupled with political rhetoric from the Clinton
administration’s 1994 Crime Bill.18
Subsequent to the enactment of the 1994 Gun-Free Schools Act, states began to
pass “willful disobedience” or “willful defiance” statutes19 as an extension of the zero
tolerance policies required to receive federal funding from the Department of Education.20
These state statutes removed schoolteachers’ and administrators’ ability to use discretion
to determine what, if any, disciplinary action was appropriate for a student’s violation of
the school district’s code of conduct.21 Instead, statutes prescribed automatic
punishments—exclusionary practices—for engaging in violent or nonviolent conduct.22
Lastly, the emergence of school resource officer (SRO) programs in the United
States has provided a vehicle for law enforcement involvement in student discipline. Under
SRO programs, school districts contract with local law enforcement agencies to provide
officers on school campuses and at school-sanctioned activities.23 SRO programs first
appeared in the United States when Flint, Michigan’s Police Department placed law
enforcement in public schools during the 1950s.24 SRO programs gained federal traction
in 1973, when the National Advisory Commission on Criminal Justice Standards and Goals
recommended implementing these programs in school districts.25 Then, in the early 2000s,
the U.S. Department of Justice, through its Community Oriented Policing Services
program, allocated $68 million to school districts to establish SRO programs throughout
the nation.26

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1762–63 (2002) (codified at 20 U.S.C. § 7151 (2006)) (repealing the Gun-Free Schools Act of 1994, but
simultaneously enacting another, similar Gun-Free Schools Act as a subpart of the No Child Left Behind
Act of 2001); currently Gun-Free Schools Act, 20 U.S.C. § 7961 (2018).
17
Kevin P. Brady, Zero Tolerance or (In)Tolerance Policies? Weaponless School Violence, Due Process,
and the Law of Student Suspensions and Expulsions: An Examination of Fuller v. Decatur Public School
Board of Education School District, 2002 BYU EDUC. & L.J. 159, 161.
18
Kathleen M. Cerrone, The Gun-Free Schools Act of 1994: Zero Tolerance Takes Aim at Procedural Due
Process, 20 PACE L. REV. 131, 159-60, 163 (1999).
19
Danielle Dankner, No Child Left Behind Bars: Suspending Willful Defiance to Disassemble the Schoolto-Prison Pipeline, 51 LOY. L.A. L. REV. 577, 586-87 (2018).
20
See Gun-Free Schools Act, 20 U.S.C. § 7961(b)(1) (2018) (“Each State receiving Federal funds under
any subchapter of this chapter shall have in effect a State law requiring local educational agencies to expel
from school for a period of not less than 1 year a student who is determined to have brought a firearm to a
school, or to have possessed a firearm at a school . . . .”).
21
See Dankner, supra note 19.
22
Id.
23
See CHEYENNE BLACKBURN & VICTOR M. JONES, S. POVERTY L. CTR., THE DATA GAP: SCHOOL
POLICING IN LOUISIANA 1, 3 (2019),
https://www.splcenter.org/sites/default/files/com_la_school_policing_final_no_crops.pdf.
24
Id. at 3.
25
Id.
26
Id. at 4.

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The role of SROs is largely undefined, and therefore in practice, SROs often serve
the role of disciplinarian.27 The limited data on SRO programs and their effectiveness
shows that the presence of SROs in school districts has led to an increase in school-based
arrests and referrals to law enforcement, largely for Black students and mainly for nonviolent offenses.28
Together, these federal and state policies aimed to address safety issues in public
school districts. What came about instead were unintended consequences.

B. Impact of Exclusionary Discipline Practices

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At least two decades of multi-disciplinary research finds that the use of
exclusionary discipline practices against children in schools does not serve its goals of
reducing disruptive and unsafe behavior.29 Further, research indicates that exclusionary
discipline may negatively affect academic performance. According to the UCLA Civil
Rights Project, when California school districts began outlawing suspensions in elementary
schools, school districts saw overall academic improvements. 30
Instead of improving school performance, the use of exclusionary discipline wreaks
negative short-term and long-term consequences on children—especially children of color
and children with disabilities—and on society as a whole. At least one study has found that
children who are repeatedly suspended or expelled are much less likely to be politically or

Id.
LEADERSHIP FOR EDUC. EQUITY, EMERGING MODELS FOR POLICE PRESENCE IN SCHOOLS 1-2 (n.d.),
https://educationalequity.org/sites/default/files/documents/emerging_models_for_school_resource_officers
_final.pdf (last visited Mar. 22, 2021). But see RICHARD R. JOHNSON, DOLAN CONSULTING GRP., WHAT
EFFECT DO SCHOOL RESOURCE OFFICERS HAVE ON SCHOOLS? 3-4 (2016),
https://www.dolanconsultinggroup.com/wp-content/uploads/2019/02/What-Effects-do-School-ResourceOfficers-Have-on-Schools.pdf (arguing that the presence of SROs does not create a school-to-prison
pipeline).
29
Stacey Jones Bock et al., Suspension and Expulsion: Effective Management for Students? 34
INTERVENTION SCH. & CLINIC 50, 51 (1998); Am. Psych. Ass’n Zero Tolerance Task Force, Are Zero
Tolerance Policies Effective in Schools? An Evidentiary Review and Recommendations, 63 AM. PSYCH.
852, 854 (2008), https://www.apa.org/pubs/info/reports/zero-tolerance.pdf; AM. PSYCH. ASS’N, THE
PATHWAY FROM EXCLUSIONARY DISCIPLINE TO THE SCHOOL TO PRISON PIPELINE 2 (n.d.),
https://www.apa.org/advocacy/health-disparities/discipline-facts.pdf (last visited Mar. 22, 2021). See also
Michael Karson, Punishment Doesn’t Work, PSYCH. TODAY (Jan. 14, 2014),
https://www.psychologytoday.com/us/blog/feeling-our-way/201401/punishment-doesnt-work; Linda
Raffaele Mendez, Predictors of Suspension and Negative School Outcomes: A Longitudinal Investigation,
2003 NEW DIR. YOUTH DEV. 17, 25; Sara Luster, How Exclusionary Discipline Creates Disconnected
Students, NAT’L EDUC. ASS’N (Jul. 19, 2018), https://www.nea.org/advocating-for-change/new-fromnea/how-exclusionary-discipline-creates-disconnected-students.
30
DANIEL J. LOSEN ET AL., CTR. FOR CIV. RTS. REMEDIES, CLOSING THE SCHOOL DISCIPLINE GAP IN
CALIFORNIA: SIGNS OF PROGRESS ii (2015), https://civilrightsproject.ucla.edu/resources/projects/center-forcivil-rights-remedies/school-to-prison-folder/summary-reports/ccrr-school-to-prison-pipeline2015/UCLA15_Report_9.pdf.

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civically engaged later in life, including voting and volunteering in civic activities.31
Students who are placed out of school are more likely to engage in risky behaviors,
including criminal conduct, drug use, and adolescent sexual intercourse, while out of
school.32 Students who are repeatedly subjected to exclusionary practices also face poorer
educational outcomes, as absence from school over time interrupts their learning and
increases the chances that they will drop out of high school.33 Most tragically, longitudinal
data from multiple studies has concluded that students who are subjected to exclusionary
practices are at a significantly higher risk of becoming involved in the juvenile justice
system in their youth, and in the criminal system as adults.34 Hence the term, the “schoolto-prison pipeline.” Additionally, exclusionary discipline practices are costly for school
districts, where attendance rates impact the amount of state and federal funding that school
districts receive. A study conducted by Texas Appleseed found that the eleven largest
school districts in Texas lost a combined $11.3 million in funding due to student absences
from suspension or expulsion.35
The link between exclusionary discipline and the school-to-prison pipeline
becomes especially troublesome because of its disproportionate use by school officials
against protected classes of children, namely students of color and students with
disabilities. Data from 2009–2010 found that Black and Latinx youth were the subject of
70% of school-based arrests and referrals to law enforcement.36 A March 2018 report by
the Government Accountability Office (GAO), a non-partisan research agency under the
jurisdiction of Congress,37 analyzed 2013–2014 CRDC data and concluded that Black
students were overrepresented in every form of school discipline.38 These findings,
according to the GAO, “were widespread and persistent regardless of the type of
31

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Aaron Kupchik & Thomas J. Catlaw, Discipline and Participation: The Long-Term Effects of Suspension
and School Security on the Political and Civil Engagement of Youth, 47 YOUTH & SOC’Y 95, 109, 116
(2014).
32
See Ctrs. for Disease Control & Prevention, Health Risk Behaviors Among Adolescents Who Do and Do
Not Attend School – United States, 1992, 43 MORBIDITY & MORTALITY WKLY. REP. 129, 130 (1994).
33
Lawrence M. DeRidder, The Impact of School Suspensions and Expulsions on Dropping Out, 60 EDUC.
HORIZONS 153, 154 (1990); ELIZABETH PUFALL JONES ET AL., CTR. FOR PROMISE, DISCIPLINED AND
DISCONNECTED: HOW STUDENTS EXPERIENCE EXCLUSIONARY DISCIPLINE IN MINNESOTA AND THE
PROMISE OF NON-EXCLUSIONARY ALTERNATIVES 3 (2018),
https://gradnation.americaspromise.org/report/disciplined-and-disconnected.
34
J.C. Barnes & Ryan T. Motz, Reducing Racial Inequalities in Adulthood Arrest by Reducing Inequalities
in School Discipline: Evidence from the School-to-Prison Pipeline, 54 DEV. PSYCH. 2328, 2329 (2018);
Kerrin C. Wolf & Aaron Kupchik, School Suspensions and Adverse Experiences in Adulthood, 34 JUST. Q.
407, 408 (2017).
35
TEXAS APPLESEED, BREAKING RULES, BREAKING BUDGETS: THE COST OF EXCLUSIONARY DISCIPLINE IN
DALLAS ISD 1 (2012), https://www.texasappleseed.org/sites/default/files/160-STPPDISDCostAnalysis.pdf.
36
Artika Tyner, Disrupting the School to Prison Pipeline, HUFF. POST (Jan. 24, 2016),
https://www.huffpost.com/entry/disrupting-the-school-to-_b_9061680.
37
See What GAO Does, U.S. GOV’T ACCOUNTABILITY OFF., https://www.gao.gov/about/what-gao-does
(last visited Mar. 22, 2021).
38
U.S. GOV’T ACCOUNTABILITY OFF., GAO-18-258, K-12 EDUCATION: DISCIPLINE DISPARITIES FOR
BLACK STUDENTS, BOYS, AND STUDENTS WITH DISABILITIES 12 (2018),
https://www.gao.gov/assets/700/690828.pdf.

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disciplinary action, level of school poverty, or type of public school attended.”39 Additional
data shows that Black boys are three times more likely than White boys to be suspended,
and that Black girls are suspended six times as often as White girls. 40 A review of data
from the 2015–2016 CRDC report, the most recent national data set, found that Black and
Latinx youth faced harsher discipline outcomes overall than their White counterparts.41
Given the disproportionate discipline of students of color and the pipeline to criminal
system involvement, it is no surprise that they are also disproportionately represented in
the juvenile justice system population.
The March 2018 GAO report further revealed that while students with disabilities—
such as students with behavioral disabilities (e.g., anxiety, attention deficit hyperactive
disorder, post-traumatic stress disorder) and developmental disabilities (e.g., autism)—
“represented approximately 12 percent of all public school students,” they “accounted for
nearly 25 percent or more of students referred to law enforcement, arrested for a schoolrelated incident, or suspended from school.”42 For Black and Latinx students who are
disabled, the likelihood of being subjected to exclusionary discipline is even more
heightened.43
Racial disparities in discipline transcend the K-12 education space. Federal data
from the Department of Education released in 2014 found that preschool-aged children
were expelled “at a rate far higher than their older peers in K-12,” and that Black preschoolaged children “were more likely to be pushed out.”44 More recent data shows that despite
only representing 18% of the male preschool population, Black boys make up 41% of male
preschool suspensions. 45 Black girls experience even greater rates of suspension—making
up only 19% of the female preschool population, but accounting for over half of female
preschool suspensions.46
Researchers point to racial implicit bias in schoolteachers, including schoolteachers
of color, as the cause of the disproportionate use of exclusionary discipline against students
of color.47 Multiple studies have found that children of color, namely Black children, are
viewed as older and therefore less innocent than White children.48 Even within populations
39

Id. at 1.
Aja Frost, Study: Black Girls Are Suspended 6 Times More Often Than White Girls, USA TODAY (Feb.
11, 2015), https://www.usatoday.com/story/college/2015/02/11/study-black-girls-are-suspended-6-timesmore-often-than-white-girls/37400597/.
41
Kristen Harper et al., Black Students and Students with Disabilities with Disabilities Remain More Likely
to Receive Out-of-School Suspensions, Despite Overall Declines, CHILD TRENDS (Apr. 29, 2019),
https://www.childtrends.org/publications/black-students-disabilities-out-of-school-suspensions.
42
U.S. GOV’T ACCOUNTABILITY OFF., supra note 38, at 16.
43
Id. at 16-17.
44
Valerie Strauss, New Federal Data Shows Black Preschoolers Still Disciplined at Far Higher Rates than
Whites, WASH. POST (Nov. 26, 2020), https://www.washingtonpost.com/education/2020/11/26/newfederal-data-shows-black-preschoolers-still-disciplined-far-higher-rates-than-whites/.
45
Id.
46
Id.
47
Barnes & Motz, supra note 34, at 2335-36.
48
REBECCA EPSTEIN ET AL., GEO. L. CTR. ON POVERTY & INEQ ., GIRLHOOD INTERRUPTED: THE ERASURE
OF BLACK GIRLS’ CHILDHOOD 4-5 (2017), https://www.law.georgetown.edu/poverty-inequality-center/wp-

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of students of color, darker-skinned students face harsher disciplinary outcomes than
lighter-skinned students. 49 This bias in race and skin tone is rooted in the centuries-old
belief that people of color are inherently inferior to White people, and for America, this
belief was demonstrated through the genocide of Indigenous people50 and the enslavement
of African people.51 The implicit bias present in society and in schoolteachers against
people with disabilities is similarly rooted in Eurocentric values pre-dating the
establishment of the United States, which dictated that people with disabilities must be
segregated and excluded from society.52
Racial disparities in school discipline exist from pre-kindergarten through twelfth
53
grade, and such disparities exist based on disability status from kindergarten through
twelfth grade.54 Because students of color and students with disabilities disproportionately
experience discipline, it is no surprise that they are also disproportionately funneled down
the school-to-prison pipeline.
PROFILES OF VIRTUAL SCHOOL DISCIPLINE

The proceeding anecdotes will demonstrate that the use of exclusionary practices
by school districts, and the underlying implicit biases that teachers harbor against students
of color and students with disabilities, have permeated public education during the COVID19 pandemic. The finite or permanent removal of students from virtual school instruction
as disciplinary action for behavior that they engage in while sitting in front of a computer
has become the new form of exclusionary discipline in the COVID-19 era, as the following
examples from Jefferson Parish, Louisiana and from across the nation will show.

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content/uploads/sites/14/2017/08/girlhood-interrupted.pdf; Phillip Atiba Goff et al., The Essence of
Innocence: Consequences of Dehumanizing Black Children, 106 J. PERS. & SOC. PSYCH. 526, 529, 536
(2014), https://www.apa.org/pubs/journals/releases/psp-a0035663.pdf.
49
Jamaal Abdul-Alim, Darker-Skinned African-American Students Suspended More Frequently, DIVERSE
ISSUES HIGHER EDUC. (Oct. 6, 2014), https://diverseeducation.com/article/67245/; Tanzina Vega, Schools’
Discipline for Girls Differ by Race and Hue, N.Y. TIMES (Dec. 10, 2014),
https://www.nytimes.com/2014/12/11/us/school-discipline-to-girls-differs-between-and-within-races.html.
50
See, e.g., Haley A. Strass, Effects of Stereotypical Media Representations of American Indians on
Implicit and Explicit Bias: The Power of Pocahontas (2016) (M.S. thesis, Iowa State University),
https://lib.dr.iastate.edu/etd/15193/.
51
See B. Keith Payne et al., Historical Roots of Implicit Bias in Slavery, 116 PNAS 11693, 11697 (2019).
52
Dehumanization, Discrimination, and Segregation, DISABILITY JUST., https://disabilityjustice.org/justicedenied/dehumanization-discrimination-and-segregation/ (last visited Mar. 22, 2021).
53
Moriah Balingit, Racial Disparities in School Discipline Are Growing, Federal Data Show, WASH. POST
(Apr. 24, 2018), https://www.washingtonpost.com/local/education/racial-disparities-in-school-disciplineare-growing-federal-data-shows/2018/04/24/67b5d2b8-47e4-11e8-827e-190efaf1f1ee_story.html; U.S.
GOV’T ACCOUNTABILITY OFF., supra note 38, at 13-14.
54
Katherine Reynolds Lewis, Why Schools Over-Discipline Children with Disabilities, ATLANTIC (Jul. 24,
2015), https://www.theatlantic.com/education/archive/2015/07/school-discipline-childrendisabilities/399563/.

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Jefferson Parish Public Schools System (JPPSS) is a public school district in
Louisiana that has garnered national attention for its virtual school disciplinary practices
during the COVID-19 pandemic. JPPSS is the largest public school district in Louisiana,
consisting of eighty schools in Jefferson Parish attended by approximately 50,000
children.55 Population estimates from the U.S. Census Bureau as recent as July 2019
indicate that there are 432,493 people residing in Jefferson Parish.56 Of the parish’s
residents, 64.9% are White, 28.3% are Black, and 14.9% are Latinx.57 Politically, Jefferson
Parish is a consistently Republican district,58 largely a result of mainly racism-driven
“white flight” from the adjacent Orleans Parish (New Orleans) to Jefferson Parish that
began in the 1950s.59
Tangential to the racial backdrop of JPPSS and Jefferson Parish is the historically
disproportionate use of criminal punishment and disciplinary action against
constitutionally protected classes, namely Black people. Throughout the twentieth and
twenty-first centuries, in all but one year in recent history, Louisiana has consistently
maintained the highest incarceration rate in the United States.60 As of June 2020, the United
States was ranked as the leading nation in incarceration rates in the world.61 Gretna, a city
in Jefferson Parish, was the arrest capital of the United States in 2013 according to statistics
from the Federal Bureau of Investigation.62 Because Jefferson Parish is located in
Louisiana (the “mass incarcerator” of the U.S.)63 and the United States leads the world in
incarceration rates, some may make the logical inference that Jefferson Parish is the
incarceration capital of the world.
Relatedly, JPPSS has a documented history of using exclusionary discipline against
Black and disabled students at significantly disproportionate rates compared to White and
non-disabled students. In January 2012, a federal complaint was filed against JPPSS with
the U.S. Department of Education’s Office for Civil Rights (OCR), stating that while only
55

JEFFERSON PARISH SCHOOLS, https://www.jpschools.org/ (last visited Mar. 22, 2021).
Quick Facts: Jefferson Parish, Louisiana, U.S. CENSUS BUREAU,
https://www.census.gov/quickfacts/jeffersonparishlouisiana (last visited Mar. 8, 2021).
57
Id.
58
See Tyler Bridges, John Bel Edwards Carried Jefferson Parish, Long a Republican Stronghold, But Can
Other Democrats?, ADVOC. (Nov. 30, 2019),
https://www.theadvocate.com/baton_rouge/news/politics/elections/article_160d483e-12f8-11ea-a84a378d444e89eb.html.
59
White Flight, THE DATA CTR., https://www.datacenterresearch.org/pre-katrina/tertiary/white.html (last
visited Mar. 8, 2021).
60
Lea Skene, Louisiana Once Again Has Nation’s Highest Imprisonment Rate After Oklahoma Briefly
Rose to Top, ADVOC. (Dec. 25, 2019), https://www.theadvocate.com/baton_rouge/news/article_4dcdfe1c213a-11ea-8314-933ce786be2c.html.
61
Countries with the Largest Number of Prisoners Per 100,000 of the National Population, as of June
2020, STATISTA (Dec. 1, 2020), https://www.statista.com/statistics/262962/countries-with-the-mostprisoners-per-100-000-inhabitants/.
62
Mark Gimein, Welcome to the Arrest Capital of the United States, FUSION (June 22, 2016),
https://fusion.tv/story/256788/gretna-louisiagna-arrest-capital-america/.
63
Skene, supra note 60.

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46% of the district’s students were Black, 76% of the district’s 453 school arrests were
made against Black students during the 2010–2011 school year.64 The complaint further
stated that the school-based arrests were frequently the result of minor school violations,
such as skipping school, using a cell phone during class, and walking in school hallways
without a hall pass.65 The federal complaint against JPPSS was supplemented in 2015 to
allege that Black and disabled students continued to be disproportionately subjected to
exclusionary discipline practices by the district.66 In 2019, the Department of Education
dismissed the complaints, citing a failure by the parties to reach a settlement67—a casualty
of then Education Secretary Betsy DeVos’s practice of summarily dismissing “old” and
outstanding OCR complaints.68
As a result, the same disciplinary practices utilized by JPPSS at the time of the OCR
complaint remain intact to date. The proceeding cases demonstrate that JPPSS’s
disciplinary practices continued during the COVID-19 pandemic, even after the district
elected to utilize a hybrid instruction approach in which students attended school virtually
from computers in their homes at times and in person at others.
1. Ka’Mauri Harrison

Ka’Mauri Harrison is a nine-year-old Black boy in the fourth grade, attending
public school at Woodmere Elementary in JPPSS.69 On the morning of September 11,
2020, Ka’Mauri attended his virtual social studies class in his bedroom at home and took
an English test on his computer.70 While taking his test, Ka’Mauri’s younger brother
entered their shared bedroom and tripped over a BB gun.71 Ka’Mauri responded by muting
64

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Complaint Under Title IV of the Civil Rights Act of 1964, Q.B. v. Jefferson Parish Pub. Sch., No.
06121151 (Off. for Civ. Rts., Jan. 11, 2012); see also Q.B. v. Jefferson Parish Public School System, S.
POVERTY L. CTR. [hereinafter Q.B. v. JPPSS], https://www.splcenter.org/seeking-justice/case-docket/qb-vjefferson-parish-public-school-system (last visited Mar. 8, 2021).
65
Q.B. v. JPPSS, supra note 64.
66
Discrimination Against Students of Color Rampant in Louisiana School District, S. POVERTY L. CTR.
(May 8, 2015), https://www.splcenter.org/news/2015/05/08/discrimination-against-students-color-rampantlouisiana-school-district; Letter from S. Poverty L. Ctr. to the U.S. Dep’t of Just., Civ. Rts. Div. and the
Off. for Civ. Rts., Dallas Div. (May 7, 2015),
https://www.splcenter.org/sites/default/files/d6_legacy_files/downloads/case/supplement_to_q_b_et_al_v_j
efferson_parish_public_school_system_5_7_15_final_redacted.pdf.
67
The Author served as counsel for plaintiffs in this case during his time as Senior Supervising Attorney at
Southern Poverty Law Center from 2018-2019. This information is therefore based on the Author’s role as
counsel for plaintiffs.
68
Annie Waldman, DeVos Has Scuttled More Than 1,200 Civil Rights Probes Inherited from Obama,
PROPUBLICA (June 21, 2018), https://www.propublica.org/article/devos-has-scuttled-more-than-1-200civil-rights-probes-inherited-from-obama.
69
Tim Elfrink, A Teacher Saw a BB Gun in a 9-Year-Old’s Room During Online Class. He Faced
Expulsion. WASH. POST (Sept. 25, 2020), https://www.washingtonpost.com/nation/2020/09/25/louisianastudent-bbgun-expulsion/.
70
Id.
71
Minyvonne Burke, Boy, 9, Suspended After Teacher Sees BB Gun in His Room During Virtual Class;
Family Sues, NBC NEWS (Oct. 6, 2020), https://www.nbcnews.com/news/us-news/boy-9-suspended-afterteacher-sees-bb-gun-his-room-n1242275.

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his computer, leaning over from his chair to pick up the BB gun, and setting it next to
him.72 Ka’Mauri inadvertently placed the BB gun barrel in the view of his computer camera
where it was observed by his teacher and classmates.73 His teacher attempted to get his
attention but was unsuccessful because Ka’Mauri had muted his computer.74
Ka’Mauri was suddenly disconnected from his virtual class and did not know
why.75 He notified his older sister that he had been disconnected from the class. 76 After
Ka’Mauri’s parents received phone calls from the school, they learned that he was
suspended and could be expelled.77 His parents objected to the punishment, explaining that
the gun was not loaded, that it was a BB gun and not a rifle, and that Ka’Mauri was simply
trying to remove the gun from his younger brother after he tripped on it.78
Notwithstanding the explanation provided by Ka’Mauri’s parents, by the end of the
same day, Ka’Mauri was suspended from virtual school for six days and recommended for
expulsion for bringing an unauthorized weapon onto school grounds.79 Ka’Mauri’s parents
received an incident report from the school, notifying them of the disciplinary action taken
against Ka’Mauri and his expulsion hearing before JPPSS’s hearing officer scheduled for
September 22.80 The incident report stated that Ka’Mauri “presented a weapon that
appeared to be a rifle/shotgun during his Google Meets classroom session.”81 According to
Ka’Mauri’s attorney, school officials acknowledged that Ka’Mauri did not hold the BB
gun in his hand nor point it at the screen during the time it was seen on his computer camera,
despite the incident report allegations.82
Ka’Mauri’s expulsion hearing was held via Zoom and was attended by his school
teacher, the school’s principal, Ka’Mauri, his parents, and an attorney that his parents had
recently retained in response to the incident.83 The hearing officer decided not to expel
Ka’Mauri,84 but upheld the six-day suspension for “displaying a facsimile weapon while

Elfrink, supra note 69.
Burke, supra note 71.
74
Id.
75
Faimon A. Roberts III, A BB Gun Was Seen in a Harvey Fourth Grader’s Bedroom During Virtual
Class. Now, He’s Suspended, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Sept. 23, 2020) [hereinafter
Roberts, A BB Gun Was Seen], https://www.nola.com/news/education/article_06e7ff0a-fdd2-11ea-a0600f7b484dca71.html.
76
Id.
77
Id.
78
Id.
79
Id.
80
Id.; Harrison v. Jefferson Par. Sch. Bd., No. CV 20-2916, 2020 WL 7053298, at *2 (E.D. La. Nov. 23,
2020).
81
Roberts, A BB Gun Was Seen, supra note 75.
82
Burke, supra note 71.
83
Harrison, 2020 WL 7053298, at *2. The information concerning the virtual mode of the hearing and the
retention of legal counsel is in the possession of the Author.
84
Faimon A. Roberts III, Family of Student Suspended for BB Gun in Bedroom Sues Jefferson Parish
School System, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Oct. 2, 2020),
https://www.nola.com/news/education/article_ea17ca7e-04eb-11eb-b64d-a7ec002ee7c6.html.

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receiving virtual instruction” in violation of JPPSS’s internet usage and weapons policies.85
The school further amended Ka’Mauri’s punishment to include a social work assessment.86
Ka’Mauri returned to school two days later.87 By then, what happened to him had
garnered national and international attention;88 and the district’s handling of the matter
made allies out of otherwise diametrically opposed groups. By September 25, Louisiana
Attorney General Jeff Landry, a staunch conservative, 89 launched an investigation into
JPPSS’s handling of the incident, alleging multiple violations of the Louisiana and federal
Constitutions.90 On that same day, Dr. Walter Kimbrough, president of Dillard
University—a historically Black college located in New Orleans, Louisiana—published an
open letter to JPPSS Superintendent James Gray urging him to remove the suspension from
Ka’Mauri’s record.91 In his letter, Dr. Kimbrough cited the national overcriminalization of
Black boys in schools as a basis for overturning the suspension. 92 The National Rifle
Association (NRA) also sided with Ka’Mauri’s family, denouncing the district’s decision
as “hysterical and irrational behavior” on Twitter.93 Days later, on September 28, the
American Civil Liberties Union (ACLU) of Louisiana issued a statement condemning the
district’s treatment of Ka’Mauri and his family, citing the overuse of exclusionary
discipline practices in schools against Black students and a 2017 Tulane University
Research Alliance study finding that Black students are twice as likely to be suspended as
their White peers.94

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Gisela Crespo, Parents Sue Louisiana School District After 4th Grader Suspended for BB Gun During
Virtual Class at Home, CNN (Oct. 4, 2020) [hereinafter Crespo, Parents Sue Louisiana School District],
https://www.cnn.com/2020/10/04/us/student-suspended-gun-virtual-lawsuit-trnd/index.html.
86
Gisela Crespo, 4th Grader Suspended for Having a BB Gun in His Bedroom During Virtual Learning,
CNN (Oct. 4, 2020), https://www.cnn.com/2020/09/26/us/student-suspended-gun-virtual/index.html.
87
WWL Staff, 4th Grader Returns to School After Being Suspended for Having a BB Gun in Virtual
Classroom, 4WWL (Sept. 24, 2020), https://www.wwltv.com/article/news/local/jefferson/4th-gradersuspended-after-bb-gun-seen-in-virtual-classroom/289-46fb899b-85ea-47b0-ae96-28da94fb3692.
88
E.g., Elfrink, supra note 69.
89
Mark Ballard, Louisiana Attorney General Jeff Landry Easily Wins Reelection, ADVOC. (Oct. 12, 2019),
https://www.theadvocate.com/baton_rouge/news/politics/elections/article_4f7ae2e2-eac2-11e9-b2a6938faf8c5391.html.
90
Joshua Bote, Louisiana AG Investigates School for Suspended 4th Grader After Teacher Noticed BB Gun
During Online Class, USA TODAY (Sept. 25, 2020),
https://www.usatoday.com/story/news/education/2020/09/25/louisiana-9-year-old-suspended-having-bbgun-room-class/3532484001/.
91
HBCU President: Student’s BB Gun Suspension Should Be Voided, ABC NEWS (Sept. 25, 2020),
https://abcnews.go.com/US/wireStory/hbcu-president-students-bb-gun-suspension-voided-73239283.
92
Id.
93
Faimon A. Roberts III, Suspended Student Sees ‘Overwhelming’ Support From NRA, Gun Clubs After
Virtual BB Gun Violation, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Sept. 28, 2020),
https://www.nola.com/news/education/article_77d7c92e-00df-11eb-9b99-93ad4afac42b.html.
94
ACLU of Louisiana Condemns Suspension of 4th Grader Ka’Mauri Harrison for BB gun, ACLU OF LA.
(Sept. 28, 2020), https://www.laaclu.org/en/press-releases/aclu-louisiana-condemns-suspension-4th-graderkamauri-harrison-bb-gun; Wilborn P. Nobles III, Black Students 2 Times as Likely to be Suspended as
White Peers, Tulane Study Says, TIMES-PICAYUNE (July. 22, 2019),
https://www.nola.com/news/education/article_9fc7be6e-0475-54a8-923c-4b78fd94f233.html.

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Ka’Mauri’s parents sought an appeal to the JPPSS school board from the
suspension on his record and the requirement that he be assessed by a social worker.95
However, the school board denied the family’s request for an appeal.96 Ka’Mauri’s parents
responded to the school board’s decision by filing for a preliminary injunction and
temporary restraining order (“TRO Petition”) on October 6 in the civil district court of
Jefferson Parish against the JPPSS school board, Superintendent Dr. James Gray,
Woodmere Elementary school officials, and the district’s attorney Patricia Adams.97 The
TRO Petition sought to enjoin the school board from subjecting Ka’Mauri to a social work
assessment. 98 The Harrison family also sought damages for the mental anguish, pain,
suffering, and emotional distress experienced by Ka’Mauri and his family, arising, they
alleged, from JPPSS’s treatment of the BB gun incident. 99 The TRO Petition was granted
on October 6.100
On October 16, the family amended its TRO Petition to add a retaliation claim
against the school district under the First Amendment of the U.S. Constitution, alleging
that the school board refused to hear Ka’Mauri’s appeal because his family spoke with the
media about his discipline.101 The school district responded by removing the case to the
U.S. District Court for the Eastern District of Louisiana on October 26.102
Even before the case was removed, Ka’Mauri’s incident had already led to the
creation of legislation to address the rights of families statewide whose children were
subjected to virtual school suspensions or expulsions.103 Ka’Mauri, his father, and their
attorney testified before the state legislature in support of the bill.104 The legislation, House
Bill 83, gives students the right to appeal their suspensions to the school board before
having to seek judicial relief.105 The bill further requires public school districts in Louisiana
to develop virtual school discipline policies,106 in response to JPPSS’s vague policy that
impermissibly extended its on-campus weapons policy to virtual school. The bill also
95

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Faimon A. Roberts III, Family of Student Suspended Over BB Gun Wins Restraining Order Against
Jefferson School Districts, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Oct. 5, 2020),
https://www.nola.com/news/education/article_2cbe0d70-0753-11eb-820f-b7e28e2b4f95.html.
96
Id.
97
Harrison v. Jefferson Par. Sch. Bd., No. CV 20-2916, 2020 WL 7053298, at *1, *3 (E.D. La. Nov. 23,
2020).
98
Id. at *3.
99
Crespo, Parents Sue Louisiana School District, supra note 85.
100
Harrison, 2020 WL 7053298, at *3.
101
See id.
102
Id.
103
Will Sentell, Push to Change Law Wins 93-0 After 4th Grader’s BB Gun Suspension, and It’ll Be
Named After Him, ADVOC. (Oct. 21, 2020),
https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_e1a5ab2e-13d5-11eb-bac97b1a70737476.html; Session Information for the 2020 Second Extraordinary Session, LA. STATE
LEGISLATURE, http://www.legis.la.gov/Legis/SessionInfo/SessionInfo_202ES.aspx (last visited Mar. 8,
2021).
104
Sentell, supra note 103.
105
Id.; HB83 by Representative Troy D. Romero, LA. STATE LEGISLATURE,
http://www.legis.la.gov/Legis/BillInfo.aspx?s=202ES&b=HB83&sbi=y (last visited Apr. 4, 2021).
106
HB83 by Representative Troy D. Romero, supra note 105.

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allows families to collect attorney’s fees if the school official’s use of discipline is found
to be grossly negligent.107 House Bill 83 garnered bipartisan support in the House of
Representatives and the Senate; it passed 93-0 in the House, and 35-0 in the Senate.108 The
bill was signed by Louisiana Governor John Bel Edwards on November 5, becoming Act
No. 48 and effective immediately.109 The bill was appropriately dubbed the “Ka’Mauri
Harrison Act.”110
With the passage and enactment of the Ka’Mauri Harrison Act, Ka’Mauri’s family
again sought an appeal of his suspension in a hearing before the JPPSS school board on
December 4, 2020.111 The family’s attorneys raised the same arguments: that the
suspension should be overturned and removed from Ka’Mauri’s record due to what they
alleged were violations of the family’s constitutional rights to privacy and due process.112
The school district maintained its position that Ka’Mauri had violated the district’s “no
weapons” policy by brandishing a weapon on his computer screen during virtual
instruction, and that it had taken disciplinary action against Ka’Mauri without violating his
constitutional rights.113 In what turned out to be a very contentious public hearing, the
JPPSS school board ultimately upheld Ka’Mauri’s suspension, retroactively reducing it
from six to three days, and affirmed the hearing officer’s decision to keep the suspension
and weapons charge on his school record.114
Litigation concerning the discipline of Ka’Mauri and the process by which JPPSS
reached its decision is ongoing. On February 8, 2021, Attorney General Jeff Landry filed
a motion for intervention in Ka’Mauri’s federal case, arguing that the district violated
Section 416 of Louisiana’s school discipline statute, the Ka’Mauri Harrison Act, and
Ka’Mauri’s constitutional rights to privacy and due process. 115 To date, Ka’Mauri’s
suspension and weapons offense remain on his educational record.

107

Sentell, supra note 103.
Id.
109
See HB83 by Representative Troy D. Romero, supra note 105.
110
Sentell, supra note 103.
111
Faimon A. Roberts III, First of Its Kind Suspension Appeal Hearing Begins in Jefferson Parish BB Gun
Case, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Dec. 4, 2020),
https://www.nola.com/news/education/article_c75c336c-364b-11eb-9af6-efccd77a9cd3.html.
112
Id.
113
Id.
114
Faimon A. Roberts III, Tempers Flare in Six-Hour Jefferson School Board Hearing for Ka’Mauri
Harrison, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Dec. 4, 2020),
https://www.nola.com/news/education/article_6fc8d660-3681-11eb-af9d-0b6be993cb95.html.
115
J.C. Canicosa, In BB Gun Suspension Case, AG Jeff Landry Joins Families Fighting Jefferson Parish
School Board, LA. ILLUMINATOR (Feb. 9, 2021), https://lailluminator.com/2021/02/09/in-bb-gunsuspension-case-ag-jeff-landry-joins-families-fighting-jefferson-parish-school-board/; State of Louisiana
Joins Federal Lawsuit Against Jefferson Parish School Board Over Violations of Ka'Mauri Harrison's
Constitutional Rights, ATT. GEN. JEFF LANDRY (Feb. 8, 2021), https://www.ag.state.la.us/Article/10858.

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108

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Ka’Mauri’s case is not the only example of the use of exclusionary virtual school
discipline by JPPSS.116 Tomie Brown is a White, eleven-year-old sixth grader attending
Grand Isle School in JPPSS.117 On September 9, 2020, two days before Ka’Mauri’s
incident, Tomie was attending virtual school on his computer at home when, during a break
in his science class, Tomie showed a BB gun to his classmates. 118 Tomie’s teacher did not
see Tomie brandish the BB gun, but overheard two of his classmate giggling and saying
something about a gun.119 When Tomie’s teacher interrogated the students, Tomie
disclosed that he was responsible for making them giggle.120 When the teacher questioned
Tomie about what happened, Tomie began to apologize for having a BB gun.121 In his
disciplinary report, Tomie’s teacher noted that he did not see the BB gun, and that he did
not believe that Tomie was brandishing the BB gun to threaten anyone.122
Tomie’s father alleged that he met with school personnel the day following the
incident, and that the principal notified him that there would be no need to retain counsel
because the school did not intend to discipline Tomie.123 Tomie’s father was subsequently
notified by the school district that Tomie was suspended for three days (unlike Ka’Mauri’s
six-day suspension), placed on probation, and recommended expulsion for violating the
school district’s weapons-free campus policy.124 Similar to Ka'Mauri's case, Tomie had an
expulsion hearing before a JPPSS hearing officer, who upheld his three-day suspension but
dropped the expulsion charge.125

116

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See Louisiana District Suspends More Students for Online Weapons, ABC NEWS (Oct. 25, 2020)
[hereinafter Louisiana District], https://abcnews.go.com/US/wireStory/louisiana-district-suspends-studentsonline-weapons-73820737.
117
Natasha Robin, A Second Jefferson Parish Student Accused of Violating Weapons Policy While Virtually
Learning, FOX 8 (Oct. 16, 2020), https://www.fox8live.com/2020/10/15/second-jefferson-parish-student-isaccused-violating-weapons-policy-while-virtually-learning/; Faimon A. Roberts III, Second Jefferson
Parish Student Suspended for BB Gun in Room During Virtual School Lesson, TIMES PICAYUNE-NEW
ORLEANS ADVOC. (Oct. 15, 2020) [hereinafter Roberts, Second Jefferson Parish Student Suspended]
https://www.nola.com/news/education/article_a43b1d7e-0f0b-11eb-a753-eb7bb03149f8.html; J.C.
Canicosa, 2 BB Gun Suspensions, 2 Lawsuits Filed Against the Jefferson Parish School Board, LA.
ILLUMINATOR (Dec. 15, 2020) [hereinafter Canicosa, 2 BB Guns Suspensions],
https://lailluminator.com/2020/12/15/two-bb-gun-suspensions-two-lawsuits-filed-against-the-jeffersonparish-school-board/.
118
Canicosa, 2 BB Gun Suspensions, supra note 117.
119
Id.
120
Id.
121
Id.
122
Jennifer Crockett, WDSU Investigates: Second Jefferson Parish Family Fighting School System,
WDSU6 NEWS (Oct. 14, 2020), https://www.wdsu.com/article/wdsu-investigates-second-jefferson-parishfamily-fighting-school-system/34375456.
123
Roberts, Second Jefferson Parish Student Suspended, supra note 117; Canicosa, 2 BB Gun Suspensions,
supra note 118.
124
Roberts, Second Jefferson Parish Student Suspended, supra note 117.
125
Canicosa, 2 BB Gun Suspensions, supra note 117.

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Like Ka’Mauri, Tomie’s family attempted to appeal the school’s decision to the
JPPSS school board.126 The school board heard Tomie’s appeal on December 4, the same
day it denied Ka’Mauri’s appeal request. 127 The school board decided to uphold the hearing
officer’s decision regarding Tomie’s suspension.128
On December 14, Tomie’s family filed a lawsuit in state court against the school
district and officials.129 Tomie’s family retained the same attorney that Ka’Mauri’s family
had hired.130 The family alleged various due process violations, including that they were
misled by school officials into believing that Tomie would not be disciplined.131 They also
alleged that there was no school policy in place that defined “school grounds” to include
one’s home during virtual school instruction, and therefore a violation of the district’s
weapons-free campus policy was unwarranted.132 The lawsuit further alleged that Tomie’s
hearing was tainted by racial bias, arguing that the school board only upheld Tomie’s
suspension to avoid appearing more lenient towards a White student than Ka’Mauri, a
Black student.133
Litigation concerning Tomie’s virtual school discipline is ongoing, and to date, the
suspension and weapons charge remain on his educational record.134
3. “Adam”135

Within the same month as Ka’Mauri and Tomie, JPPSS subjected a third student to
exclusionary virtual school discipline. The student in question, “Adam,” is a ninth-grade
student at Thomas Jefferson High School.136 Adam is a student of color who suffers from
type 2 diabetes, which can cause his blood sugar to sometimes drop to the point of him
becoming unfocused and irritable.137 Though the school was aware of his medical condition

126

Id.
Id.
128
Id.
129
Id.
130
Id.
131
Jefferson Parish Student Alleges Racial Bias in BB Gun Hearing; Lawsuit Filed, WDSU6 NEWS (Dec.
14, 2020) [hereinafter Jefferson Parish Student Alleges Racial Bias],
https://www.wdsu.com/article/jefferson-parish-student-alleges-racial-bias-in-bb-gun-hearing-lawsuitfiled/34965443.
132
Brown v. Jefferson Par. Sch. Bd., No. 21-40, 2021 WL 949679, at *3 (E.D. La., Mar. 12, 2021).
133
Jefferson Parish Student Alleges Racial Bias, supra note 131.
134
See Brown, 2021 WL 949679, at *9 (Mar. 12, 2021 order granting the State of Louisiana’s Motion to
Intervene).
135
“Adam” is a pseudonym for a child-client represented by the Author, whose family wishes to maintain
their anonymity.
136
Faimon A. Roberts III, Two More Jefferson Parish Students Suspended for Handling Knives, Sword
During Virtual Lessons, TIMES PICAYUNE-NEW ORLEANS ADVOC. (Oct. 24, 2020) [hereinafter Roberts,
Two More Jefferson Parish Students], https://www.nola.com/news/education/article_996483c4-13a5-11eba4aa-7763de22ff9f.html.
137
This information is in the possession of the Author.

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and its potential behavioral manifestations, there was no school accommodation plan in
place for Adam at the time of the incident at issue.138
At some point during his virtual class on September 16, Adam became distracted
and, as he had done in the past, picked up the nearest objects within arms’ reach and began
fiddling with them.139 This time, the objects were two butterfly knives that were owned by
his adult brother,140 and he began twirling them with his hands.141 Adam’s conduct was
observed by his classmates,142 and one of them recorded the incident and showed the video
to his mother.143 Adam twirled the knives for less than a minute, and the video depicts him
not making any eye contact with anyone while doing so.144 Adam further made no verbal
or written threats to anyone while twirling the knives or thereafter.145
The classmate’s mother submitted the recording of Adam’s activity to the school’s
principal.146 On September 18, Adam’s school required him to submit a written statement
providing his account of the incident, in which he apologized and explained that he had no
malicious intent behind his actions.147 Adam further explained that he felt the urge to keep
his hands in a constant state of motion by twiddling with objects.148
On September 21, Adam’s family received notice from JPPSS that he had been
suspended for six days, commencing on that day, and that the district had recommended
him for expulsion for violating Louisiana’s school discipline statute and JPPSS policy by
displaying a knife in excess of two inches during school instruction.149
On September 24, Adam’s family received a notice from the school district that his
expulsion hearing was set for September 28.150 That same day, the principal of Adam’s
school notified his mother that he would have to undergo a behavioral assessment with a
mental health provider to determine whether Adam posed a threat to himself or others.151
On September 25, Adam’s mother retained a child medical psychologist to evaluate Adam;
the psychologist determined that Adam did not pose a potential threat to himself or others
and notified Adam’s school principal of these evaluation results.152
The night before the hearing, Adam’s mother obtained legal counsel to represent
the family in the matter.153 On the day of the hearing, Adam’s attorney alleged that the
school had violated Adam’s constitutional rights to privacy and due process, as well as
potentially violated Section 504 of the Rehabilitation Act of 1973 because of the district’s
138

Id.
Id.
140
Id.
141
Roberts, Two More Jefferson Parish Students, supra note 136.
142
Id.
143
This information is in the possession of the Author.
144
Id.
145
Roberts, Two More Jefferson Parish Students, supra note 136.
146
This information is in the possession of the Author.
147
Id.
148
Id.
149
Id.
150
Id.
151
Id.
152
Id.
153
This information is in the possession of the Author.

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alleged failure to evaluate Adam’s medical condition in their recommendation that he be
expelled.154 The next day, Adam’s family received a letter from the JPPSS hearing officer
upholding his six-day suspension and revoking the district’s expulsion charge.155 The letter
further permitted Adam to return to school on September 30.156
Afraid of being identified, Adam’s family chose not to speak publicly about their
case. 157 Unwilling to face the same scrutiny by JPPSS that Ka’Mauri’s family faced,
Adam’s family decided to not pursue legal action against the school district. 158 The
suspension and weapons offense remain on Adam’s educational record.159

4. “Ben”160

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Ben is a twelve-year-old, Latinx seventh grade student161 attending Patrick F.
Taylor Science & Technology Academy, a public school under the jurisdiction of JPPSS.162
Ben is hearing impaired163 and receives special education and related services as a result.164
Ben’s mother has limited English language proficiency, and therefore communicates with
his school through a district-assigned interpreter and translator.165 Since he was six years
old, Ben has taken martial arts training courses using a katana sword.166 Learning basic
katana exercises has helped him overcome the insecurities he developed at an early age as
a hearing-impaired student and helped him form relationships with his peers.167
On the afternoon of October 9, 2020, Ben was attending his seventh period U.S.
History course via virtual instruction on his computer in his home.168 Ben and some of his
classmates had been chatting about martial arts that day, and he decided during instruction
to show them his katana sword to impress them.169 Ben’s teacher overheard him and some
of his classmates chatting and giggling, and proceeded to ask them to be quiet and pay
attention.170 Minutes after the incident, one of Ben’s classmates sent his teacher two
screenshots allegedly showing Ben displaying the sword, explaining to the teacher that
Ben’s actions were the source of the chatting and giggling that the teacher had overheard.171
154

Id.
Id.
156
Id.
157
Id.
158
Id.
159
Id.
160
“Ben” is a pseudonym for a child-client represented by the Author, whose family wishes to maintain
their anonymity.
161
This information is in the possession of the Author.
162
Louisiana District, supra note 116.
163
Roberts, Two More Jefferson Parish Students, supra note 136.
164
See Louisiana District, supra note 116.
165
This information is in the possession of the Author.
166
Id.
167
Id.
168
Id.
169
Id.
170
Id.
171
Id.

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The teacher sent the two screenshot images to the school’s principal, who then notified
Ben’s mother that he would be suspended for six days and recommended for expulsion.172
Ben’s mother alleges that no interpreter was provided for her during this conversation.173
On October 15, the school met with Ben’s mother to discuss the incident, this time
with a translator.174 The school principal reiterated to Ben’s mother that Ben was suspended
and recommended for expulsion for violating Louisiana’s student discipline statute and
JPPSS policy by allegedly brandishing an unauthorized weapon on his computer camera
during virtual school instruction.175 Ben received the same disciplinary action as Ka’Mauri
and Adam.176
Ben was required to submit a written statement to the school principal explaining
the incident.177 In his statement, Ben explained that his katana training was a sport, and that
he did not brandish the weapon with any malicious or violent intent.178 Ben further
explained that he felt as if his peers underestimated him due to his hearing impairment, and
that he felt that he would garner his peers’ respect by showing off his katana training
skills.179 Ben expressed remorse for the incident and vowed never to show his katana on
his computer camera during virtual instruction again.180
Ben’s expulsion hearing was set for October 20.181 For the first time in any of the
district’s virtual school discipline hearings, a court reporter was present.182 Also present at
the hearing was Ben, his mother, his adult sister, a district-assigned English translator for
his mother, a parent advocate, and Ben’s attorney, who was located by the parent advocate
just hours before the hearing.183 During the hearing, Ben’s attorney alleged the same
constitutional violations as those raised on behalf of Ka’Mauri and Adam.184 The attorney
raised the additional argument that Ben’s mother, who was entitled to and required
translation services under the school district’s English Language Learner (ELL)
program,185 was denied due process when such services were not provided during her initial
meeting with the school concerning the incident.186
Hours after his hearing, Ben’s mother received a letter from the JPPSS hearing
officer with the same outcome as that of Ka’Mauri and Adam—Ben’s six-day suspension

172

Id.
Id.
174
Id.
175
This information is in the possession of the Author.
176
Roberts, Two More Jefferson Parish Students, supra note 136.
177
This information is in the possession of the Author.
178
Id.
179
Id.
180
Id.
181
Id.
182
Id.
183
Id.
184
Id.
185
See Developing Programs for English Language Learners: Plan Development, OFF. FOR CIV. RTS., U.S.
DEP’T OF EDUC., https://www2.ed.gov/about/offices/list/ocr/ell/plandev.html (last updated Jan. 16, 2020).
186
This information is in the possession of the Author.

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B. Other Virtual School Discipline Cases

was upheld and the district dropped its expulsion recommendation against him.187 The
letter stated that Ben was to return to virtual school the next day.188
Ben’s family did not appeal the hearing officer’s decision to uphold his suspension
to the school board; therefore, Ben’s suspension remains on his educational record. 189 He
no longer wants to practice martial arts or use his katana because of the trouble that it
caused him.190
Ka’Mauri. Tomie. Adam. Ben. These four students have all been subjected to
virtual school discipline in JPPSS. All male students. Three of the four are children of
color. Two of the four are children with disabilities. Tomie, the only White and nondisabled student, originally received the least harsh punishment—a three-day suspension
compared to the six-day suspensions his counterparts received.

The Jefferson Parish Public Schools System is not the only school district in the
nation to engage in exclusionary discipline practices during the era of COVID-19 virtual
school instruction. Each of these cases highlight the difficulties that school districts face in
navigating their mandates to provide public education in a novel time period such as the
COVID-19 pandemic, while also serving as anecdotal proof of the pre-COVID-19
pandemic school-to-prison pipeline that has plagued America’s education systems.
In the clearest example of the “virtual” school-to-prison pipeline, a fifteen-year-old
Black girl with ADHD in Michigan was sent to a juvenile detention center in May 2020
for failing to turn in her online homework, an act that the juvenile court determined was a
violation of her probation.191 The girl served seventy-eight days in juvenile detention, and
was released only after widespread backlash.192
In August 2020, Isaiah Elliot, a twelve-year-old Black student with ADHD in
Colorado, was attending virtual school on his computer at home when he picked up a NERF
toy gun and it was seen briefly on his computer camera.193 The school district suspended

187

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Id.
Id.
189
Id.
190
Id.
191
Jodi S. Cohen, A Teenager Didn’t Do Her Online Schoolwork. So a Judge Sent Her to Juvenile
Detention, PROPUBLICA (Jul. 14, 2020), https://www.propublica.org/article/a-teenager-didnt-do-her-onlineschoolwork-so-a-judge-sent-her-to-juvenile-detention.
192
Jodi S. Cohen, Out of Jail and Back in School, Grace Finds Her Voice, PROPUBLICA (Oct. 31, 2020),
https://www.propublica.org/article/out-of-jail-and-back-in-school-grace-finds-her-voice.
193
Breanna Edwards, School Called Police on Black 12-Year-Old Playing with Toy Gun During Online
Class, ESSENCE (Sept. 9, 2020), https://www.essence.com/news/police-called-elliott-toy-gun-onlineschool/; Mia Jankowicz, Colorado School Officials Called the Sheriff and Suspended a 12-year-old Black
Boy After He Showed a Toy Gun in His Zoom Class, INSIDER (Sept. 8, 2020),
https://www.insider.com/colorado-school-called-sheriff-black-boy-toy-gun-zoom-class-2020-9.
188

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III.

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Isaiah for five days and called the police to conduct a welfare check on Isaiah before
notifying his parents.194
That same month, Audrey Taito, a nine-year-old Black girl in Sacramento,
California, was attending virtual school when she was blocked from accessing her email
because the district regarded her requests to the district’s technology support department
as excessive. 195 Audrey made these repeated requests because she was unable to navigate
virtual instruction, finding the technology confusing.196 Though only blocked from
accessing her school’s email account for a few hours, Audrey reported feeling very
embarrassed and ashamed that she was disciplined.197 She also reported experiencing
difficulties with submitting her assignments via email subsequent to her punishment.198
The disciplinary practices of JPPSS and public school districts throughout the
nation during the COVID-19 pandemic are equally as harmful as those before the
pandemic, and are demonstrative of the national recognition that exclusionary discipline
practices disproportionately impact students of color and students with disabilities.
LEGAL ISSUES ARISING FROM VIRTUAL SCHOOL DISCIPLINE

A. Constitutional Issues

The foregoing anecdotes further illuminate how the use of exclusionary discipline
practices in virtual school instruction may give rise to constitutional and other civil rights
issues. Some of these legal issues are unique to virtual school discipline, specifically the
right to privacy issues, while others—due process and statutory civil rights issues—
routinely arise from the use of exclusionary discipline practices, both prior to the COVID19 pandemic and during the accompanying era of virtual school instruction.

1. Right to Privacy

194

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Because students subjected to exclusionary discipline during virtual instruction are
almost always sanctioned for behavior that occurred in their homes or for objects that were
seen in their homes, the right to privacy is strongly implicated in these cases.
In 1890, Samuel Warren and Louis Brandeis published an article in the Harvard
Law Review encouraging courts to recognize a right to privacy199 in response to the
development of technologies, like the telephone, the microphone, and the camera, that
could allow access to the activities of individuals in private settings, including their

Jankowicz, supra note 193; 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),
https://www.washingtonpost.com/nation/2020/09/08/black-student-suspended-police-toy-gun/.
195
Rebecca Klein, The New School Suspension: Blocked from Online Classrooms, HUFF. POST (Aug. 11,
2020), https://www.huffpost.com/entry/school-discipline-remote-learning_n_5f329829c5b64cc99fde4d64.
196
Id.
197
Id.
198
Id.
199
See Samuel Warren & Louis Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 195 (1890).

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homes.200 Both the U.S. Supreme Court and Congress have recognized the right to privacy,
and in some instances, held it to be a fundamental right.201 Gerald B. Cope, Jr. elaborated
in 1977 that “there is no general constitutional or statutory right of privacy as a matter of
federal or state law” and that “[i]nstead, there are certain specific privacy rights, or privacy
interests, in certain very carefully defined areas.”202 The First and Fourth Amendments of
the federal Constitution have, for example, been interpreted to include a reasonable
expectation of privacy concerning activities conducted in one’s home. 203 State
constitutions have relied upon this federal interpretation to enact freestanding privacy
provisions in their constitutions as well.204
Students and families impacted by exclusionary discipline in virtual classrooms cite
to the federal and state constitutional rights to privacy when arguing that a school district
cannot utilize virtual school instruction to intrude upon activities that occur in their
homes.205 Nor can virtual school instruction, they argue, become a basis for school districts
to regulate what objects are allowed to be in their homes, such as BB guns. 206 Families
have further argued that using images of their children recorded during virtual school
instruction without their consent as evidence of violation of a school policy is “fruit of the
poisonous tree,” or evidence unlawfully obtained under the Fourth Amendment, and that
school officials therefore cannot use these images in their determinations of disciplinary
action.207
JPPSS has responded to students and their families invoking the right to privacy by
claiming that the mere act of engaging in virtual school extends physical school grounds
to include a student’s computer, and that any objects and activities that are observed on
computer cameras during virtual school instruction occur on school grounds.208 There is
no direct precedent for this argument. School districts instead rely on the progeny of First
and Fourth Amendment Supreme Court jurisprudence finding that students’ civil rights and
liberties, including the right to privacy, are not absolute and are diminished upon entering

200

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Gerald B. Cope, Jr., Toward a Right of Privacy as a Matter of State Constitutional Law, 5 FLA. ST. L.
REV. 631, 633-34 (1977).
201
Id. at 636.
202
Id.
203
Katz v. United States, 389 U.S. 347, 351 (1967).
204
Cope, supra note 200, at 636; see also Katz, 389 U.S. at 350-51 (“[T]he protection of a person’s general
right to privacy—his right to be let alone by other people—is, like the protection of his property and of his
very life, left largely to the law of individual states.”).
205
See, e.g., Brown v. Jefferson Par. Sch. Bd., No. 21-40, 2021 WL 949679, at *3 (E.D. La., Mar. 12,
2021).
206
See id.
207
See id. But see James v. Unified Sch. Dist., 899 F. Supp. 530, 533 (D. Kan. 1995) (indicating that “case
law does not prohibit using the fruits of [a Fourth Amendment] violation in school disciplinary hearings.”
(citing U.S. v. Janis, 428 U.S. 433 (1976)).
208
See Joshua Bote, Louisiana AG Investigates School for Suspended 4th Grader After Teacher Noticed BB
Gun During Online Class, USA TODAY (Sept. 25, 2020),
https://www.usatoday.com/story/news/education/2020/09/25/louisiana-9-year-old-suspended-having-bbgun-room-class/3532484001/.

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school grounds or engaging in school-sanctioned activities where student safety is at
issue.209
As cases, like Ka’Mauri’s, that challenge virtual school discipline continue to make
their way through federal court, district courts will have to make novel interpretations of
the right to privacy under federal and state constitutional provisions as it relates to
discipline of students for activities conducted in their homes and observed during virtual
school instruction.

2. Procedural Due Process

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All four students discussed in this article that were subjected to virtual school
suspension and the threat of expulsion by JPPSS raised procedural due process arguments
during their expulsion hearings.210 The students argued that the district, in hastily extending
its on-campus weapons policy to virtual classrooms, failed to provide the children and their
families with notice and meaningful opportunity to be heard and challenge the disciplinary
actions taken against them.211 This argument, and others, were sufficient for school district
hearing officers not to proceed with expelling the children, but it was insufficient to remove
the suspensions from their educational records.212
The federal Fourteenth Amendment provides that no State shall “deprive any
person of life, liberty, or property, without due process of law.”213 Due process means that
before one is deprived of a life, liberty, or a property interest by governmental action, they
must be provided adequate and meaningful notice, and an opportunity to contest the
deprivation prior to its taking place.214 In the due process context, “[p]roperty interests may
take many forms, including the right to attend public school, if provided by state law.”215
In viewing exclusionary practices as a deprivation of the right to attend public school, a
deprivation of a property interest, due process requires, at a minimum, that students and
their families be provided timely and adequate notice of the basis of the disciplinary action
and a meaningful opportunity to contest the disciplinary action.216
Returning to the JPPSS cases, Tomie’s father specifically alleged that he was
denied due process when he met with the school’s principal to discuss the disciplinary
209

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For First Amendment student speech jurisprudence, see Tinker v. Des Moines Indep. Cmty. Sch. Dist.,
393 U.S. 503 (1969); Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier,
484 U.S. 260 (1988); Morse v. Frederick, 551 U.S. 393 (2007). For Fourth Amendment searches
jurisprudence, see Healy v. James 408 U.S. 169 (1972); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260
(1988); Veronia Sch. Dist. v. Acton, 515 U.S. 646 (1995); Safford Unified Sch. Dist. v. Redding 557 U.S.
364 (2009).
210
See supra Part II, Sections A1-4.
211
Id.
212
Id.
213
U.S. CONST. amend. XIV, § 1.
214
Dennis J. Christensen, Educational Law: Democracy in the Classroom: Due Process and School
Discipline, 58 MARQ. L. REV. 705, 711-12 (1975).
215
Larry Bartlett & James McCullagh, Exclusion from the Educational Process in the Public Schools: What
Process Is Now Due, 1993 BYU EDUC. & L.J. 1, 6.
216
Melissa Frydman & Shani M. King, School Discipline 101: Students’ Due Process Rights in Expulsion
Hearings, 40 CLEARINGHOUSE REV. J. POVERTY L. & POL’Y 370, 372-73 (2006).

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actions taken against Tomie and was reassured by the principal that he would not need to
obtain an attorney.217 When Ben’s mother, who does not speak English, first met with the
school district, she alleged that she was not provided with an interpreter or translator.218
Prior to the passage of the Ka’Mauri Harrison Act, Ka’Mauri and Adam were unable to
appeal the hearing officer’s decisions to the JPPSS school board, instead were presented
with only the option of judicial remedy.219
These issues all present due process concerns under the 1975 Supreme Court case
Goss v. Lopez, which generally mandates procedural due process for students facing
suspension of ten days or less or expulsion.220 In Goss, the Supreme Court reasoned:

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“Where a person’s good name, reputation, honor, or integrity is at stake
because of what the government is doing to him,” the minimal requirements
of the [Due Process] Clause must be satisfied. School authorities here
suspended appellees from school for periods of up to 10 days based on
charges of misconduct. If sustained and recorded, those charges could
seriously damage the students’ standing with their fellow pupils and their
teachers as well as interfere with later opportunities for higher education
and employment. It is apparent that the claimed right of the State to
determine unilaterally and without process whether that misconduct has
occurred immediately collides with the requirements of the Constitution.221

One might argue, in defense of JPPSS, that instances in which a student poses an
imminent or immediate threat of danger would justify the delay of the full due process
protections accorded to students concerning their discipline. However, such a position is
undermined by the district’s own concession that none of these students pointed the objects
at their computer screens or at a student, nor did the students make threatening remarks to
anyone during their virtual school instruction. Additionally, the mere fact that students are
in their homes, away from other students and with no evidence that they have access to
other students, essentially erases the district’s ability to claim that any threat of harm was
imminent or immediate. The physical distance between students created by virtual learning
illuminates how futile it is for a school to treat the presence of a weapon at a student’s
home the same way they would on school grounds.

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3. Equal Protection

There is an additional potential constitutional violation that arises out of the
Fourteenth Amendment when the disproportionate use of exclusionary practices against
students of color is at issue—the Equal Protection Clause of the Fourteenth Amendment,

217

See Brown v. Jefferson Par. Sch. Bd., No. 21-40, 2021 WL 949679, at *2, *3 (E.D. La., Mar. 12, 2021).
This information is in possession of the Author.
219
Id.
220
Goss v. Lopez, 419 U.S. 565, 581-82 (1975).
221
Id. at 574-75 (citations omitted).

218

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which states that “No State shall . . . deny to any person within its jurisdiction the equal
protection of the laws.”222
The Supreme Court, most famously in the 1954 case of Brown v. Board of
Education, interpreted the Equal Protection Clause to prohibit public schools from
intentionally discriminating against students on the basis of their race in the provision of
public education.223 The Court explained that the practice of separating children “from
others of similar age and qualifications solely because of their race generates a feeling of
inferiority as to their status in the community that may affect their hearts and minds in a
way unlikely to ever be done.”224 The Court concluded that “[s]eparate educational
facilities are inherently unequal,” and therefore that the plaintiffs in that case—Black
children attending public schools—were “by reason of the segregation complained of,
deprived of the equal protection of laws guaranteed by the Fourteenth Amendment.”225
Subsequent to Brown, courts have extended equal protection analyses to cases
concerning the disproportionate use of discipline against children of color in schools.226 To
prevail in an equal protection claim in these cases, or any other discrimination case, the
plaintiff must establish that the action taken against them was done with the intent to
discriminate.227 Application of the Equal Protection Clause to any person alleging
discrimination on the basis of their disability, however, was practically foreclosed by the
Supreme Court in 1985,228 five years prior to Congress’s enactment of the Americans with
Disabilities Act.
While Ka’Mauri, Adam, and Ben are all students of color, their attorneys did not
assert equal protection claims because they were unable to establish that JPPSS’s virtual
discipline practices intentionally discriminated against students of color.229 After all, there
is no direct proof of JPPSS’s intent behind its disciplinary actions taken against the three
students; and Tomie Brown is White. Because of the difficulty in finding direct proof of
discriminatory intent by school officials, it is difficult for equal protection claims to prevail
in school discipline cases.230
222

U.S. CONST. amend. XIV, § 1.
Brown v. Bd. of Educ., 347 U.S. 483, 494-95 (1954).
224
Id. at 494.
225
Id. at 495.
226
See, e.g., Simonian v. Fowler Unified Sch. Dist., 473 F. Supp. 2d 1065 (E.D. Cal. 2007); Fuller v.
Decatur Pub. Sch. Bd. of Educ., 78 F. Supp. 2d 812 (C.D. Ill., 2000); Tasby v. Estes, 643 F.2d 1103 (5th
Cir. 1981).
227
Washington v. Davis, 426 U.S. 229, 240-42 (1976).
228
See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 446 (1985) (finding that mentally
disabled persons are a group of people protected by state and federal legislation, and not in a class of people
historically subjected to discrimination).
229
This information is in possession of the Author.
230
See Russell J. Skiba et al., African American Disproportionality in School Discipline: The Divide
Between Best Evidence and Legal Remedy, 54 N.Y.L. SCH. L. REV. 1071, 1090 (2009) (“If black students
are disciplined at much higher rates than white students, but these disparities are shown to be based on
racially neutral decision making by school officials, then the disparity is not considered unconstitutional
racial discrimination.”); Adira Siman, Challenging Zero Tolerance: Federal and State Legal Remedies for
Students of Color, 14 CORNELL J. L. & PUB. POL’Y 327, 335 (2005) (opining that an equal protection claim

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223

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4. Substantive Due Process

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During their expulsion hearings, counsel for Adam and Ben raised arguments that
the school district’s extension of its weapons policy to their home was an unjustifiable
deprivation of their right to privacy, and therefore a substantive due process violation.231
While the Due Process Clause of the Fourteenth Amendment “speaks only of the
procedures that are required prior to depriving individuals of ‘life, liberty, or property,’”
the clause “has taken on a substantive component that looks not only to procedures, but
also to the content of laws” or government action.232 Substantive due process is not defined
explicitly by the Constitution, nor it is defined by the Supreme Court, from which the
doctrine emerged.233 Leading constitutional law scholar Erwin Chemerinsky writes that
“[s]ubstantive due process asks the question of whether the government’s deprivation of a
person’s life, liberty or property is justified by a sufficient purpose.”234 Chemerinsky
elaborates that substantive due process “looks to whether there is a sufficient substantive
justification, a good enough reason for such a deprivation.”235
In the context of public school policies, including discipline policies, substantive
due process refers to the level of intrusion that schools may use to regulate the behavior of
students. Specifically,

[a] typical substantive due process challenge to an educational practice
usually involves a situation where a student or a teacher has a grievance
with an administrative decision but has been given a chance to air those
grievance in some sort of hearing. Because the plaintiff in these cases has
been granted procedural guarantees, the plaintiff is left to argue that the
underlying educational practice is fundamentally unfair. The argument is
made that the educational practice was so fundamentally unfair that it rises
to a deprivation of a constitutionally protected right under the due process
clause. This challenge to the substance or content of the action is made
under the doctrine of substantive due process.236

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Courts have analyzed substantive due process claims to determine whether the disciplinary
punishment is related to a legitimate school purpose and whether it is rationally related to
achieving that purpose.237

will likely not prevail in a school discipline case, “because a successful equal protection claim will require
proof of discriminatory intent.”).
231
This information is in possession of the Author.
232
Note, A Right to Learn? Improving Educational Outcomes Through Substantive Due Process, 120
HARV. L. REV. 1323, 1324 n.9 (2007).
233
Erwin Chemerinsky, Substantive Due Process, 15 TOURO L. REV. 1501, 1501 (1999).
234
Id.
235
Id.
236
Keith Hendricks, Substantive Due Process Challenges: Are They Creeping into Education Under a New
Standard of Review? 2 BYU J. PUB L. 307, 307 n.3 (1988).
237
See, e.g., James v. Unified Sch. Dist., 899 F. Supp. 530 (D. Kan. 1995); Petrey v. Flaugher, 505 F. Supp.
1087 (E.D. Ky. 1981).

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A central theme in all of the JPPSS cases, and others nationwide, is the intrusion
by the school districts into the privacy of students and their families, through the districts’
application of school weapons policies to the virtual learning environment. The practice of
suspending and recommending expulsion of a student who possesses a BB gun in their
home, attorneys in the JPPSS cases specifically argued, is a fundamentally unfair
deprivation of their right to privacy.238 Though the attorneys asserted that procedural due
process was not provided to the students, they also argued that assuming that such a process
was provided, it would not have cured the underlying privacy violations that arose from
the enactment of the virtual school discipline policies. 239
Ultimately, whether the extension of a school district’s discipline policy to
activities conducted by children in their homes during virtual school instruction impinges
upon a child or their family members’ right to privacy is yet another matter of first
impression with which federal courts may have to grapple.
5. Restraint on Speech

At this stage, the issue of free speech and the restraints that public school districts
can place on students in their homes while attending virtual school is one that is purely
hypothetical. For example, can a school district discipline a student who has a poster of a
BB gun in their room that is observed on camera by his teacher and classmates during
virtual school instruction? Whether the limits imposed by the Supreme Court on the speech
of children upon entering school grounds or engaging in school-sanctioned activities240
extends to virtual school instruction is yet another matter of first impression for federal
courts.

B. Statutory Civil Rights Issues

238

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Even prior to the COVID-19 pandemic, the use of exclusionary discipline caused
systemic civil rights violations for students of color and students with disabilities. The use
of these disciplinary practices in the pandemic-induced era of virtual school instruction
gives rise to potential issues concerning discipline and due process under Section 504 of
the Rehabilitation Act of 1973241 and the Individuals with Disabilities Education Act
(IDEA)242 for students with disabilities; Title VI of the Civil Rights Act of 1964243 for

This information is in the possession of the Author.
Id.
240
See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969); Bethel Sch. Dist. v. Fraser, 478
U.S. 675 (1986); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988); Morse v. Frederick, 551
U.S. 393 (2007).
241
Rehabilitation Act of 1973, Pub. L. No. 93-112, § 504, 87 Stat. 355, 394 (1973) (codified as amended at
29 U.S.C. § 794 (2006)).
242
Individuals with Disabilities Education Act, Pub. L. No. 94-142, § 602(25), 104 Stat. 1142 (codified as
amended at 20 U.S.C. § 1400 (1990)).
243
Title VI of the Civil Rights Act of 1964, Pub. L. No. 88-352, § 601, 78 Stat. 252 (codified as 42 U.S.C.
§ 2000d et seq. (1964)).

239

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students of color and English Language Learner (ELL) families; and the Equal Education
Opportunities Act of 1974 (EEOA)244 specifically for ELL-eligible families.
During the Obama administration, school districts faced the highest level of civil
rights investigations into their practices concerning discipline and education.245 The Trump
administration would subsequently cancel many of the Obama-era policies concerning
school discipline.246 It is unknown whether and to what extent the newly formed Biden
administration’s Department of Education or Department of Justice will resume this
practice of engaging in civil rights pattern and practice investigations, or “investigations
into misconduct or clusters of troubling trends,”247 in school districts given that reopening
schools is a top priority during the pandemic.248 However, the administration’s plan to
strengthen all cabinet-level agency civil rights divisions, including the Department of
Justice,249 might signal the administration’s intent to resume the school investigation work
of the Obama administration.
Anecdotally, both Ben and Adam alleged that their rights were violated under these
civil rights statutes.250 Specifically, Ben alleged a violation of Section 504 because the
school district did not conduct a manifest determination review hearing prior to his
recommendation for expulsion to determine whether his alleged conduct—twiddling his
brother’s knife—was a manifestation of his disability and therefore not grounds for
expulsion.251 Adam, who is hearing impaired and receives special education, alleged the
same under Section 504 and the IDEA, and also argued that the district’s failure to provide
his mother, who speaks Spanish, with an interpreter and translator at her initial school
meeting constituted a violation of Title VI and the EEOA.252

244

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Equal Education Opportunities Act, Pub. L. 93-380, title II, § 202, 88. Stat. 514 (codified as 20 U.S.C. §
1701 et seq. (1974)).
245
See Evie Blad, School Civil Rights Took Spotlight Under Obama, EDUC. WEEK (May 31, 2016),
https://www.edweek.org/policy-politics/school-civil-rights-took-spotlight-under-obama/2016/05.
246
Collin Binkley, Trump Officials Cancel Obama-Era Policy on School Discipline, AP NEWS (Dec. 21,
2018), https://apnews.com/article/07c8e7c5a69942699f7640890677c2d2; Anya Kamenetz, DeVos to
Rescind Obama-Era Guidance on School Discipline, NPR (Dec. 18, 2018),
https://www.npr.org/2018/12/18/675556455/devos-to-rescind-obama-era-guidance-on-school-discipline;
Andrew Ujifusa, Betsy DeVos Revokes Obama Discipline Guidance Designed to Protect Students of Color,
EDUC. WEEK (Dec. 21, 2018), https://www.edweek.org/policy-politics/betsy-devos-revokes-obamadiscipline-guidance-designed-to-protect-students-of-color/2018/12.
247
Kenneth Alonzo Anderson & Meredith B.L. Anderson, Framing a Legislative Agenda to Achieve
Meaningful School Safety and Policing Reform, BROOKINGS (June 25, 2020),
https://www.brookings.edu/blog/brown-center-chalkboard/2020/06/25/framing-a-legislative-agenda-toachieve-meaningful-school-safety-and-policing-reform/.
248
Sophie Tatum, Biden Administration’s COVID-19 Plan Prioritizes Schools Reopening, ABC NEWS (Jan.
26, 2021), https://abcnews.go.com/Politics/biden-administrations-covid-19-plan-prioritizes-schoolsreopening/story?id=75427211.
249
See The Biden Plan to Build Back Better by Advancing Racial Equity Across the American Economy,
BIDEN HARRIS, https://joebiden.com/racial-economic-equity/ (last visited Mar. 25, 2021).
250
This information is in possession of the Author.
251
Id.
252
Id.

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The actual and potential legal issues that school districts engaging in virtual school
exclusionary practices face warrant a reexamination of their existing disciplinary and
school safety practices.
IV.

RECOMMENDATIONS FOR SCHOOL DISTRICTS

CONCLUSION

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For purposes of disciplinary policies, treating virtual school instruction and preCOVID-19 pandemic school instruction the same is an untenable action. The article
therefore proposes the following recommendations for school districts to maintain a safe
learning environment while protecting the rights of children and their families during
virtual school instruction.
First, to the extent that a school district believes that virtual discipline is necessary,
school districts should convene a group of stakeholders to develop a virtual school
disciplinary policy. This group should be composed of schoolteachers, other school
officials, parents, students, and importantly, civil rights and children’s rights advocates—
to ensure that the policies developed protect the rights of children and their families.
Second, and substantively, virtual school disciplinary policies should not extend
campus “weapons-free” zero tolerance policies to virtual schooling. There is no legal
support for schools to do so. Additionally, in instances where school officials acknowledge
that the student was not behaving in a threatening manner, as in the case of the four JPPSS
students who were disciplined, the policy should not call for any disciplinary action to be
taken against the student. School districts should instead immediately notify parents of the
infraction and require parents to ensure that the matter is resolved. Further, the policy
should prohibit students from recording their peers during virtual school instruction to
protect the privacy rights of all students. Districts should also consider developing neutral
video screen backgrounds for students to use during virtual school instruction to prevent
anyone from being able to view into the homes of students during instruction.
Finally, any virtual school disciplinary policy enacted by a school district should
include a counseling component. Students should be provided the opportunity to speak to
a counselor to process their emotions, especially surrounding the stresses of attending
virtual school and the COVID-19 pandemic. Providing this outlet for students can serve as
a deterrent to any potentially violent or disruptive behavior for students. Anyone who is
working with students should, relatedly, undergo continuous implicit bias training,
including trainings on the use of exclusionary discipline practices against students of color
and students with disabilities.

School districts should use this novel time period for innovation and revisit the
manner in which students are educated, including their approach to defining and addressing
disruptive classroom behaviors. In the era of the COVID-19 pandemic, the need for traumainformed practices in schools is paramount. The lives of children have been turned upside
down; their way of existence, including the ways that they learn, grow, and interact with
their peers, has been altered by the pandemic. School districts must keep this critical

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consideration in mind when providing education to children. When families are fighting to
maintain their health and stability, the last thing a child or parent should have to worry
about is whether an unintentional action caught on a computer camera during virtual school
instruction can lead to disciplinary actions that bode adverse and potentially lifelong
consequences.

This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3903737

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