Virtually an education

Just five years ago, remote K-12 education was rare. Then, almost overnight, with schools shuttered during the COVID-19 pandemic, millions of educators and students were forced to teach and learn through the internet.

The sudden switch to virtual education laid bare inequities in digital access among students and raised privacy issues as technology reached into students’ homes and captured their metadata (Kim, 2022). In addition, there is evidence of significant learning loss during this period, as well as persistent chronic student absenteeism (Attendance Works, 2024; Miller, Mervosh, & Paris, 2024).

Despite these drawbacks, policy makers can now envision virtual education as an alternative to brick-and-mortar education. Whether this is good for students — and for public education — is an important question, the answer to which must be informed, in part, by legal considerations.

Civil rights questions

All U.S. public education must, by law, be accessible and delivered in an equitable and nondiscriminatory manner. When it comes to virtual education, states and districts must grapple with two questions:

• Are schools treating some students differently than others with respect to who they encourage or require to be taught virtually?
• Is the use of virtual education negatively impacting some students more than others?

During the pandemic, there was little question that low-income students, many of them students of color, were disproportionately and adversely impacted by the switch to virtual instruction. Inequitable access to high-speed internet and hardware was one problem; another was the variability in students’ home environments.

The adverse impact of virtual education on low-income families was the subject of lawsuits. For example, in late 2021, five families (my organization was among those who represented the plaintiffs) sued the state and city of New York over their failure to provide adequate internet access and working devices to city students, particularly low-income children of color. (The plaintiffs withdrew the case after nearly two years of protracted delays in court.)

Although some stu­dents with disabilities may benefit from supplemental interventions delivered virtually, many others have needs that are best addressed in per­son (Pickles, 2023). These adverse impacts of virtual education led to multiple lawsuits. See, for example, Abigail P. v. Old Forge School District (3d Cir., 2024) and Lee v.  Prince George’s County (D. Md., 2024).

Virtual education also creates unique barriers for English learners. During the pandemic, English learners were more likely to struggle with understanding lessons, completing assignments, having an appropriate workspace, accessing school meals, and getting adult assistance (GAO, 2022; Villegas & Garcia, 2022).

So far, while some courts that have ruled that the use of virtual education during the pandemic violated particular students’ civil rights, many others have sided with the districts, acknowledging that virtual instruction was an emergency response to an unprecedented crisis. But today is different: The pandemic has subsided, and districts that fail to address inequities before expanding virtual education face legal risks.

Questions of context

In addition to the issue of inequitable access or benefit, the use of virtual education in particular contexts raises the possibility of inappropriate, and perhaps unlawful, differential treatment of students and failure to provide an education that meets minimum legal standards.

Home-based or alternative education

Home-based education has traditionally consisted of one-on-one in-person instruction by a certified teacher at a student’s home or other out-of-school location. Students who exhibit challenging behaviors or have temporary or chronic health conditions are commonly assigned to home instruction. Alternative education is a comprehensive program delivered in a nontraditional learning environment for students at risk of school failure or mandated for removal from general education.

Districts have used both options for students who face disciplinary sanctions. Some school systems are now using virtual education for similar purposes (Huebeck, 2023). Nationwide, students of color and students with disabilities disproportionately face discipline compared to white and non-disabled students (Office for Civil Rights, 2023). The use of virtual instruction may amount to targeting such students for treatment that does not meet their individualized needs or minimum educational quality standards.

In response to scarcity of resources

Increasingly, virtual education is being used as a short-term way to address teacher shortages. Online teachers, often hired by private companies, deliver education to students in classrooms thousands of miles away. In some districts, overcrowding makes remote education an attractive option. When confronted with resource shortages, districts can hardly be blamed for doing what they can to plug holes and find ways for learning to continue.

Reliance on virtual as a long-term strategy, however, raises profound concerns. It’s not hard to see virtual education being used to circumvent legal mandates — a state law designed to reduce class sizes, for example, or other laws requiring that students be provided a “thorough and efficient” education. In addition, the replacement of tenure-track, certified teachers with uncertified or temporary virtual instructors implicates numerous other laws related to teacher qualifications and employment. In the future, courts may well conclude that virtually providing an education is a far cry from actually providing a legally sufficient one.

Opportunity and risk

Despite the legal concerns, virtual education has become useful and even necessary for many schools and students — especially students who cannot attend school for physical or mental health reasons, students who wish to take courses not available at their school, and students who thrive in individualized and online settings.

How should policy makers and educators parse between the positive and negative uses of virtual education? There are no easy answers, but a few actions may help:

First, we must distinguish between virtual learning opportunities that complement in-person instruction and those that replace it. In some communities, virtual learning can provide enrichment for students. In contrast, expanding virtual learning in response to tight budgets is something of a warning sign. Clear standards for the beneficial use of virtual instruction must be spelled out, particularly in the wake of an acute budget or staffing shortage. The goal should be to address the underlying problem so virtual instruction does not become a permanent substitute for live instruction.

Second, we must develop clear standards and teacher preparation requirements for virtual education. Some of the practices from the early days of the pandemic — such as “paper packets” of instructional material, activity sheets attached to emails, and videotapes of lectures without live teacher interaction — do not meet legal standards for sufficient instruction. Policy makers should define various modes of virtual, remote, or distance instruction and include essential protections, such as a requirement that students receive synchronous instruction.

Third, we must ensure that all students who receive virtual education have the tools and abilities needed to access and benefit from such instruction. The school district is responsible for providing any necessary infrastructure. Moreover, policy makers must prohibit the use of virtual instruction if they cannot address inequities in accessing and benefiting from virtual instruction and if students in protected classes (such as students of color, students with disabilities, or multilingual learners) are adversely affected.

Fourth, schools must communicate with parents or guardians before enrolling their children in virtual or remote instruction. This is necessary for understanding the circumstances that may make virtual instruction difficult or impossible for some students and families. Even if parental consent is not required, there must be a procedure for the parent or guardian to be heard and to appeal any decision involving their child’s participation in virtual education.

Finally, states should collect and make publicly available data on use of virtual instruction, including which students participate and to what extent. States also should study and issue reports on trends in virtual education to ensure compliance with federal and state laws and that the needs of students are being met.

These actions may help regulate the expansion of virtual education, but perhaps nothing will allay broader, existential worries: In our increasingly fractured and isolated world, there is something indispensable and irreplaceable about in-person interaction, whether between teacher and student, teacher and teacher, or student and student. Public schools are one of the few places where such interaction occurs on a daily basis. Once we lose this societal glue, we may find ourselves unstuck, and our students unmoored, in more ways than one.

Note: Thank you to Elizabeth Athos, Esq., for her contributions to this article.

References

Attendance Works. (2024, June). Stemming the surge in chronic absence: What states can do.

Huebeck, E. (2023, Sept. 11). Is virtual learning a new form of exclusionary discipline? Education Week.

Kim, R. (2022). The kids have lost their cookies. Phi Delta Kappan, 103 (5), 64-65.

Miller, C.C., Mervosh, S., & Paris, F. (2021, Jan. 31). Students are making a “surprising” rebound from pandemic closures. But some may never catch up. The New York Times.

Office for Civil Rights. (2023). A first look: Students access to educational opportunities in U.S. public schools. U.S. Department of Education.

Pickles, M. (2023). Why replacing traditional instruction with virtual learning violates the IDEA. 34 University of Florida Journal of Law and Public Policy.

Villegas, L. & Garcia, A. (2022). Educating English learners during the pandemic. New America.

U.S. Government Accountability Office. (2022, May). Teachers reported many obstacles for high-poverty students and English learners as well as some mitigating strategies.

This article appears in the November 2024 issue of Kappan, Vol. 106, No. 3, p. 52-53.