Imagine two canoes paddling down a river. One canoe encounters a series of obstacles: rapids buffet it about, a fallen tree blocks its way, jutting boulders scrape the hull. The other canoe continues unimpeded. Any onlooker on the shore could comment, “the first canoe is falling behind the other,” and few would suggest this is a controversial observation. Yet when it comes to the question of how students are doing during this terrible pandemic year, the validity of so-called learning loss is very much in question.
This pushback has shown up in recent weeks across both major publications and social media. The Washington Post published a piece from literacy professor Rachael Gabriel asserting that “There is no such thing as learning loss,” only a “loss of a previously imagined trajectory leading to a previously imagined future.” While acknowledging that some academic progress has been significantly impacted, Ron Berger wrote in The Atlantic that he is “concerned about how this growing narrative of loss will affect our students, emotionally and academically.” Popular memes like the below one have emerged, variously suggesting that catching students up academically is a low concern or that the learning loss idea is being pushed by greedy testing companies:
Unraveling this knot starts by delinking three ideas: (1) that learning is a discrete brain function which can, in fact, be lost; (2) that learning standards can be arbitrary and exist in an inequitable system, but they are not going anywhere in the immediate future; and (3) that there are other life lessons to be learned during the pandemic, and more to life than academics.
First, let’s ask an important and under-examined question: what is learning? Neuroscientist William Klemm puts it this way: “learning experiences change the functional [brain] circuitry that is used to process and remember a given learning event.” Through a complex series of anatomical and chemical changes, the brain is altered in meaningful ways that allow us to access new knowledge and skills. When a given piece of knowledge or skill is underused, the brain has a tendency to “prune” those synapses. Anyone who has fleetingly tried to learn a new language knows how fast the information slips away, as if through a sieve.
So when we say “learning loss,” we can literally mean learning loss. Consider English Learners who have been isolating in monolingual homes: as The New York Timesreported in one wrenching anecdote, “When Taniya first noticed her English slipping in September, she would read to herself out loud to practice speaking, pulling from a towering stack of picture books and young adult novels piled on her dresser. But over time, it became harder to pronounce the words and took longer to finish each chapter. Eventually, she stopped trying.” A similar story exists for students with reading difficulties, and for the startlingly large number of students who simply stopped attending school entirely.
Whether it is arbitrary to ask students to meet certain comprehension standards by 3rd vs. 4th grade is therefore largely moot: the loss is real in an aggregate sense, not a relative one. I don’t know what other word we should use for these disruptions. Descriptively, a skill that previously existed at a certain level no longer does.
Even in the relative sense, there has been loss regardless of the existence or absence of a measuring stick: A skill that would otherwise have been learned to a certain level in a non-pandemic year was not. The other canoe isn’t another student: it’s the same student in a normal year. In fact, a segment of students have certainly experienced relative learning gains during the pandemic, and we should not wave away that progress any more than we should ignore the majority who are struggling. One can reasonably fashion the relative gap as “unfinished learning,” as some stakeholders prefer, but we should be careful about getting too precious and losing sight of the literal losses.
Indeed, in some senses, this is a semantic problem. Many of those questioning learning loss seem to suggest that focusing on how students have fallen behind is “deficit” thinking and misses the ways they are resilient. As Berger put it, “Next time you hear the phrase learning loss, think about whether we really want to define our students by their deficits instead of their potential.” Yet multiple things can be true at once: students can have slipped on their academics while retaining their potential and also gaining experience in areas like adaptation, solidarity, and understanding societal inequities. Berger’s article was titled “Our Kids Are Not Broken,” and I think that’s a bad misunderstanding of the learning loss concept.
Back to the canoes. No one would say the canoe that encountered all those obstacles, or the paddler inside it, is flawed. The canoe didn’t fell that tree. The paddler didn’t raise those boulders. Pointing out a challenge is only problematic if it comes with a side dish of condemnation: why did you choose to go that way? Why didn’t you paddle harder? While often used in the U.S. to denigrate poor people or people of color, those accusatory questions do not appear to be part of this particular conversation.
The other intimation of the anti-learning loss crowd is that the American education system was awful to begin with, so why exactly are we trying to catch kids up so they can go back to the awfulness? It’s undeniable that our system can be brutal, particularly for students of color; Jonathan Kozol’s description of “savage inequalities” is apt now as when he wrote his book in 1991. The calls to use this opportunity to remake the system should absolutely be heeded, but realistically, that is not going to happen immediately.
In the meantime, the current cohort of students still face a system where seat time is prioritized over mastery; where each successive grade assumes you know the content in the grade below; where you are forced out after 12th grade; where the ability to access higher education for a credential or degree is deeply determinative of future financial prosperity. It is simply unfair to the tens of millions of students currently enrolled to deprioritize their academic recovery. To put one facet of this bluntly: children need to know how to read, and fewer of them are currently reading as well as they otherwise would be. That demands our attention, not our platitudes.
Education stakeholders need to have a multifaceted approach to helping children catch up, however, or else learning recovery efforts will fail. I echo those insisting we not go down an ineffective remediation path, but instead meet the moment with a combination of rigorous instruction, tutoring, mental health supports, and extra learning time, Yet academic recovery can’t happen just within the school walls, given the outsize effects of out-of-school factors on the brain’s ability to learn. These are, to extend the metaphor, ropes holding back our canoe. Housing stability can be a strategy to combat learning loss. Family economic stability can be a strategy to combat learning loss—and therefore affordable child care can be a strategy to combat learning loss.
Learning loss is a complex topic, and the reflexive resistance to suggesting anything “negative” about children who did nothing to bring this pandemic upon themselves is understandable. If we can all speak with more clarity and detail exactly what we mean—what is being lost, how does that relate to learning standards, and how do we simultaneously meet today’s students where they are while preparing a new system for tomorrow’s—the conversation can become far more productive. The first step, though, is to get everyone on the same page that learning loss is, unfortunately, very real.
Elliot Haspel is a former public school teacher and the author of Crawling Behind: America’s Childcare Crisis and How to Fix It.
Clarendon Alternative Elementary School fourth-grader Ayla Einhorn works on her computer as students and parents attend distance learning Zoom classes at Midtown Terrace Playground in San Francisco.
After surveying 1,000 public and private school parents on how Covid-19 affected their view of schools, longtime pollster Frank Luntz of FIL Inc. expressed surprise: “Never in my lifetime have so many parents been so eager for so much educational change.”
An article in The Atlantic is headlined: “The Pandemic Has Parents Fleeing From Schools—Maybe Forever.”
Frank Luntz
Covid-19 shock put parents in charge of their child’s education in ways no one ever imagined, let alone experienced.
It made them think about schooling in new ways.
It drove them to seek different options for educating and supporting their children.
And it inspired imaginative individuals to expand existing or create novel ways to support that new demand.
The dynamics of parent response to Covid-19 shock are reminiscent of a conceptual framework described just over 50 years ago by economist Albert Hirschman in Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States. He describes how individuals as consumers in multiple domains respond when facing decreasing quality or benefit in the services they are receiving. In short, the response can be either exit or voice, with loyalty affecting one’s analysis of whether to use exit or voice.
The result of the Covid-19 shock dynamic in K-12 is a more pluralistic education system, one that’s being redefined to include more options from more providers for more families and students.
What are parents saying and doing about the response of public schools to Covid-19 shock? Or to use Hirschman’s words: what are they voicing; are they exiting or loyal?
According to the FIL poll, parents say they don’t want schools to “return to normal” after Covid-19.
Two of three (66 percent) say we need to rethink “how we educate students, coming up with new ways to teach children.”
They also want to try new ways to finance their children’s learning.
Nearly eight in ten (76 percent) want to see “education funding follow the student to whichever school they or their parents choose.”
And eight in ten (80 percent) want the government to provide education savings accounts for families, defined as “allowing parents to receive a deposit of public funds into government-authorized savings accounts.”
Gallup reports that parents saying they’re “completely satisfied” with public schools going into the 2020 school year dropped 9 points from the prior year, to 32 percent from 41 percent.
This dissatisfaction is driving them to vote with their feet—to exit. They’re withdrawing—or not enrolling—their children in schools. No, not all of them. Many are remaining loyal. But some portion of them are exiting.
Gallup reports that parents home schooling their child nearly doubled, to 10 percent from around 5 percent. And those enrolling their child in a public school decreased 7 points, to 76 percent from 83 percent.
The homeschooling number is reinforced by new data from the U.S. Census, which also found homeschooling increased, to 11.1 percent of households from 5.4 percent, even after a clarification was added to the question to make sure that households were reporting true homeschooling rather than virtual learning through a public or private school.
The Education Next survey also found shifts away from traditional district-run public schools, including a decline in district public school enrollment to 72 percent of students from 81 percent between the spring and fall of 2020. The Education Next survey found an increase in homeschooling to 8 percent from 6 percent, along with increases in private school and charter enrollments. Though the increases were too small to be statistically significant, they track with the other surveys.
How are policymakers and others responding to this dynamic, to this exit and demand for more and different options?
Lawmakers in nearly a third of the states have proposed bills to establish or expand a variety of taxpayer funded programs. These include education savings accounts and tax credit scholarships that allow taxpayers to receive tax credits when donating to nonprofits that provide private school scholarships.
And governors are using federal Covid-19 relief funds in inventive ways. For example, Idaho Republican Governor Brad Little has created a new $50 million Strong Families, Strong Students Initiative. Under the program, eligible families could receive $1,500 per student, with a maximum of $3,500 per family. The money can be used to purchase eligible educational materials, devices, and services. Other governors have created similar programs.
Governor Brad Little of Idaho recently announced the “Strong Families, Strong Students” initiative, which includes $50 million for direct funding to families.
What other alternatives are exiting parents choosing?
Some are choosing traditional private schools, including Catholic schools. For example, Tom Carroll, the head of Boston’s Catholic Schools, said enrollment demand increased in “all our 100 schools” following the closing of public schools in Boston and its surrounding areas.
Pods involve small groups of children learning together in person or virtually. A variety of actors—local government, non-profits, parents, corporations—start these programs. They use volunteers or hire teachers or other adults to supervise the program.
They typically serve families with children enrolled in a school’s online learning program, supplementing this with special services. These include tutoring, childcare, and afterschool programs so students socialize and pursue academics or extracurricular activities with friends.
Pods are paid for in different ways. Families pay directly “out of pocket” or receive them as employee benefits. Some pods provide scholarships for low-income families. Other approaches include using state or local tax dollars or support from nonprofit and philanthropic organizations.
San Francisco Mayor London Breed opened 84 pod locations called community learning hubs run by the city. The program was started as the city’s response to a dispute with the school district’s closing policies. It serves around 2,400 children, about 96 percent racial minorities.
In Columbus, Ohio, the YMCA is offering pods for students ages five to sixteen who are attending school virtually. Students can arrive as early as 6 a.m., with learning sessions starting at 8 a.m.
In Minnesota, the Minneapolis based African American Community Response Team is created the North Star Network of community ZOOM pods. They supplement online learning offered by schools, providing a quiet learning space, technology, and tutors.
JPMorgan Chase offers discounts on virtual tutors and pods for eligible employees accessed through its employer sponsored childcare provider, Bright Horizons. It’s also opened its 14 childcare centers for employee children as a no-cost place for remote learning with supervision.
Micro schools reinvent the one room schoolhouse. They’re usually groups of 15 students or less, engaging three to six families. They might employ one teacher, or alternatively, parents teach, hiring a college student or other “grown-up” to assist.
Prenda is an Arizona based network of micro schools, growing from seven students in one neighborhood in 2018 to over 200 schools. School can be held in homes or almost any public space like a community center or library. They are led by a Prenda Guide, a trained mentor who doesn’t need to be a certified teacher. During the pandemic, they’ve expanded to Colorado and grown to over 3,000 from 550 students. They follow social distancing guidelines of their local jurisdiction.
Florida Virtual School is an accredited online tuition-free school founded in 1997. It employs Florida certified teachers and works with public, private, charter, and homeschool families and school districts nationwide. Since the pandemic, it has seen an increase of over 231,100 new course enrollments—a 57% increase—in its open-registration, part-time Flex program.
The VELA Education Fund is supported by philanthropy. It invests in family education innovations that meet children’s academic and social-emotional needs. It awards microgrants of up to $25,000 to students, families, and educators innovating outside the traditional education system. For example, Zucchinis Homeschool Co-op is a parent led pod serving 4 to 10 year olds, including the younger siblings of students at The LIFE School, an accredited, project-based high school in downtown Atlanta. VELA also awards larger grants of up to $250,000 for programs that expand to serve more students and families. Prenda’s micro school expansion to Colorado was funded by VELA.
SitterStream is a startup created at the beginning of the pandemic. It offers on-demand babysitting and tutoring to students, individually or in pods. It has partnerships with small and large businesses who provide these services to employees, with Amazon one of their corporate clients.
iCode is a national computer science education franchise that offers onsite and virtual computer coding for young people. It now offers supervised, in-person or remote online learning support to help working parents manage school closures and online schooling for their children.
How much of this will “stick” beyond the pandemic? No one knows for sure. But it seems reasonable to bet that some will stick.
A Civis Analytics national survey reports that eight of ten (83 percent) K–12 parents who disenrolled children from school say they will reenroll them in their original school once it is safe to do so. In Hirschman’s words, loyalty is stronger than a permanent exit, for these parents.
An NPR/Ipsos national poll found that almost 3 in 10 (29 percent) of parents were likely to stick with remote learning indefinitely. That included about half of the parents who are currently enrolled in remote learning. Exit is the preferred option for this group.
And a RAND Corporation analysis of a survey from their new American School District Panel, which consists of leaders of more than 375 school districts and charter management organizations, found that about 1 in 5 are considering a remote school option after the end of the pandemic.
Cobb County, Georgia serves over 112,000 students. Itis the second largest district in the peach state and 23rd largest in the nation. Superintendent Chris Ragsdale announced that the district would enact a classroom choice program for the 2021 school year. The online learning for grades 6-12 will be supported through Cobb Online Learning Academy. Local school based online learning will be in place for PK-5 along with Cobb Horizon Academy and Cobb Virtual Academy for part-time online learners. In this case, the organization is listening to voice and responding in new ways.
All this suggests some significant number of parents and students will return to some version of the “old normal.” But some won’t. Some have exited, permanently. So the long-term effect is a question of magnitude.
Covid-19 shock has thrown K–12 schooling into disarray. But it’s also catalyzed creative and determined parents, innovators, and policy leaders to respond in new ways. Their creativity and entrepreneurship is characteristically American and impressive, even if driven by urgency and exasperation.
Our best hope is that our emergence from COVID-19 shock positions us for what could be a new era in educational excellence, one in which families have more direct control over, and options for, their child’s education. One in which they are truly trusted and supported in making decisions about their children’s schooling. One that gives our children an effective education that prepares them for opportunity and success.
Bruno V. Manno is senior advisor to the Walton Family Foundation’s K-12 Program.
By: Bruno V. Manno Title: Pluralism Is Growing in K-12 Education Sourced From: www.educationnext.org/pluralism-is-growing-k-12-education-covid-19/ Published Date: Tue, 30 Mar 2021 10:00:51 +0000
My question for Amazon’s Jeff Bezos is simple: When you have so much money, more money than can be spent in a million lifetimes, why are you trying so hard to defeat workers who are demanding decent pay and decent working conditions?
A visiting fellow at the American Enterprise Institute, John Bailey, joins Paul E. Peterson to discuss Bailey’s latest report, which reviews more than 130 studies on whether schools can reopen safely amid the Covid-19 pandemic.
By: Education Next Title: The Education Exchange: Yes, It Is Safe to Reopen Schools Sourced From: www.educationnext.org/education-exchange-safe-reopen-schools-covid-19/ Published Date: Mon, 29 Mar 2021 10:00:48 +0000
I spoke for a few minutes on Friday with Amazon workers in Alabama. They told me about the heat, the absurd breaks, and the fact that if you are one minute late you lose a whole hour of pay. That is why they are standing with courage and taking on the richest man in the world.
Today we stand in solidarity with Amazon workers in Alabama before the union vote comes to an end this Monday. With only a few days left, let’s send an unmistakable message to Jeff Bezos that we stand with Amazon warehouse workers in their fight to form a union.
In 2020, Amazon made $14 billion in profits during the COVID pandemic, but decided to stop paying hazard pay to workers. During that same time, Jeff Bezos saw his wealth grow by around $70 billion. One report found that Jeff Bezos’s net worth had grown so much from March to September 2020 that he could have given every single Amazon employee a bonus of $105,000 and he’d still be as wealthy as he was before the pandemic.
When I get to Alabama tomorrow to speak with the Amazon workers there, my message to Jeff Bezos will be pretty simple. “Jeff, you’re worth $182 billion. That’s a lot of money. What is your problem with allowing workers in your plant in Alabama to organize for better wages and better working conditions?”
The time is long overdue for us to address the crisis of income and wealth inequality in our country. It is totally absurd that two people (Jeff Bezos and Elon Musk) now own more wealth than the bottom 40% of the American population. And one of the ways we do that is by making it easier for workers to join unions.
So today I am asking you to stand in solidarity with Amazon workers in Alabama before the union vote comes to an end this Monday. With only a few days left, let’s send an unmistakable message to Jeff Bezos that we stand with warehouse workers.-
It’s up to us to make sure Congress knows they need to pass this $1.9 trillion plan and prioritize people over corporations. We’re talking to progressive grassroots leaders and hearing from Senators Bernie Sanders and Chuck Schumer to learn what we can do to get Congress to pass the $1.9 trillion COVID relief bill.
An education columnist for the Washington Post, Jay Mathews, joins Education Next editor-in-chief Marty West to discuss Mathews’ new book, An Optimist’s Guide to American Public Education, and The Challenge Index, Mathews’ annual ranking of American high schools.
By: Education Next Title: EdNext Podcast: An Optimist’s Guide to American Public Education Sourced From: www.educationnext.org/ednext-podcast-an-optimists-guide-to-american-public-education/ Published Date: Wed, 24 Mar 2021 10:00:03 +0000
It’s up to us to make sure Congress knows they need to pass this $1.9 trillion plan and prioritize people over corporations. We’re talking to progressive grassroots leaders and hearing from Senators Bernie Sanders and Chuck Schumer to learn what we can do to get Congress to pass the $1.9 trillion COVID relief bill.
A protester holds an “END QUALIFIED IMMUNITY” sign during a Black Lives Matter protest in Brooklyn, New York, on July 4, 2020.
On the morning of March 19, 2007, I entered the grand courtroom of the U.S. Supreme Court and eagerly slipped into one of the worst seats in the house. My spot—far from center stage and with a view obstructed by enormous marble columns—was located in the section reserved for the justices’ law clerks so they could see, or at least hear, legal history being made. I had the privilege of serving that year as a clerk for Justice Stephen Breyer, assisting with tasks such as drafting written opinions and evaluating the merits of potential cases. I was particularly excited to hear the oral argument in that morning’s case because it involved a beguiling set of facts and marked the first time in nearly two decades that the Supreme Court would resolve a dispute involving students’ freedom of speech.
The case was formally titled Morse v. Frederick, but we law clerks called it by its nickname: BONG HiTS 4 JESUS. A 12th-grader in Juneau, Alaska, named Joseph Frederick had produced that odd, and oddly capitalized, slogan on a 14-foot-long banner that he unfurled across the street from his public school during a parade that teachers had permitted students to attend. When principal Deborah Morse saw the banner, she marched across the street, snatched the sign from Frederick’s hands, and later suspended him for 10 days, asserting that the sign ran afoul of the school’s rule against advocating the use of illegal drugs. So, as Frederick’s attorney, Douglas Mertz, strode to the lectern to make his argument before the court, I expected that the justices would immediately pelt him with a barrage of First Amendment questions: If the principal’s actions violated the First Amendment, might students around the nation start unfurling banners in the middle of algebra class? Should she and other educators have special authority to censor student speech regarding drugs, as everyone knows “bong hits” refers to marijuana? Given that Frederick was technically off campus when he displayed the banner, should the relatively restrictive judicial decisions governing student speech even apply to this case?
Joseph Frederick, a 12th-grade student in Juneau, Alaska, created the “BONG HiTS 4 JESUS” banner and displayed it across the street from his school during a parade.
Mertz opened by observing: “This is a case about free speech. It is not a case about drugs.”
Before he could continue, though, Chief Justice John Roberts jumped in with a retort—one that has significance today not just for lawyers, but also for activists, politicians, and educators across the nation. “It’s a case about money,” Roberts chided. “Your client wants money from the principal personally for her actions in this case.” Mertz insisted that Frederick’s primary concern was vindicating students’ free expression, not any modest financial gain that might flow from a determination that the principal violated his client’s constitutional rights. Roberts further pressed Mertz on this monetary question: “[T]here’s a broader issue of whether principals and teachers around the country have to fear that they’re going to have to pay out of their personal pocket whenever they take actions . . . that they think are necessary to promote the school’s educational mission.”
Although Roberts never directly uttered the words “qualified immunity” during oral argument, his questioning of Mertz unmistakably invoked that doctrine. Qualified immunity is a legal principle that can insulate public employees from financial liability, even if the officials have been found to violate someone’s constitutional rights. In Frederick, the court found that principal Morse’s actions did not violate the Constitution, so the qualified-immunity question in that case largely faded in the written opinions.
Today, though, the once relatively arcane concept of qualified immunity has burst to the fore of public discussion, largely because of an increased focus on police misbehavior. Scholars and citizens alike have condemned the courts’ frequent use of qualified immunity to inoculate police officers from money damages in high-profile cases involving police violence. The exercise of qualified immunity, detractors emphasize, poses a nearly insurmountable obstacle for individuals and their families seeking financial compensation for police wrongdoing. Accordingly, a wide-ranging chorus of critics has demanded an end to qualified immunity.
Public discussion of qualified immunity most often examines the concept as applied to law enforcement, but other government officials can also invoke the protection. Indeed, judicial opinions involving teachers, principals, and schoolboard officials have played a central role in shaping qualified-immunity doctrine. A closer examination of these often overlooked school decisions deepens our understanding of the doctrine’s history and can help us contemplate its future. Viewing qualified immunity through the schooling prism suggests, as critics routinely assert in the policing context, that courts are too lenient in granting qualified immunity to educators. But the schooling prism also offers potent arguments against the wholesale elimination of qualified immunity for educators, regardless of whether the protection is eradicated for police officers.
Deborah Morse, as principal of a high school in Alaska, suspended a student for displaying a banner that read “BONG HiTS 4 JESUS.” Qualified immunity protects school officials like her.
When Does Qualified Immunity Apply?
The Supreme Court introduced the qualified-immunity doctrine in a case involving police officers in the late 1960s. In that case, police officers arrested a group of civil-rights protestors in Mississippi, citing a state anti-loitering law. The Supreme Court later deemed the statute unconstitutional, but it also determined the officers should not be held liable for enforcing a law they presumed valid. Although this case centered on police officers, it did not take long for the court to make clear that other government employees could avail themselves of the defense. In 1975, the court issued an opinion formally granting qualified immunity to educators in Wood v. Strickland, a momentous decision that arose from a delicious set of facts. Peggy Strickland, Virginia Crain, and Jo Wahl—three 10th-grade students at a small public high school in Arkansas—were tasked with providing refreshments at a mother-daughter event for the Future Homemakers of America club. The girls decided to purchase some Right Time malt liquor to spike the punch for the future homemakers and their mothers. The students added such a miniscule amount of malt liquor to the punch, however, that the resulting concoction neither tasted of alcohol nor could have intoxicated even the thirstiest eventgoer. Still, word of the stunt eventually trickled out, and the school board suspended the offending students for the remainder of the semester. A federal appellate court found that the suspensions violated the Fourteenth Amendment’s Due Process Clause.
During oral argument, Chief Justice John Roberts focused on school officials’ financial responsibility.
The case made its way to the Supreme Court, which determined that schoolboard officials could in some instances avail themselves of qualified immunity. Writing for the court, Justice Byron White held that an educator could not be found liable for financial damages unless “he knew or reasonably should have known that the action he took . . . would violate the constitutional rights of the student affected, or if he took the action with the malicious intention to cause a deprivation of constitutional rights . . . to the student.” White continued, in language that would loom large over time, that damages would be assessed only if the educator acted with “such disregard of the student’s clearly established constitutional rights that his action cannot reasonably be characterized as being in good faith.”
Over time, the court abandoned Strickland’s subjective standard requiring jurists to decide whether a defendant had acted with good faith or, instead, “malicious intention.” But key phrases from Strickland have endured. The modern era’s leading case involving qualified immunity—Harlow v. Fitzgerald (1982)—unmistakably built upon the language introduced in Strickland, as Harlow instructs that plaintiffs cannot overcome qualified immunity unless they demonstrate that government officials “violate[d] clearly established . . . constitutional rights.” Since 1982, the Supreme Court has offered varying formulations for determining who may successfully invoke qualified immunity. In perhaps the broadest definition, the court in 1986 stated that qualified immunity shielded “all [government officials] but the plainly incompetent” from liability.
Yet today, the court’s basic test in deciding whether to apply the doctrine continues to be: did the government official in question transgress the Constitution in a way that had been “clearly established” by prior judicial decisions? If precedents have not clearly established the constitutional right in question, then government officials can successfully invoke qualified immunity, even if the court determines that their conduct violated the Constitution. In practice, courts typically require the plaintiff to identify binding precedents featuring government officials who have been found to violate the Constitution in a manner that is almost indistinguishable from the plaintiff’s own conditions.
This notion—that plaintiffs must present identical factual scenarios from past case law to demonstrate that an offense violates a “clearly established” right—is profoundly flawed. In 1990, Judge Richard A. Posner, perhaps the most celebrated legal mind of his generation, pressed this point memorably:
It begins to seem as if to survive a motion to dismiss a suit on grounds of [qualified] immunity the plaintiff must be able to point to a previous case that differs only trivially from his case. But this cannot be right. The easiest cases don’t even arise. There has never been a . . . case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages liability because no previous case had found liability in those circumstances.
Although jurists sometimes quote Judge Posner’s language, they too seldom embrace his logic.
Too Much Qualified Immunity?
Judge Richard Posner pointed out that the current approach to qualified immunity is flawed.
Indeed, the judiciary has been excessively willing to grant immunity to educators, even in the face of heinous conduct that, properly understood, contravenes clearly established law. In one notorious decision from 1997, a federal appellate court afforded immunity to school officials who strip-searched two 2nd-grade girls in Talladega, Alabama. The search occurred in an (ultimately futile) effort to locate seven dollars that had supposedly gone missing from a teacher’s purse. In 1985, long before these odious events transpired, the Supreme Court articulated the governing standard for determining when educators violate the Fourth Amendment’s prohibition on unreasonable searches in a case titled New Jersey v. T.L.O. Student searches complied with the Fourth Amendment, the court found in T.L.O., only “when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.” The Talladega misadventure would plainly seem to fail this test, as requiring students to remove their undergarments is intensely invasive and the alleged infraction was trifling. Nevertheless, in Jenkins v. Talladega City Board of Education, the federal court deemed T.L.O.’s “broadly-worded phrases” as providing insufficiently “detailed guidance” to notify educators that they could not demand their young charges to expose their naked bodies in an attempt to recover a paltry sum of stolen money. Other federal appellate courts have also permitted educators to use qualified immunity to shield themselves in lawsuits arising from their, at best, wrongheaded strip searches of pupils.
The Supreme Court has also too readily invoked qualified immunity in education law cases. One example is the 2009 case Safford Unified School District v. Redding. The case arose after school officials in a tiny Arizona town subjected an 8th-grade honors student, Savana Redding, to a strip search for contraband. Redding was suspected of possessing nothing more potent than prescription-strength ibuprofen tablets, a substance banned by the school’s zero-tolerance drug policy. No one ever suggested that Redding had secreted painkillers in her underwear, but when a backpack search turned up nothing, two school officials instructed Redding to remove her clothing and to shift her undergarments in ways that exposed her breasts and pelvic area. This humiliating search failed to locate ibuprofen—or any other contraband. The Supreme Court ruled that the strip search had violated Redding’s Fourth Amendment rights because the substance in question was neither particularly potent nor likely to be located in her undergarments. Yet the court also found that Safford’s school officials had not violated clearly established law and were therefore entitled to qualified immunity. In a powerful dissent, Justice John Paul Stevens lambasted the court’s immunity holding, writing, “This is, in essence, a case in which clearly established law meets clearly outrageous conduct.”
Questioning Qualified Immunity
Although the Supreme Court introduced the concept of qualified immunity more than five decades ago, some justices—from across the ideological spectrum—have recently begun questioning its continued validity. Justice Sonia Sotomayor, the court’s leading liberal, and the archconservative Justice Clarence Thomas have both written separate opinions challenging qualified immunity. Thus far, however, Sotomayor and Thomas seem to have gained little traction with their colleagues on this issue. In June 2020, the court rejected nine separate petitions that would have teed up reconsideration of qualified immunity. Since only four of nine justices must agree to have the court address a legal question, it seems unlikely that advocates will soon be able to cobble together five votes to renounce qualified immunity. The court’s hesitation to cast aside such a longstanding practice reflects its extensive line of qualified-immunity opinions and its frequent adherence to the traditional principle of stare decisis—the Latin phrase meaning “to stand by things decided.”
It is possible, though, that Con-gress, rather than the Supreme Court, will act to alter the scope of qualified immunity, or perhaps even eliminate the practice. A legislative solution is possible, scholars hold, because qualified immunity stems from interpreting a congressional statute (42 U.S.C. § 1983)—not a constitutional provision. Prompted by the May 2020 killing of George Floyd at the hands of police in Minneapolis, Congress members have floated a few different proposals. The George Floyd Justice in Policing Act, introduced by Representative Karen Bass, Democrat of California, and recently passed by the House of Representatives, seeks to end qualified immunity for police officers. That measure would permit other government officials—including educators—to continue invoking the practice. But a broader proposal, titled the Ending Qualified Immunity Act, would eradicate the defense for all government officials. That sweeping proposal, introduced in June 2020, found backers in both the House of Representatives and the Senate, including Elizabeth Warren of Massachusetts and Bernie Sanders of Vermont, who were both then running for the Democratic presidential nomination. While political gridlock makes it extremely difficult to enact legislation in the modern era, it seems probable that Congress will entertain renewed calls for addressing qualified immunity at some point during the Biden administration. Lawmakers proposing such legislation would do well to consider whether they aim to curb the defense only for law enforcement officers or for all government officials, who include not just educators, but a wide range of civil servants.
Savana Redding, age 19, speaks to the media in front of the Supreme Court. The court ruled school officials had violated her rights with a search but were protected by qualified immunity.
Retaining Protection for Educators?
Even if qualified immunity is jettisoned for police officers, should the doctrine still apply to other public officials? Proponents of abolishing qualified immunity for all officials should consider three main arguments that could be marshaled for retaining the practice in schools. First, unlike the work of police officers, the primary responsibilities of teachers are not inherently imbued with legality and constitutionality. Honoring citizens’ Fourth and Fifth Amendment rights is central to a police officer’s work, or at least it should be. While constitutional issues certainly arise in the school environment, many teachers go their entire careers without confronting firsthand a close question involving students’ rights. Stephen Breyer voiced a version of this argument in his Frederick concurring opinion, where he advocated resolving the case solely by granting principal Morse qualified immunity and avoiding the First Amendment question entirely. “Teachers are neither lawyers nor police officers,” Breyer reasoned, “and the law should not demand that they fully understand the intricacies of our . . . jurisprudence.” My own practical experience corroborates Breyer’s argument. Following my college graduation, when I was working toward a master’s degree in teaching, I student-taught civics and U.S. history at a high school in Durham, North Carolina. I heard many topics broached in discussions among teachers that year, but I cannot recall a single conversation addressing students’ constitutional rights, and I am confident that the term “qualified immunity” was never bruited about the faculty lounge.
The second argument for retaining some qualified-immunity protection for educators is that teachers are far less likely than police officers to use lethal force against people in the course of executing their responsibilities. Even in the states that still permit educators to inflict corporal punishment on students, those actions are mild compared to the harms that can all too easily flow from police officers using their weapons. The teacher’s paddle is, in other words, a far cry from the officer’s gun.
Third, there are significant differences between the constitutional case law pertaining to police offers and the law that applies to educators. The judiciary has produced an ample body of constitutional opinions governing police conduct, resulting in a well-developed legal field, while the court opinions on students’ constitutional rights are quite sparse. This disparity in the number of precedents means that educators are much more likely than police officers to encounter legally novel situations in which the law contains legitimate ambiguity even for people who know the existing doctrine well. Affording educators the possibility of qualified immunity may thus be desirable in the face of comparatively widespread uncertainty regarding the constitutionality of their actions.
Yet at least one prominent argument advanced for reflexively conferring qualified immunity on educators should draw skepticism. Chief Justice Roberts’s emotional plea during oral argument in Frederick conjured up the deeply sympathetic image of principal Morse having to shoulder the expense of financial damages on her own. That image deserves little credence. An Alaskan statute dating back to the 1970s requires school boards throughout the state to indemnify school officials against legal costs incurred in the course of their official duties. Educator indemnification statutes like Alaska’s appear across the United States, meaning that school officials are seldom required to pay damages in the manner that Roberts posited. School districts typically purchase insurance policies for coverage in such instances. Of course, if enough school districts are forced to pay significant financial damages growing out of student lawsuits, their insurance premiums will eventually increase, and the additional charges will be drawn from already strapped education budgets. While that dynamic might be lamentable, it is far less disconcerting than individual teachers rifling through their couch cushions to scrounge up the required money themselves.
This article has largely treated the school setting and the police setting as distinct, but it is important to remember that uniformed police officers do appear in many public schools as “school resource officers,” or SROs. As long as the practice of qualified immunity continues, courts should be careful about permitting SROs to cloak themselves too easily with that doctrine. A few years ago, an SRO in New Mexico arrested a middle-school student for interrupting physical-education class by repeatedly belching. Rather than informing the belcher’s parents or giving him a stern lecture, the SRO handcuffed the 7th-grader and drove him in a police cruiser to juvenile detention. In 2016, Neil Gorsuch, then a federal appeals court judge, wrote an opinion that would have denied the SRO qualified immunity: “I would have thought [the existing judicial decisions] sufficient to alert any reasonable officer . . . that arresting a now compliant class clown for burping was going a step too far.” Unfortunately, though, Gorsuch’s comments arrived in a dissent, as his colleagues on the appellate court disagreed and granted the SRO’s invocation of qualified immunity. Let us hope that now-Justice Gorsuch enjoys better luck convincing his new colleagues at the Supreme Court to rein in the distressingly frequent excesses of qualified immunity.
Justin Driver is a professor at Yale Law School and the author of The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.
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