Abstract

The coronavirus (COVID-19) pandemic has wreaked havoc on the U.S. education
system. Indeed, since March 2020, every state in the nation has imposed
recommended or mandatory school closures in an effort to mitigate the spread of
this devastating virus. More concerning still, as the pandemic continues to rage,
school finance scholars have projected substantial cuts to public education in the
coming months—cuts that are estimated to far outstrip those adopted in the wake
of the Great Recession. In fact, “[i]f these projections are correct, the resulting
hit to education spending would be two and a half times worse than the lowest
point of the last recession.” Moreover, as 55 million public schoolchildren nationwide transitioned to remote learning over the past two years, the prevailing
disparities within and between the nation’s most vulnerable schools have not only
been laid bare, but also exacerbated. Despite the treatment that the school recovery
effort has received in judicial opinions and legal scholarship to date, neither
has undertaken an exhaustive analysis of the school recovery process from an equity
lens. This Article aims to fill that gap. To do so, it makes two broad claims.

First, this Article offers a timely analysis of the federal response to the pandemic
within and between our nation’s public schools. It then argues that the Congressional
response to the pandemic has failed to advance educational equity in
any meaningful sense. Second, this Article provides a critique of the American
Rescue Plan Act, one of the most recent Congressional measures enacted to support
elementary and secondary school recovery. It then proposes a novel alternative:
to meaningfully advance equity in the pandemic’s wake, future education litigants
should look to the doctrine of stare decisis and examine the viability of a
legal challenge to Alexander v. Sandoval under its analysis. In so doing, the communities most impacted by the educational harms of the pandemic will no longer
be left to rely on a political process that has failed to meaningfully advance education equity; to the contrary, overturning Sandoval will not only restore a private right of action under Title VI, but will also add an arrow of empowerment to parents’ collective quiver to challenge inequitable education policies after the pandemic.