By Chris Yarrell

In the wake of the COVID-19 pandemic, approximately 55 million schoolchildren have been compelled to attend school remotely. However, despite this nationwide shift to virtual schooling, the school-based disparities that long pre-dated the pandemic have been laid bare and exacerbated. This is painfully evident in the context of the school-to-prison pipeline (STPP). Indeed, despite Congress’ historic investment in the school recovery effort through the passage of the CARES Act, recent research confirms that the majority of the states and localities have devoted scant, if any, federal recovery dollars to dismantling the STPP. Without a meaningful commitment by states and localities, our nation’s most vulnerable students will continue to be pushed out of the schoolhouse and into the criminal legal system. Therefore, a more feasible legal alternative to dismantle the STPP is needed.

Despite the treatment that the school recovery effort has received in judicial opinions and legal scholarship in response to the pandemic, neither has undertaken an exhaustive analysis of the school recovery process and its impact on the STPP. This Article aims to fill that gap. To do so, it makes two broad claims. First, the Essay provides a timely review of how states and localities have addressed the STPP with federal recovery aid. Next, it argues that the response to the pandemic fails to advance meaningful reforms that could begin dismantling the STPP. Lastly, the Essay contends that, to begin this process, prospective litigants should leverage the doctrine of stare decisis to overturn Alexander v. Sandoval under its “unworkability” analysis. By overturning Sandoval, future litigants will again be empowered to remedy disparate impact discrimination under Title VI of the 1964 Civil Rights Act. In so doing, parents and students will stand a fighting chance of remedying the disparate educational harms caused by the STPP in both the near- and long-term.

23 Berkeley J. Afr.-Am. L. & Pol'y 1 (2023)