COVID-19 exposes the necessity of accessible education for all students and begs us to reconsider education as a fundamental right under substantive due process. In light of this current health crisis, now is the time to consider the many inequities in access to education that have existed for centuries. As schools across the nation consider their modality of instruction for the school year, equitable education for students should be a primary concern for government, policy makers, and school systems. This discourse brings attention to important questions: Who continues to be educated during a pandemic and how? How will we account for the toll of the novel coronavirus on our children’s education? History provides some insight about educational inequity and how we might use this unique occasion to address longstanding fault lines.

When the U.S. Constitution was ratified in 1787, the founders did not include a “right to education.” The closest that the federal government came was in passing the Northwest Ordinance that same year, which held that “the means of education shall forever be encouraged.” Thus, because the Tenth Amendment reserves to the states all powers that the Constitution does not delegate to the federal government, providing a free public education to students has historically been left to states.

In the absence of constitutional guarantee, marginalized groups have led the charge to establish the fundamental importance of access to education. Not having a statutory commitment or guarantee of the right to education is problematic, especially for marginalized groups. During Reconstruction, Black Americans viewed education as a necessity and were instrumental in establishing public education for all Americans. As such, Black Americans’ demands for education contributed to the American notion of a right to education.

Throughout the twentieth century, many Americans continued to view education as a fundamental right, and while the Supreme Court has never held that education is a right, the U.S. Court of Appeals for the Sixth Circuit in Gary B. v. Whitmer—recognized that “the Constitution provides a fundamental right to a basic minimum education.” The case currently awaits en banc review by the Sixth Circuit. Nevertheless, states have been required to deliver on perhaps the most important role of a democratic society—providing education to its citizens. But it is time to mandate a federal right to education to force states to provide quality education and to fund schools in all communities.

While not formally enshrined in the Constitution, states have assumed the role of guarantor for what many perceive to be a fundamental right, providing the learning experiences that young people need to become engaged, informed participants in our society. And yet, to date, the states are not accounting for the factors that hinder millions of students from achieving this, especially considering the unique factors that impede learning during the current pandemic. Many college students, for example, may lose access to the comprehensive support our universities provide, instead pondering how their families will economically survive this pandemic. K-12 students face similar difficulties without daily access to the essential services their schools provide. How can we expect all children to continue their learning uninterrupted online when some do not have ready access to food or shelter?

To understand  education during a pandemic, we can partly rely on insight from over a century ago when schools similarly resorted to widespread closures in the wake of the 1918 Spanish Flu pandemic. States’ responses to keeping the public safe during the 1918 pandemic, while also maintaining an educational focus, varied. School responses during the 1918 pandemic ranged from cities choosing to keep schools open while monitoring students’ medical status to closing altogether. Some inner cities closed K-12 schools only after many had died from influenza and pneumonia. Historically, closure or voluntary absenteeism is a typical response. Unfortunately, these measures are reactionary and only occur once a pandemic is already widespread, leaving little time for consideration of students’ educational needs. This is similar to states’ current responses to COVID-19: Some schools are reopening with the support of the CDC, but many other schools have chosen virtual learning options without knowing whether they can deliver quality instruction and support to the students who need it most.

While a pandemic is no less disruptive now than in 1918, a century of transformative technological advancements has provided our nation’s schools with tools to continue to educate our children. During the COVID-19 pandemic, many students are expected to learn remotely using technology. Herein lies the difference between education during the 1918 pandemic and education during the current pandemic. Although educators can utilize online technological platforms to remodel in-person education, the inequity in education has likely shifted in the wrong direction. This is where we have an opportunity to critically engage our collective notion of the right to an education and propose how we might better bring this ideal to fruition.

Going fully online means that students lose access to dedicated study and safe spaces, hands-on learning, and additional social support that the institution provides. Many students do not have access to food outside of their schools, let alone space at home with the tools necessary to adequately learn virtually. Students with special education needs also require support that is difficult to deliver online.

To be clear, now-ubiquitous online platforms like Zoom, Skype, and Google Hangouts, are not panaceas for the problems confronting education at this time. K–12 teachers and university instructors, like myself, have had to adjust from in-person to virtual instruction in what feels like a nanosecond. At the same time, these and other platforms sure to emerge in the coming months and years continue to show us the possibilities of delivering on the “right of education” in a new technological age. This requires continuously dealing with equity issues such as ensuring students of all races, socioeconomic backgrounds, geographic locations, and learning abilities have the requisite educational support from both the federal government and individual states.

But who is most adversely impacted by the expectation that anyone can use these online tools to engage in high-quality learning? COVID-19 continues to exacerbate educational inequities and access gaps for students of color and those who are low-income. On a given day, schools in lower-poverty districts report over half of teachers are able to interact with their students virtually, while just a third of teachers in high-poverty districts are able to engage virtually with their students.

Some poorer schools have completely closed without a plan to offer virtual instruction and stopped educating their students altogether due to a lack of resources that render remote education unfeasible. Rural students are also left behind as schools go online this fall, exposing a gap that will now mean the difference between obtaining—and losing access to—an education. Those without the technological means to “plug into” their learning lose access to free, high-quality public education that Americans have touted as a right for over a century.

This much is clear: while online learning can bridge the gap for some students, others are de facto deprived of the essential right to education. To date, education as a guaranteed right for all children is an illusion; now, we have the opportunity to bring this issue to the forefront of America’s conscience and influence constitutive change.

Crises like COVID-19 surface the reality that a virtual education, which may gain increasing traction in the years to come, perpetuates a class of young people who may not attain what should be a fundamental right. Even as French philosopher Jacques Ellul expressed concern over fifty years ago about the negative economic impacts of technological shifts like this one, he also acknowledged that they are inevitable. 

States must now embrace their role as guarantors of this right, using the tectonic shifts in how our students learn as motivation for desperately needed policy changes in areas like food insecurity, homelessness, special education services, and the digital divide. This may require school systems to not only provide technology to students’ families, but also to offer support for using these devices and platforms, including considering whether all students will have safe, quiet spaces conducive for learning. Further, technology cannot replace hands-on instruction and states should consider ways to financially and administratively support K–12 teachers. Citizens must continue to hold states accountable for providing a basic education to all students—and begin to consider how a federal right to education might help this goal be actualized. In the face of a global pandemic that has heightened disparities in education for our most marginalized students, now more than ever is the time to deem education as a fundamental right. As a result, this would require a response to an outcry for adequate resources and supports for all students.

History provides us with a guiding principle for this work, harkening back to Brown v. Board of Education’s seminal 1954 decisionto highlight that education should be “a right which must be made available to all on equal terms.”  

The inequities exposed by the onset of the pandemic have made it clear that this right is only available to some—and indicates how much work we still have left to do to ensure it is realized by all. 

Danielle Wingfield-Smith JD, Ph.D., is a Visiting Assistant Professor of Law with the Center for Civil and Human Rights at Gonzaga University School of Law. Prior to joining Gonzaga, she was a Postdoctoral Researcher at the University of Virginia where she was an affiliate of the Law School’s Center for the Study of Race and the Law and the Curry School’s Center for Race and Public Education in the South. She teaches and writes in the area of constitutional law, racial justice and the law, history of education, education policy and reform, and family law.