K-12 Schools Need Immunity for COVID-19

by James C. Sherlock

In May we saw several states pass laws that gave businesses immunity from COVID-19 claims.

We need similar but expanded protection for public and private schools, their school boards, superintendents and all of their employees.

In North Carolina, for example, immunity protection granted businesses was sweeping. That immunity does not bar regulatory actions, criminal charges, workers’ compensation claims, gross negligence, recklessness or intentional infliction of harm. It continues until emergency orders expire or are rescinded.

But the schools are in worse position than businesses.

Suits against schools for educational malpractice have been thrown out by courts for decades. However, COVID-19 offers opportunities to sue schools

  • for gross negligence or reckless endangerment if the schools are open; or
  • for violation of various constitutional guarantees if the schools are closed and provide remote learning only.

Quite literally, damned if they do and damned if they don’t.

Those that provide a mix of both in-school and remote learning potentially will be exposed to liability for both.

School boards and superintendents must plan now with the liability wild card, including worry that their liability insurers will cancel their policies.

Currently, for example, Commonwealth Attorneys are charged (Code of Virginia § 22.1-82) to defend any school board member when suits are brought “by virtue of his actions in connection with his duties.” However, from the same law, “All costs and expenses of such advice and all costs, expenses and liabilities of such proceedings shall be paid out of funds appropriated to the school board”.

Legal liability is simply an unacceptable hurdle in 2020-21 school re-opening decisions.

The Attorney General, as a matter of urgency, should provide an advisory opinion to the Governor and General Assembly as to which Virginia laws need emergency modification to protect schools starting in August.

I recommend that the Governor issue an executive order granting that immunity as soon as the Attorney General provides that opinion.

I further recommend that the General Assembly pass those changes as law in August to strengthen the immunity defense in court.

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26 responses to “K-12 Schools Need Immunity for COVID-19

  1. I think the school boards will like this but I’m not sure it’s the sticking point with the teachers who have safety concerns. In fact, doing this may actually make things worse with the teachers who want to see improved safety and this will actually incentivize not improving safety.

    • The school boards and superintendents simply cannot suffer this legal exposure. Period.

      This recommendation doesn’t negatively affect the teachers as far as I can tell. It protects them from lawsuits. I believe that any claim they personally might have for getting sick will involve workmen’s compensation (another cost issue) regardless.

      Nothing in this suggests that the school boards and superintendents will not do everything that can be done to open safely.

      To suggest otherwise is profoundly insulting to people in a very difficult situation.

      • But, it’s unnecessary. No one can definitely prove the source of an infection . This was hashed out before the Tulsa rally with the disclaimer required by the campaign.

  2. To quote the superintendent of the Mathews County Public Schools in today’s Virginian-Pilot: “If you vary from the CDC considerations and the state guidelines, you are actually creating a liability and you may be putting your faculty, staff, and students at risk. The true question is your insurance company going to support you if God forbid something happens and then you end up having a lawsuit?” Thus, is not liability insurance the first place to look?

    • If they can get liability insurance. I would expect the insurers that write those policies to cancel them if the special liability of COVID is not made immune from lawsuits. I would. The COVID liability is unlimited, easily predictable and wasn’t in the rates when the policies were written.

    • Yet the Department of Labor and Industry’s Safety and Health Codes board is meeting today doing final markup on the set of emergency workplace regulations which will add liability exposure for every employer in the Commonwealth, including the local governments and the Commonwealth itself. This will be a huge issue at what I have now dubbed the “Cops and Covid Special Session” coming in a few weeks. (Help the name catch on….)

      • I sent the column link to every superintendent in the state and several school boards and well as select GA members and Clark Mercer. They will be on this.

  3. In America, anybody can sue and many do. But, if a school system is following CDC guidance, I would think they would be safe from liability concerns.

    • I don’t strictly agree.

      First, some parents will be furious whatever the schools decide and lawyers will seek the cases as class actions if liability is not granted.

      Second, see my comments on gross negligence or reckless endangerment, a new charge against schools with little legal precedent, and violation of various constitutional guarantees on the other side of the coin.

      Courts may find that if states had meant to provide immunity from these charges, they had opportunity to do so.

      In any case, it is a straightforward fix to do it by legislation.

  4. Immunity laws are antithetical to the free market basis of conservatism. I cannot, and challenge anyone, to cite an example where an immunity law or indemnification of an industry hasn’t been stretched to cover, proving always, that the measure of a law isn’t in the good achieved when applied correctly, but in the harm when applied incorrectly.

    From liveries to pharmaceuticals, a guarantee of protection irreparably damages quality.

    • Do you think this is true even when the liability protection covers government operations in response to an emergency with a lapse date at the end of the emergency? If so, I don’t agree.

      • This isn’t E.coli in a hamburger. This is a pandemic. What possible specific link between the action of the school and contracting the disease can be proved? From what then do the schools need immunity?

        You’re seeking estoppel, preventing the claim of causality as grounds. You don’t need a law to do that. It’s the purview of the court, e.g., “the devil made me do it” is not a defense, “I was too drunk to rationally determine I should not drive.” So too with, “I caught this at the grocery store”, or school.

        • No, it isn’t E.coli in a hamburger.

          It is the actions of school boards and superintendents acting in their official capacities that may bring a claim of “foreseeable” harm to someone. Those officials are in a position of potentially being sued no matter what they do except leave the schools closed.

          They don’t need to lose a suit to have their lives disrupted.

          How do you read Code of Virginia § 22.1-82? Or all of the states that provided immunity to businesses that opened?

          Finally, why would you object to this grant of immunity for the duration of the declaration of emergency in Virginia? I honestly don’t get it.

  5. “How do you read Code of Virginia § 22.1-82? ”

    Well, C doesn’t apply. A says “may”, but it would be foolish not to take advantage of the state legal system. B, well now, there’s the rub. The state needn’t grant immunity, but would be better served to write an exception to B in the case of Covid. Just pick up the legal expenses.

    No suit is getting past the requirement for causality. How much can it cost to file a motion to dismiss? Based on “foreseeable ” harm, I should sue everyone without a mask.

    Because conservatives want less government, less interference from government (that includes immunity) and absolutely no unnecessary laws.

    • Your comments are why I suggested the Virginia AG advise the Governor and GA on this. He can sort that through better than you or me.

      I still don’t get your evident hostility to this temporary emergency measure.

      • Not fair! You changed the comment that makes this…
        I also don’t light my hair afire very often… a response.

        Remember, our top executive is claiming nothing is foreseeable with this pandemic, except that testing causes it, there is no second wave, masks are an affront to him, it will magically disappear with warm weather.

        Being intellectually vapid, I don’t engage in “but what if” that has no basis in precedent cases, or worse, runs counter to the requirements of civil actions.

        As to advisable actions? Watch France. We have two months to observe a school system that is opening in full with compulsory attendance. This is a decision best made on August 21st.

  6. I’ve been very frustrated with the idea that some have demanded others accept the liability for COVID, freeing themselves. Shifting the burden to someone else, ultimately to the individual who has nowhere to shift it, is just wrong. When someone or some party gets immunity, the truth is they no longer have the strong reason to do the best they can to avoid the problem. If getting immunity is required for them to act, there must be a problem they’re dumping on those from whom they seek protection. Our system is definitely broken when all risk is put on the family, student, worker – and the government and industry have no liability. But if that student doesn’t come to school since the risk is all his/hers and their family, will they be penalized? If the worker doesn’t show due to their own risk that their employer won’t recognize or because they can’t afford the child care since kids aren’t in school, will they lose their job? Those refusing liability are asking that those on the lowest level of the totem pole risk their very lives with no recourse. Why do only the bigger players get protection?

    • Thank you. While mathematics, my particular area, demands precision of thought and expression within the confines of specific symbols and definitions, English and the freedom in the language really is not my forte. I had thought I had expressed such, but evidently not.

    • Pretty good discussion and insight. thanks.

      somewhere in the middle of this is a proper role of government and I’m thinking – it’s not happening.

    • Fair opinion.

      My focus is on policies tailored to get kids back in school. The new guidance offered by the American Academy of Pediatrics offers a way forward to get it done.

      The immunity I seek is limited to the actions of school boards and superintendents to get the kids into school in this temporary situation.

      The current liability situation risks parents never being asked if they want their kids in full time in-person schools. Or teachers if they would prefer to teach that way.

      So, as I said, it is a “damned if they do and damned if they don’t” situation.

      I return to my original recommendation to the schools, open them fully for in-person instruction or keep them closed.

      For many K-12 children, long term remote learning is an educational death sentence, regardless of who is “liable”.

      • Even outside of the remote learning, what about the teachers with children themselves. There all won’t be in school on the same day according to the current plan, and start times are staggered. What about childcare for the younger of them. There are a lot of factors people aren’t even beginning to deal with on top of continued distance learning will create a learning deficit that will as a Nation will be seeing for decades to come.

    • Because we live in a republic. We elect people to represent us, not take a bullet for us. If you don’t think your school board member will do the best they can, elect someone else.

  7. With the schools, the pandemic has forced us over the rubicon.

    We’re not going back and we have to find a way forward and keeping schools closed is not acceptable – no more so than keeping the economy closed was acceptable but “re-opening” was not returning to the way it was – at least not anytime soon.

    I don’t buy that distance learning is an educational death sentence.

    It’s a big change and is in the process of being modified and calibrated.

    The bigger problem is what do working parents do with their kids – and that’s not really an education issue. Not saying it’s not a big issue but we’re purposely conflating education issues with the parent work issue.

    Many kids are absolutely hooked on video games, texing, youtubing, etc, etc and they LEARN – but it’s not solely academic… but the point is that they CAN and do learn from “remote” – it’s just incorrect to say they cannot.

    pre-K – through 3 – yes.. they need a face-to-face but even those kids can and do learn from GOOD educational software – that can lead them through a lot of the reading and math drills that they have t do in class anyhow and the software can instantly let them know when they go off track rather than waiting for the teacher of 15-20 to get to their desk.

    We have become a bunch of whiners on this issue.

    We do not have a choice. We MUST change… and yes… we’re not going t find the perfect solution the first time around.. it’s a big object with a ton of moving parts.

    But this continuing back and forth between those who want to get back t school like it was before and those who have “concerns” is totally unproductive and worse adds to the political wars…

  8. yes, the “study” lays out all the current conventional arguments but again, we really don’t have a choice at this point – it’s totally wishful thinking on the part of anyone who thinks we’re going to return to the way it was before.

    It’s also totally true that there are issues and problems. What would we expect for such a gargantuan change? As we go along, we will get better and address the gaps and shortfalls and it WILL get better.

    The “equity” issue is interesting in that it is being used as a major reason we have to return to in-person but my guess is if we proposed to do this for the at-risk kids but the better off kids would continue remotely – all hell would break lose – so it’s more of an excuse not a real commitment to actually deal with it – to prioritize it – which we could for a much smaller group of kids.

    There are hundreds, thousands of education software which can and does run on laptops without internet….and online also but we know right now how to deliver CONTENT through software. We’ve talked for years about MOOC and Colleges were not keen on it not because it did not work but because it siphoned away on-campus which was far more lucrative.

    Nowadays, everything from how to do taxes, enroll in health care, police and public safety exams, the Khan Academy, TED presentations, on and on – can be accessed online, tests given online and certificates earned and provided for achievement.

    IT works and it works quite well for a lot of people – not as much for kids because we’ve always had in-person K-12. It’s not that they can’t do it, it’s that they were not expected to do it and at-home causes problems with working parents – not an education or online issue .

    We’re not going to be able to return to the way it was before – for a while. We will have to change and prioritize what we can do in-person – probably pre-k to 3 and possibly economically disadvantaged.

    But we have to stop making excuses and demanding that schools systems and teachers return to the way it was before.

    It’s becoming increasingly clear that it’s a bridge too far – and it’s really time for people to “grow up” and accept the reality and get on to dealing with it.

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