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 It continues until emergency orders expire or are rescinded.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.
