A New Level Of Liability: Concerns About Reopening Schools Amid COVID Pandemic

Aug 23, 2020 by

Will Liability Waivers Protect Schools That Open From COVID Lawsuits?

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Back to school season is upon us, but the start of the 2020 school year looks like nothing we’ve ever seen before. Across the country, many school districts have opted to keep their programming online to prevent COVID-19 outbreaks in the schools, but others have chosen to open their doors, citing the limited cases of serious illness among children. Whatever decision a school makes, though, they’re likely to come under fire, and the ongoing pandemic makes it no surprise that some schools are asking returning students to sign liability waivers before coming to class.

A Contentious Return

Requiring liability waivers is only one of the signs that the 2020-2021 school year will be a logistically and personally contentious one. In California, teachers’ unions and districts found themselves locked in unsettled negotiations about the details of online learning. Elsewhere, neighboring school districts have chosen opposing strategies, with some opening for face-to-face instruction while their neighbors remain remote.

All of these decisions about reopening schools are based on a complex assortment of medical advice, economic need, and psychological insight, and there’s no right answer to how schools will bring students back. The presence of liability waivers and a handful of early outbreaks, however, suggest there may be wrong answers.

Are Our Schools Dangerous?

The notion of signing a liability waiver for even our youngest students to head back to school comes as a serious red flag. It says to parents that schools may be dangerous – but is that really the case? Certainly, gathering large groups indoors is much more dangerous than keeping children at home, at least when it comes to the risk of contracting COVID-19, but there are also long-term educational, developmental, and psychological issues at play. What the use of waivers does reveal, though, is that schools are worried they could face dangerous premises lawsuits if students or staff get sick.

A New Kind Of Danger

Typically, schools could be considered dangerous if they failed to undergo appropriate maintenance, neglected seasonal issues like clearing snow and ice, or installed inappropriate equipment like recalled playground structures that might injure children. Disease, on the other hand, has never been a serious consideration given that children pass various infections between each other on a regular basis; it’s just an expected part of sending children, especially young children, to school. At best, schools are obligated to alert parents to certain outbreaks, such as measles, pertussis, or coxsackie, but that’s typically the limit.

Whether or not schools require students and faculty to sign liability waivers, lawsuits could follow COVID-19 outbreaks, particularly in the event of serious illness. That’s because liability waivers are hardly foolproof protection. In fact, experts widely believe that they’ll be unenforceable, especially given the near-certainty of illness outbreaks. Schools are far too likely to see serious outbreaks, whereas waivers are generally used to indemnify groups against potential, but less likely risks, not inevitabilities.

Communities In Crisis

Whether schools choose to open for face-to-face instruction or remain remote, communities across the country are in crisis, and the issues are impacting education at every level. At the college level, UNC Chapel Hill opened for a week before having to close down due to multiple COVID-19 clusters, and at least one high school in Georgia closed within days of the school year’s start. We simply haven’t controlled COVID-19 well enough to open schools. There are rough waters ahead and communities need to brace themselves for a cycle of re-openings and closings in the coming months.

Photo credit Anne Spratt

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