Standards, Risks, and Liability: Reopening of Schools During the COVID-19 Pandemic
The school has a duty to protect the health, safety, and well-being of the students and the staff who work in the building. With this duty in mind, the school must be proactive in addressing the physical environment. A school may be held liable if its administration knows what is necessary to reduce students’ risk of becoming infected yet fails to act on that knowledge by taking reasonable steps, such as mandating mask use and social distancing or providing sanitizing services and other scientifically proven methods of reducing the risk of contamination. If it can be shown that the school deliberately ignored recognized standards to keep kids and staff safe, and if a resulting outbreak can be clearly linked to a failure on the part of the school, then the school will not be immune from a lawsuit.
We at School Liability Expert Group expect to be engaged by attorneys around the country who either will defend or file complaints against schools. A first wave of lawsuits related to COVID-19 against companies over worker deaths and the alleged failure of employers to protect them have already been filed against Safeway, Walmart, Tyson Foods, and others. These cases are part of an unfolding liability threat facing U.S. companies and schools as they look to resume operations.
School districts are the largest employers in many areas, and they educate, feed, and transport a substantial proportion of children within the communities they serve. Under normal circumstances, the education, transportation, feeding, and care of the tens of millions of students who attend K–12 schools across the county is a complex, highly orchestrated logistical feat. The coronavirus pandemic has created tremendous challenges for superintendents and boards of education as they develop and implement plans to educate students while trying to protect them and employees from foreseeable harm.
Effective implementation of COVID-19 school safety standards is key to reducing liability
For school districts, independent, charter, and parochial schools to address student health, safety, and well-being, federal and state standards for the reopening of schools must be followed. The Centers for Disease Control and Prevention (CDC) is the federal authority responsible for establishing standards for the safe opening of schools. State departments of health, in coordination with the governor’s office and state departments of education, perform a similar function at the state level. State and federal authorities develop standards based on the science of epidemiology and how infectious diseases are properly mitigated, treated, and eradicated. These authorities are duty bound to protect public health and should not be influenced by economic or political factors that may distract them from providing the best information, guidance, and standards that society needs during this pandemic.
Local school boards and superintendents are far from being immune to political and economic forces that may ultimately compromise the health and well-being of students and staff. Districts that prioritize health and safety through good-faith application of the standards promulgated by federal and state public health authorities will minimize their liability — but more importantly, minimize the suffering and, possibly, deaths of students and staff from COVID-19. Currently, numerous districts across the country are realizing that they cannot reasonably meet the safety standards and are reversing their decisions to provide in-person instruction. Superintendents and School Boards who resist the political pressure to reopen schools when the safety standards cannot be adequately addressed are protecting their students and limiting their liability. Those who don’t will increase the likelihood of infection, as well as increase their liability.
What makes school reopenings so complicated and creates great liability exposure for districts is individual states’ overreliance on local control and decision making when applying federal and state standards. Because of this flexibility in interpreting standards and political pressure, similar districts in close proximity to each other have developed reopening plans that differ widely. The federal and state governments, in essence, have kicked the can down the road until it lands in the lap of the school district, which is left to interpret this guidance. Districts are clearly stuck between a rock and a hard place. Locally elected or appointed school board members and superintendents are receiving a great deal of pressure from their constituents to open schools in order to address the academic and social needs of the students while allowing parents to return to the workforce. However, other community members have serious public health concerns knowing that opening schools for in-person learning could lead to the spread of COVID-19 to students, teachers, and staff, who may continue to spread the virus within the community. These pressures are influencing decision-making at the local level causing public health and educational policy-making to become overly politicized, highly emotional, and divisive. This is a time when communities need to come together to best address this public health crisis by developing a focused, deliberative, science-based determination of how to best open schools for in-person learning. When states provide clear, unambiguous standards for the opening of schools, local school districts are best able to protect children and staff and minimize its exposure to liability, as long as the districts strictly implement in good faith the standards provided by public health authorities.
Additional funding, staffing, and training are crucial to safe school reopening
To maintain the 6-foot social distancing standard, school districts would have to build additional classroom space and hire additional staff, or plan for in-school learning with only a portion of its student enrollment on campus at any one time. States have not released federal CARES Act funding to build additional classroom space or hire additional staff, so many districts have identified portions of its student body to attend in-person instruction on a given day or days during the week. Many districts have developed what is commonly known as hybrid models, implementing part-in-school instruction and part-at-home remote instruction. In these models, approximately half of the student enrollment is present at the school facility on any particular day, helping the district to address the social distancing standard.
Not all hybrid plans are the same, however. Many districts schedule half days of in-school instruction and avoid the need to feed the children in school. Others are scheduling full days of in-school instruction and feeding children either in their classrooms or socially distanced in the cafeteria. If a state authority prohibits in-restaurant dining for its citizens and allows only outside dining, it would be difficult to argue that making an exception for in-school dining for students adequately protects the children from foreseeable harm. State authorities will need to be clear and consistent in their standards so that districts do not loosely interpret ambiguous standards, thus creating legal peril and compromising the health of the children in their care.
Transportation is another area where districts are struggling to meet health and safety standards. It is difficult, if not impossible, to practice social distancing on a school bus unless a significant portion of the ridership is removed from each bus route. Even when schools implement a hybrid approach and transport only half of the students at a time, they may not be able to meet the social distancing standard without significantly increasing transportation costs by adding additional drivers, buses, and routes. Although most states require cleaning of buses in between runs and keeping the windows open to increase air flow, failing to provide for social distancing will increase the risk to students’ health.
Hallway movement, especially in large middle and high schools, can be very challenging. Having students move throughout the school in a manner that violates social distancing standards, coupled with a mask-optional policy, may lead to viral spread. Arrival and dismissal procedures will have to be developed with social distancing standards in mind as well. Before the pandemic, it was not uncommon for hundreds or even thousands of students to arrive and go home en masse. Districts are well advised to establish procedures to stagger arrival and dismissal times to avoid the congregation of large crowds and maintain social distancing standards.
School reopening guidance standards differ from state to state
Some districts are using one day of the week as an “all-remote learning day,” at which time the district commits to deep cleaning its facilities. In some districts, the “all-remote learning day” is on a Wednesday; in others, a Friday. Some districts have no all-remote days built into their reopening plans. It seems logical that additional cleaning, done every day, consistent with cleaning standards detailed by the CDC and departments of health, should be required. Some districts will maintain that they are going above and beyond standards, which is laudable — but any inconsistencies will be seriously scrutinized when staff and students become infected.
New cleaning and disinfection protocols are recommended according to the CDC. The CDC guidance cites the Environmental Protection Agency (EPA) list of approved disinfectants for disinfecting surfaces and objects touched by multiple people. Districts should develop a written plan of what to clean, how to clean, what products will be used, and how to protect the custodians from infection while cleaning. If/when staff and students become infected, these plans will be evaluated against the existing standards from the CDC and the EPA to determine if the proper protocols were developed, staff was appropriately trained, and methods of accountability were developed to ensure that standards were put into practice.
Screening of students for flu-like symptoms, including daily temperature checks, may be the standard in some states, but the CDC is not currently recommending universal symptom screening. The CDC strongly encourages parents to monitor their children for signs of infectious illness every day and advises that students who are sick should not attend school. When federal- and state-authorities’ standards differ, the more stringent standard for minimizing health risks to students and staff should apply, thus limiting the liability by implementing a practice that is reasonably calculated to improve individual health outcomes and minimize the risk of infection. Current state guidance standards are very different in states across the country based on our review of a few samples from Florida, Pennsylvania, California, Texas, and other states.
The challenge of opening schools safely is a collaborative effort between and among many stakeholder groups including parents, teachers, students, administrators, policymakers, and public health officials. Good-faith efforts to adhere strictly to state and federal safety standards for the reopening of schools will help to keep the staff and students healthy; however, even under the best circumstances, it is foreseeable that students and staff members will become infected. It is not a matter of if there will be viral infection in schools, but when.
For school districts to protect students and staff from foreseeable harm, decision makers have a duty to strictly apply the health and safety standards set by state and federal public health and infectious-disease authorities. Failure to do so will place the well-being of children and staff at risk of suffering and expose the district to significant liability.
