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Colleges turn to states for coronavirus liability protection
Jeremy Bauer-Wolf
June 30, 2020
Dive Brief:
North Carolina's legislature last week passed a bill immunizing the
state's colleges to legal claims, including tuition-related lawsuits,
concerning campuses that closed in the spring 2020 term because of the
pandemic.
The measure awaits the governor's signature. Louisiana lawmakers,
meanwhile, are debating legislation that would neutralize most civil
claims against colleges and school districts if their students caught
the coronavirus.
Awaiting federal backing, colleges and industry groups have begun
pressing state lawmakers for protection against legal action should
campuses have to close again or students and employees contract the
virus on campus.
Students and families began suing their schools for refunds of tuition
and other costs, claiming the educational experience they received in
the spring didn't match what they paid for. More than 100 such lawsuits
were filed as of early June, according to one count.
Institutions are now planning for the fall term, and are mulling myriad
ways of keeping their campuses healthy if they reopen. That includes
conducting extensive virus testing and contact tracing, mandating face
coverings, even installing plexiglass barriers between students and
instructors during class time.
None of these measures, however, completely ensures students or staff
members won't become infected. College leaders fear that even if
they've taken steps to halt its spread, restarting operations without
liability protections would mean opening themselves up to a potential
slew of virus-related litigation.
Higher education groups, led by the sector's top lobbyist, the American
Council on Education (ACE), have pushed Congress to authorize certain
liability protections for colleges. But a federal proposal has yet to
materialize. Colleges have now turned to state lawmakers, asking them
for such safeguards with some degree of success.
College presidents and industry groups lobbied legislatures for lawsuit
protections. At least two states have bills moving forward explicitly
crafted to shield colleges from liability, while other legislation is
geared toward protecting businesses and hospitals.
"Without legal immunity, colleges are damned if they do and damned if
they don't," Jennifer Braceras, director of the conservative
Independent Women's Law Center, wrote in a recent op-ed for The Hill.
"Some are already fighting lawsuits by students seeking refunds based
on decisions to close. Those that reopen will no doubt face suits from
those who get sick."
In the legislation Louisiana lawmakers are debating, students, families
and educators could only sue if their school was grossly negligent in
protecting against the virus.
Many more state groups are pressing for liability shields, and some
state officials have indicated they would back such measures. Last
month, members of the Connecticut panel that advised officials on
reopening the state recommended that Connecticut offer a "safe harbor"
from liability for schools that follow the planning measures it put
forward.
"No institution can seriously consider opening its campus if it faces
the threat of lawsuits by students who become infected," the group's
report states, noting that "it is inevitable" individuals will contract
the virus.
Representatives from Maine's colleges are also recommending the state
provide a legal safe harbor to institutions there that reopen. And New
Jersey's college presidents have advocated for similar protections.
Several state organizations representing private colleges signed on to
a letter last month from ACE President Ted Mitchell to congressional
leaders pushing for federal liability protection with regard to the
spread of the virus. ACE is not tracking state action on liability
protections as its advocacy is focused on the federal government.
Federal protections still could be on the horizon.
College presidents have been flagging the issue for high-ranking
administration officials and lawmakers. More than a dozen college
leaders discussed concerns about reopening campuses and potential
liabilities on a conference call in May with Education Secretary Betsy
DeVos, Vice President Mike Pence and White House Coronavirus Response
Coordinator Dr. Deborah Birx.
Sen. Lamar Alexander, (R-Tenn.), chair of the senate's education and
health committee, also has indicated his support for liability shields
and is a cheerleader of reopening campuses in the fall.
Not every lawmaker is on board though. Sen. Elizabeth Warren (D-Mass.)
tore into Brown University President Christina Paxson during a
committee hearing earlier this month, asking why colleges should not be
held accountable if students and others fall ill.
"If we are careless, if we don't follow guidelines, that's not
something that should be protected in any way, shape or form," Paxson
said in response.
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