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Education Dive
Colleges seek cover from lawsuits over coronavirus spread
Higher ed associations are asking Congress to safeguard institutions
from legal action as they work out how to restart operations for the
fall.
Jeremy Bauer-Wolf
May 29, 2020
College presidents have been considering steps to safely reopen
campuses for the fall, including mandatory coronavirus testing, robust
contact-tracing efforts and class-size reductions.
Whether those measures would shield institutions from a lawsuit remains
unclear. Legal experts say students or employees at a college who were
sickened by the virus would likely still sue their institution.
With these dilemmas in mind, higher ed's top lobbying group has asked
Congress to approve short-term liability protections against the spread
of COVID-19, the disease caused by the coronavirus, for colleges and
their affiliated entities. These liability protections are increasingly
coming under debate as colleges decide whether to resume face-to-face
classes for the fall term.
College leaders will likely reopen campuses even without liability
safeguards, experts say. But being covered in case of a lawsuit would
alleviate one pressure point on already overburdened administrators.
"It would certainly help clear up some of the uncertainty," Scott
Schneider, a higher ed law specialist and partner in the Austin, Texas,
office of Husch Blackwell.
Ted Mitchell, president of the American Council on Education (ACE,)
sent a letter to congressional leaders Thursday calling for "temporary
and targeted" protections. Institutions should still be required to
abide by "applicable public health standards," Mitchell wrote, asking
lawmakers to carve out a path to legal recourse for those "harmed by
truly bad actors who engage in egregious misconduct.
Colleges fear the costly defense against lawsuits over the spread of
the coronavirus on campus, he wrote, "even when they have done
everything within their power to keep students, employees, and visitors
safe."
That's because no one knows the standard to which colleges would be
held liable in this type of case, said Audrey Anderson, counsel with
Bass, Berry & Sims in Nashville and a former general counsel of
Vanderbilt University.
A party suing a college would need to prove the institution didn't make reasonable efforts to keep them healthy, Anderson said.
"But this virus is so new that there isn't an established baseline of what is reasonable in legal terms," she said.
A similar lawsuit might involve a student suing because mold in a
residence hall made them ill, Anderson said. However, courts have
already established the actions colleges should have taken to preserve
student health in that case because colleges have encountered mold
cases before.
The coronavirus, however, is unprecedented. And campus officials would
need to think about the potential complexities of guarding against
liability in all aspects of their business, including transportation,
dining and housing.
Colleges have suggested a range of measures to defend against the
virus, such as dispensing facemasks, spacing out students in classrooms
and regularly screening for the virus. But not every institution can
afford coronavirus testing and other costly protections.
A legally vengeful student could point to an entity such as the
California State University System, which has already announced it will
continue most classes remotely this fall, and claim their institution
was negligent for not doing the same, Anderson said.
"Right now there's nothing you can do that will make sure you'll absolutely be able to win if someone sues you," she said.
Colleges are clamoring for legal guidance on these issues, Schneider said.
More than a dozen college presidents outlined their concerns regarding
potential liabilities and campus reopening on a conference call earlier
this month with Education Secretary Betsy DeVos, Vice President Mike
Pence, and White House Coronavirus Response Coordinator Dr. Deborah
Birx.
The college executives leaders identified two key legal concerns for
restarting operations: being sued for tuition refunds if classes
continued online and being sued if a student or employee became sick
upon returning to campus, according to The Chronicle of Higher
Education. Federal officials did not try to sway institutions to reopen.
Colleges may get some cover from the states. Massachusetts' advisory
board for reopening the state has identified liability protections for
colleges as one way the state can support higher education.
Three college presidents — Purdue University's Mitch Daniels, Brown
University's Christina Paxson and Logan Hampton, of Lane College in
Tennessee — are also expected to discuss liability issues when they
testify before the Senate's health and education committee next week.
Colleges aren't the only ones looking to insulate from lawsuits.
Businesses have also sought liability protections against the spread of
the disease as they reopen. Senate Majority Leader Mitch McConnell,
R-Ky., has stressed that any additional relief measure Congress passes
would include them.
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