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In making the many decisions regarding how and when to reopen, it is imperative that our local school districts also consider a number of legal issues. COVID-19 presents a number of new legal questions that school districts and more importantly school solicitors need to answer.
The first question that needs to be addressed is, what can school districts do to protect themselves from any potential negligence or recklessness claims by students and their families, faculty or other school employees if there would be a COVID outbreak?
At this point, school solicitors are trying to determine exactly which of the plethora of guidelines issued by the CDC, State Health Department, and State Department of Education are orders and which are suggestions. For example, one of the orders here in Pennsylvania specifically deals with the wearing of a mask. If a school district does not follow or enforce this order by Gov. Tom Wolf, would they then be exposed to a civil liability suit if there was an outbreak of the virus on campus? It is important that local school districts consult with their solicitors in determining which guideline are in fact orders and which are suggestions.
Another potential issue that school districts must investigate is their insurance coverage on any claims related to a pandemic outbreak. It is not unusual for insurance carriers to exclude infectious diseases from school coverage. Therefore, it is important that school districts check their policies to determine if these claims are covered.
In the absence of any liability shield for schools issued by the federal or state government, it is important to then anticipate potential negligence claims. Some school districts have considered having a student’s family, along with staff, sign a waiver of ordinary negligence, similar to the waiver signed before a field trip. Although, the enforceability of such a waiver varies from state to state. Again, it is then advisable that school districts considering such a waiver craft it with care to maximize the chances of enforceability.
In response to the fact that no liability shield for our schools exists, on July 8, the School Superintendents Association and National School Boards Association penned a letter to leaders of Congress asking them to pass legislation to protect school districts that act in good faith from COVID lawsuits. At this time, no such action has been taken and Congress is presently adjourned until Labor Day.
Unfortunately, our local school districts must consider these legal issues as schools prepare to reopen. The possibility of a deluge of civil liability suits could have a serious impact on the financial stability of our schools at a time when budgets are already experiencing shortfalls due to the pandemic.
Robert Griffiths is a former educator and a current educational consultant and Cornwall-Lebanon School District board member. He lives in South Lebanon.
Read previous columns from Robert Griffiths on returning to school
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