Schools in most states are immune from COVID-related lawsuits. It may not help

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Schools in more than half of the states now enjoy legal immunity from pandemic-related lawsuits that may befall them, such as, for example, if a student has contracted COVID-19 while in a building school, according to an analysis of state laws around COVID Liability by Education Week, Husch Blackwell, and the State Education Commission.

But state laws protecting schools from liability may not be enough to avoid lawsuits, if a recent case in Wisconsin is any indication. Two school districts face legal action after students contracted COVID-19, allegedly on campus.

Analysis shows that 15 states passed laws in 2020 that protect schools from liability related to COVID-19. So far in 2021, fourteen more have passed similar laws. In at least nine other states, bills with similar protections have so far languished in legislatures.

But most laws state that the exemptions do not apply if schools engage in “willful and intentional misconduct.” Some states, including Louisiana, Nebraska and Oregon, stress that schools must follow active COVID-19 protocols at the federal, state and local level for the exemptions to be effective.

In Iowa, Indiana and North Carolina, school liability waivers are retroactive to the onset of the pandemic.

School districts tend to appreciate such laws because they reduce the likelihood that expensive legal fees or settlement funds will consume a substantial portion of their annual operating budget. These losses could mean cutting programs that help vulnerable students and laying off valuable staff.

These concerns are particularly acute for small school districts and for districts that have had their insurance coverage reduced or canceled. during the pandemic. Twenty percent of principals and school principals who responded to a recent EdWeek Research Center survey said their insurers were not covering COVID-19-related claims this school year. More than a quarter of those polled said the insurance provider’s policy represented a change from the previous school year.

“We have many small school districts here in California with less than a few thousand students or less than 100 students,” said Troy Flint, director of information for the California School Boards Association, which has been lobbying for months with little success for liability protections. “For a district like this, a judgment could bankrupt the district.”

California is one of the states where there is currently no liability protection for schools. Flint said lawmakers in his state were reluctant to appear insensitive to legitimate concerns about the damaging effects of COVID-19 in public spaces. They also raised concerns, he said, that liability protections would give schools cover to flout legitimate public health guidelines.

Health and legal experts recommend that school districts strictly follow public health guidelines as the best defense against potential costly litigation.

However, these disclaimers do not eliminate the possibility of a lawsuit.

In February, Wisconsin enacted a policy that exempts school districts as well as other government entities and businesses from being liable for claims related to COVID-19, assuming districts are not engaging in “reckless driving or gratuitous or willful misconduct “.

About six months later, however, two districts in the state – Waukesha and Fall Creek – faced federal lawsuits anyway, from parents who say their children contracted COVID-19 because their students’ schools did not require masks.

The Wisconsin-based attorney handling the two lawsuits is Frederick Melms, who says the objective of the lawsuits is for a federal judge to force the state’s school districts to reinstate pandemic protocols like mask warrants and the social distancing which they abandoned against the recommendations of scientists.

The lawsuit accuses that under the 14th Amendment to the U.S. Constitution, the efforts of school staff to protect students from COVID-19 during the first months of the pandemic constituted a “special relationship” that has since been violated. The lawsuit also argues that schools have failed to protect students from a “state-created danger” by continuing to organize extracurricular activities, failing to enforce strict policies regarding visitors to buildings. school and abandoning mask mandates and social distancing.

“My clients aren’t looking to make money with this,” Melms said. “They are just looking to change policies and protect children.”

Funding the lawsuit is an unusual character: Kirk Bangstad, a former opera singer and assistant to disgraced former US Congressman Anthony Weiner, who now runs the Minocqua Brewing Company in northern Wisconsin. Bangstad unsuccessfully ran for a seat in the state legislature last year, in a race he says he joined primarily to generate momentum for a left alternative to right-wing politicians dominating his region.

Then, in January, Bangstad launched a super PAC to raise money to achieve this goal and started hosting a podcast to promote the super PAC. One guest was a school board member who was facing a recall after refusing to vote in favor of lifting pandemic protocols in his district.

“No one was fighting for what I thought was the bright side,” Bangstad said. “I posted an article on Facebook asking all parents of children who contracted COVID in school districts to remove all of their COVID mitigation measures. I was inundated with responses.

Bangstad said his main motive for funding the lawsuits was to protect adults who could become seriously ill from the spread of COVID by children in school. His other motive? “To show those right-wing groups who are using children as pawns to gain more power at the local level, through the elections of 2022, that there are people who are fighting back and who will not allow this absurdity to take hold. produce.”

School districts have faced lawsuits over a wide variety of issues during the pandemic: for demanding masks, for not requiring masks, to make vaccines compulsory. West Virginia district faces lawsuit for permanent closure of several school buildings, increasing bus time and potential COVID exposure for some students.

So far, lawsuits alleging students contracted COVID-19 on campus have not proliferated. Flint said California schools have yet to report such allegations.

But, “it’s probably inevitable,” he said.


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