Law & Courts

Schools in Most States Are Shielded From COVID Lawsuits. It May Not Help

By Mark Lieberman — November 11, 2021 5 min read
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Schools in more than half of the states now have legal immunity from pandemic-related lawsuits that might come their way—like, for instance, if a student allegedly caught COVID-19 while in a school building, according to an analysis of state laws around COVID liability by Education Week, Husch Blackwell, and Education Commission of the States.

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

The analysis shows that 15 states passed laws in 2020 that protect schools from liability around COVID-19. So far in 2021, fourteen more have passed similar laws. In at least nine other states, proposed bills with similar protections have thus far languished in legislatures.

But most of the laws say the exemptions don’t apply if schools engage in “willful, intentional misconduct.” Some states, including Louisiana, Nebraska, and Oregon, emphasize that schools have to follow active federal, state, and local COVID-19 protocols in order for exemptions to be effective.

In Iowa, Indiana, and North Carolina, liability exemptions for schools are retroactive to the start of the pandemic.

School districts tend to appreciate laws along these lines because they reduce the likelihood that costly legal fees or settlement funds will eat a substantial chunk of their annual operating budget. Those losses could mean cutting programs that help vulnerable students and laying off valuable staff.

Those concerns are especially acute for smaller school districts, and for districts that have seen reduced or canceled insurance coverage during the pandemic. Twenty percent of school district leaders and principals who responded to a recent EdWeek Research Center survey said their insurance providers aren’t covering COVID-19 claims this school year. More than a quarter of those respondents said that insurance provider policy represented a change from last school year.

“We have many small school districts here in California with under a few thousand students or under 100 students,” said Troy Flint, chief information officer for the California School Boards Association, which has been pushing for months with little success for liability protections. “For a district like that, one judgment could bankrupt the district.”

California is among the states where liability protections for schools don’t currently exist. Flint said lawmakers in his state are reluctant to appear insensitive to legitimate concerns about the damaging effects of COVID-19 in public spaces. They’ve also raised concerns, he said, that liability protections would give schools cover to flout legitimate public health guidance.

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

These liability exemptions don’t, however, 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 COVID-19 claims, assuming the districts don’t engage in “reckless or wanton conduct or intentional misconduct.”

Roughly half a year later, however, two districts in the state—Waukesha and Fall Creek—got hit with federal lawsuits anyway, from parents who say their children got COVID-19 because their students’ schools weren’t requiring masks.

The Wisconsin-based attorney handling both lawsuits is Frederick Melms, who says the goal of the suits is for a federal judge to force school districts in the state to restore pandemic protocols like mask mandates and social distancing that they abandoned against scientists’ recommendations.

The lawsuit charges that, under the 14th Amendment of the U.S. Constitution, school staff efforts to protect students from COVID-19 during the early months of the pandemic constituted a “special relationship” that has since been violated. The suit also makes the case that schools failed to protect students from a “state-created danger” by continuing to hold extracurricular activities, failing to enact strict policies around school building visitors, and dropping mask mandates and social distancing.

“My clients aren’t looking to make money off of this,” Melms said. “They’re just looking to change the policies and protect kids.”

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Bankrolling the lawsuits is an unusual figure: Kirk Bangstad, a former opera singer and aide to disgraced former U.S. congressman Anthony Weiner who now operates the Minocqua Brewing Company in northern Wisconsin. Bangstad ran unsuccessfully for a seat in the state legislature last year, in a race he says he joined primarily to generate momentum for a left-leaning alternative to the right-wing politicians dominating his area.

Then in January, Bangstad launched a super PAC to raise money toward that goal, and began 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 her district.

“Nobody was fighting for what I thought was the right side of things,” Bangstad said. “I put out a Facebook post asking all parents with kids who had gotten COVID in school districts that removed all their COVID mitigation. I got flooded with responses.”

Bangstad said his main motive for funding the lawsuits is to protect adults who might get seriously ill from COVID spread through kids at school. His other motive? “To show these right-wing groups who are using kids as pawns to gain more power at the local level, through the 2022 elections, that there are people fighting back that won’t allow this nonsense to occur.”

School districts have faced lawsuits on a wide variety of issues during the pandemic: for requiring masks, for failing to require masks, for mandating vaccines. One district in West Virginia is facing a lawsuit for permanently closing several school buildings, thus increasing bus time and potential COVID exposure for some students.

Thus far, lawsuits alleging students contracted COVID-19 on campus haven’t proliferated. Flint said California schools haven’t yet reported any such claims.

But, “it’s probably an inevitability,” he said.

Maya Riser-Kositsky, Librarian and Data Specialist contributed to this article.
A version of this article appeared in the December 01, 2021 edition of Education Week as Schools in Most States Are Shielded From COVID Lawsuits. It May Not Help

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