Debra P. WilsonSAIS
May 8, 2020
For many weeks, schools have been waiting for guidance on re-opening. At first it was coming from abroad in the form of school samples and slide decks. Then it often came in the form of interim guidance from some “government agency.” And still others are coming from association, vendors, insurance companies, and colleagues. All of these lists are helpful, but which ones are really crucial?
Many schools worry about liability, and in a deadly pandemic, that certainly has not changed. In a vacuum of guidance, the broad range of hints at the future have been useful in anticipating what is to come in terms of safety expectations. However, when it comes to liability, schools need to understand what they truly must follow. Liability here comes in two general ways: the first in the form of negligence and the second in the form of compliance. The first is one that schools are most used to thinking about.
Negligence occurs when the school owes someone a certain standard of care, usually a student, the school fails in meeting that standard, and that failure causes harm. Plaintiffs attorneys will look for standards in a variety of places, and that is why it is important for schools to understand the range of standards out there. They can come from federal agencies (like the CDC), state governments, local health officials, and often public schools. These might be put out as “guidelines” or “advisory publications.” Other groups and associations can also create standards of care through things like “best practices.” The school itself creates standards when it expresses the steps it is taking and then fails to actually perform them, and that failure causes the injury. For schools, the generally understood standard is often what is required of the local public schools as that is an agreed upon standard being used for most children locally. Those standards are often developed by looking at state and federal guidance and incorporating local public health requirements.
Compliance is a bit different than negligence. Failure to comply with safety standards can trigger negligence, but it is often its own legal quagmire. Compliance requirements in the school world can be set by federal law, particularly in employment and nondiscrimination law issues, but in the public health arena there tends to be more actual requirements at the state and local level. What is important to understand about compliance is that what they mandate is truly required, the more stringent version from various legal arms controls the compliance, and compliance laws and regulations often become the standard of care.
For example: If the federal government guidance says that schools should have students six feet apart in common eating areas like cafeterias, an association notes that school cafeterias should only serve pre-boxed meals, and the local public health officials issue an ordinance that says schools cannot use cafeterias as dining establishments, then the school cannot use the cafeteria for eating. If it does, it has a compliance problem, but it also has a negligence problem because it was not following the standard of care set by a health official.
The reverse can cause a different result. If the federal government says that schools should not use cafeterias for eating, the association says students should be six feet apart if they are in the cafeteria, and the public health regulations says cafeterias are fine to use right now because there is low to no community outbreak, then a school’s use of the cafeteria complies with local public health laws. However, if a student or her family gets sick, the plaintiff’s attorney can still try and argue that the guidelines from the other entities should have been the standard of care. That being said, the school has a reasonable argument that it has a right to rely on the public health directive at the time in those circumstances. Schools can expect to see these conundrums in the 2020-2021 school year and be ready to understand which entity it will follow at any given time.
Right now it is particularly hard for schools to plan because there has been such a vacuum of information around safely having students on campus, but guidance is trickling out, while at the same time other guidance has not been updated for the circumstances. For this reason, it is important for a school to know and understand the steps it will take to keep students safe, but also why (where did this information come from) and if that step is appropriate for that time (e.g., is the school community in Phase 1 or Phase 3 of a re-open).
When schools are developing their plans for returning to campus, it will help to know the driving factors or requirements behind the various decisions or steps. Schools should always know what is absolutely required so that they do not accidentally replace it with a different standard or practice from another source. This short list of how to think about some of these pieces might be useful.
Federal Law – Federal laws must be complied with if they apply to your school. It is unlikely that schools will see federal laws around specific areas of school operation.
Federal Guidance – Guidelines and guidance create a standard of care that should not be ignored and can be used in negligence cases, but they are not generally compliance standards that are legally binding.
State Law – Your state laws must be complied with if they apply to your school. There are many levels of state law, including laws passed by your state’s legislature, but also in the forms of regulations and public health requirements. An important thing to remember about state law relative to federal law is that the state can create laws that are more stringent than the federal law, but it cannot exempt people or businesses within the state from compliance with the federal law. In other words, state and local governments can raise the floor on a requirement, but they cannot lower it below the federal legal requirement.
Public School Regulation and Requirements – Your local public school laws or requirements are not generally binding on independent schools in terms of compliance, but they are an easy place to turn for a standard of care. They may not all apply to your school, but particularly from a public health perspective, the steps they take are likely to be very transferable to the independent school setting.
State Guidance – Some states do put out guidelines much like federal agencies. In some states these carry more weight than others and schools should generally weigh very carefully if they are not going to follow that guidance. Again, as guidance or guidelines, they do not generally require compliance, but they are seen as a standard of care.
Insurance Company Guidance – Insurance companies often put out very helpful checklists and other background documents based on their histories of litigation. Particularly in public health situations, insurance companies often have a deeper experience with negligence standards and concerns as well as institutional processes and systems. These can create standards of care, but they might also impact your coverage depending on the context of how the insurance company provided the guidelines.
Other States’ Laws and Guidance – These rarely apply to your school, but they are sometimes instructive in how to think through an issue or a paradigm, or they may address something that your state law or guidance does not and may be helpful to you. These can also be standards of care in a negligence argument, but they are more of a reach argument for attorneys.
Association Guidelines – These can create a standard of care, so it is good to know them and understand them. However, if your other legal obligations or more local standards of care are more stringent, you should follow those. Guidelines generally are not checking all of the various state laws and regulations out there, so schools must track any distinctions between such guidance and those laws and regulations.
Association Checklists – As with guidelines, these checklists can be useful to identify what schools should be thinking about, but they are not cross-referenced to check with local and state laws. Before following checklists or guidelines from non-governmental agencies, schools must be sure that they are not inadvertently falling out of compliance with state or local requirements or violating more local standards of care.
Schools must be vigilant about what is happening in their state and local environments in ways that they have rarely had to be in the past. While there is some guidance coming from the federal government, most of what is truly expected of schools will be coming through the state agencies or the local public health officials. For that matter, as the virus has outbreaks in different areas, those local or state agencies may control whether a school campus is open and in what stance. As schools build their plan for returning to campus, they will want to be well attuned to these various government arms because those will often be directing different levels of expectations from the school at any given time.