With students, faculty, and staff returning to many campuses, this fall will be a Covid-19 liability minefield even under the best of circumstances.
Look what colleges are up against. Start with the mind-boggling public-health logistics of educational and residential life, and possibly of some athletics and other extracurriculars. Add the ebb and flow of off-campus students, visitors, and dining and retail personnel. Bring into the decision-making and approval loops administrators, the faculty, trustees, and layers of unions. Pressure-cook your plans in a matter of months with incomplete and evolving public-health recommendations. Then get the word out effectively before everyone arrives on campus.
College leaders may think they can eliminate liability with the stroke of a pen: Just have people sign waivers.
That’s a seductive fantasy. No waiver can resolve all those headaches, according to a dozen lawyers who work with colleges.
If you’re asking someone to waive something, you’re saying, ‘I might be doing something that could do you harm.’
For starters, waivers wouldn’t protect universities from claims by faculty and staff, said Hope Sarah Goldstein, a partner with Bryan Cave Leighton Paisner. An employer cannot ask employees to sign away future claims from workplace-related injuries covered by workers’ compensation. Whether Covid-19 is covered under those compensation programs is another matter — one being argued and legislawted in some states and cities, Goldstein said.
Most experts agree that for students, however, some document — if not a waiver then a disclosure or an acknowledgment of risk — can increase awareness of peril and underscore the communal responsibilities shared in a public-health crisis.
“It helps people to become partners in this decision,” said Michael Holt,
a partner with Fisher Phillips. “We want to do that with everyone’s eyes wide open.”
It’s important that any such document not be what courts call “a contract of adhesion” — one that coerces a signer who has no other options or doesn’t understand them, said R. Craig Wood, of McGuireWoods. But if a student is 18 or older, and has the option, without penalty, to take a leave of absence or online class equivalents, an agreement to come to campus might have legal value — at least in some states.
Phrasing matters, and the word “waiver” itself can carry stigma. Waivers, said Holt, “are kind of troubling as a concept. If you’re asking someone to waive something, you’re saying, ‘I might be doing something that could do you harm.’”
“‘Waivers’ are a dirty word for lawyers,” said Anthony Russo, of the Russo Firm. Plaintiffs’ lawyers like him, he said, “are going to get our hands on that email discussion” in which someone spells out an unfortunate calculation putting revenue above safety, and that will cast any waiver in a particularly ugly light.
And with waivers, the devil is in the details. For instance, said Mark H. Moore,
a partner with Reavis Page Jump, New York State has no general restriction on educational institutions requiring a waiver. It does impose restrictions, however, on waivers for landlords and for recreational activities, so should problems arise in a college dorm or gymnasium, the waiver might not apply anyway.
Beyond moral and strategic problems, waivers don’t offer colleges adequate legal protection, and they give a false sense of security, said Mark A. Goode,
managing director of the North America public-entity-and-education practice at Willis Towers Watson, a risk-management, consulting, and brokerage company. Waivers “may lessen an institution’s effort to build solid risk-management practices,” he said. They are often vague or become outdated, making them “ripe for a plaintiff’s attorney to discount or even use the language in a waiver against the college.”
And, he said, “like the signage at a pool without a lifeguard saying, ‘Swim at your own risk,’ it doesn’t necessarily protect the owner if someone drowns. Think of a small child who can’t read, or a person who can’t read English or can’t read at all. Waivers face the same arguments regardless of how well written they appear to be. The general premise is that an organization cannot fully contract away their own liability.”
Handbook Supplements?
What colleges can do, lawyers said, is update their student and employee handbooks with temporary online Covid-19 supplements that can be revised as new information about the virus comes to light, and can be phased out once the crisis has passed.
But, says Goode, the handbook updates can be problematic too. They come from three separate domains of administrative ownership: student affairs, the faculty council or senate, and — for staff members — human resources. Will those three administrative arms be big, fast, thorough, and cooperative enough to get the job done? How strict should disciplinary measures be for those in noncompliance? Enforcement has never been higher education’s strong suit, Goode says, especially when educational and social interaction is such a big part of campuses’ culture and appeal.
And, he says, “a written policy that is not enforced may be even worse than not having a policy at all. Reducing protocols to writing may be construed as an admission of identified risk. Failure to enforce policies to protect the public from identified risk could be construed as negligence.”
What would provide some legal protection — for a finite period, and not for gross negligence — would be a federal indemnity bill.
The American Council on Education, with dozens of other higher-education associations, has asked congressional leaders for “temporary and targeted” liability-exposure protections for institutions that open their campuses this fall. There is some momentum toward a state indemnity bill in New York, and strong lobbying for it in New Jersey
and elsewhere, but colleges function beyond and between states, so it’s the federal protection for which colleges are pushing hardest.
Christopher J. Schmidt, co-leader of the higher-education practice and a class- action lawyer at Bryan Cave, is rooting for such federal protection. “I hope it happens,” he says. “In the face of an unprecedented pandemic, we have already seen an avalanche of litigation. At some point, enough is enough.”
He’s not holding his breath, though. “I’m skeptical. There’s a pretty powerful trial-lawyer bar in our country. I think they will fight tooth and nail to prevent some sort of immunity legislation to be passed on a federal scale or a state scale.”
Avoiding More Refund Suits
Even colleges that do open and run relatively smoothly will have to guard against a repeat, or variations, of the more than 100 class-action suits seeking tuition-and-fee refunds from spring campus closures. Plaintiffs’ lawyers in those cases are struggling, said Tracy M. Talbot, a partner with Bryan Cave. That’s partly because most students did complete the semester online. And it’s partly on procedural grounds. For example, it’s hard to establish who constitutes a “class” given varying types of study, who foots the tuition bill, whether students are on scholarship, and so on.
Students enrolling for fall have a clearer view of Covid-19 contingencies and would have a tougher time arguing that campus closures or other limits on in-person engagement came as a surprise. In that realm, lawyers say, transparency and clear communication are colleges’ best defense.
“My guidance,” said John Q. Lewis, of Tucker Ellis, “is to provide the potential students with as much information as you can, including potential options, and if they choose to opt in and accept those risks, that puts the schools in a better position legally.”
Given the many steep obstacles, will two-thirds of the country’s colleges really open in the fall as they plan to? If they do, for how long?
With the projected second wave of Covid-19 infections, said Moore. “I think we are really in for a shock.”
