California school officials raise alarm over legal risks of in-person instruction

Even as school districts across Sonoma County stock up on personal protective equipment, install new air vents and put up plexiglass partitions to protect staff and students from the coronavirus, some education leaders are raising the alarm about another risk related to the pandemic: lawsuits.

Lawmakers in Sacramento worked to the stroke of midnight Monday in an historic legislative session, but they walked away from the Capitol without addressing a bill that would have offered schools legal protection from COVID-19-related lawsuits. That shield, education officials say, is crucial to the reopening of in-person classes throughout the state.

“According to our insurance policies, COVID is not a covered illness like measles and chicken pox,” Sonoma County Superintendent of Education Steve Herrington said. “So if you choose to operate, you choose to operate with that as a factor.”

“It’s a problem,” he said. “It’s a big problem.”

With local coronavirus cases too high to permit in-person instruction for entire school populations, educations officials in Sonoma County are still debating how and when to switch from remote, online-based instruction back to the classroom. Those debates, according to some, are colored by the risk of litigation should a child or a member of a students’ family get sick and allege the illness came from a school setting.

Approximately 230 statewide associations and school districts ‒ including eight from Sonoma County, including the Sonoma County Office of Education ‒ signed on in support Assembly Bill 1384, but to no avail.

“You are not covered for pandemic,” Herrington said, recounting the basic warning to school administrators. “Workers’ comp covers workers ‒ teachers, staff, janitors ‒ they are covered. It’s the clients that they serve ‒ this is what the districts were seeking coverage for.”

Even then, it took an executive order signed by Gov. Gavin Newsom in May to cover under workers’ compensation teachers and other school employees who contract the coronavirus. That order does not cover students and members of their family who could sue if they believe they contracted the virus at school.

Backers of the bill said it would have protected schools and educators from litigation so long they followed local, state and national health and safety protocols.

“Our parks and rec departments have better protection than our schools do right now,” Tatia Davenport, CEO of the California Association of School Business Officials, said. “In this environment we are already seeing a push for litigation ‒ ’Hey this is going to be kind of a wide open field.’ There are already conversations about claims skyrocketing.”

But opponents, including the Consumer Attorneys of California, the ACLU, California Employment Lawyers Association, Consumer Federation of California and the California Nurses Association, argued that blanket protections may inspire school districts to open too soon and without following proper guidelines.

Sen. Bill Dodd, D-Napa, a co-author on AB1384, called that argument misguided.

“I think it’s incomprehensible,” he said.

The bill stipulated that districts and schools would only be protected if new COVID-19-related health and safety policies, as defined by the California Department of Public Health, were followed. The bill would not have protected defendants from charges of “gross negligence” or intentional misconduct.

“It doesn’t give anybody a free pass,” Dodd said.

But National Nurses United, of which the California Nurses Association is an affiliate, has consistently urged caution in the face of mounting pressure to reopen schools.

Still, Dodd expressed worry that some districts, fearful of expensive legal fights, may put off re-opening to in-person instruction because of the legal jeopardy.

“That has to be part of their calculus and I find that to be very unfortunate, not only for the kids but for the families,” he said. “I believe we could have done more in this area very, very easily to solve that issue.”

Unless Newsom calls a special session of the Legislature, the issue will not be taken up again until January.

School officials are already expressing wariness about in-person classes without the legal protection, Davenport said. And even if a district prevails in a lawsuit, financial damage is done, she said.

“The cost of your insurance ... is going to be absolutely through the roof and all of that money comes out of the general fund,” she said. “All of these things come out of providing good education for the kids. Books and services, that is where this comes from.”

Dodd stopped short of recommending that schools not return to in-person classes until AB1384, or something akin to it, passes.

"That’s not my decision to make and it’s not my recommendation to make,“ he said. ”That is something that superintendents have to make on their own“ based on their situation.

Sue Field, superintendent of Bennett Valley Union School District, in late August signed the letter of support backed by 230 agencies that endorsed the legislation. Though disappointed the bill didn’t get considered, Field said it will not affect how or when the district moves to re-open its campuses.

“Not for me. I’m going to do what you need to for the health and safety and staff no matter what,” she said. “This was our effort to help address the issue. It’s not gotten the legs we would have hoped.”

You can reach Staff Writer Kerry Benefield at 707-526-8671 or kerry.benefield@pressdemocrat.com. On Twitter @benefield.