Legal liability from potential lawsuits related to COVID-19 hampers California schools

California school leaders are still at work crafting plans to return 6.3 million students to campuses, but the failure of a bill that sought to shield districts from legal claims related to COVID-19 has proved another dilemma as supporters and opponents of the legislation continue to spar over its merits in the push to reopen classrooms.

Education officials say legal liability remains a major issue as they plan to resume in-person instruction. Backers of the bill contend little to no legal immunity exists for districts should they face lawsuits claiming a child or a member of a students’ family was sickened by transmission in a school setting.

Assembly Bill 1384, co-authored by state Sen Bill Dodd, D-Napa, sought to add protection for districts in such cases. It did not come up for a vote in the Legislature last month after failing to get a hearing.

Opponents, including the California Nurses Association, the ACLU and Consumer Attorneys of California among others, say the blanket immunity that lawmakers sought would have encouraged bad actors to skirt health and safety protocols in a rush to return kids to campus. The legal system provides a check and balance, they said.

“The concept of immunity is exactly the opposite ― you are not going to be accountable no matter what you do,” said Kevin Baker, director of legislative affairs for ACLU of California.

“The standard is not perfection. We understand that there are very difficult decisions to make and they need to be given flexibility to do that,” he said.

Those who supported Assembly Bill 1384, including many local education officials, say the specter of legal action and the associated expenses is casting a shadow over their work to reopen schools. Still, some of the same officials insist that the legal risks will not play a leading role in how or when schools return to in-person instruction.

"That is not going to be the deciding factor on whether or not we can open,“ said Windsor Unified School District Superintendent Jeremy Decker.

“We all want our people and kids safe, that is our number one priority and responsibility as educators,” he said. “Before we teach anything, the number one thing is keeping kids safe.”

Sonoma County’s nearly 70,000 schoolchildren have been attending class online since the coronavirus closed campuses in mid-March. This summer, as coronavirus cases soared statewide, the decision about how to start the 2020-21 school year was taken out of educators’ hands, with Gov. Gavin Newsom issuing an order preventing counties on the state’s watch list from holding in-person classes.

Sonoma County remains in the top tier of that state framework, with coronavirus infection rates that will need to be improved before schools get approval from county public health authorities to reopen. The county schools chief, Steve Herrington, and Dr. Sundari Mase, its health officer, have recommended that all 40 districts in the county plan for no return to in-person classes until next year ― even as the county on Thursday began accepting waiver applications for schools to bring back to campus students in transitional kindergarten through sixth grade.

On Wednesday, the largest district, Santa Rosa City Schools, pulled the plug on any campus reopenings until 2021, citing the liability issue among the factors affecting the decision.

But as some parents and business leaders continue to push for the reopening of schools and educators call for legal protections, opponents of the lawsuit immunity bill say their success in quashing it will help hold school districts accountable for campuses’ health and safety protocols.

“What AB 1384 proposed to do was to not do that standard of reasonableness,” the ACLU’s Baker said. “It said, ’Here’s what we should do: if the school adopts a policy that is consistent with public health standards, that would be enough.’... It just said if you adopted the policy (you were immune). It didn’t require that they actually adhere to it.”

Decker, the Windsor superintendent, took issue with that claim, saying student and staff safety has been paramount in planning and discussions since the beginning.

“I think that argument is a fallacy. I think it’s unfortunate,“ Decker said. ”But as educators we still find a way to make it work.”

Dodd’s bill was endorsed by at least 41 legislators who co-signed a letter of support. But his counterpart in Sonoma County, Sen Mike McGuire, D-Healdsburg, was not among them.

“The state is not going solve the liability issue by signing onto a letter. We are going to solve this liability issue by bringing all sides together, socially distanced, around a table or on Zoom, to come up with a long-term solution,“ McGuire said.

He said the governor’s office and State Superintendent of Schools Tony Thurmond are in talks about the issue. Newsom in May dealt with liability tied to school employees through an executive order that expanded workers’ compensation to include coronavirus claims.

“All levels of government are working to solve this liability issue, which is real,” McGuire said. “This issue can be resolved via legislation or it can be resolved administratively, but the bottom line is it needs to be resolved.”

The wrangling continues in Sacramento as education officials raise more alarms about the duties being piled on school districts amid the pandemic. Some of those tasks would normally fall to public health authorities, including regular COVID-19 testing of employees and contact tracing in cases where infections are tied to campuses.

As those responsibilities widen, schools will be more exposed to legal action, they say.

“It’s a lot of responsibility to bear, that we as a school district are now doing contact tracing,“ Santa Rosa City Schools Superintendent Diann Kitamura said. The added responsibility should come with added legal protections, she said.

“Give us a waiver that we are not going to be liable,” she said. “How many times do I have to say, ’I teach. I am a teacher.’ I am not a doctor. We don’t do that.”

The state’s inaction on school liability has real-world financial implications, too.

"All of us carry liability coverage and the premiums are just skyrocketing and that is what we are primarily concerned about,“ Petaluma City Schools Superintendent Gary Callahan said.

He said the district was still moving ahead on its plan to resume classroom instruction.

“If we are doing the right things and following all the right guidelines, we are comfortable moving forward,” he said. “We are not going to base it on exposure (to lawsuits). We are exposed either way. For us, it’s a cost of doing business. We are at the mercy of insurance carriers.”

In the insurance sector for schools, the coronavirus is considered like the measles, a communicable disease, and is not covered by districts’ insurance.

“Communicable disease has not been covered for some time,” said Rose Burcina, executive director of Redwood Empire Schools Insurance Group, the joint powers authority that provides property and workers’ comp insurance for all 40 Sonoma County school districts. “At this point it would be very hard to try to guess what may happen with COVID going forward with insurance.”

“I think it’s an extremely difficult time for schools. The responsibility that they have to shoulder right now is just enormous,” she said. “AB 1384 would have been the relief we needed for schools to make decisions.”

That said, Burcina expects that some districts among Sonoma County’s 40 will open despite the lack of coverage. She expects others to wait for backup.

Redwood Empire Schools Insurance Group was part of the statewide push to get something akin to AB 1384 passed, Burcina said. “I am not hearing anything from Sacramento at this point,” she said. “I think they have not heard the last of us.”

And liability insurance for districts is one point where education officials and vocal opponents of AB 1384 agree.

“I think what we really have here is an insurance problem,” said Lea-Ann Tratten, political director at Consumer Attorneys of California, which opposed the legal immunity legislation. “They are writing exclusions, they are avoiding ― like the business interruption claims ― they are trying to avoid paying out on insurance policies."

But immunity for school districts is not the answer, Tratten and others contend.

“If you look nationally at the lawsuits that have been filed there are very, very, very few and most of them have been in a work setting,“ she said. ”The focus really has to be on safety and if they operate in a way that is reasonable and safe, I don’t think what they have to fear is lawsuits.“

Tratten pointed to school districts in Southern California as an example of local agencies that at one time were crafting return-to-school road maps that seemingly ran counter to public health recommendations.

“There were school districts in Orange County that weren’t going to require masks,” she said.

Mixed messages and changing directives on health and safety protocols have kept officials and the general public both confused and frustrated at times.

In June, Marin County education officials switched their recommendations calling for 6 feet of social distancing in classrooms to between 4 and 6 feet, calling it a compromise between guidance from the Centers for Disease Control and the World Health Organization.They also increased class size limits, going from a maximum of 12 to between 25 and 32, igniting concern from some who pointed to recommendations for cohorts of 12 to 14 students.

Shortly thereafter, schools in counties on the state’s coronavirus watch list, which at the time included Marin, were barred from holding in-person classes at all, again changing the landscape for educators and families.

Baker said opponents of blanket immunity are advocating for reasonable precautions to be taken but that no district or agency should be given a green light to move forward with back-to-school plans with impunity.

“It’s quite a radical proposal that someone would have no responsibility,” he said.

“Under that reasonableness standard they are protected,” he said. “We do want people to act reasonably.”

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