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.