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Chronicle of Higher Education, May 29, 2020 PREMIUM
Why the Fall Will Be a Liability Minefield
Colleges face lawsuits at every turn, and waivers won’t protect them
By Alexander C. Kafka
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 legislated 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.
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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.”
Alexander C. Kafka is a Chronicle senior editor. Follow him on Twitter
@AlexanderKafka, or email him at alexander.ka...@chronicle.com.
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