College presidents have been considering steps to safely reopen campuses for the fall, including mandatory coronavirus testing, robust contact-tracing efforts and class-size reductions.
Whether those measures would shield institutions from a lawsuit remains unclear. Legal experts say students or employees at a college who were sickened by the virus would likely still sue their institution.
With these dilemmas in mind, higher ed's top lobbying group has asked Congress to approve short-term liability protections against the spread of COVID-19, the disease caused by the coronavirus, for colleges and their affiliated entities. These liability protections are increasingly coming under debate as colleges decide whether to resume face-to-face classes for the fall term.
College leaders will likely reopen campuses even without liability safeguards, experts say. But being covered in case of a lawsuit would alleviate one pressure point on already overburdened administrators.
"It would certainly help clear up some of the uncertainty," Scott Schneider, a higher ed law specialist and partner in the Austin, Texas, office of Husch Blackwell.
Ted Mitchell, president of the American Council on Education (ACE,) sent a letter to congressional leaders Thursday calling for "temporary and targeted" protections. Institutions should still be required to abide by "applicable public health standards," Mitchell wrote, asking lawmakers to carve out a path to legal recourse for those "harmed by truly bad actors who engage in egregious misconduct.
Colleges fear the costly defense against lawsuits over the spread of the coronavirus on campus, he wrote, "even when they have done everything within their power to keep students, employees, and visitors safe."
That's because no one knows the standard to which colleges would be held liable in this type of case, said Audrey Anderson, counsel with Bass, Berry & Sims in Nashville and a former general counsel of Vanderbilt University.
A party suing a college would need to prove the institution didn't make reasonable efforts to keep them healthy, Anderson said.
"But this virus is so new that there isn't an established baseline of what is reasonable in legal terms," she said.
A similar lawsuit might involve a student suing because mold in a residence hall made them ill, Anderson said. However, courts have already established the actions colleges should have taken to preserve student health in that case because colleges have encountered mold cases before.
The coronavirus, however, is unprecedented. And campus officials would need to think about the potential complexities of guarding against liability in all aspects of their business, including transportation, dining and housing.
Colleges have suggested a range of measures to defend against the virus, such as dispensing facemasks, spacing out students in classrooms and regularly screening for the virus. But not every institution can afford coronavirus testing and other costly protections.
A legally vengeful student could point to an entity such as the California State University System, which has already announced it will continue most classes remotely this fall, and claim their institution was negligent for not doing the same, Anderson said.
"Right now there's nothing you can do that will make sure you'll absolutely be able to win if someone sues you," she said.
Colleges are clamoring for legal guidance on these issues, Schneider said.
More than a dozen college presidents outlined their concerns regarding potential liabilities and campus reopening on a conference call earlier this month with Education Secretary Betsy DeVos, Vice President Mike Pence, and White House Coronavirus Response Coordinator Dr. Deborah Birx.
The college executives leaders identified two key legal concerns for restarting operations: being sued for tuition refunds if classes continued online and being sued if a student or employee became sick upon returning to campus, according to The Chronicle of Higher Education. Federal officials did not try to sway institutions to reopen.
Colleges may get some cover from the states. Massachusetts' advisory board for reopening the state has identified liability protections for colleges as one way the state can support higher education.
Three college presidents — Purdue University's Mitch Daniels, Brown University's Christina Paxson and Logan Hampton, of Lane College in Tennessee — are also expected to discuss liability issues when they testify before the Senate's health and education committee next week.
Colleges aren't the only ones looking to insulate from lawsuits. Businesses have also sought liability protections against the spread of the disease as they reopen. Senate Majority Leader Mitch McConnell, R-Ky., has stressed that any additional relief measure Congress passes would include them.
