Another Worry for School Districts as They Consider Fall Reopening — the Minefield of Legal Liability

At least one bill filed in the Legislature would grant schools immunity from civil liability if a child or staff member contracted COVID-19
Credit: AP Photo/LM Otero, File)
File photo: Aug. 5, 2020, elementary school students wait for classes to begin in Godley, Texas.

As New Jersey’s school districts make reopening decisions — and the state issues new guidance, almost by the day — a question has come up more and more: Can schools be held legally liable if one of those decisions turns out to be wrong?

At least one bill has been filed in the Legislature that would grant schools immunity from civil liability in the case of a child or staff member getting sick from COVID-19, as has another that applies to colleges and universities.

The state school boards association this week posted its own guidance for members on potential liability, saying the law already provides some protections but also advising local boards to talk to their attorneys and check their insurance policies.

“Even in taking all appropriate safety precautions, it would be wise to review the district’s current insurance policies to determine whether the transmission of a contagious disease to students, staff, and others is excluded from coverage under the policy,” the guidance reads.

It’s a touchy subject for school districts and the state as a whole, as legal liability worries hardly convey a safety-first approach to the pandemic that has cost more than 15,000 lives in New Jersey.

When asked at his most recent media briefing if liability was among his own considerations for whether to open schools, Gov. Phil Murphy largely dismissed the question.

Liability not on the list for Gov. Murphy

“You heard our principles [in his administration’s decision-making]: health and safety, high-quality education, equity, and flexibility,” Murphy said. “Liability was not on the list.”

Yet there is little doubt the issue is on the minds of districts that have to follow the governor’s guidance. The head of the state’s superintendents association acknowledged as much on Thursday in a Facebook Live discussion with NJ.com.

“The last thing we want to see is all the hard work they have done end up in litigation,” said Richard Bozza, executive director of the New Jersey Association of School Administrators.

Such concerns get raised as the Murphy administration continues to put out guidance for districts; the latest, on Thursday, contained more precise details of what should happen when a student is found COVID-19-positive or a school has an outbreak of the disease.

Under the guidance released by the state Department of Health, a school with just one student testing positive should lead to isolation and quarantine; two students in the same classroom would raise the possibility of quarantining the whole class; two or more students in multiple classrooms across 14 days could close a school outright.  

The guidance is not a mandate, but it is meant to give some direction in local communities making their own decisions.

“Closure is a local decision that should be made by school administrators in consultation with local public health,” reads the DOH guidance.

Complicated answers

“While it is not possible to account for every scenario that schools may encounter over the course of the school year, the following scenarios may help inform the decision for when schools should temporarily close.”

The New Jersey School Boards Association in its own guidance to districts included various legal scenarios. One concerns a school’s responsibilities for not just addressing a symptomatic student but also anyone he or she may have been in contact with.

“School administrators certainly have the authority to remove students from the classroom based on health reasons,” reads the guidance. “If a school principal does not take such action, does this mean that liability will automatically follow if other students or teachers get sick?”

Its answer is a complicated one, citing New Jersey’s Tort Claims Act involving public entities, that — among several factors — requires determining whether a defendant entity is proven to have been negligent. But the association also warned the legal bar in this case may not be high.

“Because the dangers of COVID-19 are known, and boards of education have the ability to take action against those suspected of being infected, a court would most likely find that the school district has an affirmative duty to protect against the spread of the contagion,” it reads.

Educational, moral and legal ramifications

In the end, the association stressed that its school boards should consider the legal ramifications of its decisions, as well as the educational and moral ones.

“In conclusion, the board’s obligation to ensure the safety of students is more than just a moral obligation, it is a legal obligation as well,” it states. “Failure to reasonably comply could lead to legal liability for the board.”

The Assembly bill that would grant districts immunity, sponsored by Assemblyman Christopher DePhillips (R-Bergen), is early in the legislative process.

It explicitly would grant immunity for school districts in the case of exposure to COVID-19 and any illness that ensues. It would even be retroactive to March and the start of the pandemic.

Still, it also sets legal parameters. It would require that schools acted in “good faith” and follow the guidance provided by federal, state and local government.

But as the school boards association warned, it also does not absolve districts of all responsibility. “This bill does not grant immunity to any school district, nonpublic school, or person causing damage by his willful, wanton, or grossly negligent acts of commission or omission,” reads its summary.

The bill has been referred to the Assembly’s education committee.