Whether institutions can be held liable for students, faculty and staff members contracting COVID-19 on campus is top of mind for leaders mulling reopening plans, but that’s not the only legal pitfall they have to worry about. Lawyers in higher education say an abundance of legal issues await them come September.
In the final months of the spring semester, lawsuits cropped up in response to room and board reimbursements, or lack thereof, and online AP testing complications. Colleges have for weeks lobbied Congress for liability protection should students or employees get sick.
Every institution wants to make health and safety a priority, said Jim Keller, a litigation lawyer who co-chairs Saul Ewing Arnstein & Lehr’s higher education and K-12 practice in Philadelphia. State and national guidelines on how to limit the spread of COVID-19 do not always align, making it difficult to determine best practices for reopening.
Additionally, there are questions regarding how much power colleges will have to mandate testing, temperature checks, mask wearing, social distancing and other precautions, Keller said.
“If an institution says that people have to wear masks or other PPE on campus, and discipline them for not doing it, is there a legal risk? Are they going to sue us? Is there some kind of constitutional claim there?” he asked.
Providing appropriate accommodations for students, faculty and staff who are at high risk from COVID-19 is also a concern, and colleges may be limited in what health information they can require from students and employees.
“If we have a student with severe asthma who needs a single room, can we accommodate that request? Do we need to provide alternative housing? Is that logistically feasible?” Keller asked.
Scott Warner, a partner at Husch Blackwell in Chicago who specializes in higher education law, said that colleges have a number of defenses available to counter claims from sickened students or employees.
"Institutions will have a number of strong defenses available, including, among others, that their adherence to CDC and other guidance demonstrates that they have met the applicable standard of care and that, given the nature of the virus, it will be very difficult … to demonstrate what caused a particular individual to contract the virus," Warner said. "Institutions will also be informing their students and employees of the risks inherent in returning to campus given the very nature of the virus."
Experts say institutions may attempt to mitigate risk through waivers or affirmative consent forms, which students often sign when they enroll. These waivers may, for example, ask students living in dorms to affirm they understand the risk they undertake by living close to other people and that they will not hold the college responsible if they get sick.
However, it’s unclear how effective the waivers will be in court.
“Those types of provisions are limited in their usefulness,” said Kent Schmidt, a partner at the law firm Dorsey & Whitney in Southern California. “A lot of those documents are signed by parents of students of all ages. They are not really that effective in limiting the liability of the school.”
In an alternate scenario, if classes continue online, some campuses may need to rethink how they offer mental health services to students, said Monica Barrett, co-chair of the higher education practice group at Bond Schoeneck and King in New York.
“The fact that students went home and were unable to access some of the resources they had on campus for mental health was a big concern in the spring, and that may continue into the fall,” she said.
Accessibility lawsuits may also increase in the fall as institutions continue experimenting with new teaching methods and technology, said Eve Hill, a disability rights lawyer at Brown Goldstein Levy in Baltimore. Hill frequently represents students on behalf of the National Federation of the Blind and recently resolved a dispute with the College Board over the accessibility of AP tests.
“Students have been remarkably patient,” Hill said. But that patience may not hold into the fall semester.
“Accessibility needs to be baked into courses. It’s not something that should be done as an afterthought,” Hill said.
Colleges may face legal challenges in respect to their role as employers, according to Schmidt.
“Colleges and universities have to grapple with the fact that they’re also employers, and they’re going to be dealing with the same type of employment issues that all other employers are dealing with,” Schmidt said.
He laid out a number of legal issues employees could bring to court in the fall. Like students, faculty and staff will be concerned about their safety on campus. The shift to long-term remote work could lead to employees asking to work from home full-time and others refusing to continue working remotely, creating contract complications.
Barrett said many of the institutions she works with have faculty labor unions whose contracts stipulate that they cannot be asked to teach online -- a problem given remote instruction may continue into the fall semester.
“A lot of campuses are having to negotiate with unions to revise that,” she said.
Whistle-blowers presented another employment issue that was top of mind for Schmidt.
“I’m anticipating there are going to be a number of lawsuits that center around an employee making a claim that they believe their employer -- here, the university -- should have been doing X, or change their policy with respect to some risk of exposure,” he said.
Colleges’ best protection against such complaints is a clear paper trail, Schmidt said. Institutions can outsource investigation and documentation processes to third parties. In turn, employees can contact the external party to file a complaint, and the outside agency will evaluate it in respect to best practices and regulations.
On yet another front, questions are still swirling about what exactly institutions can do with the stimulus funding they received from the CARES Act.
“Some institutions have received the funding and already distributed some to students, others haven’t. The guidance initially issued by the Department of Education said that only Title IV-eligible students can receive those funds. The intent of that seemed to be to ensure none of the money goes to international students or undocumented students,” Keller said. “But if you read this limitation literally, it would also exclude some students with poor grades, students with criminal records and students who didn’t fill out the FAFSA. The Department seems to have backed off of this a bit, but not entirely, leaving schools confused."
CARES Act funding that isn’t earmarked for students may be used by institutions to cover expenses related to the coronavirus disruption at their discretion, but it isn’t clear how far institutions can go, said Keller.
“If we can only have 20 students per class next year and we have to rip out the seats from classrooms to make space, is that a cost due to coronavirus? Did Congress allocate this money so that colleges could rip out seats in their auditoriums? Maybe, if that is a required change due to coronavirus. But we do not have clear benchmarks.” said Keller.
If an institution is audited by the Department of Education and found to have misspent funds, it is likely it will have to give them back. But institutions could also face liability under the False Claims Act if they intentionally misrepresent their use of the money.
On top of the potential legal hurdles presented by the COVID-19 pandemic, institutions must also navigate new Department of Education regulations relating to campus sexual assault complaints. “It’s almost cruel that institutions are being asked to deal with new Title IX rules on top of everything else,” said Keller.
Schmidt emphasized that the legal challenges facing colleges are unprecedented, and that best practices will become more clear with time. Keller thinks that clear communication is critical for colleges navigating reopening -- or not -- in September.
“I think the best step institutions can take is to engage in clear and transparent communication and be direct with people,” said Keller. “My son is due to start college this fall, and I think the way his college is communicating with us is great. They said they don’t know what the fall semester is going to look like yet. They can’t guarantee immunity from sickness but will do their best and be guided by health officials. I think this is a spot-on message. None of us can know for sure what will happen. But we need to convey that it’s a shared responsibility -- everyone needs to do their best.”