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Senate Majority Leader Mitch McConnell


The main umbrella group representing colleges, which have been worried about being sued by students and workers if they become ill when campuses reopen, was pleased with a summary of a proposal being considered by Senate Republicans to make it significantly more difficult to file coronavirus-related lawsuits against colleges, K-12 schools, charities and businesses.

But the summary, obtained by Inside Higher Ed on Friday, was panned by student groups and Senate Democrats who worried it would lessen incentives on the entities to take the necessary steps to keep students, workers and customers safe.

“It’s pretty horrifying. It’s just as bad as we feared, maybe worse,” said Molly Coleman, executive director of the People’s Parity Project, a national group of law students and new lawyers organizing a petition drive on 15 campuses calling on institutions to oppose liability protection.

According to the two-page summary, Republicans are proposing to temporarily raise the standard in personal action lawsuits, so that colleges and other entities would only be held liable for “gross negligence or intentional misconduct” -- a higher bar than in state courts, where those being sued need only prove that they acted reasonably.

Among other changes, the proposal would also require that plaintiffs show “clear and convincing evidence,” as opposed to the current preponderance of evidence standard, in which arguments tip toward one side or the other. It would also protect the entities from being investigated for violating federal labor laws, as long as they followed public health guidelines, and would cap the damages that could be awarded.

Because Congress cannot change the standard state courts use, the proposal would also allow either side to have cases heard in federal court, which would use the stricter standards, said Peter McDonough, general counsel for the American Council on Education.

ACE, as well as business groups, had been seeking temporary protection from lawsuits, and according to the summary, the higher standards would last only until the lifting of the national state of emergency during the pandemic or 2024, whichever comes later.

According to the summary, the changes would only apply to personal injury cases, not others, like lawsuits being brought against colleges over refunding room and board or student fees. McDonough said institutions have not been asking for those suits to be included.

ACE and other groups, including teachers' unions, were waiting for a more detailed actual proposal, expected as soon as today.

“We’re hopeful, though, that it will create immediate, temporary and limited protections from COVID-19 exposure liability,” McDonough said.

Groups representing higher education institutions had said the problem with the current standard is that what is considered to be acting reasonably is hazy, particularly because federal and state governments have not laid out clear requirements for what is expected.

“Schools are between a rock and a hard place,” McDonough said. “They need some confidence that each decision they make won’t become a lawsuit magnet. But, as we are seeing from daily news reports across the country, colleges can’t count on clear, consistent guidance from their local, state and federal authorities.”

He pointed to the lawsuit Georgia’s Republican governor, Brian Kemp, filed Thursday against Atlanta mayor Keisha Lance Bottoms and the city’s council members over the city’s mask-wearing requirement. “Imagine being a leader at an Atlanta college today, trying to make some decisions about whether and where face masks must be worn on campus,” McDonough said.

However, in a press call on Friday, the Senate’s top Democrat, New York senator Chuck Schumer, said the proposal appeared to be written by business lobbyists, but he vowed Democrats would put “workers first.”

Senate Majority Leader Mitch McConnell has said liability protection is essential to get Republican support. But illustrating the partisan divide that needs to be bridged for a package to get through Congress, Schumer said he is demanding a package as large as the $3 trillion proposal the Democratic House passed, called the HEROES Act. "If they come up with a skimpy offer, it's not going to be enough," Schumer told reporters. "We're going to fight for the entire HEROES bill. Period."

Senator Elizabeth Warren, a Democrat from Massachusetts, said colleges would not have to worry about getting sued if they act responsibly. "If colleges reopen in a safe, reasonable, and responsible way, and make clear commitments to students, faculty, and staff about their plans, then they don’t need extra legal protections from Congress," she said in a statement. "Instead of trying to shield everyone from liability, Senate Republicans need to help make sure colleges have the resources they need to reopen safely. "

Georgetown University law professor David Vladeck, who argued against creating a shield against coronavirus liability at a Senate judiciary committee hearing in May, said in an email Friday that the standard being proposed would go beyond engaging in risky activity or acting irresponsibly.

For example, he said, what if a college didn't do contact tracing consistently and didn't tell a student that they had been in contact with someone who was infected by the virus and ended up in the hospital? They might have a case to say the college didn't take reasonable steps, but they would not be able to prove they were grossly negligent or intentionally tried to get the student sick.

Vladeck said also that seeking the protection is the wrong message to send when students and parents may be nervous about returning to campuses. "While it may provide incentives for schools to open campuses, it will also be a deterrent for parents to let their kids go off to school," he said. "Broad immunity says to students, 'Return to campus at your peril. Your school cannot be held accountable unless the school is taking deliberate action to hurt you, or is so utterly disengaged that it is failing to take basic precautions.' What a message to send."

Kyle Southern, a lobbyist for Young Invincibles, a millennial advocacy group, raised concerns about weakening the ability of students or college workers to sue, particularly as the infections are rising rapidly in some parts of the country.

"We can't see a way this broadening of liability protection serves to protect students -- our primary focus -- or the faculty and staff who make campuses work. Providing further incentive to rush to reopen could encourage a competitive impulse among institutions that could be detrimental to students' well-being."

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