Reopening Schools – 6 Tips
1. Slow down. While there is understandable pressure from the public and many parents to make decisions as soon as possible, it is more important that the school district get the decisions right than get it done immediately. It is also important that the school district is seen to carefully and thoughtfully engage in decisions related to specific mitigation recommendations: therefore, be mindful of quick decisions or decisions that appear political.
Understanding what is the regional prevailing wisdom is also important – failure to meet with the prevailing wisdom in your region will subject you to demands to bargain, complaints from parents, and make you the target of plaintiffs’ lawyers. The best argument for a breach of the tort immunity shield is you were the sore thumb – the lone wolf. By definition, wisdom is not prevailing until enough time has passed that there is a consensus opinion. And, as school leaders have learned quite well over the past year and a half, be ready to adapt when conditions change.
2. Consult with the Union. The union is the front lines of re-opening schools. ISBE’s mandate that schools open to full-in-person instruction is not likely to prevail over a union’s right to collective action (strike). And a strike being illegal will not cause employees to get back to work. You’ll need buy-in for whatever your rules will be – because the union will staff the people tasked with implementing those rules.
3. Read and understand CDC and IDPH guidance. CDC is an organization that does not make rules – it gives guidance. While IDPH has the right to implement rules, it takes no independent enforcement action – it needs the State’s Attorney to do that. And ISBE threatening to pull recognition status does not suggest the biggest threat to schools. The bigger threat to schools is presented by COVID itself. A school’s duty is to prevent the unique situation wherein a child might die or become seriously ill. Taking appropriate measures to prevent that outcome is the best defense against liability. And liability risk has not gone away.
4. Understand risks. Mask-optional policies do not do much to reduce tort immunity breach risks. The tort immunity shield is breached when the school or its officials take actions which are deliberately indifferent to a known risk. Masks limit illness risk not for the person wearing the mask, but for the person who is in contact with the person wearing the mask. In other words, a mask-optional policy does not protect those wearing masks – who are therefore the most likely plaintiffs. So while such decisions may reduce the potential plaintiff-pool, they will not eliminate the plaintiff pool. And because such policies may be out-of-step with IDPH/CDC guidance, there may be a better argument for liability in the event of illness transmission if schools in the region are not generally operating with the same policies. Failure to maintain a policy requiring masks for all unvaccinated individuals may form the basis for a plaintiff’s argument that the policy is proof of deliberate indifference to the risk. Again, that risk increases if it appears that a school district or school board made a decision based on factors outside of a studied, thorough approach to mitigation efforts.
5. Carefully consider enforcement. ISBE’s declaration that schools provide in-person education for all students except those who are unable to be vaccinated and subject to quarantine order removes from schools one of the most widely-used options that they had to enforce mask requirements – remote learning. This leaves only some form of disciplinary removal as an option, which is both politically tenuous and legally suspect (removing a student for a period of time from education entirely carries with it significant consequences for the child’s likelihood of graduation, and may bring draw ire of a reviewing court evaluating the degree to which the child is a continuing presence threat to safety. This is particularly true with the especially young children between the ages of 3 and 12 presently unable to get vaccinated). Schools will need to consider what mechanisms they have to “enforce” guidance, but such discussions should be balanced against the fact that mere declaration of what “should” happen may be insufficient to prove the school sufficiently enforced rules to protect the tort immunity shield.
6. Yes, you may seek vaccination proof. But again, most schools are not yet requiring such proof, because doing so will raise both bargaining implications and reasonable accommodation requirements. Most schools seeking proof are proceeding with the advisement that provision of proof of vaccination will result in elimination of quarantine requirements in the event of close contact. Some schools may also waive masking requirements for those individuals as well, although it is too early to know whether that will become prevailing wisdom. Certainly, being aware of the overall vaccination status of staff and students in your school buildings will assist in determining how to layer the mitigation efforts in a more informed manner.