The Trump administration has been urging universities to hold in-person classes and ensure athletes play fall sports. U.S. colleges and universities have been working on plans to accommodate students, faculty and staff in the midst of the coronavirus pandemic, juggling the uncertainties of new coronavirus hot spots and updated directives from state and local officials, and gauging how many people can safely be in one place.
A Washington Post editorial last month recommended one way to avoid one big question: Prohibit lawsuits against universities. In May, university officials said they were more likely to physically reopen if they were exempt from lawsuits.
Now, in July, many colleges and universities have announced their plans — though the plans keep changing. Many will not be bringing everyone back to campus immediately. Some universities want to bring back college sports, although players contracted the coronavirus, which causes the disease covid-19, during summer practice. The Ivy League announced its schools would not hold competitive fall sports. The Big Ten teams will only play within their conference, to allow colleges to change their guidelines quickly if the health risks get worse.
Surely legal liability concerns higher education officials, but a waiver doesn’t solve all legal problems. Here’s why.
What is legal liability?
When organizations violate legal rules, the law can hold them liable, or responsible for harm. In the context of the coronavirus, the legal obligation most relevant to universities is negligence. Courts can find people or entities negligent if they fail to take reasonable care. State universities sometimes work with rules that might not make sense to others. Government organizations, sometimes including state universities, may not be legally responsible for harm: They are immune.
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The law can hold universities that are not immune to standards of good care — much the same as businesses are expected to operate. That means businesses are often able to avoid liability by following the practices a profession agrees are best. In age-discrimination cases, for example, companies with clear guidelines win most of the time. That’s another reason every illness on a college campus doesn’t lead to a lawsuit that makes the news.
The uncertainty of the coronavirus — who might spread the virus, how sick people get, what health practices will prevent infection — means universities are unclear about their responsibility if they welcome people to campus and someone becomes ill.
Under legal standards, people “assume the risk” of activities they voluntarily join. The NCAA invoked this doctrine when discussing how colleges think about reopening sports programs. Uncertainty comes from what risks college athletes are assuming, and how college officials would want to present it in news conferences. Of course, court cases are partly fought in the media. To say that student athletes or staff knew they might get ill will not be an appealing answer to heartbroken families, should there be future coronavirus lawsuits.
However, courts and legal standards, and even media stories, are only part of the story. People reach agreements to settle disputes for some amount of money and avoid trial. The legal ruling that a court might issue is only one reason. Sometimes organizations require people to use private arbitrators or judges. Sometimes people do not want to wait for the uncertain outcome of a trial.
Higher education has recently had reasons to pay close attention to liability
To university administrators and legal teams, concerns about responsibility for the coronavirus will bring up other recent legal complaints, including high-profile policy changes and settlements. Pressure around sexual assault cases and failure to meet their legal obligations led universities to change their policies. After years of ignoring sexual assaults by employees, universities have paid out multimillion-dollar settlements. Far from following good practices to stop sexual assaults, universities had deflected complaints and treated alleged crimes with internal university processes.
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The NCAA has made news with its settlement for undisclosed sums about traumatic brain injuries resulting from playing college football. The claims that made the news are ones against private universities or the NCAA, which is not a state agency.
Why a statute from a legislature, instead of an individual waiver?
Many people are familiar with waivers from participating in sports. Anyone who works out at a gym signs an agreement few people read, agreeing not to sue if a piece of equipment fails and someone gets hurt. State courts vary in what they do with these waivers, but waivers are indeed a reason to bring in the lawyers.
An individual waiver when college athletes travel from state to state, with different requirements in each state, would not appeal to a university as much as a blanket waiver. And if universities settle cases whether they believe they are legally responsible, the waiver will not get rid of payments. If people get hurt, waivers also won’t solve a family’s sorrow or news stories about them.
What are alternatives to lawsuits if people get sick or injured?
Of course, there are alternative ways to pay people who get sick. The U.S. government has instituted compensation funds for some problems, including for coal miners with black lung disease. People with illnesses associated with vaccines go to a program a court administers; it lists conditions required for compensation.
Many Europeans have paid sick leave — but many in the United States don’t. That means compensation for medical bills and injury for family members who do not have health insurance or good access to care for recovery is through lawsuits and universities’ insurance.
Universities continue planning the fall semester, and one of the uncertainties they face is how lawsuits hold organizations responsible. Concerns about liability color public debate, and stopping liability looks like a simple solution. As more universities announce plans, it’s clear no one simple action can resolve public health problems. As research has documented, however, courts are alternatives when other routes for compensation are blocked.
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Susan M. Sterett is a professor and director at the University of Maryland Baltimore County’s School of Public Policy. She has written on litigation and disaster assistance. Most recently, she co-edited the “Research Handbook on Law and Courts.”
William Blake is assistant professor of political science at UMBC.