To reopen colleges, block COVID-related lawsuits
The novel coronavirus has forced a generation of college students to put life on hold. And while these students and their parents may have made peace with online learning for the remainder of the semester, many are unprepared to remain home for the next academic year.
Although most college students who contract the coronavirus will not become seriously ill, reopening colleges and universities will depend on the trajectory of the virus in the population at large and how quickly we can develop medicines and vaccines. It will also depend on the willingness of lawmakers to insulate colleges and universities from liability related to COVID-19.
So far, whether out of optimism or concern for the bottom line, most colleges have been loath to admit that they likely won’t open on time and in person this fall.
After media outlets widely reported on the possibility that Boston University was considering delaying its start to January 2021, with summer 2021 academics replacing those currently planned for fall 2020, the university backpedaled. A note on B.U.’s website now insists these are only contingency plans and that the university fully expects to reopen as planned in the fall.
But Eric Feigl-Ding, an epidemiologist and visiting scientist at the Harvard T.H. Chan School of Public Health, told CNN recently that schools “should all definitely make plans for delaying start dates” because epidemiology modeling suggests the virus will be with us for some time.
At residential colleges, where students share bedrooms, bathrooms and dining facilities and often congregate in tight-knit groups for sporting events, parties, and other activities, the risk of an outbreak is particularly high.
And yet, as Brown University President Christina Paxson explains in the New York Times, the educational, psychological, and financial risk of not reopening — to students, to higher education generally, and to the local economies — is also exceedingly high.
The reality, Paxson notes, is that there are going to be resurgences of infection even after we flatten the curve. “Colleges and universities,” she writes, “must be able to safely handle the possibility of infection on campus while maintaining the continuity of their core academic functions.”
The three-part solution, according to Paxson, is to “test, trace and separate.” How much separation? That’s difficult to say. But given the unique challenges posed by residential life, it would be wise to add a fourth part to Paxson’s solution: legal immunity from COVID-related liability.
Without legal immunity, colleges are damned if they do and damned if they don’t. Some are already fighting lawsuits by students seeking refunds based on decisions to close. Those that reopen will no doubt face suits from those who get sick.
Legal protection like this is not without precedent. Federal law already insulates the manufacturers of vaccines and guns from liability for damage caused by the lawful use of their products. After lawsuits threatened to cause vaccine shortages and discourage research and development of new medicines, Congress in 1986 passed the National Childhood Vaccine Injury Act, which limits liability for vaccine makers and establishes a public fund to compensate people injured by certain vaccines. In 2005, Congress passed the Protection of Lawful Commerce in Arms Act to shield federally licensed gun manufacturers and sellers from liability for shootings, subject to some exceptions, on the ground that shooters (not manufacturers and sellers) are the direct cause of such harms.
Recognizing the potential of lawsuits to hamper our response to the pandemic, Congress in March granted makers of N95 masks protection from lawsuits by people who become ill despite wearing the masks. Congress also enacted limitations on liability for healthcare professionals who volunteer to help out during the pandemic. And Nebraska Sen. Ben Sasse has introduced legislation that would protect all healthcare providers from liability for actions taken in conjunction with testing for or treating patients with COVID-19.
These COVID-related legal protections for healthcare workers and manufacturers of health-related equipment are an important start. But lawmakers must protect higher education from COVID-related lawsuits too.
Students need to get back to school. Lawmakers should help them get there.
Jennifer C. Braceras is director of Independent Women’s Law Center.