US campuses push for legal protections before reopening

Plea, without specific rationale, risks alienating students and political allies

June 1, 2020
Shop for t-shirts including "ZOOM UNIVERSITY," "SOCIAL DISTANCING," and "2020 SUCKS" on May 24, 2020 in Wildwood, New Jersey
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US universities are pressing Congress for legal liability protections before reopening, raising potential for both a split from their traditional political allies and a potential new barrier for students already wary of returning to class.

A coalition of the major US higher education lobby groups, for both public and private institutions, told lawmakers that institutions needed protection against “excessive and speculative lawsuits arising out of the pandemic”.

A joint letter to Congress, however, provided few details of what they had in mind. The groups said they were not seeking “a free pass to avoid responsibility”, yet they did not cite any specific legislative proposal.

Instead, they noted efforts by lawmakers, primarily driven by Republicans, to grant temporary legal protections to a range of US businesses operating in the midst of the coronavirus pandemic, which is now blamed for more than 100,000 deaths nationwide.

Congressional Democrats, usually the more reliable backers of higher education on budgetary and policy matters, remained conspicuously quiet or even critical of the idea, which had been circulating in Washington for several days ahead of the formal request.

The Senate’s top Democrat on education issues, Senator Patty Murray, withheld comment on the idea, while Representative Bobby Scott, chairman of the House Education and Labour Committee, expressed scepticism.

“As Americans are facing unprecedented risks to their health and economic security,” said a spokeswoman for Mr Scott and his committee, “we should not be eroding our nation’s civil rights, workplace safety and employment laws.”

And a law professor specialising in coronavirus-related topics, Jennifer Oliva of Seton Hall University, said any special legal protections for universities could further discourage those students and their families weighing up whether to enrol for the coming fall semester.

Liability waivers tend to disincentivise their beneficiaries from taking maximum safety precautions, Professor Oliva said. “That would definitely factor into decision-making” for students evaluating on-campus risks, she said.

Universities issued the plea for legal help after having struggled to convince Congress or cash-strapped states to cover the tens of millions of dollars in losses they have experienced and expect to face from their forced move to online-only instruction in mid-March.

A growing number of universities have issued statements of intent to reopen their physical campuses in the autumn, calling the prospect of on-campus normality essential to their hopes of minimising their financial disaster.

Institutions have a “responsibility to try”, said Mitchell Daniels, president of Purdue University, rather than let Purdue’s 45,000 students “put their lives on hold for year”.

It’s a matter of taking reasonable risks, Mr Daniels, a former Republican governor of Indiana, told a panel organised by the National Academies of Sciences. “People get ill, and they do every year anyway,” he said.

Federal authorities have limited their advice to general guidelines. Even Anthony Fauci, the director of the National Institute of Allergy and Infectious Diseases, who has countered Donald Trump’s aggressive calls for resuming business operations, has not given colleges a definitive opinion on whether to reopen.

Into that breach, congressional Republicans led by Senator Lamar Alexander, chairman of the Senate’s Education Committee, have promised legislation to grant colleges legal liability protection.

The major university groups, in their letter to Congress backing the idea, said their member institutions were busy enough trying to convert government health advisories into safe campus environments.

US colleges and universities, they said, did not need to be further burdened by “fears of huge transactional costs associated with defending against Covid-19 spread lawsuits, even when they have done everything within their power to keep students, employees and visitors safe”.

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