As colleges and universities attempt to persuade students that taking classes on campus is not risky, they are lobbying legislators to pass laws insulating schools from liability if people on campus become infected with COVID-19 due to the school’s own negligence. They shouldn’t be able to have it both ways.
Colleges should drop out of the broader effort to protect businesses from the consequences of their own carelessness — itself objectionable — because colleges should recognize that rules requiring schools to pay students’ damages, such as medical bills, if they fail to take reasonable efforts to keep students safe are better for colleges, their students and society at large.
Courts impose liability on entities for negligent behavior in part to force them to take reasonable precautions to take reasonable precautions so people don’t get hurt. That is especially true with a disease that has such tragic consequences. COVID-19 is worse than an injury that harms only one person. A student who gets the virus can transmit it to others, including at-risk family members, who may end up dying from it. So-called superspreaders can spread the disease to dozens of people. If universities aren’t taking the possibility of liability into account, as this proposal would permit them to do, they might act in slapdash ways that contribute to the spread of the virus. We want schools to take more precautions against this disease, not fewer. But this proposal pushes in the opposite direction.
Universities say they would follow applicable public health standards. But the Centers for Disease Control and Prevention has indicated it won’t create specific standards for colleges. Even if it does, politicians have already watered down the Centers for Disease Control and Prevention’s standards for political reasons, as the Washington Post has reported. Universities have a loud voice both in Washington and state capitals. Politicians may listen if colleges urge them to alter public health guidelines to save money, just as colleges hope politicians will listen when they ask politicians to take away the traditional role of the courts in protecting students — also to save money. Put another way, do you trust President Trump to protect students from COVID-19?
Businesses, and presumably, universities are said to fear they will be deluged by frivolous lawsuits if Congress does not protect them. But so far the deluge has barely been a trickle. That may be because the law already protects businesses from frivolous lawsuits. To win, an injured student would have to prove that a college failed to take reasonable steps to avoid transmitting the virus. Schools that do what they can to protect their employees and students should have little to worry about. Plaintiffs would also bear the difficult burden of proving that they caught the virus from the school and not any other source — quite a challenge during a pandemic.
This radical proposal to upset laws that are older than most, if not all, American universities is objectionable on other grounds as well. It may well be unconstitutional. Universities themselves would be hurt by this proposal. Many, under extreme financial pressure, face the prospect of closing and some may find it difficult to resist the temptation to save money by taking safety shortcuts, especially if they can persuade public health officials to bless unacceptably risky conduct. Schools that skimp on safety may be able to offer education at lower tuition rates than more conscientious colleges that refuse to cut corners — which will put pressure on those colleges. Ironically, it is the most careful colleges that might have the hardest time surviving.
If the proposal is enacted, higher education may suffer far more than if Congress rejects it. If a school suffers an outbreak in the fall because of its own sloppiness and blocks lawsuits because of this bill, that will teach the public that universities care more about protecting themselves than their students.
An industry whose business model depends on convincing people that young adults will be safe with them cannot survive by hiding behind shields against liability for their own misconduct. Instead, universities should trumpet that people can have confidence that they will keep students safe because they will pay a price if they don’t — and then they should take every reasonable step to keep students safe.
Jeff Sovern is a professor at St. John’s School of Law where he teaches civil procedure, consumer protection and introduction to law. His son is expected to start college in the fall. He has been published in The New York Times, USA Today, Boston Globe, New York Daily News, Pittsburgh Post-Gazette, Fortune.com, CNN.com and other publications.