A Reasonable Expectation

Taking steps to provide ordinary care during the COVID-19 pandemic could protect against legal action.

By Mark Paige
Principal, March/April 2021. Volume 100, Number 4.

When I represented school districts, I frequently heard administrators and teachers express a fear of being sued. It is a real concern. Education lawsuits have become more common over time, and this concern has only been amplified in the pandemic.

Principals are now asking: If a student gets sick from COVID, can I be sued? If I choose which teachers must come back to work in person and they get sick, can I be sued?

The answer is yes—you can. It’s fairly easy for someone to sue you in your capacity as an administrator, or even individually. But there are important caveats. It is one thing to sue; it is quite another to sue and win.

Substantial costs deter someone from filing a lawsuit or dragging things out. Plus, it is difficult to prove certain elements of a claim. This is why most lawsuits are dismissed or settled. Moreover, successful suits against you, personally, for official actions—not just those related to COVID—are generally reserved for egregious circumstances. They are not unheard of, but they are not the norm.

Can the Law Protect Me?

Having said that, you should be taking actions that reduce the risk that you or your district might be sued or lose a lawsuit and—more importantly—that help keep people safe.

Let’s look at a few general legal principles that might apply and generate some ideas about how to reduce risk, ease any anxiety you might have, and allow you to do what you do best: Lead schools and educate kids.

In the COVID situation, a parent or student might bring an action against you and your district based on charges of negligence. Here, someone would claim that your action, or inaction, caused them to contract COVID and caused related injuries.

There are things you can do now that might defeat any claim of negligence and even dissuade someone from pursuing such an action. The more aggressive you are about following accepted guidelines and reducing your risk, the less likely it is you will be sued.

Take Reasonable Safety Steps

The good news? You are probably already doing things to maintain the health of everyone in your building and limit your risk of exposure. If students and teachers are in person at your school, you are likely taking certain measures to prevent the spread of the virus.
Perhaps you have established policies requiring parents to complete daily health check-ins before children can be dropped off at school, installed new cleaning regimens, and are alternating in-person cohorts. And, of course, you are requiring masks.

While this might seem like common sense, the law has a name for such safety steps: “ordinary care.” Demonstrating that you are using reasonable ordinary care is an excellent defense to any claim of negligence.

But what is reasonable or ordinary? For that, look to the health guidance and regulations from local and state public health officials. This is important, because in your defense, you can always point to your adherence to those guidelines as evidence that you took reasonable steps to prevent the spread of COVID-19.

Guidance changes, though. Part of acting reasonably is also being able to track and implement any changes in recommended protocols based on new information about the novel coronavirus. If you aren’t already, start communicating with the point person in the district or community who’s responsible for filtering this information into practice.

Ensuring compliance is another thing. Do you have a system in place to ensure that a parent actually completes a daily health check before the child enters the building? If a star teacher violated a mask policy, did you take appropriate action? The stakes are too high to look the other way from infractions.

Lobbying for Limits to Liability

Some states have passed laws limiting school district liability. However, even if your state has a statute like this, your liability is probably limited provided that you follow certain safety steps or precautions.
If your state does not have a law, lobby your elected officials. If a community asks you to resume in-person learning during a pandemic, it seems only fair that you have some degree of protection against a situation over which you have little control.

There are other laws that might apply to a school beyond those related to negligence. These include the Americans with Disabilities Act (ADA), the Family Medical Leave Act (FMLA), federal laws passed in response to COVID, and collective bargaining agreements. Some of these might require you to make accommodations or changes to staff working arrangements.

Ask your human resources office to give you some overview of these laws. And if an issue comes up, seek guidance from the central office.

This pandemic will pass, but its impact will remain. Chances are you won’t be involved in a lawsuit related to COVID-19, but you might be involved in a lawsuit at some point in your career. If you are doing what a “reasonable” principal does and applying the rules fairly and evenly, you will have some insulation from liability.

Mark Paige is associate professor of public policy at the University of Massachusetts Dartmouth, a former school law attorney, and a board member of the Education Law Association.

Copyright © National Association of Elementary School Principals. No part of the articles in NAESP magazines, newsletters, or website may be reproduced in any medium without the permission of the National Association of Elementary School Principals. For more information, view NAESP's reprint policy.