Dear Legal Mailbag:
As my colleagues and I look ahead to reopening school in the fall, we really don’t know what we are looking at. We hear different things from different people, and it is hard to keep up with all the ideas – masks, social distancing, bring-your-own lunch, split classes, split school sessions. I get dizzy just thinking about it.
The one thing we know is that we don’t know what the fall will bring. But at the risk of disclosing more than I should about my personality (disorder), I must say that I hate uncertainty. As a result, my administrative team and I have started planning for the fall, for better or worse. Is it fair to say that we should establish clear rules and procedures that do all we can do to keep students and staff safe from this terrible COVID-19 threat?
Being tightly-wound as well, Legal Mailbag feels your pain. Uncertainty is a terrible thing, particularly when we are talking about something as important as teaching our youth. But sometimes we must just take a breath. Think about what you knew on March 8. That was about nine weeks ago. School is scheduled to start this fall in about fifteen weeks. Planning is essential, and the recommendations of the Reopen Connecticut Advisory Group, and its Education Subcommittee will be critically important in that work. But we should know a lot more as we approach the summer, and in our planning, we should be flexible and creative as we receive new information.
Legal Mailbag applauds you for your efforts to start planning now. Legal Mailbag also wishes to comment on your plan to “establish clear rules and procedures that do all we can do to keep students and staff safe.” Here, we must be careful. Safety is the first priority of course, but any rules or procedures that one adopts to promote student and staff safety must be realistic.
The concern is liability. Liability results when one has a duty of care, one breaches that duty (i.e., acts in an unreasonable manner), and that unreasonable action causes an injury which is foreseeable. The concern in establishing procedures, whether in general or in the context of the special challenge of reopening the schools, is that we may wish to “do all we can do,” as you stated. But if school officials adopt aspirational standards and procedures (e.g., all students will wear masks in school at all times) that are unworkable, school officials will be subject to claims that they acted unreasonably by not following the rules that they themselves established. If someone is injured and can show procedures, however unreasonable, were not followed, a liability claim may well follow.
The lesson here is not to establish procedures that put people at risk. Rather, in deciding what needs to be done, planners must be realistic. If one cannot reliably predict that the safeguards necessary for a particular approach are doable, then one must take a different approach. In such planning, we should not just hope for the best, but rather we must do what we say we will do.