Legal Newsline, May 28, 2020

By John O’Brien

WASHINGTON (Legal Newsline) – Colleges and universities have written a letter to Congressional leaders that explains their need for protection from lawsuits when they reopen to students.

Dozens of education groups, led by the American Council on Education, sent their plea to the Democrat and Republican leaders in the House and Senate on Thursday, a day after the business community made a similar request.

The letter from groups like the American Association of State Colleges and Universities and the Association of California Colleges and Universities cites a fear of “huge transactional costs associated with defending against COVID-19 spread lawsuits.”

“(W)e ask that Congress quickly enact temporary COVID-19-related liability protections for higher education institutions and systems, affiliated entities, as well as their faculty, staff and volunteers,” the letter says.

“These protections should be conditioned on following applicable public health standards, and they should preserve recourse for those harmed by truly bad actors who engage in egregious misconduct.”

The issue is likely to provide a fight when Republican leaders in the Senate introduce protections from coronavirus litigation in the next stimulus measure. Senate Majority Leader Mitch McConnell has promised it will be a key point.

At a recent hearing before the Senate Judiciary Committee, the general counsel of Texas Christian University warned that fear surrounding where a “liability cliff” will be is affecting the decision on when to reopen.

“When we know there’s a liability cliff – some line that will be catastrophic to step across – but we don’t know exactly where the edge of the cliff is, we will avoid the ground near the cliff altogether,” TCU’s Leroy Tuner told the committee.

The Democrat-led House of Representatives represents a major obstacle. Last year, the House attempted to push through a measure regarding the chemical PFAS that would have increased liability to countless businesses.

Senate Republicans prevented that from happening. Now, the COVID-19 pandemic presents the next battle over a possible litigation explosion. Colleges and universities are now facing class action lawsuits that say they should refund part of each student’s tuition because those students can’t enjoy the full campus life they signed up for.

In Chicago, a Walmart worker sued the company after coming down with the disease, and previous Legal Newsline coverage noted a Tennessee law firm is signing up clients to sue a nursing home over an outbreak.

recent poll commissioned by the U.S. Chamber Institute for Legal Reform, which owns Legal Newsline, showed nearly equal percentages of Democrat and Republican voters favor proposed liability shields. A poll released by the American Association for Justice, the nation’s trial lawyer group, says voters oppose blanket immunity.

But businesses are not asking for blanket immunity. At the Judiciary hearing, temporary protections from lawsuits except in cases of gross negligence were requested – similar to protections passed for health care workers in several Democratic states.

The reopening of colleges and universities will be essential to the businesses in those communities that rely on the presence of students and faculty.

“In addition to educating and training our country’s future workforce, they provide health services, cultural resources, spectator sports venues, and recreational amenities to their communities,” the letter says.

“Our medical schools, teaching hospitals, and research labs are working around the clock to find the best treatments and vaccines for COVID-19.

“Moreover, our higher education institutions maintain full service utilities, telecommunications, and computing networks; they provide housing and food services; and they operate transportation networks, hotels, retail shops, daycares, gyms, and museums.

“To support this broad array of activities, they directly employ tens of thousands of skilled workers in various trades, from electricians and linemen to plumbers and HVAC technicians; from landscapers and painters to carpenters and fabricators.”

The letter was sent to Speaker of the House Nancy Pelosi and Senate Minority Leader Chuck Schumer, both Democrats. The Republicans receiving the letter were Senate Majority Leader McConnell and House Minority Leader Kevin McCarthy.