Idaho public school officials say greater legal protection is needed to shield districts from coronavirus-related lawsuits.
They’re calling for a special legislative session to take place in the next few weeks, specifically to deal with the issue of liability waivers.
Several business and local government representatives echoed that view, during a meeting of the Judiciary and Rules Working Group in Boise on Tuesday.
The working group is one of three joint interim committees considering various legislative responses to the pandemic.
Lawmakers on the panel seemed sympathetic to the legal uncertainties businesses and government entities face, as they try to operate in a time of pandemic. They recognized, for example, that organizations could be sued by parents or students, customers or employees who claim they didn’t do enough to protect the public from the virus.
However, several also questioned whether blanket immunity would simply give these entities an excuse to cut corners when it comes to safety.
“What would incentivize a teacher to really adhere to safety guidelines, if we lift liability?” asked Rep. Melissa Wintrow, D-Boise.
Wintrow noted that face masks have become a politically contentious issue over the past few months. If schools and businesses have legal immunity, she said, why would they go through the hassle of trying to ensure compliance with local face mask requirements?
Karen Echeverria, executive director of the Idaho School Boards Association, cited face masks as a perfect example of why additional liability protection is needed.
“Some of our (students) include 6- and 7-year-olds,” Echeverria said. If students are required to wear face masks, “we know 6- and 7-year-olds are going to be using them as sling shots, they’re going to be blowing their noses in them, they’re going to be putting them on their shoes and sliding across the floor. And somehow teachers are supposed to ensure that they wear masks all day long?”
Moreover, some parents will ignore face mask requirements, while others will demand them — so whatever direction a school board takes, someone could end up suing them.
“We’ve been asked if a district or charter school can require parents to sign a blanket waiver before sending their kid to school, to give the school legal immunity,” Echeverria said. “But because we have a (constitutional) duty to educate, we don’t think that’s a prudent thing to do.”
She noted most Idaho public schools and charter schools are preparing to open over the next three to four weeks. She encouraged lawmakers to hold a special session before that, to give school districts some legal certainty.
In Idaho, only the governor can call a special legislative session.
Gov. Brad Little repeatedly has told lawmakers, over the past few months, he’ll consider calling them back into session, as soon as they reach consensus on a given issue.
Sen. Todd Lakey, R-Nampa, serves as co-chairman of the judiciary working group. Lakey said there’s a “sense of urgency” on the liability issue, so he encouraged members to bring potential legislation to the working group’s next meeting, which takes place at 8 a.m. Thursday.
“The expedited schedule isn’t optimal, but I do want to support the sense of urgency on this,” he said.
Along with the Idaho School Boards Association, the Idaho Association of School Administrators, Idaho Association of Counties, Idaho Sheriffs Association and Idaho Chamber Alliance all supported the call for a special session.
Seth Grigg with the Idaho Association of Counties noted counties are in a similar position to schools. No matter how diligent they are regarding safety protocols, he said, their legal exposure increases whenever someone has to show up for jury duty, or participate in a trial, or they’re locked up in jail or vote at a crowded polling station.
“For counties to provide safe elections, jury trials and operate their jails, we need immunity, and we need a special session (to put that in place) prior to the August elections,” Grigg said.
The Idaho Hospital Association also discussed the legal uncertainty hospitals face, given that some “elective” or nonemergency surgeries have been postponed in order to maintain capacity in intensive care beds.
By contrast, Daniel Luker with the Idaho Trial Lawyers Association suggested any liability or negligence issues arising from the coronavirus can be handled appropriately with current state law.
“The system we have in Idaho now works,” Luker said. Plaintiffs already face a high bar in proving negligence, so adding liability protection for schools and businesses would simply make it that much harder.
“You would shift responsibility away from the people who are most able to control the risks (from coronavirus) to the public at large,” he said.
The Idaho State Board of Education hasn’t taken a position on the issue of liability or the need for a special session.
Paul Stark, general counsel for the Idaho Education Association, said the best way for school districts to limit their liability for COVID-19 is to reduce the risk of transmission by not opening schools in unfavorable conditions, or to provide adequate safety precautions to fully meet the “duty of care.”
“Currently, education funding is being cut, which makes it more difficult for schools to provide those (preventative) measures,” Stark said. “Districts are in a situation where they need to do more, but they’re being given less (resources). You’ve created a perfect storm: They face rising threats to public health, and on the other side you have decreased funding to meet the needs.”
In other coronavirus-related news:
The Pullman Civic Theater postponed the remainder of this season’s live performances, because of the COVID-19 pandemic. It will continue virtual performances, beginning with a revival of “The Importance of Being Earnest,” by Oscar Wilde.
The theater will air a staged reading version of the show this fall. Other virtual performances are available on the website at www.pullmancivictheatre.org and YouTube.
Spence may be contacted at firstname.lastname@example.org or (208)-791-9168. Reporter Kathy Hedberg contributed to this story.