covid19

Public schools with "mask optional" policies risk losing immunity.

A. The Choice

Boards of education in Ohio have been placed in a tough position to start the school year. Boards have been forced to choose whether to require masks for their students and employees. Schools were placed in this position because the state legislature effectively removed the power of the Governor and the Ohio Department of Health to issue mask mandates (and most other related health orders). 2021 Sub.S.B.  No. 22.

With this authority removed, the Ohio Department of Health can now only “recommend” that schools require masks for the upcoming school year. See, COVID-19 Health and Prevention Guidance for Ohio K-12 Schools, Ohio Department of Health (Rev. July 26, 2021). Some local health departments have more recently heightened this to “strongly recommend” full masking of all students since infections associated with the Delta variant have increased, just in time for the start of the school year. Mask Advisory Issued for All Residents Indoors Regardless of Vaccination Status, Franklin County Public Health Advisory (August 5, 2021).

The response by boards of education at public schools has been mixed. Some boards of education have appreciated the risk to students and employees articulated by local health authorities and have adopted a full masking requirement for the start of the 2021-2022 school year. Other boards have recognized the potential for an increased risk for the unvaccinated, including those age 11 and under who do not have access to a vaccine, and opted to require masks for everyone at the elementary level.

A surprising number of boards have opted for a completely voluntary mask policy, perhaps because they believe masking is a purely personal decision, or that the risks articulated by health departments and federal agencies are overstated. There’s been some healthy (and unhealthy) debate surrounding the issue, which has included a variety of reasons for schools opting to go “mask-optional.”

B. Sovereign Immunity; Exceptions Allowing Claims

One reason that boards may feel confident in adopting a mask-optional policy is because boards of education enjoy state sovereign immunity for decisions made in the exercise of their governmental functions. R.C. 2744.02(A)(1). School employees enjoy similar immunity for decisions made within the scope of their duties. R.C. 2744.03(A)(6).

Importantly, however, sovereign immunity is not absolute and the decision to go mask-optional could expose a school board--or a school employee recommending such a policy--to an increased risk of liability.

To begin, sovereign immunity does not apply to contract claims, claims that arise from an employment relationship with the school, or claims brought by an employee related to his or her “conditions…of employment.” R.C. 2744.09(A)-(C). Sovereign immunity also does not apply to “civil claims based upon alleged violations of the constitution or statutes of the United States.” R.C. 2744.09(E).

Therefore, one could easily imagine a teacher or other school employee asserting a claim that the employment agreement has been violated due to a voluntary masking policy in a pandemic, or that the conditions of employment have been improperly altered, making the employee more vulnerable to infection. Such a claim could be bolstered by high infection rates in any given school or by the fact that most school districts in the state required masks for all students and staff just last school year.

Sovereign immunity could also be side-stepped by any aggrieved party by asserting a claim under a federal statute or the U.S. Constitution. The federal statute possibilities are numerous, but the Americans With Disabilities Act would be one leading example, as this law requires reasonable accommodations to be made for students and employees with disabilities. 29 C.F.R. Part 1630, et seq. Other claims could come through the “state-created danger” theory under the Fourteenth Amendment of the U.S. Constitution, especially given that school-age children in Ohio are required by law to attend school. See, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989)("[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being”); see also, R.C. 3321.01(A)(1)(compelling students in Ohio to attend school).

Further, while school employees (such as superintendents and principals) enjoy immunity protections similar to those provided to boards of education, this immunity does not apply where “the employee's acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless manner.” R.C. 2744.03(A)(6)(b). So, depending on the specific circumstances surrounding a risk of infection, or an actual transmission of the virus, there could be individual liability for school employees for school-level decisions that ignore a known risk, assuming the decision could reasonably be considered reckless, in bad faith or malicious.

In sum, there are very plausible exceptions to sovereign immunity for mask-optional policies.

C. Additional Immunity for Covid-Related Claims; Similar Exceptions

Notably, the Ohio legislature provided schools with another layer of immunity for Covid-related claims in 2020 with House Bill 606. This was signed by Governor DeWine on September 14, 2020, and provides in pertinent part:

No civil action for damages for injury, death, or loss to person or property shall be brought against any person [including schools and state institutions of higher education] if the cause of action on which the civil action is based, in whole or in part, is that the injury, death, or loss to person or property is caused by the exposure to, or the transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof. 2020 Am.Sub.H.B. No. 606, §2(A).

However, an exception to this law exists for reckless and intentional conduct, very similar to the exception for sovereign immunity above. Immunity under H.B. 606 does not apply if, “it is established that the exposure to, or the transmission or contraction of, any of those viruses or mutations was by reckless conduct or intentional misconduct or willful or wanton misconduct on the part of the person [or school] against whom the action is brought.” Id. "Reckless conduct” is defined in the law as:

Conduct by  which, with heedless indifference  to the consequences, the person disregards a substantial and unjustifiable risk that the person's conduct is likely to cause an exposure to, or a transmission or contraction of, MERS-CoV, SARS-CoV, or SARS-CoV-2, or any mutation thereof, or is likely to be of a nature that results in an exposure to, or a transmission or contraction of, any of those viruses or mutations. Id., §2(D)(3).

To be sure, the same law prevents health orders and recommendations from being introduced as evidence in tort actions. Id., §2(B). Even so, the infection rates and/or exclusion of students from the classroom because of necessary quarantining could be enough to prove that any given school district violated a duty of care to its students or employees, and that the act of implementing a mask-optional policy was reckless. This is especially true where a school continues with a mask-optional policy despite an ongoing or increasing risk.

Finally, the immunity under house Bill 606 is temporary and is due to expire on September 30, 2021, unless it is extended by the legislature. Id., §2(E).

In sum, the immunity laws that boards of education, superintendents and principals may be relying upon may not be as strong as they think when they adopt a district-wide mask-optional policy. While the decision is within a board of education’s discretion, it should be made with caution and an understanding of this exposure.

Mark Weiker, Esq., Student and Educator Rights Attorney, Abdnour Weiker, LLP

www.Lawyers4Students.com

Updates on State Testing for Spring 2021: Ohio School Law

Does my child have to participate in spring testing?

We can all agree that 2020 was a year like we have never experienced before. The educational institutions tried their best to accommodate the changing situation and help support students the best that they could. One of those ways was to forgo the traditional state testing in the spring of 2020. As the new school year began and schools had a better plan in place for how they would educate our children, the state agreed to bring back the mandatory state testing but gave districts a lot of flexibility on when those tests would occur. This spring is no different.

Here are some facts from the Ohio Department of Education regarding the spring testing:

  • Due to technology and test security requirements, there is no option to remotely administer state tests.

  • Districts should prioritize safety while putting forth a good-faith effort to communicate with parents and students about the importance of assessments and the requirement to conduct testing on-site.

  • Testing windows have been extended with many more options for districts to choose from. 

  • No student should be retained for not meeting the promotion score or reading subscore on Ohio’s State Test for grade 3 English language arts unless the child’s principal and reading teacher decide otherwise. Meaning, the Third Grade Reading Guarantee has been changed for the 2020-2021 school year. 

  • Federal and state laws require all districts and schools to test all students in specific grades and courses. There is no law that allows a parent or student to opt out of state testing, and there is no state test opt-out procedure or form. That being said, a parent can withdraw a child from participation in certain state tests, but there may be consequences for the student, the student’s teacher, and the school and district.

    • Districts and schools receive no credit when a student doesn’t participate in state testing. This can negatively impact a district’s state A-F report card grades.

    • Districts and schools cannot count students who do not take all required state tests in their average daily membership (ADM) for state funding.

    • Teachers will not have access to advanced diagnostic information from state tests, such as student growth projections, to help inform instruction.

    • A lack of state test scores can affect a student’s ability to graduate high school.

While I understand why a parent would not want to subject their child to a standardized assessment when the child’s learning has been significantly impacted this year, and mental health is a very serious concern for our kids, the school psychologist in me is telling you to let them take the test. Here is the thing, anxiety over these tests stems from the pressure that children feel to pass the test. That pressure comes from home and school. Take away the pressure and reassure your child that you could care less about their score. And when those scores do come home, put very little stock into what is on that paper. All our children have suffered one way or another this year and their educational progression has likely been impacted.  Be sympathetic to their situation. Listen and reaffirm their feelings. But I urge you not to remove this speedbump because when we are uncomfortable, but push on, we build character and resiliency. Our kids need to be resilient because there will be many moments in their lives when they will want to turn away from what makes them uncomfortable but doing so will stifle their personal growth.

Authored by Danielle Randolph, M.Ed., Ed.S., Special Education Advocate at Abdnour Weiker, LLP

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