September 8th, 2020

Sued If You Do, Sued if You Don’t: School Reopening Decisions Create Legal Exposure

Tax- exempt organizations have suffered uniquely during the pandemic. Museums and other arts and cultural institutions have been shuttered, and donations to organizations not focused on COVID-19 remediation are down. Amidst that, perhaps no other group of tax-exempt organizations faces as many challenges today as schools.

Nationwide, school systems and universities (most of which are tax-exempt) are confronting as difficult a back-to-school period as they have ever faced. In addition to the complicated logistics of reopening during a pandemic, many schools have also had to mobilize their legal teams to defend lawsuits.

Interestingly, the lawsuits come from both sides of the issue: some plaintiffs are seeking to keep schools closed and others are suing for reopening. In Florida, for example, the teachers’ union is trying to block an executive order to open schools. In Iowa, a suit was brought against state officials for requiring in-person learning. On the other hand, parents and others have asked courts to order schools to reopen in California, Massachusetts and Maryland.

Here in New York City, teachers filed suit just last week to gain the right to work entirely remotely regardless of whether the schools reopen. The incredibly unique nature of the New York City public school system – the country’s largest school district – brings a broad range of challenges, including the relatively large number of students in a typical classroom, the population of children needing special education and food security, and the high potential cost of a large volume of substitute teachers.

In addition to suits focusing on reopening issues, there are also claims from families seeking tuition refunds for higher education costs. As campuses across the country taken different approaches, the price ticket for college is becoming a major battleground, and that is one that won’t likely be resolved completely any time soon.

All of this means that schools need to worry about liability and insurance for a very new set of circumstances, and those issues will be different for private schools than for public schools, for large schools and districts versus small ones, and for K-12 schools as opposed to universities. It remains to be seen whether insurance policies will even cover schools, universities and districts for pandemic-related issues, which could cause school closings for a whole new reason. If you or your exempt organization have questions about how to respond to claims or otherwise manage pandemic-related risks, please contact Charitable Organizations Group Chair, J.J. Leitner, at (212) 705 4814 or jjleitner@fkks.com.