North Carolina's legislature last week passed a bill immunizing the state's colleges to legal claims, including tuition-related lawsuits, concerning campuses that closed in the spring 2020 term because of the pandemic.
The measure awaits the governor's signature. Louisiana lawmakers, meanwhile, are debating legislation that would neutralize most civil claims against colleges and school districts if their students caught the coronavirus.
Awaiting federal backing, colleges and industry groups have begun pressing state lawmakers for protection against legal action should campuses have to close again or students and employees contract the virus on campus.
Shortly after the coronavirus forced campuses to shut down earlier this year, a trend emerged.
Students and families began suing their schools for refunds of tuition and other costs, claiming the educational experience they received in the spring didn't match what they paid for. More than 100 such lawsuits were filed as of early June, according to one count.
Institutions are now planning for the fall term, and are mulling myriad ways of keeping their campuses healthy if they reopen. That includes conducting extensive virus testing and contact tracing, mandating face coverings, even installing plexiglass barriers between students and instructors during class time.
None of these measures, however, completely ensures students or staff members won't become infected. College leaders fear that even if they've taken steps to halt its spread, restarting operations without liability protections would mean opening themselves up to a potential slew of virus-related litigation.
Higher education groups, led by the sector's top lobbyist, the American Council on Education (ACE), have pushed Congress to authorize certain liability protections for colleges. But a federal proposal has yet to materialize. Colleges have now turned to state lawmakers, asking them for such safeguards with some degree of success.
College presidents and industry groups lobbied legislatures for lawsuit protections. At least two states have bills moving forward explicitly crafted to shield colleges from liability, while other legislation is geared toward protecting businesses and hospitals.
"Without legal immunity, colleges are damned if they do and damned if they don't," Jennifer Braceras, director of the conservative Independent Women's Law Center, wrote in a recent op-ed for The Hill. "Some are already fighting lawsuits by students seeking refunds based on decisions to close. Those that reopen will no doubt face suits from those who get sick."
In the legislation Louisiana lawmakers are debating, students, families and educators could only sue if their school was grossly negligent in protecting against the virus.
Many more state groups are pressing for liability shields, and some state officials have indicated they would back such measures. Last month, members of the Connecticut panel that advised officials on reopening the state recommended that Connecticut offer a "safe harbor" from liability for schools that follow the planning measures it put forward.
"No institution can seriously consider opening its campus if it faces the threat of lawsuits by students who become infected," the group's report states, noting that "it is inevitable" individuals will contract the virus.
Representatives from Maine's colleges are also recommending the state provide a legal safe harbor to institutions there that reopen. And New Jersey's college presidents have advocated for similar protections.
Several state organizations representing private colleges signed on to a letter last month from ACE President Ted Mitchell to congressional leaders pushing for federal liability protection with regard to the spread of the virus. ACE is not tracking state action on liability protections as its advocacy is focused on the federal government.
Federal protections still could be on the horizon.
College presidents have been flagging the issue for high-ranking administration officials and lawmakers. More than a dozen college leaders discussed concerns about reopening campuses and potential liabilities on a conference call in May with Education Secretary Betsy DeVos, Vice President Mike Pence and White House Coronavirus Response Coordinator Dr. Deborah Birx.
Sen. Lamar Alexander, (R-Tenn.), chair of the senate's education and health committee, also has indicated his support for liability shields and is a cheerleader of reopening campuses in the fall.
Not every lawmaker is on board though. Sen. Elizabeth Warren (D-Mass.) tore into Brown University President Christina Paxson during a committee hearing earlier this month, asking why colleges should not be held accountable if students and others fall ill.
"If we are careless, if we don't follow guidelines, that's not something that should be protected in any way, shape or form," Paxson said in response.