MEMO

TO: Idaho School Boards Association

FROM: Law offices of Anderson, Julian & Hull

DATE: Tuesday, April 28, 2020

RE: Issues Surrounding COVID-19 and Potential School Reopening for

Remainder of 2019-2020 School Year (through May/June 2020)

With total new daily cases (as opposed to total cases overall) of the novel coronavirus
which causes COVID-19 appearing to have peaked on April 2, 20201, the question
arises: when should schools reopen? An ancillary concern, and the topic of this memo
is, what legal principles guide the consideration of when and how schools can reopen
following, or during, the COVID pandemic, and what potential liabilities may school
districts and charter schools face in reopening?

Guiding principles impacting such decisions may be included in directives from local
and state leaders, such as the Statewide Stay-Home Order, amended April 15, 2020,
announced by the Governor and published by the Idaho Department of Health and
Welfare. The Order extended the stay-at-home directives through 11:59 p.m. on April
30, 2020. (However, as with the original Order, the Amended Order exempted
“Educational institutions- including public and private K-12 schools, colleges, and
universities- for purposes of facilitating distance learning or performing essential
functions, provided that social distancing of six-feet per person is maintained to
the greatest extent possible.”)

Because the overarching framework in which school decisions to reopen will be viewed
is within general negligence, the memo will examine whether and how such decisions
might be considered negligent; discuss which statutes and regulations may impose
liability; and consider what immunity may exist for districts and charters. This memo will
therefore discuss general negligence issues, and possible defenses to negligence and
liability in tort.

General Negligence Principles, and Potential Defenses

In its simplest form, negligence can be considered to be the failure to use ordinary care.
The Idaho Supreme Court has instructed as to negligence that “The words ‘ordinary
care’ mean the care a reasonably careful person would use under circumstances similar
to those shown by the evidence. Negligence may thus consist of the failure to do
something which a reasonably careful person would do, or the doing of something a
reasonably careful person would not do, under circumstances similar to those shown by

1 Per reports collected by Idaho Statesman as of April 15, 2020.

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the evidence.” The law does not (typically) define how a “reasonably careful person”
would act.

“In all but the most intricate negligence cases the general definition of negligence
sufficiently outlines the required standard of care.” McPheters v. Peterson, 108 Idaho
107, 108, 697 P.2d 447, 448 (1985). As noted above, the typical standard or “duty of
care” is that one must exercise ordinary care for the safety of others. However, there
exists a greater, more protective, duty owed to students by school districts.

“The role of the state to children in school is a parental one often being described as
one in loco parentis. The relationship of a student to a school district is exemplified by
the statutory duty that the board of trustees of a school district has ‘[t]o protect the
morals and health of the pupils.’” I.C. § 33–512(4).” Bauer By & Through Bauer v.
Minidoka Sch. Dist. No. 331, 116 Idaho 586, 588, 778 P.2d 336, 338 (1989).

In general negligence circumstances, several defenses or mitigating factors to

negligence may apply; these include assumption of the risk; contributory negligence;
and the fault of other, third, parties. In certain instances, the defense of, for example,
contributory negligence can even be applied to children over a certain age. 2 However,
in a school-student situation, where a school stands in loco parentis to the student,
these defenses to negligence are unlikely to apply.

However, as discussed further below, the “discretionary function” exception may apply
to insulate a district or charter school from tort liability for allegedly-negligent actions.

Specific COVID-Related Legal Issues

It is at least possible that, if a school district or charter school were to announce it was
reopening while the COVID-19 pandemic is still ongoing, a stakeholder might seek
injunctive relief. In other contexts,

Indeed, courts have even specifically held that COVID-19 constitutes an

irreparable harm that supports the grant of a TRO. See Vasif “Vincent”
Basank, et al v. Decker, 2020 WL 1481503 at *4-5 (S.D.N.Y. March 26,
2020) (“The risk that Petitioners will face a severe, and quite possibly fatal,
infection if they remain in immigration detention constitutes irreparable
harm warranting a TRO”); Castillo v. Barr, CV-20-00605-TJH (C.D. Cal.
2020) (granting a TRO to immigration detainees due to the COVID-
19 pandemic).

BHARATKUMAR G. THAKKER, et al., Petitioners-Plaintiffs, v. CLAIR DOLL, in his

official capacity as Warden of York Cty. Prison, et al., Respondents-Defendants.
Additional Party Names: Abedodun Adebomi Idowu, Agus Prajoga, Catalino Domingo
Gomez Lopez, Courtney Stubbs, Dexter Anthony Hillocks, Henry Pratt, Jean Herdy

2 See, e.g., Gayhart v. Schwabe, 80 Idaho 354, 363, 330 P.2d 327, 333 (1958).

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Christy Augustin, Mansyur, Mayowa Abayomi Oyediran, Meiling Lin, Rigoberto Gomez
Hernandez, Rodolfo Augustin Juarez Juarez, No. 1:20-CV-480, 2020 WL 1671563, at
*7 (M.D. Pa. Mar. 31, 2020) (discussing TRO sought by prisoners on basis of COVID-
19).

See also JOHN DOE, Plaintiff, v. TRANSYLVANIA UNIVERSITY, Defendant., No. CV

5:20-145-DCR, 2020 WL 1860696, at *1 (E.D. Ky. Apr. 13, 2020) (“Plaintiff John Doe
has filed a motion for the issuance of a temporary restraining order and/or a temporary
injunction. Through the motion, the plaintiff seeks to prevent Defendant Transylvania
University from proceeding with a student disciplinary hearing on April 15, 2020,” on
basis of COVID-19).

Even if a school stakeholder does not seek injunctive relief to stop a school reopening
from proceeding, a negligence action might eventually result from any decision to
reopen during the pandemic, if the reopening can be linked to any infection.

Statutes & Regulations Concerning School Obligations to Protect Student Health

& Safety

The following statutory provisions from the Idaho Code, and portions of the Idaho
Administrative Code (IDAPA), may relate to the issue of pandemic response and
planning in general, and school closure in particular:

I.C. § 33-512(4), stating:

GOVERNANCE OF SCHOOLS. The board of trustees of each school district shall

have the following powers and duties:
(4) To protect the morals and health of the pupils;

I.C. § 33-512(7), stating:

GOVERNANCE OF SCHOOLS. The board of trustees of each school district shall

have the following powers and duties:
(7) To exclude from school, pupils with contagious or infectious diseases who are
diagnosed or suspected as having a contagious or infectious disease or those who
are not immune and have been exposed to a contagious or infectious disease; and
to close school on order of the state board of health and welfare or local health
authorities;

IDAPA 16.02.10—Idaho Reportable Diseases, at 16.02.10.020, Persons Required to

Report Reportable Diseases, Conditions, and School Closures:

04. School Administrator. A school administrator must report diseases and conditions to
the Department or Health District as indicated in Section 050 of these rules. A school
administrator must report the closure of any public, parochial, charter, or private school

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within one (1) working day when, in their opinion, such closing is related to a
communicable disease.

IDAPA 16.02.10—Idaho Reportable Diseases, at 16.02.10.065, Investigation and

Control of Reportable Diseases:

05. Closure of Schools and Places of Public Assembly. The Director [of DHW] may
order the closing of any public, parochial, or private school, or other place of public
assembly when, in their opinion, such closing is necessary to protect public health. The
school or other place of public assembly must not reopen until permitted by the health
official.

IDAPA 16.02.10—Idaho Reportable Diseases, at 16.02.10.090, School- Reporting and

Control Measures:

01. Restrictable Diseases. School reportable and restrictable diseases are those
diseases that are readily transmissible among students and staff in schools as listed
under Section 050 of these rules. (4-2-08)
02. Restrictions - Work. Any person who is diagnosed to have a school restrictable
disease must not work in any occupation that involves direct contact with students in a
private, parochial, charter, or public school as long as the disease is in a communicable
form. (4-2-08)
03. Restrictions - Attendance. Any person who is diagnosed with or reasonably
suspected to have a school restrictable disease must not attend a private, parochial,
charter, or public school as long as the disease is in a communicable form.

***

All of the above provisions relate to when persons should be excluded from school, and
when diseases should be reported. On their face, they do not appear to relate to the
specific question of when schools may reopen. Yet by the operation of the principle of
negligence per se, the above regulations may impose liability if, for example, a school or
district were to reopen and it transpired that a school attendee was or became infected
with the coronavirus causing COVID.

Possible Liability Created as a Result of Statutory and Regulatory Obligations

“In Idaho, it is well established that statutes and administrative regulations may define
the applicable standard of care owed, and that violations of such statutes and
regulations may constitute negligence per se. A court may adopt as the standard of
conduct of a reasonable man the requirements of a legislative enactment or an
administrative regulation.” Bright v. Maznik, 162 Idaho 311, 314, 396 P.3d 1193, 1196
(2017).

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What this means is that, if a school or district were to reopen “too soon,” and someone
at the school were found to be sick with COVID or to bring COVID home from school,
the school or district could be found to have breached the applicable standard of care.
The above statutory and regulatory provisions would be pointed to as defining the
standard for what a reasonable person would do and, in effect, creating a “better safe
than sorry” duty to protect the public health of school attendees—with whom the district
or school stands in loco parentis.

Potential Immunity to Liability Provided by the Tort Claims Act

The Idaho Tort Claims Act, I.C. § 6-901, et seq., includes at § 6-904 “Exceptions to
governmental liability.” That statutory section contains the following exception to liability
which may be material to the question considered here:

A governmental entity and its employees while acting within the course
and scope of their employment and without malice or criminal intent shall
not be liable for any claim which:
1. Arises out of any act or omission of an employee of the governmental
entity exercising ordinary care, in reliance upon or the execution or
performance of a statutory or regulatory function, whether or not the
statute or regulation be valid, or based upon the exercise or performance
or the failure to exercise or perform a discretionary function or duty on the
part of a governmental entity or employee thereof, whether or not the
discretion be abused.
As can be seen, the yardstick by which districts and charters may be judged in any
decision to reopen schools will be: was “ordinary care” exercised? This is the standard
the Supreme Court has set for instructing juries in typical negligence cases, and the
standard the Legislature has set for governmental entities and employees to be judged
by in the Tort Claims Act.

It should not be forgotten that, in considering whether ordinary care under the
circumstances was exercised by a charter school or district, any legal factfinder will take
into account the special in loco parentis school-student relationship, and the Idaho Code
and Idaho Administrative Code provisions obligating schools to protect student health
and safety.

There is second portion of § 6-904(1), which applies when the action complained of was
an exercise of discretion. Where an action is discretionary, the governmental actor is
likely to be immune from liability; where the decision is operational, the governmental
actor is subject to liability if it fails to exercise reasonable care, i.e., the ordinary care
discussed above. See Dorea Enterprises, Inc. v. City of Blackfoot, 144 Idaho 422, 425,
163 P.3d 211, 214 (2007).

Perhaps the landmark Idaho case on the discretionary function exception is Ransom v.
City of Garden City, 113 Idaho 202, 743 P.2d 70 (1987). In that case, the Idaho
Supreme Court explained that “In suits brought under the Tort Claims Act, the

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“planning/operational” test is used to demarcate decisions involving the formation of
basic policy, entitled to immunity, from decisions involving the execution or
implementation of that policy, not entitled to immunity.” Ransom, 113 Idaho at 204, 743
Idaho at 72.

“The discretionary function exception applies to government decisions entailing planning

or policy formation, and does not include functions which involve any element of choice,
judgment, or ability to make responsible decisions, otherwise every government action
would fall under the exception. Shubert v. Ada Cty., No. 46403, 2020 WL 1178775, at *9
(Idaho Mar. 12, 2020) (emphasis in original). Accord Dorea Enterprises, Inc. v. City of
Blackfoot, supra, 144 Idaho at 425, 163 P.3d at 214 (“The discretionary function
exception applies to governmental decisions entailing planning or policy formation.”)

The Court employs a two-step analysis in determining if the government or a

governmental entity or employee is entitled to immunity under the discretionary function
exception:

The first step is to examine the nature and quality of the challenged
actions. Routine, everyday matters not requiring evaluations of broad
policy factors will more likely than not be operational [and therefore not
immune]. Decisions involving a consideration of the financial,
political, economic and social effects of a policy or plan will
generally be planning and discretionary [and therefore immune]. While
greater rank or authority will most likely coincide with greater responsibility
for planning or policy decisions; ... those with the least authority may, on
occasion, make planning decisions which fall within the ambit of the
discretionary function exception. The second step is to examine the
underlying policies of the discretionary function, which are: to permit those
who govern to do so without being unduly inhibited by the threat of liability
for tortious conduct, and also, to limit judicial re-examination of basic
policy decisions properly entrusted to other branches of government.

Shubert, supra, at *9 (emphasis added).

In the school context, the discretionary function exception has been applied to hold a
district not liable for a student suicide, where the court held that a decision to implement
a student safety program, including training teachers in the district, was a discretionary
function. See Brooks v. Logan (Brooks I), 903 P.2d 73 (Idaho 1995) (Superseded by
statute).

In the present situation, because the decision whether to reopen schools will very likely
involve considerations of the financial, political, economic, and in particular, social
effects of the plan, such a decision may very well be viewed as a discretionary function
or duty, subject to the discretionary function exception from liability. However, districts
should be aware that courts will strictly construe the discretionary function exception.
Czaplicki v. Gooding Joint Sch. Dist. No. 231, 116 Idaho 326, 331, 775 P.2d 640, 645

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(1989) (further stating, “The discretionary function exception does not immunize the
negligent implementation of policy, neither does it immunize negligent operational
decision-making.”)

CONCLUSION

The CDC has issued “Considerations for School Closure,” which contain
recommendations on school closure based on available science, reports from other
countries and consultation with school health experts. That guidance provides points
for further consideration, regardless of degree of spread or length of potential closure,
and concludes, “While we have data that can contribute to decisions about when to
dismiss schools, there is almost no available data on the right time to re-start
schools. We would advise to plan for a length of time and then evaluate based on
continued community spread.” (emphasis added)

In Idaho, the issues of when, whether, and how to reopen schools following (or during)
the pandemic will likely come down to the question of, “What is negligent in the context
of reopening, given this unprecedented pandemic?” It is probable, for instance, that
reopening during the pendency of the Stay-Home Order will be found to fall below the
standard of care for the duty owed, and to support a finding of negligence considering
that, in schools, the Order calls for social distancing of six feet per person to be
maintained to the greatest extent possible. It is also at least highly possible that, until
the curve of overall total cases is flattened, it may be considered negligent to reopen
schools. Similarly, if a particular surrounding area, including a county or counties local
to a school district, is experiencing community transmission, it may be considered a
breach of duty to open local schools. In all decisions made as to whether, and when, to
reopen, a district’s or charter’s board will want to be sure to consider, and make clear it
has considered, the financial, political, economic, and social effects of the reopening
plan.