Dear President Doran and members of the Board of Education, while I cannot give the board legal advice, as a former general counsel for a large institution I am writing to share my legal perspective on the board and the Fairbanks North Star Borough School District’s masking policy.
While there are many reasons to follow medical guidance regarding Covid-19, a completely pragmatic and non-partisan reason is to avoid legal liability. Unfortunately, the school board and district’s present position on masking, and the way it got there, goes a long way toward establishing the district’s liability to students and families who may be harmed as a result. Here’s why.
The formula for civil legal liability has four elements. When a plaintiff can establish all four elements the defendant is liable in damages:
• The defendant must have a duty of care to the plaintiff;
• The defendant must breach the standard of care relevant to that duty;
• The plaintiff suffers an injury;
• The injury is caused by the defendant’s breach.
The first two elements, duty of care and breach of the standard of care, are at issue here. When a duty of care exists, the person or entity has an affirmative responsibility to protect others from harm. Not everyone has an affirmative duty of care. For example, a person who simply sees an open manhole on a street has no duty to warn or protect others. However, a police officer who sees the danger, and the city or state official who is informed of it, has a duty to protect the public.
Under Alaska law, school board members, school administrators and teachers have a well-established duty of care to students. Employers and others (e.g., the borough administration) who invite people onto their property also have an enhanced duty of care to their employees and invitees. When a duty of care exists it is insufficient as a matter of law for an entity to delegate its duty to students, families, or employees, e.g., have each family or individual decide whether to protect themselves and others.
When a legal duty of care exists and an injury occurs, the next question is whether a defendant exercised reasonable care, considering relevant standards.
Back in June, the FNSB school board determined that masks would not be required going forward. An injured plaintiff predictably will assert that failure to require masks now is inconsistent with changed conditions and the weight of medical guidance at the national, state and local levels. In addition, a plaintiff reasonably may argue that the board’s failure to re-evaluate despite changed circumstances is itself a breach.
Moreover, passing a blanket “no mask requirement,” without provision for changed circumstances, has serious implications for the board’s defense of claims. It precludes a defense that the board considered pertinent facts and relevant standards when circumstances change. Plaintiffs also may argue the board stepped out of its educational policy role, where the board has significant latitude, and stepped into politics and the day to day operation of schools, and that it did so without regard to its duty, the standard of care, and state law. State law requires that the board’s actions be non-partisan (see AS 14.03.090. Partisan, Sectarian, or Denominational Doctrines Prohibited). In addition, prescribing operational details of pandemic response in inflexible board policy is both ill-advised and inconsistent with general guidance provided by the Association of Alaska School Boards regarding the proper role of boards. See aasb.org/role-of-board.
Liability risk is not limited to personal injury. All school-age students have a right to attend public school, and failure to create the conditions that make safe attendance possible may result in claims of violation of AS 14.03.080 and the Americans with Disabilities Act. The federal Office for Civil Rights is currently investigating bans on mask requirements in schools as possible ADA violations.
The board would be well advised to keep in mind that any claims are likely to result in uncomfortable discovery into board and administrator decision-making, and that expensive, time-consuming litigation is a likely result since what constitutes reasonable care is generally a fact question for a jury. That jury will hear the claim in the context of an injured child or grieving family.
The board should repeal its current blanket prohibition and adopt a true “policy” requiring the superintendent to determine appropriate actions after considering medical advice and other relevant factors.