WITH STATE OFFICIALS leaving it to schools to resume in-person operations with masks and social distancing due to COVID-19, parents are divided, leading to complaints galore and boards of education asking their superintendents: “Should we open? Is it safe, and what is our liability?”

As legal counsel to more than a hundred school districts in Illinois, our firm has fielded the following question the most of any: “How do we do handle and reduce liability?”

Our answer: “Delicately, carefully and with caution, like your job depends on it, because it does.” The hard goal is to resolve issues while analyzing and minimizing risk and legal exposure.

Ignore at Peril

All complaints and community divisions, whether rooted in a pandemic or other contentious issue (such as an attempt to fire a beloved coach), should be addressed, even when they come from the loudest complaint-happy individuals.

Complaints originate from distrust, a lack of information, anxiety and/or dissatisfaction. The first step is to quiet the noise and dig for the root of the problem. No matter the tone of the complainant, disassociate from the noise in order to focus on the nature of the complaint.

Identifying and discussing the underlying feelings often resolves the issue prior to escalation. Every year, our firm teaches new superintendents (and reminds the experienced ones) that political problems that go unaddressed become legal matters. This first step alone, if successful, limits risk and legal liability by dissolving the complaint.

However, it’s no surprise that Step 1 does not always work.

A Risk Formula

Step 2 involves the formula for weighing and exploring potential legal liability. Think of it as a mathematical equation: Risk exposure +/- risk tolerance = legal liability.

Each complaint should be run through the formula. For example, parents complain that students should not be required to wear facial masks all day. The board then asks the superintendent to assess the legal liability if the board decides to adopt a policy that declares masks optional.

First, look at the risk exposure. The facts are: (1) The Centers for Disease Control and most state departments of public health have indicated the best mitigation measure to avoid the transmission of COVID-19 is to wear a mask; and (2) most states have tort immunity laws that protect school districts from liability when it is determined the enactment of a policy was reasonable and within discretion. Based on that, the failure to follow CDC and public health agencies’ recommendations may be deemed unreasonable and an abuse of discretion. Accordingly, enacting a policy that does not mandate masks likely equates to high-risk exposure.

Next, determine the board’s risk tolerance. In this example, the board decides required mask use is unnecessary, in spite of the official guidance, and believes few individuals would care enough to file a lawsuit. If this were true, it would indicate the board’s risk tolerance is high. However, if the opposite were true, if a legal suit and/or official complaint is imminent and the board decides to change course, that would signal the school board’s risk tolerance is low.

In order for the board to complete the analysis effectively, the superintendent must provide as much information as possible for the board to weigh its risk exposure versus risk tolerance to determine how much legal liability it would be willing to absorb. In this scenario, the risk exposure to liability may exceed the risk tolerance, helping the board to abandon the proposed optional mask policy.

Stemming Litigation

While this may not quiet the loudest complaints or heal the community divide, this approach does provide a systematic way to communicate how the school board, in conjunction with its superintendent, will decipher complaints.

Sometimes half the battle is having a plan on how to handle the civil unrest. With a little practice, locating the root of the issue, applying the risk formula and finding an avenue to tamp down complaints may de-escalate the unsettled situation so it becomes neither a political problem nor a legal reality.