Below is a letter I sent to Speaker Pelosi on Friday, May 29 in response to a May 28 letter of the American Council on Education (ACE) seeking COVID-19 Limited Liability Protections that I found appalling. None of the other Congressional leaders had an e-mail that non-constituents can use so I have sent the letter and its attachment of my testimony to the Ways and Means Committee by ordinary mail to them all also on Friday.

You know, just being that ordinary citizen.

I am appalled. I hope others are appalled and do more than just tut tut. Like AALS, ABA, AAUP, Society of American Law Teachers, and the National Bar Association.

If you would consider doing something it would be appreciated. I have also sent it to my old contacts at the ABA Section of Dispute Resolution, the Society of American Law Teachers, the National Bar Association, and the AAUP. I have also shared it on some of the listservs in which I participate as a law professor and with Above the Law.

I read this and I felt the rule they propose would make sick or even kill students, faculty, and staff. I have become aware of a working draft of an article by Professor Robert Jerry up at ssrn.com that discusses limitations of liability, to wit: “COVID-19: Responsibility and Accountability in a World of Rationing.” He focuses on health workers. The problem is the standard Professor Jerry suggests is actually way higher

1) than that in the ACE letter which states on page 1: “preserve recourse for those harmed by truly bad actors who engage in egregious misconduct.”(h/tip Emile Loza de Siles, Assistant Professor of Law, Duquesne University School of Law)

2) than that in the Ohio SB 308 standard portion for healthcare workers I discuss in the letter.

Let alone the standard for non-healthcare workers in both settings.

I just do not know what else I can do to raise the alarm about the train wreck I see coming for too many people I care about in academia and beyond. So I thought the best I could do is turn my letter to the Congressional leadership into an open letter.

Stay safe and stay well.

Open Letter to the Congressional Leadership dated May 29, 2020

Re: One Professor’s Opposition to the proposal of the American Council on Education in its May 28, 2020 letter to you with respect to COVID-19 Limited Liability Protections

Dear Speaker Pelosi, Minority Leader McCarthy, Leader McConnell, and Minority Leader Schumer:

I write to express, as a tenured professor of law, my profound opposition to the proposal of the American Council of Education in their letter dated yesterday for COVID-19 Limited Liability Protections for higher education institutions and systems, affiliated nonprofits, and healthcare providers and facilities.

The American Council on Education and the numerous entities that signed on to that letter do not represent in any manner the millions of actual teachers in the classroom and staff – they only represent the management view of their institutions. As such, they do not speak with any authority for any academic in the schools that may make up their associations: not any professor, not any associate professor, not any assistant professor, not any lecturer, not any teaching assistant, nor any graduate assistant. They do not speak for the ordinary workers who are not the top management of their schools. Nor do they speak for the students who attend their schools seeking knowledge. Nor do they speak for the millions of people in their communities who they propose to put at even greater risk while shirking their obligation to provide the proper atmosphere of worker and student safety in their schools.

As I indicated in my testimony to the House Ways and Means Committee for its hearing on May 27, 2020 with respect to COVID-19 Disproportionate Impact on Communities of Color, the intentionally inept federal, uneven and dangerous state and local, and self-interested business response to the COVID-19 pandemic is a horrifying experience. As the reality of the situation unfolds, the breach of public trust is breathtaking. The clear indifference of large swathes of the governing class to the welfare of the citizens whom they are sworn to protect is monstrous.

Let us not be naïve or engage in happy talk. There is a full expectation that this pandemic will continue well into 2023.

As I detail in that testimony, there is precedent for such dereliction to amount to a domestic crime and an international crime against humanity.

This letter asks you to consider carefully the monstrosity of the response of legislating limitations of liability that will deprive these ordinary citizens doing the central task of these institutions’ educational mission of the protections of the hard-fought rights that are enshrined in federal and state law.

Put simply, a right to a safe workplace and a right to a safe learning space.

The only reason for these limited liability proposals is to rush to a risky reopening when we are experiencing the revival of the first wave and anticipate an inevitable second wave of the COVID-19 pandemic.

Sober analyses of the COVID-19 pandemic (in comparison with the 1918 Spanish Flu and otherwise) in places like Canada are envisioning this pandemic lasting for several years – probably into 2023. With over 100,000 Americans dead, 1.7 million known infected, and a very likely 17 million actually infected as of the day of this letter, I recognize that we are facing a catastrophe of epic proportions as people of good faith work to find solutions to address this new normal.

Let us not mince words. What these institutions are seeking is a free pass. And to you, as the officials elected by ordinary Americans like me, I implore you to respect the public trust. I do not want you to give these institutions a free pass.

I am only one modest voice, but I feel it is my duty to point out to you that the complex process of retrofitting places of higher education is where your resources should be focused. Yes, help these institutions to provide safe learning environments for the millions of our students and safe working environments for the millions of Americans who teach and work in the trenches at these institutions.

Limitation of liability provides none of that safety.

All it does is shield the top managements of these institutions beyond the extensive shields that they already are provided in current domestic law. Such shielding essentially places the risk on the students, the faculty and staff who are faced with doing the actual work of educating, researching, and developing the knowledge for the future.

It is the callous indifference to this obvious reality that incites me to ask you to go slowly and respectfully reject the proposal of the American Council on Education.

Rather than this kind of backdoor effort to circumvent totally valid concerns about the risk of sickness and death due to this highly contagious pandemic, what should be occurring is an accelerated deliberative process and specific defined protocols that are based on science and not political imperatives that will place the priority on safety of all those who will walk these hallowed halls of academia.

The time to not act hastily is now. Already, there are states seeking to pass broad limitation of liability legislation that would cover not only healthcare workers, but also wide swathes of the society in which ordinary persons will be forced to make Hobbesian choice between their health and profound uncertainty and risk to their health as they venture out and work. As an example, here in Ohio one such effort is in the SB 308 draft bill being considered in the Ohio State House.

I am a lone voice, but I felt it was incumbent on me, in my role as an academic and scholar and an ordinary American citizen to draw your attention to the fact that those writing you who seem so powerful, do not speak with the clear assent of all of us who do the actual work of education and saving lives.

Respectfully,

Benjamin G. Davis
Professor of Law
University of Toledo College of Law

Benjamin G. Davis is a Professor of Law at the University of Toledo College of Law. 

Suggested citation: Benjamin G. Davis, An Open Letter to the Congressional Leadership on COVID-19 Limited Liability for Universities, JURIST – Academic Commentary, June 1, 2020, https://www.jurist.org/commentary/2020/06/benjamin-davis-open-letter-university-liability-covid19/.

For more on COVID-19, see our special coverage.

This article was prepared for publication by Brianna Bell, a JURIST Staff Editor. Please direct any questions or comments to her at commentary@jurist.org