Does making masks only optional in schools court lawsuits? Some worry more than others

School districts that make mask-wearing voluntary for students too young to be eligible for COVID-19 vaccines are "legally reckless" and could be vulnerable to lawsuits, one expert says.

But a suburban school district said its attorneys and insurers greenlighted its plan to let families choose whether students should wear masks in school.

The U.S. Centers for Disease Control and Prevention revised its guidance for schools Tuesday to now recommend all students, faculty and staff members, and visitors begin the school year wearing masks indoors regardless of vaccination status.

"This new science on the delta variant is worrisome and requires changes to our guidance," CDC Director Dr. Rochelle Walensky said. lllinois public health officials said the state is "fully adopting" the new CDC recommendation.

The CDC, in its initial recommendation two weeks ago, said unvaccinated students should wear masks in school while vaccinated students need not.

But numerous suburban school boards, including many serving students under age 12 who are too young to be vaccinated against COVID-19, decided to make face masks optional in classrooms despite warnings from public health agencies, medical professionals and groups such as the American Academy of Pediatrics.

"In my opinion, school districts which adopt 'masks optional' policies are behaving in a legally reckless manner," said Shawn Collins, a Naperville attorney who has won multiple class actions lawsuits involving health issues. "They are contradicting this public health guidance, which subjects them to serious legal risk if anyone contracts COVID from contact that originated at a school."

The state of Illinois, in "updated guidance for COVID-19 prevention in K-12 schools," raised the same concern on Tuesday.

"School districts that decide not to follow the CDC's guidance should consult with their insurers regarding risk assumption and liability coverage. Insurers may be unwilling to cover liabilities created as a result of failure to adhere to public health guidance," a news release about the new guidelines said.

But leaders in Wheaton Warrenville Unit District 200, one of the districts implementing voluntary masking, said they had consulted with their attorneys and insurance carriers.

"While a district is never without risk when we have students in our school buildings, we remain confident in the mitigation efforts that are in place," Superintendent Jeff Schuler said. "We had elementary students in our schools throughout the entire 2020-2021 school year. We layered mitigations that included distancing, ventilation and filtering, keeping kids home when sick, surveillance testing, hand hygiene, respiratory etiquette, cleaning, data monitoring, and use of masks."

Schuler said those efforts will remain in place for the coming school year.

"We will continue to layer those mitigations into next school year and will make adjustments in both directions when needed and appropriate to educate our students and keep them safe," he said.

Gov. J.B. Pritzker said Tuesday he hadn't had a chance to read the new guidance from the CDC, but he noted the state has used the federal agency's guidance in the past to drive Illinois' mitigation policies.

"There's no doubt that it will weigh heavily on decisions that I'll make for the state of Illinois," he said.

In addition to the school guidance, the CDC also recommended fully vaccinated people wear masks in indoor public settings in counties with high or substantial risk of community transmission. Walensky blamed the policy shift on "new science" related to the delta variant of COVID-19.

"The delta variant is showing every day its willingness to outsmart us," she said during a national teleconference with reporters Tuesday.

The new guidance from the CDC bolsters Collins' belief that school districts should follow recommended public health guidelines.

"I see no legal justification for such a school district decision, especially with a dangerous and highly transmissible variant currently causing skyrocketing infections, hospitalizations and deaths across the country," Collins said.

State law gives school districts immunity from liability for injuries in a number of situations, University of Illinois College of Law Professor Robin Fretwell Wilson said.

That includes officials in a position that involves determining policy or the exercise of discretion.

"My reading of this is that these guys are going to have a huge zone of authority to set that policy, and if they mess up, I don't see them being held liable for that," said Wilson, director of the university's Institute of Government and Public Affairs.

However, that won't necessarily stop lawsuits.

"A lot of times, if you see a barrier to liability like the immunity rules, you can creatively style your complaint to try to avoid the barrier to liability," Wilson said.

Collins said he thinks that a "deliberate and considered decision to refuse to follow public health guidance, with full knowledge of potentially devastating consequences, is, in my opinion, well beyond mere negligence, and falls into a legal category where school districts are no longer immunized under the law."

Attorney Shawn Collins
CDC Director Rochelle Walensky
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