The television cameras were rolling as students boarded the yellow buses at Germantown’s Kennedy Middle School without face masks. Nor was a bus driver wearing his mask as he pulled away. Milwaukee WTMJ 4 interviewed Germantown Superintendent Brett Stousland who only said that the district “recommended” masks.
Stousland stated to the camera that he was basing his decision on the bus company, Go Riteway, explaining that they will “not deny transportation to students who refuse to wear a mask.”
Milwaukee TV station WISN12 showed another Go Riteway bus driver without a face mask in Pewaukee. Superintendent Mike Cady repeated the bus company’s policy of not denying a student transportation without a mask. But Cady took a much more aggressive approach stating that buses will have additional masks for students without one. Bus mask mandates will be enforced.
When Go Riteway was contacted for a comment, its representative hung up. The company’s website states that drivers are professionally trained and buses are safety-checked but stated less concerning health and safety efforts being made during the pandemic.
School districts that do not enforce mandatory masks on school buses run the risk of violating federal rules that govern federal transportation guidelines.
Understanding Wisconsin law
Additional federal regulations on schools to control the pandemic so far have not been implemented, but President Biden is considering such regulations where federal education funding is involved. Just how federal requirements will be enforced is a question. The Department of Education might not want to cut funding to schools, which only hurts students.
Some school districts are implementing their own safety measures such as face masks in school, social distancing and quarantining infected individuals. While many of these measures are not required by state law or regulations, those infected because some safety measures were not utilized in other schools might consider suing the district in state court.
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Some Wisconsin school districts may mistakenly believe that they are protected from lawsuits based upon a Wisconsin bill passed and signed into law this spring. Act 4 grants liability protection from lawsuit and prosecution for some businesses and government entities such as school districts for COVID related situations. But the Wisconsin Association of School Boards (WASB) highlights an important exception: “This immunity does not apply if an act or omission involves reckless or wanton conduct or intentional misconduct.”
The law firm Michael Best & Friedrich goes one step further in advising its clients on its website that Act 4 uses the word “involves.” According to Best, this means liability may extend beyond just the immediate actor.
Best elected not to further comment on its website statement. However, while Best does not directly cite the case of Germantown, based upon Best’s analysis, both the school district and the bus company could be liable for any student contracting COVID while riding the bus, since a written contract exists between the two parties and both parties are responsible for following federal requirements.
But Germantown has another problem. One student cannot ride the bus because he is immunocompromised due to a kidney transplant. So far, his mother has been transporting her son in her own car rather than having him ride a school bus that is not following federal guidelines. Providing alternative transportation or paying the parent for personal transportation may not be enough. The Wisconsin Department of Public Instructions is very clear in its policy on this matter: “A universal mask policy may be necessary if that policy allows students with certain disabilities full participation in the educational programming and environment that they would otherwise be denied.”
The federal government is taking a hard line against states that prohibit school district mask mandates, going after five states that have such laws. Individual school districts may not be far behind.
Loss of insurance
If school districts do not require students and staff to wear masks in schools, insurance companies are beginning to question whether they will continue to offer coverage, not only here in Wisconsin, but across the nation.
In a story on the high cost of not requiring masks, Education Week reported, “Insurance providers in recent weeks have warned school districts that they may not provide coverage for pandemic-related lawsuits this school year, according to district leaders and school board members in several states. Insurers are also threatening to entirely drop districts that fail to follow public-health mandates, such as states’ requirements that all students wear masks.”
While school districts can maneuver around legal obstacles, insurance companies may have the last word. The headline of TV26 Green Bay may say it all: “School and Masks: Are districts talking to their insurance companies?”
TV26 contacted the five largest school districts in northeast Wisconsin asking them if they had any communications with insurance companies over mask mandates. None did. But the Oshkosh district did underscore the potential liability issue for not following sound risk management.
John Ashley, Executive Director of the Wisconsin Association of School Boards, confirms that the group’s attorneys recently met with several insurance companies to assess the situation. Ashley was not part of the conversation and was not at liberty to give any details. But school officials who declined to be identified said some Wisconsin insurance companies have expressed concerns about covering schools with COVID-19 liability issues.
School districts are being pulled in the other direction. Board meetings are packed with anti-maskers who threaten recalls, lawsuits and even physical assault against board members who do not bow to their wishes to oppose mask mandates. But school districts are beginning to understand that lawsuits and the loss of liability insurance could become extremely costly if they don’t make students and staff mask up. If insurance policies are not outright cancelled, the insurance payment rates could become astronomical.
It may not matter what laws are passed or mandates are issued from the state’s health or education departments. Insurance companies will have the last word.
Without masks, school districts may be walking a tightrope without an insurance safety net.
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