Most school years, students and staff cannot wait to get out of the building on the last day of school. This year is different. As we wrap up the academic year, students and staff are clamoring to be allowed back into school buildings. Now politicians and public health officials are beginning to relax the closures mandated by COVID-19. Last week, the Governor announced that schools may open weight rooms, gyms, and outside facilities for strength and conditioning programs. That is in addition to baseball/softball fields and events, with restrictions, beginning June 1. The Nebraska School Activities Association followed up with the release of its guidance on reopening these facilities to allow students to participate in summer conditioning. And this past Monday the Commissioner of Education announced that the Nebraska Department of Education will have guidance for in-person summer learning posted on its Launch Nebraska website, which could occur as early as June 8.
Schools are not required to open their facilities for in-person activities. Each board of education, in consultation with their administrative teams, will have to decide whether to open up their district’s facilities. One factor that educators are considering is a waiver protocol. In fact, ALICAP and other insurance carriers are advising schools that it is required that families who wish to have their students participate in events occurring in the school building execute a waiver.
While we are as excited as you are to resume in-person activities at school, we are a bit cautious about relying too heavily on waivers. Nebraska courts have narrowly interpreted both the effectiveness and enforceability of general liability releases and waivers. As you are considering whether to open your facilities to baseball, softball, summer conditioning or any form of academic work, you should not assume that a waiver will preclude families’ claims against the district.
Now that does not mean that we think waivers are a bad idea. We are advising our clients to secure signed waivers from families before students participate in activities at school this summer. It does mean that the wording of those waivers is important and that they need to be as specific as possible. It also means that school officials should be sure they understand that a waiver is not a way to be “golden” in winning or avoiding a lawsuit. Instead, that waiver and release will be one piece of evidence that the school can use if you are sued. We have provided these waivers to clients who have requested them. We will continue to update the form of those waivers as schools are allowed to expand the activities allowed on their premises. This means that families may grumble about being required to sign multiple waivers as the summer progresses. Please do understand that this isn’t lawyers writing legalese because we love it (we actually don’t). But the importance of waivers and releases being clear and specific may mean that we need to secure signatures from parents through each step of our gradual reopening.
For now, if your school district is going to open its buildings on June 1 for conditioning or June 8 for summer instruction, you should contact your school attorney to secure the appropriate release. If you have questions about potential liability for summer activities, contact your school attorney or contact us at KSB (ksb@ksbschoollaw.com).