This summer, Louisiana State Rep. Buddy Mincey Jr. sponsored a new bill, Louisiana HB-59, that would provide limitations of liability for public and private school districts and postsecondary institutions during a declared state of emergency or a public health emergency. In other words, schools in Louisiana, including private universities, would receive immunity from claims of action related to COVID-19 and other declared states of emergency, including the injury or death of a student by COVID-19 resulting from a school’s decision to reopen. The bill passed on July 8.

In June, during the House floor debate, Mincey spoke about the bill. As he took to the podium, he was one of the few representatives present not wearing a mask. He later claimed that the Center for Disease Control and Prevention guidelines for mask-wearing were “just guidelines” and that guidelines were susceptible to change.

As he defended HB-59, Mincey said that the bill was “never an instrument to take protections away from students,” nor was it ever “an instrument to take protections away from employees,” and suggestions of the sort were “offensive.” He also spoke on the amendments made to the bill between June 15 and June 23, in which immunity was extended from just Louisiana public schools to include both private and nonpublic postsecondary schools.

“Shortly after HB-59 was published I was contacted by the charter schools and higher ed and asked to include them in the instrument,” Mincey said during the floor debate.

Tulane University is the largest private university in Louisiana. Tulane recorded that they spent $120,000 on lobbying this year. There was no breakdown of the money recorded, but some of this may have gone to the inclusion of private and nonpublic postsecondary schools in HB-59.

One Reddit user, posting on a throwaway account, wrote that Tulane is not required to publicly identify its lobbying efforts. “I can’t really explain how I know this,” they wrote. “As a hypothetical, if I was to say administration discussed it in a faculty meeting, you would guess that I was a faculty member.”

“Tulane engages external consultants to assist with advocacy in areas that impact our students, faculty and staff,” Mike Strecker, executive director of public relations, said. “This includes advocacy for student aid, TOPS, funding for research and working with congress and the administration on issues of critical importance to our international students. Most recently, we have used our internal and external resources to advocate for the CARES Act that has provided financial assistance to students and the broader Tulane community during the COVID-19 pandemic. These consultants also keep us informed about the issues of great local and national significance which allows the university to seek new funding opportunities so that our researchers can help address the most important scientific issues of our times.”

The protections granted in HB-59 prevent a student or their family from pressing charges against schools and universities, even if a school’s negligence results in the injury or death of a student from COVID-19. To constitute a lawsuit, a school or university would need to be found grossly negligent, as opposed to ordinarily negligent. 

The legal definition of gross negligence varies across state lines. In Louisiana, the gross negligence standard was asserted in 2014 in Citron v. Gentilly Carnival Club, when a drunken Mystic Krewe member, John E. Landry, momentarily lost consciousness and drove a pickup truck into the onlooking crowd, running over and seriously injuring seven-year-old Tiffany Binkley. While the court deemed Landry’s drunkenness ordinarily negligent, he was not found liable for gross negligence, which was termed the “entire absence of care” and the “utter disregard of the dictates of prudence, amounting to complete neglect of the rights of others.” 

“Essentially, if you aren’t claiming that university officials intended to get you sick, then your suit will likely be barred,” said Casius Pealer, J.D. and professor of practice at the Tulane University School of Architecture. 

Like Tiffany and the parade onlookers, Tulane students have unknowingly entered into an agreement, under Louisiana state law, that the university cannot and will not be held liable for any damage, injuries or deaths resulting from contracting COVID-19 on campus as a result of Tulane’s decision to reopen. 

Other universities, such as the University of Pittsburgh, Ohio State University and the University of Memphis have been upfront that the university could not be held liable for reopening and potentially exposing students to COVID-19 by having students sign waivers to prevent legal action, if an outbreak of COVID-19 occured on campus. The University of Pittsburgh was met with waves of criticism for this decision.  

Tulane has accepted HB-59 as a gift, of sorts, from the Louisiana state legislature. They have not acknowledged its existence outright or alerted students, many of whom are not Louisiana residents, of their change or lack of protections under Louisiana state law.

“Tulane did not take an official stand on this legislation,” Strecker said when asked about why Tulane has not come out against HB-59’s limitations on the rights of students.

“But, like higher institutions around the country, we see the value of such laws that allow legitimate suits against institutions acting in bad faith, while also affording limited liability protection for institutions whose reopening was done in adherence to guidelines established by the CDC, [World Health Organization] and state and local governments,” he said.

Those making the decisions about reopening schools are not always the same people who are at the most risk. School board members, who do not have to go into classrooms every day and potentially expose themselves to COVID-19, were among those in favor of this bill. However, as Rep. Edward “Ted” James of East Baton Rouge Parish noted in the floor debate, “It’s easy for them to limit liability when they aren’t the ones putting themselves at risk.”

HB-59 is not COVID-19-specific. As Rep. Stephanie Hilferty pointed out during the floor debate, a declared state of emergency or public health emergency, in theory, could also include hurricanes. This broadness on what constitutes a “declared state of emergency,” is reason for concern, because Tulane, in effect, cannot be held accountable or liable for the injury or death of its students on campus unless the injury or death is found to be an intentional, grossly negligent act.

As Rep. Gary Carter Jr. of Orleans Parish put it, “If a child goes to any of our schools and gets exposed to COVID at that school, there’s absolutely no civil protections whatsoever available to that child. The persons adversely affected by this proposed legislation will be those kids attending those schools.”

Mincey said he didn’t think “school systems [could] prepare” for the sheer magnitude of the number of potential COVID-19 cases that would result from schools reopening because “most businesses do not have the daily risk that our schools have.”