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Harvard Must Oppose Corporate Immunity from COVID-19 Lawsuits

By Nicole M. Rubin and Sarah E. Tansey
Nicole M. Rubin is a rising second-year student at Harvard Law School. Sarah E. Tansey is a rising third-year student at Harvard Law School.

Students across the world are anxiously waiting to hear how their colleges and universities will re-open this fall — and if schools re-open, what steps they will take to keep us safe. Almost all Harvard classes will be virtual, but other local schools, such as Boston University, Boston College, and Tufts, plan to hold some in-person classes. While Harvard and MIT rightfully challenged the administration’s cruel rule threatening international students, Harvard appears to be supporting another proposal that endangers students in a different way: corporate liability protections that would let schools reopen without critical safety measures in place, putting students, campus workers, and the broader community at risk.

Senate Republicans, led by Senate Majority Leader Mitch McConnell (R-Ky.) and Sen. John Cornyn (R-Texas), plan to introduce legislation providing corporations with legal protection from lawsuits related to COVID-19. That would make it more difficult to hold corporations, including the Harvard Corporation, accountable if they endanger lives by reopening without adequate safety precautions. In Sen. McConnell’s words, this “major package of COVID-related liability reforms” would “create a legal safe harbor” for businesses and schools. Employers and universities that re-open must do so safely, and corporate immunity will remove critical incentives to do so. Yet the American Association of Universities, a higher education membership organization, is leading the charge for this dangerous legislation — and Harvard is a founding member.

Corporate immunity would make campuses far more dangerous for those who return, with international students — who may have no option but to remain on campus — bearing the greatest risk. Students must feel safe in their learning environment, especially after being abruptly evicted last spring. Yet this legislation takes the heat off universities— and leaves students and workers with seemingly little recourse if their school fails to adopt basic precautions like sanitizing classrooms and guaranteeing workers’ access to personal protective equipment.

Previous attempts to grant corporate immunity highlight the risks. Utah, for example, passed similar state-level legislation in May. The very next day, a local paper reported that one Salt Lake City employer told employees not to follow public health guidance and required even those who tested positive for COVID-19 to report to work. Nearly half of the workers later tested positive. If universities are granted immunity, they run the risk of becoming the next hot-spots and driving local outbreaks beyond campus.

Liability shields could allow universities and other employers to flout worker safety laws without consequence. Liability shields impede courts as an avenue of redress, shifting the burden of protecting workers onto the Occupational Safety and Health Administration. But OSHA citations have been nearly nonexistent during the pandemic – leaving workers unprotected. As with so much of the pandemic, this burden falls disproportionately on Black and brown workers, who are overrepresented in Harvard’s service workforce.

A recent Washington Post editorial advocates for protecting schools that implement scientifically sound safety efforts, but state law already offers precisely these protections. Sweeping immunity is unnecessary to re-open, as universities are already insulated from frivolous litigation. Tort law requires only “reasonable” safety precautions, like providing PPE and ensuring that students can socially distance in classrooms. Any good-faith reopening plan will likely meet this standard, which explains why the U.S. hasn’t seen a flood of lawsuits. The greatest number of COVID-related complaints have been filed by businesses over insurance coverage, with far fewer coming from employees or students. Thus, corporate immunity would only shield bad actors and employers who are acting unreasonably.

Instead, liability shields may create a race to the bottom, discouraging schools from spending more on health protections than the bare minimum to qualify for legal protections as they look to reduce spending anywhere possible to remain afloat. They will create risks for students, particularly those with underlying health conditions, who may be forced to decide between protecting their health or returning to campus. Even if these students choose to continue their studies virtually, they will face different learning environments while competing on the same grading curve and paying the same tuition – which will only exacerbate inequities.

Harvard should be working to make sure that everyone, including first-generation students, low-income students, and students of color can get equal access to education in the fall. Instead, Harvard is at least tacitly lending its support to lobbying for a corporate immunity proposal that would give America’s biggest corporations a license to kill workers and consumers. These days, institutions lobby through industry groups to avoid bad press — Harvard shouldn’t hide behind the American Association of Universities. If Harvard isn’t advocating for corporate immunity, the school should make its opposition clear to the community and to Congress. This is why the Harvard chapter of the People’s Parity Project has launched a petition to demand that Harvard oppose corporate immunity.

Universities should oppose liability shields and remain accountable for their environments. Yet many have done the opposite, deploying their resources to lobby Congress for immunity, while some employees go without vital personal protective equipment and students are denied tuition cuts.

If campuses re-open without the proper precautions, they will undermine efforts to curb COVID-19 and simultaneously delay a full return to in-person learning. As we have seen, a hasty return to normality leads to spikes in coronavirus cases. States that rushed to reopen are now issuing shutdown orders in a complete reversal. Congress must demand stronger safeguards for public health rather than rendering them optional.

As students, we could not be more eager to trade our Zoom calls for classrooms and ensure that our international peers can remain in the U.S. – but know we must do so safely to protect not only ourselves, but our immuno-compromised peers, the workers that keep the school running, and our broader communities. To ensure a safe campus, schools must go beyond the bare minimum – they must oppose corporate immunity.

Nicole M. Rubin is a rising second-year student at Harvard Law School. Sarah E. Tansey is a rising third-year student at Harvard Law School.

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