Midlands school districts are not asking parents to sign waivers before sending students to school

Attorneys question legality of COVID-19 waivers for students returning to school

Midlands school districts are not asking parents to sign waivers before sending students to school

COLUMBIA, S.C. (WIS) - Due to the coronavirus, parents in one South Carolina school district will have to sign a waiver before returning to class.

WIS has not reviewed the waiver, but according to the Frequently Asked Questions page on Berkeley County School District’s website, “the waiver is necessary to have a voluntary re-opening of schools during a pandemic when risk – both known and unknown – cannot be quantified. Further, it is important in our view that families make informed decisions that agreeing to in-person instruction comes with the risks associated with exposure to COVID19.”

Two Lexington School districts told WIS they have not put out waivers, they do not plan to ask parents to sign any COVID-19-related waivers, and have not heard of any districts in the Midlands with plans to require waivers.

A teacher advocacy group also said they have not heard of any Midlands districts with plans to ask parents to sign waivers and said they’ve contacted the majority of school districts in the state including Aiken County to put to rest any rumors that districts plan to require these forms before the fall semester.

However, the legality of a wavier like this is dubious, according to lawyers for two school districts.

"I doubt seriously that it's going to be worth the paper it's written on," Jake Moore, general counsel for Lexington Two School District said.

A Lowcountry attorney told Live5News Berkeley County School District's waiver doesn't take a parent's right to hold the district accountable away.

“Our courts are very clear, you cannot waive your right to sue someone or bring a claim for someone’s gross negligence or reckless conduct,” attorney Mark Peper said.

Moore explained parents legally have to send their children to school and any document trying to pass off responsibility for keeping children safe is legally questionable.

"You're telling me that I have to sign a document that violates public policy as a condition precedent of my kid going to school. You're telling me that I have to sign away my right to negligence if you do something that hurts my kid. I don't think you can do that," Moore said.

David Duff, counsel for Lexington One, agreed.

Duff added a form that tries to release liability in case someone contracts COVID-19 before joining a sports team is also probably not legally sound.

"If it's a school-sponsored extracurricular that is open to students and you're trying to have the parents waive liability. I think there is some question whether those are valid and enforceable," Duff said.

Lexington One has asked students who wished to participate in summer football practices to sign a form mentioning COVID-19, but Duff stressed this was an optional practice for players that was happening not during the school year.

For this upcoming year, Lexington One is asking students to adopt a "student safety pledge," which includes a commitment to practice safe hygiene and to let an adult know if the child is experiencing common coronavirus symptoms. Teachers and school staff will receive a self-screening agreement, which includes a list of COVID-19 symptoms, a reminder to have their temperatures taken daily, and asks if they've been in contact with anyone who has tested positive for COVID-19 in the past 14 days. District officials said both of these documents are not legally binding.

As school districts work to come up with plans to return to in-person learning as directed by Gov. McMaster and President Trump, Moore said it's difficult to find any guidelines from officials to ensure they are doing all they can to keep students safe.

"Do we have to comply with [CDC guidelines] or not? No one will tell us that. And if we don't have to comply with those guidelines, what guidelines do we have to comply with?" Moore asked when recalling President Trump announcing CDC guidelines should not be a barrier to schools reopening.

A spokesperson for the South Carolina Department of Education said, "No district has requested information from us on this so without knowing what guidance is needed, it is difficult to provide it. If we were to receive a specific request, we could provide input. We cannot, however, provide blanket liability protection which is in essence what many are asking for."

The Department of Education also said they are looking into the issue of waivers but haven't seen an actual copy of one at this time.

Lawyers said this is just another issue arising as schools work to reopen after Labor Day and stressed the opinions they expressed are just their own.

"When it comes to reopening schools, there are more questions than solid, take it to the bank answers," Duff said.

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