Make Success Possible

Although it’s always true that my posts here reflect my own opinion, and not those of my employer, it seems worth reiterating in this case. This is my personal view.

Last Friday’s Inside Higher Ed story about liability protections and colleges planning to open (or not) in September reflected a frustrating reality. Broadly speaking, as the story outlines it, the debates in Congress around colleges reopening are between two camps:

The Republicans want colleges to reopen, even as they cut colleges’ funding. In return, they offer liability protection in case anyone gets sick, although the resources to prevent that from happening are largely withheld. The CARES Act fails to recognize cuts in state aid that are direct consequences of the virus as being, in fact, direct consequences of the virus, so we’re supposed to open and spend money that has already been withheld from us to do it. That may work tolerably well for elite places -- witness Mitch Daniels’s claim that Purdue bought “a mile of Plexiglas,” which can’t be cheap -- but it’s absurd for community and state colleges. Reopening requires funding. It’s just that simple.

The Democrats want to protect the rights of people who get sick to sue, thereby ensuring that colleges’ financial survival -- already precarious in light of catastrophic operating cuts -- will hinge on the presence or absence of staggering legal fees. They seem to assume that only valid lawsuits would move forward, that it’s somehow possible to prove where someone contracted an airborne communicable disease, and that any instance of someone getting sick is due entirely to someone else’s negligence. None of those is true.

Both sides are wrong, and they’re wrong in such obvious ways that I have to wonder what the conflict is really about.

The obviously correct solution to a liability waiver is to make it contingent on following a relatively prescriptive set of rules. Follow the rules, and you’re protected. Violate the rules and you lose the protection. If following the rules requires more funding, then the government should pony it up; it’s cheaper than lawsuits, and it’s both morally preferable and cheaper to spend money on prevention than on large-scale treatment and legal fees.

But to do that, you’d need representation from different sorts of institutions, including commuter campuses, and you’d need a belief that regulations can work. The former has been entirely absent, and the latter violates the ideology of one party.

The silliness of the ideological point is self-evident. A party can claim “law and order,” or it can claim that “regulations never work,” but it can’t do both. Unless it believes in different rules for different sorts of people.

The point about representation, though, could be an easy fix. If you want commuter campuses to open, you have to come to terms with the fact that their students (and employees) leave campus every night. If a student from Hypothetical State U catches COVID-19 while working their part-time job at Global Mega Discount Mart, then brings it asymptomatically to campus the next day, how, exactly, is that HSU’s fault? The student may not know that they got it at work; the virus doesn’t send a text when it arrives. They may believe, sincerely and incorrectly, that they got it at school. While asymptomatic, they give it to a coworker, who gives it to their grandmother, who dies. A lawsuit ensues. The school, which is already doing program cuts and layoffs, now has to divert what resources it has left from both prevention and actual education to lawyers. That forces more cuts, driving away prospective students and triggering a death spiral. The forced opening may also force its closure. This makes no sense.

Both camps are missing the point. If we want colleges (and schools, and libraries, and malls, and restaurants, and …) to reopen, we should take reasonable steps to ensure that they’re able to do so safely. That means spelling out what they need to do, and offering support if necessary to enable them to do it. If that’s too expensive or risky, and it’s cheaper and safer to support continued remote operations for a while instead, then do that. Make success possible. Either way would be smarter and safer than what’s on the table now. Neither cavalier negligence nor judicial Russian roulette is going to work.

I know that common sense is a tall order, but these are extraordinary times. Two weeks ago, if you had told me that the Minneapolis city council would vote to defund the police department to stop police brutality, I wouldn’t have believed you. Sometimes reality moves quickly. This is one of those times. If you want colleges to reopen quickly, listen to them, spell out what they need to do, provide funding for it and condition liability waivers on compliance. Make success possible.