While the question of how to reopen schools is still up in the air, school districts have more recently been pressed to make a decision on fall sports, specifically whether it is reasonable and safe to allow a fall sport schedule.
Governor Tom Wolf strongly recommended to postpone the season until January 1, 2021 due to the amount of uncertainties surrounding COVID-19 and concerns about significant health risks to participations and the public. Districts’ legal risks can be judged by the good faith considerations of medical advice.
Despite differing opinions amongst communities, uncertainties regarding the actual virus, and the governor’s recommendation, the PIAA, by a 25-5 vote on August 21, 2020, decided to proceed with a fall sport schedule. The board also unanimously agreed to give each school district the discretion to create their own restrictions or exclusions regarding what sports may participate and in what capacity, even allowing for the possibility of school districts to move the fall season to spring of 2021. This vote punts the decision to the individual school districts to decide how they should proceed.
Currently, the Lehigh Valley is in a “moderate” risk category and is not considered to be a hot spot. A county is considered in the “moderate” category if it has an incidence rate of between 10 and 100 cases per 100,000 residents or a percent positivity rate of between 5% and 10%. The state recommends schools use a hybrid or full remote learning model. Lehigh Valley school districts are considering many different options, as Allentown voted to go fully virtual, Easton opted for a hybrid system, and Saucon Valley will begin the school year with a mostly in-person system. Information regarding how a county’s risk category is determined is available on the Department of Health’s “COVID-19 Early Warning Monitoring System” dashboard.
Play or Punt?
School Districts have the option to prohibit or create restrictions and delays regarding fall sports. Several school districts, including Harrisburg, Norristown, Cheltenham, Reading, and Philadelphia Public League, have decided to delay. The Eastern Pennsylvania Conference agreed to delaying contact sports and unanimously voted to delay the start of football, field hockey, soccer, and girls’ volleyball. Similarly, the Colonial League voted to delay the start of several fall sports including soccer, field hockey, volleyball, and football. The Colonial League voted to keep regular start dates for golf, cross country, and tennis.
The main concern with proceeding with fall sports is the health of the student-athletes, coaching communities, and the public at large. Decisions become more complicated when looking at each specific sports and logistics involved, such as locker rooms, fans, location, transportation, equipment, etc.
This will be a complex decision, and local area health organizations such as St Luke’s and LVHN have released guidance focusing on certain factors for school districts to consider before deciding.
The number of cases in children in the United States has been steadily increasing, and children with severe COVID-19 may develop respiratory failure, myocarditis, shock, acute renal failure, coagulopathy, and multi-organ system failure. Children infected are also at risk for developing multisystem inflammatory syndrome. While evidence may show children are unlikely to be a major influence on the spread of the virus, they can transmit it to other family members, classmates, and the public in general.
One of the most important factors to consider is the risk stratification of each fall sport. The National Federation of State High School Associations (“NFHS”) and the National Collegiate Athletic Association (“NCAA”) placed sports in categories based on the risk of transmission. Sports involving a close, sustained contact between participants, a lack of significant protective barriers, and a high probability that respiratory particles will be transmitted are considered “High Risk” for transmission. The NFHS includes only football as “High Risk”, however, wrestling, boy’s lacrosse, competitive cheer, and dance are used as examples of “High Risk”. The NCAA included field hockey, basketball, wrestling, lacrosse, and volleyball in their “High Risk” classifications.
The NFHS defines “moderate risk” sports as those involved in close, sustained contact, but with protective equipment in place that may reduce the likelihood of respiratory particle transmission between participants or intermittent close contact or group sports or sports that use equipment that can’t be cleaned between participants. The NFHS categorizes basketball, volleyball, baseball, softball, soccer, water polo, gymnastics, ice hockey, field hockey, tennis, swimming relays, pole vault, high jump, long jump, girls lacrosse, crew with two or more rowers in shell and 7 on 7 football as “moderate risk” sports. The NCAA includes cross country as a “moderate risk”.
The NFHS defines “lower risk” sports as those that can be done with social distancing or individually with no sharing of equipment or the ability to clean the equipment between use by competitors. The NFHS puts individual running events, throwing events, individual swimming, golf, weightlifting, alpine skiing, sideline cheer, single sculling, and cross country running with staggard start in the “low risk” category. The NCAA adds tennis as “low risk.”
Bottom Line for Schools
In all of this uncertainty, School Board members and administrators are asking what are our legal risks if we decide to play. Frankly, there is no guarantee that some aggressive lawyers may attempt to sue schools if athletes get sick, but school personnel have formidable legal defenses and immunities to such suits.
Whether the schools ultimately decide to play or not play, the best preparation for any legal challenge is to listen to and consider all the risks and make a reasonable decision on the record.
Once the decision to play is made, schools should be scrupulous in ensuring that required preventative procedures are followed to the letter and to make reasonable inquiry to ensure that their opponent schools are doing the same.
If you have a question, please contact your legal counsel or one of the attorneys at KingSpry.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.