Why Congress urgently needs to pass federal legislation to protect students and faculty from whistleblower retaliation
When schools opened across the U.S. amidst the ongoing pandemic, students and public school employees blew the whistle on life-threatening public health and safety practices that violated CDC regulations. In several cases this was met with retaliation. Some school employees and students have legal protections from retaliation, though the protections are a mixed bag. While employees from schools that receive federal funding may be protected by a federal whistleblower law, students, can only rely on the constitution for free speech protection despite facing the same risks. To add further complication, while schools are becoming super-spreaders of COVID-19 to students and employees, several states have passed legislation blocking COVID-19 tort liability claims, thus protecting negligent acts and potentially leaving many without a remedy for the life-threatening consequences.
On August 4, 2020, the first day of school at North Paulding High School in Gwinnett County School District, fifteen-year-old student Hannah Waters documented the shocking and unsafe conditions she witnessed with photographs taken from her phone and posted them on Twitter. Her photos revealed crowded hallways and students walking shoulder to shoulder with no ability to social distance. Most of the students were not wearing masks. Within a few hours the images went viral. Gabe Carmona, the high school’s principal, suspended Waters for five days in retaliation for sharing her safety concerns. On the day of Waters’ suspension, Principal Carmona announced to students, “[a]nything that’s going on social media that is negative or alike without permission, photography, that’s video, that’s anything, there will be consequences.” His message was clear, students who speak out will face retaliation. On August 9, 2020, nine students and staff members contracted COVID-19 from the overcrowding and lack of utilization of masks due to the school administrator’s negligent implementation of public health and safety standards. The events that occurred at North Paulding High School are not singular; students and staff from other schools in Gwinnett County School District reported similar experiences.
Georgia state House Representative Beth Moore responded to the events at North Paulding High School and Gwinnett County School District by establishing a whistleblower disclosure account on Facebook. In a week, over 650 teachers, students, administrators, bus drivers, and other school staff flooded the account with disclosures of safety violations, negligence, a lack of transparency, and retaliation.
41 U.S.C. § 4712 enhanced whistleblower protections for employees of federal contractors and grantees. According to this law, employees may not be discharged, demoted, or otherwise discriminated against for disclosing to certain persons information that the employee believes is evidence of gross mismanagement of a federal contract or grant, gross waste of federal funds, an abuse of authority, or a substantial and specific danger to public health or safety. Employees are protected if they disclose to a member of Congress or a representative of a committee of Congress; an Inspector General; the Government Accountability Office; a Federal employee responsible for contract or grant oversight or management at the relevant agency; an authorized official of the Department of Justice or other law enforcement agency; a court or grand jury; a management official or other employee of the contractor, subcontractor, or grantee who has the responsibility to investigate, discover, or address misconduct. Thus, under 41 U.S.C. § 4712 workers at schools that receive U.S. Department of Education funds are protected from reprisal for disclosures to the designated protected channels.
On May 4, Georgia state education officials accepted over $400 million in federal emergency aid from the Coronavirus Aid, Relief, and Economic Security Act (CARES). North Paulding High School likely received federal funds as most funding went to the state’s 180 school districts, state-run schools, and thirty state-chartered schools. Therefore, Principal Carmona’s retaliation against the school’s employees may have violated federal law.
Unlike employees, however, students — who, can make a whistleblower disclosure to the Department of Education Office of the Inspector General (DOE OIG) — are not legally protected from retaliation for blowing the whistle. Because students do not have statutory protection from retaliation, Congressional and other oversight offices are blocked from receiving vital information from first-hand witnesses of public health and safety violations. Oversight offices cannot adequately respond and determine the best course of action when encountering such a significant blockade of information.
Although Congress left students out of 41 U.S.C. § 4712, they can fall back on their constitutional rights. In 1969, the Supreme Court affirmed students’ First Amendment free speech rights in public schools in Tinker v. Des Moines Independent Community School District. The court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that school officials do not have absolute authority over students. School staff cannot censor a student’s speech unless it is disrupting the educational process. In his opinion, Justice Fortas explained, “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”. Arguably, Principal Carmona’s suspension of Waters was unconstitutional because she did not interfere with the school’s work or infringe on other students’ rights. Those fundamental rights are not being respected when students are retaliated against for bringing public attention to a school administration’s negligent actions. Although students in school are “persons” under the Constitution and possess fundamental rights that states must respect, these constitutional free speech rights are weakened by difficult to beat balancing tests and have a poor track-record for success; thus, undermining the protection of the law.
While some school staff and students may be able to access federal or constitutional speech protections, in Georgia, if someone contracts COVID-19 due to mismanagement or negligence, they may be blocked from pursuing a remedy in state court. On June 20, the Georgia Legislature passed Senate Bill 359, the “Georgia COVID-19 Pandemic Business Safety Act,” a broad law limiting torts liability for any COVID-19 liability claim. Although, there is an exception if one can prove “gross negligence, willful or wanton misconduct, reckless infliction of harm or intentional infliction of harm,” which is a higher standard that is difficult to prove. This effectively allows schools to escape responsibility for the consequences caused by their negligent actions, leading to limited options for students and school staff. As of August 2020, nine other states enacted a liability shield for COVID-19 claims.
Corporations are also seeking immunity related to COVID-19 by appealing to Congress for a federal liability shield law. A federal law granting corporations, including schools, immunity would be a significant overreach of the government and be detrimental to worker protections. State laws provide a pathway for individuals to seek a remedy for harm caused by a company, which is an incentive for corporations to protect workers. A federal shield law would override existing state laws and corporations would no longer have a significant incentive to enforce health and safety guidelines to protect workers from COVID-19 related harm.
In addition to protections against corporate liability for COVID-19 infections, if schools and other business entities provide a written warning stating that injury or death is an inherent risk of contracting COVID-19, they are further shielded by what essentially constitutes a blanket liability waiver. The employee or student thus assumes the risk of infection through the simple act of participation in a service. Schools in Georgia are beginning to display such warnings to students and employees. Their signs state, “Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.” This is intended to apply to students. However, contracts with minors are not enforceable and most students are minors and under the age of consenting to contracts. This attempt to bind minors to liability waivers is particularly egregious because most students do not have the option to decline in-person school attendance if they do not wish to assume the risk of injury or death — further making such waivers unconscionable.
School staff members who are victims of COVID-19 related gross negligence at work may seek a tort remedy under the gross negligence exception to the Georgia state law. However, Georgia schools can further avoid fault and circumvent the gross negligence exception through worker compensation laws. Worker compensation laws allow an employee to get compensation without torts litigation, though in return for compensation the employer does not have to admit fault. Effectively, if worker compensation laws are the exclusive remedy, employees are barred from suing their employers. Gwinnett County School District and other public school districts in Georgia have made worker compensation laws the exclusive remedy for workplace injuries.
The disclosures made on Representative Moore’s Facebook whistleblower account illustrate the dangerous environment teachers and school staff encountered. A Gwinnett County School District bus driver stated, “[t]he GCPS Administration has informed us that at the end of August, it’s mandatory for all school bus drivers to transport students whether they have masks or not. We have families, small children and underlying conditions as well...”
Another teacher at Coleman Middle School, in Gwinnett County School District, stated that the school was requiring in-person staff meetings held in a crowded cafeteria where social distancing was not possible. The teacher also disclosed that another teacher continued coming to work at the school for a week while awaiting COVID-19 test results, and came into contact with over 20 people. That teacher ended up testing positive and those who were exposed were not informed. On August 9, 2020 another teacher from a North Georgia school district disclosed to Rep. Moore:
“I am planning for 27 students in my tiny classroom. They are not making masks mandatory. My principal is joking to people that this is ‘god’s cleansing plan.’”
Unfortunately, many of the individuals who posted disclosures on social media accounts, if identified, may not be protected from retaliation under the existing laws. To address this problem, Senators Kamala Harris (D.- CAL), Elizabeth Warren (D-MA), and others introduced the Coronavirus Oversight and Recovery Ethics Act of 2020 (CORE) in June. The CORE Act establishes strong whistleblower protections for state and local government employees, government contractors, and private sector workers who may witness waste, fraud, or abuse or be victims of misconduct. These provisions, modeled after the whistleblower protections Congress included in the 2009 Recovery Act, would protect Americans who call out wrongdoing, protect against all retaliation, and establish a safe, secure, and anonymous process for whistleblowers’ claims to be investigated by IGs. The bill also establishes a direct channel for whistleblowers to submit complaints to the Special Inspector General for Pandemic Recovery, Pandemic Response Accountability Committee, and the Congressional Oversight Commission.
Unfortunately, Congress has not yet acted on this legislation. However, immediate action is necessary because of the intensifying public health tragedy. As of November 30, the CDC website revealed that 13,295,605 Americans have tested positive for COVID-19 and 266,051 have died. Whistleblower disclosures can provide information that can save lives, yet now, more than ever, they are being silenced. Leaving whistleblowers without protection during a pandemic is like sending an army into battle without any armor — the soldiers and the citizens they protect would all face the consequences.