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Viewpoint: Schools face new exposures

school buses

It’s not an easy job being an educator or employer at any school or higher education institution these days. After navigating the COVID-19 pandemic and the associated liability risks of mask and vaccination mandates, as well as online instruction, schools of all sizes and in many states have been dealing with a slew of legislative activity that appears to be aimed at exactly what schools are meant to be in the business of doing: teaching.

The bills run the gamut and take aim at public K-12 schools, colleges and universities. Some would prohibit schools from using or making available books or instructional materials on topics such as race or sex. Others would restrict discussion or instruction of race, gender identity and sexual orientation in classrooms, while others would prohibit or limit health, social-emotional learning and diversity, equity and inclusion curriculums. One bill in Florida would go so far as to prohibit discussion of menstruation in elementary schools.

While certain conservative-leaning states appear to be ground zero for legislators’ attempts to censor educators from broaching allegedly controversial topics, the extent of the efforts is in fact much greater. A total of 41 states have introduced 193 bills to limit what schools can teach and discuss on topics such as race, gender identity and sex since January 2021, according to PEN America, a writers organization. Many of the bills feature extreme penalties such as levying fines, cutting state financial support, and professional discipline up to and including termination. Some include a private right of action for students, teachers and administrators who believe they have experienced discrimination. To date, 19 states have orders in force restricting teaching or training through law, policy or executive order.

It’s hard to see how this wave of attention from lawmakers could be anything other than distracting for educators, not to mention disruptive to students and school operations. And the developments are more than political and cultural; they create significant liability and risk management concerns for educational institutions. United Educators Insurance, a reciprocal risk retention group, surveys its members annually and asks them to rank risks. The latest findings from two surveys published in December found college and K-12 school leaders anticipated a heightened risk environment in part due to political and cultural influences in the coming months.

External pressures — risks related to societal forces beyond an educational institution’s control, including economic, political and cultural influences — ranked among the top 10 risks after a two-year absence, cited by some 22% of college leaders and 29% of K-12 school leaders. The same polls identified political climate and adversarial regulation among newly emerging or evolving risks that higher education and K-12 school leaders think will become more urgent over the next few years. They also identified “staff unavailability, burnout or turnover” as their biggest risk management challenge.

Public entity risk managers have been challenged by rising litigation from ransomware attacks, sexual abuse and molestation claims, law enforcement cases and claims from mass shooting incidents. As the liability exposures have expanded, so insurance markets have hardened, bringing rate increases and capacity restrictions. Even if they wanted to, individual risk managers can’t do much to reverse political tides, so they will need to reach deep into their toolkits if they are to better understand these threats and successfully mitigate their impact.