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August 28, 2020


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LawProf John Banzhaf

Professors who are ordered to return to classroom teaching, despite the risks of a highly contagious deadly disease should - especially if they are over 65 and/or have one or more medical conditions such as diabetes or hypertension - file (or, in some situations, the mere threat to file may be sufficient) formal complaints under the Americans With Disabilities Act, the General Duty Clause of the Occupational Safety and Health Act, and, where applicable, a state or local statute which prohibits discrimination against the handicapped.

Mere threats to file complaintS forced my university many years ago to ban smoking in individual professorial offices, even though there was no existing federal standard, and although the health risk of smoke drifting through a common vent system into other professorial offices is obviously far smaller than the threat of coronavirus in a classroom, even with masks and/or plastic dividers.

In the second situation, a threat to file a complaint against an individual administrator responsible for the decision forced my university to ban smoking anywhere (even outdoors)on campus, even though the health threat was even smaller.

See, e.g.,


Ediberto Roman

Dear John (always wanted to write that),

Great observations. Thank you. ADA is not my field, and I wonder the threshold that must be met? For instance, I have one child with severe asthma, so that case should be easy. My other child has allergies and she is always feeling somewhat sick--not sure that would be compelling. But it sure as heck terrifies me in light of the pandemic.


The corollary question, it seems to me, is whether universities can continue to charge full tuition for an educational experience that is solely online.

The "correspondence school" model is associated with a vastly diminished market value. Among other reasons, this is so because no matter how awesome law profs may think they are on Zoom (hint: they aren't) in reality, they can't be.

A Zoom course is not a classroom experience! How shocking it is to hear the spinners try to spin their way out of this.

If the hysteria about COVID continues (somewhat justified given the really ham-handed prep and response by the medical community) then one wonders how much financial pressure will compel universities to do some really awful things. One of these things might be to make teaching in person "optional."

This outcome will implicitly discriminate against profs who won't go into the classroom.

Of course, in this, as in all things affecting our lives, Dr. Fauci should decide and no one, repeat NO ONE, may dare defy him. He is always right.

Ediberto Roman

Wonderful questions, Anon. While not in the financial interests of many that write and read on the Lounge, I largely agree with you--"A Zoom course is not a classroom experience!" I will nevertheless struggle to make it a rewarding experience. Perhaps it is easier for me this year as I am teaching two upper-level courses where students work on a practicum in each class throughout the semester. We of course review the textbooks in book Products Liability and Administrative Law; then some litigate a products claim based on a plane crash that became the basis of a book called "Winging It." In Administrative Law, we study key chapters, and then the students take in issue out of the headlines: the proposed foreign student visa ban. If admin law students follow the readings closely, you might be pleased to know, counsel for the government should succeed in applying the ban. Interestingly enough, in these small classes, I hold extra conferences with each set of attorneys, and in some ways, Zoom may be slightly advantageous. That certainly was not the case when I taught 105 students Contracts at a different school last spring. Once the students learned all grades were pass/fail, at least half of them turned off their video screens. You might imagine, as a visitor in a pass fail course, I felt I lost virtually all leverage over them.

As for Dr. Fauci, you and I will remain in our usual stance of agreeing to disagree.

Cheers, E



Do you mean that you don't agree that Dr. Fauci is always right, or do you mean that you disagree that we must always follow his (often varying, ambiguous and inconsistent) recommendations?

Or, do you disagree that Dr. Fauci has the standing to conclusively decide all of these questions for the public at large, including schools, professors, etc.?

I would think you would agree that Fauci has standing to decide these matters and that all must obey his dictates.

Fair Cases

In my opinion, we should value life before all. In this case, we are faced with a potential life threatening virus that can put ourselves and others in great danger. With that said, we must take caution, and understand that our acts have consequences. At this point, if we do choose to go to work, school, etc. we must assume the risk of catching the virus (although not guaranteed). All in all, I have chosen to stay home and have somehow managed to continue my daily life in almost the same way.

Ediberto Roman

Thanks Fair Cases. Well put. I appreciate it. E


Fair Cases

I don't think the issue is what an individual decides for himself or herself is an acceptable level of risk.

The issue is the authority of others to order an individual to assume or avoid a certain risk.

Ordinarily, in the context of everyday life in this country, we used to have an antique, outdated notion of something that used to be called "freedom."

That meant that, if one decided to work for someone else, then autonomy was voluntarily surrendered to the employer at the employer's whim while at work.

Over the years, the state grew to "regulate" the risks to which employers could subject their employees.

If this all sounds simplistic, it is because law professors typically have no common sense, no concept of freedom (their notion is instead "common control" of autonomy to favor themselves, certain favored groups and to maximize power and control over others.)

That was the reason for the reference above to Fauci. "Progressives" would love to subject the entire country to the demonstrably unreliable opinions of one man, expect, of course, if those opinions might affect THEIR comfort.

Then, autonomy again becomes relevant.

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