Some legal and moral questions regarding returning to in-person teaching....

Here is, in one way or another, something I suspect many of us have considered: what should I do if my university or law school orders me to start the semester, not on ZOOM like almost all of us have done, but with in-person teaching? This issue is one which one of my deans mentioned was the subject of debate between many academics, and evidently administrators. In part because I know and like the academic that seems to be the focus of the debate due to the academic's stance on the matter, I am going to be vague here and focus on a broader issue, and an individual professor's response to a request to return to in-person teaching. Many of us may face a similar decision in a few weeks. Consider various unenviable options. If your law school or university would re-open to in-person teaching, and faculty are told to return to pre-pandemic in-person teaching, what what you do?

Would you refuse, possibly facing a reprimand or worse form your employer? If you refuse to teach on campus, are you willing to lose your job, or perhaps a reaction slightly less drastic (at the time you make the decision, you may not know what your employer will do). 

Or would you teach your classes live in-person on campus? What if you are an at-risk person, perhaps due to age or other health condition? What if you are like me, and have one or more children with health concerns? Are you willing to risk exposing to them? Are these fears merely the product of anxiety or the media?

If you do not want, or intend, to teach on campus, how would you address your concerns? I suspect most of us would say we would address the matter privately with our dean or other official. What if you tried this approach, and the dean was not receptive? Would you defy her? Mind you, it likely you cannot go over the dean's head because she is likely following the orders of her superiors? Do you ask for advice? If so, who do you ask? Counsel? Colleagues? Someone else at your school? Or do you seek advice more broadly, and risk shaming your school, and its leaders? Do you go to the media? What if you feel you have no choice? Perhaps you believe taking such an approach is the only way to raise awareness and/or means to protect yourself? 

Now for a moment, what if you are the administrator having to make the decision to order faculty, staff, and students to return to campus? If you are a university president or provost, do you lead or follow the herd? What if subsequently there is an outbreak, as is the case at other universities and in the entertainment field, despite precautions? How would you live with yourself if some are harmed, or even die? Can you, unlike most of us, look beyond politics and make a well- informed independent decision? Will career and economics allow you to make such a decision? If you decide to continue distance learning, were you influenced by your political leanings? If you continue to teach from home, I guess you willing to give your students what many believe is a less-than effective form of teaching?

It's easy to say: "I am not going back to campus no matter what," or "I was ordered to go back, and I have no choice." Neither of these options are ideal, or easy to make for that matter. It is easy for me to judge here, but in a few weeks, I may have to decide not to let my son return to his high school building? Will I be harming his development and/or future?  If ordered to return to in-person teaching, if I return to in-person teaching, will I decide to stay away from my kids while teaching, if so, for how long?  Do I avoid my children for the entire semester--highly unlikely? What kind of father would that make me if I return to in-person teaching; what kind of father would that make me if I don't?

Comments

[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., https://bit.ly/32CK4Kf

PUBLIC INTEREST LAW PROFESSOR JOHN BANZHAF

[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.

[anon]

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

[anon]

Ediberto

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

[anon]

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.