Colleges prepare to reopen but aren’t entirely confident about having extensive testing in place

An arial view of the W. E. B. Du Bois Library gardens and the Old Chapel at the University of Massachusetts Amherst on April 30.Blake Nissen for the Boston Globe

Officials from Massachusetts colleges and universities, who are working doggedly to figure out a safe return to campus in the fall, say they are not entirely confident that they will have the needed testing, tracing, and protective equipment in place to do so.

State higher education leaders are also urging the governor and Legislature to change the law so that institutions are held legally harmless if they reopen and people get sick, highlighting the risks many colleges and universities are facing as they weigh how and whether to bring half a million students back to campuses across Massachusetts this fall.

A committee of a dozen Massachusetts college presidents, brought together to help Governor Charlie Baker and his reopening advisory board, released an outline on Wednesday for a four-phased reboot of higher education institutions, a crucial segment of the state’s economy that directly employ more than 136,000 people.

The advisory group said that most colleges and universities will be prepared to announce their official plans for the fall semester by July 1. The group said institutions are likely to adopt a variety of approaches to their plans, depending on their location, size, resources, and number of American and international students they educate.

Many institutions, for instance, will require those who return to wear masks. Some are considering canceling fall breaks to prevent students from traveling and spreading the virus, and others may also offer only bagged and take-out meals in the cafeteria, according to the group of colleges.

Some universities have slowly started to bring researchers back to campus to resume laboratory operations, but it remains unclear whether they will be ready to welcome back a sizable portion of students by this fall, the group said.

“You’re going to see a lot of creativity and variation,” said Laurie Leshin, president of Worcester Polytechnic Institute, who is a member of Baker’s reopening advisory board and headed up discussions among higher education leaders. “It is likely to be a mix of in-person and remote as we repopulate.”

While college leaders are highly confident about their ability to reduce classroom sizes and appropriately clean common spaces to prevent the spread of the virus, they are less certain about being able to test students, faculty, and staff particularly when they come back to campus, according to a survey the advisory group conducted of nearly 90 campus leaders. The survey did not ask leaders about their capacity to do continuous testing throughout the semester, which many health and university officials anticipate will be required to be safe.

The survey found that slightly fewer than 60 percent of state institutions were very or somewhat confident that they could do robust testing of everybody returning to campus. Fewer than three quarters of college leaders felt strongly that they could do the contact tracing to curb the virus’ spread, according to the survey.

Contact tracing is meant to identify anyone who came in contact with an infected individual.

A separate group of state college officials is working on developing testing protocols to help the some 106 public and private campuses in Massachusetts. Large schools are planning to do their own testing and use their own laboratories to analyze results. Boston University recently announced it would open its own testing lab and is buying robots to conduct large-scale testing.

But smaller institutions, which don’t have the money and capacity to do their own virus testing, are working together to buy masks, protective gear, and test kits and find laboratories that will analyze results for them, Leshin said.

Baker has announced plans to expand the state’s testing and virus surveillance capacity throughout this summer. He is aiming to have 45,000 daily tests done by the end of July and 75,000 daily tests by the end of December, with a goal to bring down the share of positive results to less than 5 percent. The Baker administration has also announced plans to expand lab processing capabilities in the state in anticipation of a testing surge this fall when colleges resume classes.

“The administration appreciates the hard work of the many groups that have provided input, and thanks them for their thorough consideration of all the health and safety issues involved in reopening,” said Anisha Chakrabarti, a Baker spokeswoman.

Still, college presidents remain concerned about whether college students will strictly follow new rules about wearing face masks, social distancing, and washing their hands when they are off campus and attending parties and events, Leshin said.

College leaders are urging Baker and state lawmakers to allow institutions to be held harmless from legal liability if they develop plans to reopen following state guidelines. Other businesses and colleges across the country are also asking for similar protections, Leshin said.

“As long as the campuses are creating those plans and modeling those plans — that does provide a good degree of assurance to students and parents that they should be safe coming back to campus and also protection for the campuses themselves,” Leshin said.

The fear of lawsuits is playing into decisions by college leaders about how and whether to bring students back in the fall, said Peter McDonough, vice president and general counsel at the American Council on Education, a trade organization.

“It’s an enormous fear,” McDonough said. “There will be schools that are concerned enough about being able to weather a litigation storm.”

This past spring, many schools were sued for tuition refunds because parents and students felt that the education was not up to par with in-person classes. For colleges and universities, those lawsuits proved to be a shot across the bow, McDonough said.

It signaled, "we’re watching you. ... You are fertile opportunity for lawsuits, ” he said.

There are legislative efforts in states such as North Carolina and Utah to provide certain industries, including higher education, some protection from lawsuits when they reopen. Congress is also considering litigation protection as part of any new stimulus plan, McDonough said.

Higher education legal experts were split about whether colleges should be given this level of protection.

Winning lawsuits against colleges is already challenging. Juries, who are made up of local taxpayers, are often reluctant to give plaintiffs big financial awards when state colleges and universities are sued because the payout comes from public money, said Norman Zalkind, a Boston criminal defense attorney.

The threat of a lawsuit can ensure that institutions take the appropriate safety measures, buy the right equipment, and have the right tests in place, Zalkind said.

Providing colleges with a safe harbor from litigation “would make parents even more nervous,” Zalkind said. “It makes me nervous as a citizen, taking away some basic protections.”

But Kevin Peters, a Boston civil attorney, said that while he generally doesn’t think colleges should be shielded from liability, these are unusual circumstances.

“No one really knows the parameters of what is truly negligent. Liability is open to interpretation by creative plaintiffs attorneys,” Peters said. As long as institutions follow acceptable COVID-19 plans, their liability should be limited, he said.

“To figure out the parameters of the duty through litigation against institutions charged with educating the next generation of great thinkers would, I think, be imprudent,” Peters said.

Colleges will likely adopt new disciplinary rules and conduct codes to make sure that students follow safety measures to curb the spread of the virus, including requiring students to wear masks and obey social distancing procedures, McDonough said.

“There’s no playbook of reopening America in the COVID-19 era,” McDonough said. “It’s leaving a school out there exposed, left out in the open.”