SSRN Id3660221 PDF

Legal Education in the Era of COVID-19:
Putting Health, Safety and Equity First
Catherine A. Sandoval1
Patricia A. Cain2
Stephen F. Diamond3
Allen S. Hammond4
Jean C. Love5
Stephen E. Smith6
Solmaz Nabipour, M.D.7,8
1
Associate Professor of Law, Santa Clara University School of Law, [email protected], Orchid ID: 000-0001-
5897 (Correspondence author).
2
Professor of Law, Santa Clara University School of Law.
3
Associate Professor of Law, Santa Clara University School of Law.
4
Phil and Bobbie Sanfilippo Chair and Professor of Law, Santa Clara University School of Law.
5
Professor of Law, Santa Clara University School of Law.
6
Associate Clinical Professor of Law, Santa Clara University School of Law.
7
Clinical Assistant Professor, Department of Anesthesiology, Anesthesiology Medical Director, Stanford Cancer
Center at Southbay. Dr. Nabipour is also a second-year law student at Santa Clara University School of Law. Her
contributions to this Article’s review of scientific and medical studies about COVID-19 were invaluable to this
project.
8
Thanks to Professor Brian Buckley for his comments on this Article. Thanks to Robert Murillo II and Rosa Rico,
third year students at Santa Clara University School of Law, for their research assistance and contributions to this
Article.
This preprint research paper has not been peer reviewed. Electronic copy available at: https://ssrn.com/abstract=3660221
I. The COVID-19 Pandemic Requires Leadership in American Legal Education that
Prioritizes Health, Safety, Diversity, and Inclusion
A. The COVID-19 Pandemic Calls for Ethical, Resilient, and Effective Online Legal
Education
The COVID-19 contagion challenges the historical model of in-person teacher-student

pedagogy that has characterized American legal education since the first Law School was
established prior to the country’s founding in 1774 in Lichtfield, Connecticut.9 The Carnegie
Report characterizes the legal profession as “fundamental to the flourishing of American
democracy” 10 as it trains lawyers to analyze legal issues, develop legal arguments, and engage in
the legal system that resolves cases and vindicates rights. Legal education forms part of
America’s Critical Infrastructure whose continuity is important to America’s economy, public
safety, and national security.11 Debates about whether legal education should be delivered in
person, online, or through a hybrid model during the COVID-19 pandemic highlight the safety
culture gap in American legal education. This Article’s interdisciplinary team analyzed scientific
studies on COVID-19 available to date, evidence of viral recombination and mutation promoted
by gathering people from different regions, and the limits of mitigation measures for indoor
classrooms. 12 This analysis concludes that gathering adults indoors into physical classes is a
high-risk activity during this pandemic. Those concerned with the safety of gathering in person
will likely choose online education, including members of groups who suffer higher levels of
COVID-19 infection, hospitalization, and death: African-Americans, Native Americans, Latinx
Americans, older Americans, and those with certain underlying health conditions. The hybrid
classroom model will likely cleave students and faculty by race, ethnicity, tribe, age, and health,
undermining commitments to diversity and inclusion that support educational dialogue and first
amendment values. To address the safety gap in legal education, this Article proposes an ethical
framework that recognizes the inherent worth and dignity of every human being, and centers
diversity and inclusion as the foundation of robust educational dialogue. Consistent with the
ethical standards expected of lawyers and Law Schools, this Article recommends American Law
Schools conduct educational programs online during the COVID-19 pandemic.
9
See Lichtfield Law School History, THE LEDGER,
https://ledger.litchfieldhistoricalsociety.org/ledger/studies/history_school (last visited July 24, 2020) (reporting
Lichtfield Law School founded in 1774 was the first distinct Law School in what would soon become the United
States). Cf. Davison M. Douglas, Jefferson's Vision Fulfilled, WM. & MARY LAW SCHOOL,
https://law.wm.edu/about/ourhistory/index.php (claiming that the College of William and Mary which offered
lectures in law as part of its undergraduate curriculum beginning in 1779 should be credited as the first Law
School in America).
10
William M. Sullivan et al., EDUCATING LAWYERS, Preparation for the Profession of Law, THE CARNEGIE
FOUNDATION FOR THE ADVANCEMENT OF TEACHING, 3 (2007),
http://archive.carnegiefoundation.org/publications/pdfs/elibrary/elibrary_pdf_632.pdf [hereinafter Carnegie Report,
Educating Lawyers].
11
Government Facilities Sector, CYBERSECURITY AND INFRASTRUCTURE SECURITY AGENCY (CISA) (Dec. 4, 2018),
https://www.cisa.gov/government-facilities-sector.
12
See infra sections 3-9 for an analysis of the science of COVID-19 and mitigation measures.
The World Health Organization (WHO) on March 11, 2020 declared COVID-19, also
known as SARS-CoV-2, a pandemic.13 As of this writing there are “no Food and Drug
Administration-approved drugs for the treatment of COVID-19.”14 U.S. Department of
Health and Human Services representatives Dr. Redfield, Dr. Fauci, Admiral and Dr. Giroir, and
Dr. Hahn testified to Congress that the absence of any approved drug, therapy, preventative or
post-infection treatment for COVID will likely persist at least until the end of 2020 through
2021.15 Trials are underway for COVID-19 vaccine candidates, but their effectiveness remains
unknown. National and global distribution of a COVID-19 vaccine may take years after vaccine
development, testing, and approval.16 COVID-19 infections, hospitalizations, and deaths are
escalating in many areas of the United States during Summer 2020. People under 45, many of
whom are in the largest age cohort for law students, are leading the surge in diagnosed COVID-
19 cases during summer 2020.17
Dr. Michael Ryan, Executive Director of the WHO's Health Emergencies Program,
observed that for the novel coronavirus, COVID-19, it is yet unknown whether this “virus may
become just another endemic virus in our communities.18 This virus “may never go away," he
13
See WHO Director-General's opening remarks at the media briefing on COVID-19 - 11 March 2020, WORLD
HEALTH ORGANIZATION (WHO)(Mar. 11, 2020), https://www.who.int/dg/speeches/detail/who-director-general-s-
opening-remarks-at-the-media-briefing-on-covid-19---11-march-2020 (announcing WHO’s assessment that
“COVID-19 can be characterized as a pandemic.”).
14
Immune-Based Therapy Under Evaluation for Treatment of COVID-19, NATIONAL INSTITUTES OF HEALTH (May
12, 2020), https://www.covid19treatmentguidelines.nih.gov/immune-based-therapy/ (emphasis in the original).
15
Hearing on Oversight of the Trump Administration’s Response to the COVID-19 Pandemic: Witnesses Appearing
Before the H. Energy and Com. Comm., 116TH CONG. 29 (2020)( (joint statement of Robert R. Redfield; Anthony S.
Fauci; Admiral Brett P. Giroir; Stephen M. Hahn)
https://docs.house.gov/meetings/IF/IF00/20200623/110829/HHRG-116-IF00-20200623-SD003.pdf (“At this time,
there is no FDA-approved vaccine to prevent being infected with COVID-19, nor are there any FDA-approved drug
products to treat COVID-19.”).
16
Amitai Etzioni & Ruth Etzioni, The Coronavirus Will Be With Us For Years to Come, THE NATIONAL INTEREST
(June 27, 2020), https://nationalinterest.org/feature/coronavirus-will-be-us-years-come-163566 (“The Strategic
National Stockpile has only 2 percent of the 650 million to 850 million needles and syringes needed for mass
vaccination. Shortages in silica sand, needed to make the medical-grade vials, are expected to slow production.
According to Ryan Cross, “No company currently has the capacity to make enough vaccine for the entire U.S.,
let alone the world.” Some estimate that mass vaccinations could take four years.”).
17
Jayme Fraser et al., Younger People Are A Factor In Surge Of COVID-19 Cases, Analysis Shows, USA TODAY
(June 26, 2020), https://www.usatoday.com/story/news/2020/06/26/covid-19-surge-featured-rapid-growth-among-
younger-people/3258221001/.
18
Amber Brenza, What Is an Endemic Virus? WHO Warns COVID-19 'May Never Go Away', EXPLORE HEALTH
(May 14, 2020), https://www.health.com/condition/infectious-diseases/coronavirus/what-is-an-endemic-virus.
warned.19 An endemic virus is a “constant presence and/or usual prevalence of a disease or
infection within a geographic area.” 20
The COVID-19 virus appears to be “zoonotic” in origin, arising from animals or a

mutation of recombinant viruses, possibly between a bat and a pangolin, before infecting human
beings.21 “Zoonotic diseases represent up to 75 percent of all emerging infectious diseases and
include the new coronavirus that caused the global pandemic.”22 The potential for COVID-19’s
re-emergence as either an endemic or pandemic agent in affected areas or populations23
underscores the urgency of developing a safety culture in legal education.
Human decision-making and action construct our response to this zoonotic pandemic.
Cindy Caldwell’s analysis of corporate decisions leading to large-scale injuries including death
concludes that “disasters were not causally linked to one bad decision, but instead were socially
organized and systematically produced by bureaucratic social structures.”24 Prior to disaster,
“there is a long incubation period where the potential for disaster builds.”25 Man-made disasters
are “based on a failure of foresight to detect a drift from organizational norms.”26
“Leadership is commonly accepted as the primary influence on organizational culture and

safety culture.”27 Many Law Schools espouse the health and safety of their community as a
priority, but safety plans have focused more on building evacuation than on pandemic
preparation and response. Neither have Law Schools developed and articulated a safety culture.28
19
Id.
20
Id.
21
Kristian Anderson et al., The proximal origin of SARS-CoV-2, 26 NATURE MEDICINE 450, 451 (2020); WHO says
COVID-19 virus ‘natural in origin’, VANGUARD (May 1, 2020),
https://www.vanguardngr.com/2020/05/who-says-covid-19-virus-natural-in-origin/.
22
Wildlife crime putting environment and health at risk: UN report, UN NEWS (July 10, 2020),
https://news.un.org/en/story/2020/07/1068121.
23
Bilal et al., Coronaviruses and COVID-19 – Complications and lessons learned for the Future, J. PURE APPL.
MICROBIOL. 725-731 (May 2020), https://doi.org/10.22207/JPAM.14.SPL1.09.
24
CINDY L. CALDWELL, SAFETY CULTURE AND HIGH-RISK ENVIRONMENTS: A LEADERSHIP PERSPECTIVE 17 (CRC
Press, Taylor & Francis Group, 2018).
25
Id. at 16.
26
Id. at 15 (citing BARRY A. TURNER & NICK PIDGEON, MAN-MADE DISASTERS (Wykeham Sciences Press, London,
England, 1978).
27
Id. at 9.
28
See Id. at 3 (“The International Nuclear Safety Advisory Group (INSAG) first coined the term safety culture when
referring to the failure at the Chernobyl Nuclear Power station (Sorensen, 2002). INSAG (1991) acknowledged that
after a certain point in the maturation of safety systems, technology alone cannot achieve further improvements in
safety; instead, organizational and cultural factors become more important.”); NATHAN CRUTCHFIELD & JAMES
ROUGHTON, SAFETY CULTURE: AN INNOVATIVE LEADERSHIP APPROACH 14 (Butterworth-Heinemann, 2014) (“Safety
An effective safety culture requires that safety be an espoused value that renders each person in
an organization responsible for safety and empowers everyone to call attention to safety issues.29
Safety citizenship behavior “is an individual’s safety behavior that supports the workplace’s
overall safety conditions and goes beyond safety compliance.”30
American Bar Association (ABA) Standard 301 charges Law Schools with maintaining a
“rigorous program of legal education that prepares its students, upon graduation, for admission to
the bar and for effective, ethical, and responsible participation as members of the legal
profession.”31 Most legal ethics programs focus on attorney conduct including the attorney-client
relationship. The ethical imperative of safety in legal education, its relationship to diversity,
inclusion and the first amendment values of education, has received scant scholarly attention.
Safety has neither been the focus of the ABA’s Section on Legal Education and Admission to the
Bar, nor an organizational principle that grounds Law School administration.
Safety is an organizational value grounded in recognition of the inherent worth and

dignity of every human being.32 The “basic concept of the essential dignity and worth of
every human being—a concept at the root of any decent system of ordered liberty,”33 underlies
the first amendment’s constitutional values foundational to education. Dignity as conceived by
Thomas Aquinas, is a “value inherent to its possessor, i.e. it is not possessed by that being in
virtue of their relation to other worldly beings.”34
COVID-19 creates grave safety risks as it undermines equity. “Long-standing systemic

health and social inequities have put some members of racial and ethnic minority groups at
increased risk of getting COVID-19 or experiencing severe illness, regardless of age,” CDC
is an espoused value in most organizations . . . [t]he “espoused” values of both safety management and the
organization have to be aligned to ensure values are real and underlay the decisions that establish the priorities that
drive the organization.”).
29
John Bernard Taylor, Safety Culture, Advancing Safety Culture in the University Laboratory, Stanford
University, Stanford, CA, 2014, 132 p. 14, (Gower, London, 2010).
30
Dan Wang, et al., Safety stressors, safety-specific trust, and safety citizenship behavior: A contingency
perspective, ACCIDENT ANALYSIS AND PREVENTION 142, 105572 (2020),
https://www.sciencedirect.com/science/article/abs/pii/S0001457519313089.
32
Cf. United Nations Charter, Preamble, https://www.un.org/en/sections/un-charter/un-charter-full-text/ (last visited
July 23, 2020) (“We the peoples of the United Nations . . . reaffirm faith in fundamental human rights, in the dignity
and worth of the human person, in the equal rights of men and women . . . .”).
33
Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring); Hardin v. Obstetrical and Gynecological
Associates P.A., 527 S.W.3d 424, 439 (Tex. App. 2017) (citing Justice William J. Brennan, Jr., Address at the
Georgetown University Text and Teaching Symposium (Oct. 12, 1985)) (stating that “the Constitution embodies the
aspiration of . . . human dignity that brought this nation into being . . . [f]or the Constitution is a sublime oration on
the dignity of man . . . . [It] is a sparkling vision of the supremacy of the human dignity of every individual.”).
34
Paweł Łuków, A Difficult Legacy: Human Dignity as the Founding Value of Human Rights, 19 HUM. RIGHTS
REV. 313, 324 (2018)., https://doi.org/10.1007/s12142-018-0500-z.
reported..35 African-Americans and Native Americans are five times more likely to require
hospitalization for COVID-19 infection as White [non-Hispanic] Americans.36 Latinx
Americans, are four times as likely to require hospitalization for COVID-19 infection as White
[non-Hispanic] Americans.37 The New York Times analysis of COVID-19 data found “Latino and
African-American residents of the United States have been three times as likely to become
infected as their white neighbors,” and “nearly twice as likely to die from the virus as white
people.”38
As universities redouble their commitments to equity and inclusion, particularly in the

face of evidence of longstanding police violence and our commitment to recognizing that Black
Lives Matter, our conduct must reflect our respect for the inherent worth and dignity of the lives
of our diverse students, faculty, staff, and community. “Our paramount duty is and should be to
ensure the health, safety, and wellbeing of students, staff, and faculty,” Peter Huang and Debra
Austin urge in their article Unsafe at Any Campus: Don’t Let Colleges Become the Next Cruise
Ships, Nursing Homes, and Food Processing Plants.39 Law Schools, like any organization
conducting high-risk activities,40 must adopt policies and practices prioritizing the health and
safety of the Law School’s students, faculty, students, and community. Safety culture and
practice must form a central component of a rigorous legal education program that recognizes
each person’s inherent worth and dignity, educates through inclusive dialogue among diverse
participants, and prepares students to be effective, ethical, and responsible members of the legal
profession and the community.
B. Organization of this Article
This article begins with an overview of the ethical framework we propose for legal
education which respects the dignity and worth of each person, educates through inclusive
35
Coronavirus Disease 2019, (COVID-19), COVID-19 in Racial and Ethnic Minority Groups, CENTERS FOR
DISEASE AND CONTROL AND PREVENTION (CDC) (June 25, 2020), https://www.cdc.gov/coronavirus/2019-
ncov/need-extra-precautions/racial-ethnic-minorities.html [hereinafter CDC, COVID-19 in Racial and Ethnic
Minority Groups]).; The COVID Racial Data Tracker, THE COVID TRACKING PROJECT AT THE ATLANTIC,
https://covidtracking.com/race (last visited June 27, 2020).
36
Id.
37
Id.
38
Richard A. Oppel Jr. et al., The Fullest Look Yet at the Racial Inequity of Coronavirus, N.Y. TIMES (July 5,
2020), https://www.nytimes.com/interactive/2020/07/05/us/coronavirus-latinos-african-americans-cdc-
data.html.
39
Peter Huang & Debra Austin, Unsafe at Any Campus: Don't Let Colleges Become the Next Cruise Ships,
Nursing Homes, and Food Processing Plants, 96 Ind. L.J. Supplement 25-65 (2020),
http://ilj.law.indiana.edu/articles/Huang_Unsafe_at_any_Campus.pdf.
40
CALDWELL, supra note 24, at 67 (defining risk as an “analysis of potential events, their consequence and
likelihood, and the hazard or threat causing the event. Managing risk involves the ability to detect and minimize the
impact of unforeseen events on the organization’s assets.”).
dialogue among diverse participants, and prepares students to be effective, ethical, and
responsible members of the legal profession and the community. This ethical North Star and the
science of this coronavirus lead us to recommend online legal education during the COVID-19
pandemic. Section II examines legal education as a Critical Infrastructure service that prepares
students for effective, ethical, and responsible participation as members of the legal profession,
consistent with ABA standards. Section III examines the U.S. Center for Disease Control and
Prevention’s (CDC) COVID-19 Guidance for Institutions of Higher Education and Workplaces
based on scientific assessment of COVID-19 transmission.
Section IV analyzes the science relevant to COVID-19 transmission, mutation, disparate
effects, and mitigation strategies. It examines the rising COVID-19 infection rate among people
under 45, the age cohort constituting the bulk of American law students.
Section V analyzes delays in COVID-19 testing and screening that erode the foundation
for school, business, and societal re-opening plans during this pandemic. Section VI examines
physical factors at universities that may contribute to virus spread. Section VII analyzes
increased risks of poor outcomes for people with certain underlying conditions, several
communities of color, and older Americans.
Section VIII analyzes online, hybrid, or in-person legal education models. It argues that
in-person or hybrid education during the Covid-19 pandemic will not be law school “as usual.” It
examines challenges to executing the hybrid model, and contends this model increases health and
safety dangers and anxiety, undermines educational aims, and conflicts with ethical obligations
and commitments to diversity and inclusion.
Section IX examines ethical decision-making frameworks using Santa Clara University’s

Markkula Ethics App as a construct to guide our analysis. To develop a safety culture for legal
education, it proposes an ethical framework based on respect for the inherent worth and dignity
of every human being, safety, and a commitment to diversity and inclusion that fosters robust
dialogue central to legal education.
Section X analyzes legal theories that center diversity as the foundation of robust
dialogue and education. It highlights the demographic divisions hybrid classrooms will likely
create. This separation undercuts diverse dialogue law schools have long sought to foster to
promote robust education.
Section XI analyzes online education and virtual platforms that foster educational
excellence and prepare lawyers for the contemporary legal profession. Section XIII argues that
online education prepares students for the contemporary legal profession and promotes
educational excellence. This Article concludes in Section XIII by recommending online
education during the COVID-19 pandemic to offer effective, ethical legal education that
prioritizes safety, recognizes the worth and dignity of each person, and values diversity and
inclusion as central to robust educational dialogue.
II. Law Schools as Critical Infrastructure
The Critical Infrastructures Protection Act of 2001 (CIPA), adopted as part of the U.S.A.
Patriot Act defines critical infrastructure as those “systems and assets, whether physical or
virtual, so vital to the United States that the incapacity or destruction of such systems and assets
would have a debilitating impact on security, national economic security, national public health
or safety, or any combination of those matters.”41 “Education including K-12, Higher Education,
and Law Schools are among the sectors designated as Critical Infrastructure and are part of the
Government Facilities Sector.”42 The principles of the Education Facilities Sector Critical
Infrastructure Plan adopted in 2010 are designed “to enhance school safety, to minimize
disruption, and to ensure continuity of the learning environment.”43
“Laws help create the infrastructure through which emergencies are detected, prevented,
declared, and addressed.”44 The principles of the Education Facilities Sector Critical
Infrastructure Plan adopted in 2010 are designed “to enhance school safety, to minimize
disruption, and to ensure continuity of the learning environment.”45 Critical infrastructure
sectors must develop resiliency and continuity plans to withstand operational threats including
emergencies such as the COVID-19 global pandemic.46 CIPA’s plans, including those defining
the categories of “essential workers,” support continuity of government and services during
conditions that challenge normal practices.
CIPA does not require that Critical Infrastructure sectors conduct their business in the
same manner during a pandemic or other threatening event or condition. Consistent with
standards of ethical leadership, CIPA requires Critical Infrastructure providers including Law
Schools to safely continue their critical services during this pandemic.
In their report prepared for the CDC Ethics Subcommittee, Bruce Jennings and John
Arras suggest a framework for ethical decision-making in a pandemic.47 A prescient article
written in 2010 following the H1N1 flu examined ethical issues that “inform advance planning
41
Catherine J.K. Sandoval, Net Neutrality Powers Energy and Forestalls Climate Change (2018) 9 SAN DIEGO J.
CLIMATE & ENERGY L. 1, 8 (citing 42 U.S.C. § 5195c(e)).
42
Broadband Institute of California @ Santa Clara University School of Law, Comments, In the Matter of Internet
Freedom (WC Docket Nos. 17-108, 17-287, 11-42), 11, April 21, 2020,
https://ecfsapi.fcc.gov/file/104211478729214/BBIC%20Comments%20FCC%20Net%20Neutrality%20Mozilla%20
remand%20final.pdf (citing Government Facilities Sector, CYBERSECURITY AND INFRASTRUCTURE SECURITY
AGENCY, supra note 11).
43
U.S. DEPT. HOMELAND SECURITY, U.S. DEPT. OF EDUCATION, EDUCATION FACILITIES SECTOR SPECIFIC PLAN 13
(2010), https://www.dhs.gov/xlibrary/assets/nipp-ssp-education-facilities-2010.pdf.
44
Id. at n. 2 (citing James G. Hodge, Jr. & Evan D. Anderson, Principles and Practice of Legal Triage During
Public Health Emergencies, 64 N.Y.U. Ann. Surv. Am. L. 249 (2008-2009)).
45
Id.
46
See WHO, supra note 13.
47
Bruce Jennings & John Arras, Ethical Guidance for Public Health Emergency Preparedness and Response:
Highlighting Ethics and Values in a Vital Public Health Service, Report Prepared For the Ethics Subcommittee,
Advisory Committee to the Director, CDC (Oct. 30, 2008),
https://www.cdc.gov/os/integrity/phethics/docs/White_Paper_Final_for_Website_2012_4_6_12_final_for_web_508
_compliant.pdf.
and emergency response efforts to minimize the number of difficult choices that must be made
during such situations.”48 Jennings and Arras recommend emergency preparedness planning and
response “should protect public safety, health, and well-being. They should minimize the extent
of death, injury, disease, disability, and suffering during and after an emergency.”49 They define
public health as “[c]ollective interventions that aim to protect and promote the health of the
public.”50
In 2008, CDC published a paper prepared for its Ethics Subcommittee suggesting ethics
guideposts for decision-making in a pandemic.51 To guide public health emergency preparedness
planning and response (PHEPR) the Ethics Subcommittee report identified seven ethical goals to
orient emergency preparedness plan development, updates, and implementation in an emergency
situation and its aftermath:
Harm reduction and benefit promotion. PHEPR activities should protect public safety,
health, and well-being. They should minimize the extent of death, injury, disease,
disability, and suffering during and after an emergency.
Equal liberty and human rights. PHEPR activities should be designed so as to respect
the equal liberty, autonomy and dignity of all persons.
Distributive justice. PHEPR activities should be conducted so as to ensure that the

benefits and burdens imposed on the population by emergency response measures and
mitigations are shared equitably and fairly.
Public accountability and transparency. PHEPR activities should be based on and

incorporate decision-making processes that are inclusive, transparent and sustain public
trust.
Community resiliency and empowerment. A principal goal of PHEPR should be to

develop resilient, as well as safe communities. PHEPR activities should strive towards
the long-term goal of developing community resources that will make them more hazard-
resistant and allow them to recover appropriately and effectively after emergencies.
Resilient communities have robust internal support systems and networks of mutual
assistance and solidarity. They also maintain sustainable and risk mitigating relationships
with their local ecosystems and their natural environment.
48
Elizabeth Belmont & Almeta Cooper, Do Legal Ethics and Medical Ethics Mix in a Pandemic?, 2010 AHLA
SEMINAR PAPERS 17 (Feb. 25, 2020).
49
Id.
50
Michael Millar, The Choice to Travel: Health Tourists and the Spread of Antibiotic Resistance, 8 PUBLIC HEALTH
ETHICS 238 (2015), https://academic.oup.com/phe/article-abstract/8/3/238/2362496.
51
Jennings & Arras, supra note 47.
Public health professionalism. PHEPR activities should recognize the special
obligations of certain public health professionals and promote competency of and
coordination among these professionals.
Responsible civic response. PHEPR activities should promote a sense of personal

responsibility and citizenship.52
The first principle for public health emergency planning — minimizing the extent of death,
injury, disease, disability, and suffering during and after an emergency — must be the first
priority of Law Schools, the portals to the legal profession.
Legal issues continue to arise in myriad ways during the COVID-19 pandemic,
underscoring the importance of maintaining access to effective legal education. The objective is
to achieve effective and inclusive legal education, informed by science, ethics, and values.
III. COVID-19 Guidance for Institutions of Higher Education and Workplaces
To date, Berkeley, Harvard, Santa Clara University, U.C. Hastings, Vermont, University
of Connecticut, Western Michigan University Cooley Law School,53 the entire California State
University system, Princeton, Georgetown, and U.C. Berkeley have announced their intention to
teach classes fully online in Fall 2020.54 Other Law Schools such as Columbia are planning to
offer classes in one of three formats:
• In-person classes where most, if not all, students are physically present during each class
session in a classroom large enough to accommodate safe physical distancing
• Online classes where both the instructor and students attend virtually
52
Id. at 10-11.
53
Karen Sloan, Online or In person? Law Schools Diverge in Fall Semester Plans, LAW.COM (July 1, 2020),
https://www.law.com/2020/07/01/online-or-in-person-law-schools-diverge-in-fall-semester-plans/.
54
Dean Erwin Chemerinsky, Dean’s Announcement: Fall 2020 Classes Will Be Conducted Remotely ,
B ERKELEY L AW (June 26, 2020), https://www.law.berkeley.edu/article/fall -instruction-memo-6-
26-20/; HLS Fall Term 2020, HARVARD LAW SCHOOL (June 3, 2020), https://hls.harvard.edu/hls-fall-term-2020/;
Chancellor Timothy P. White, CSU Chancellor Timothy P. White's Statement on Fall 2020 University Operational
Plans (May 12, 2020), https://www2.calstate.edu/csu-system/news/Pages/CSU-Chancellor-Timothy-P-Whites-
Statement-on-Fall-2020-University-Operational-Plans.aspx (announcing “CSU courses primarily being delivered
virtually for the fall 2020 term, with limited exceptions for in-person teaching, learning and research activities that
cannot be delivered virtually” such as certain nursing or maritime classes that involve hands-on training); COVID-19
Roundup: More Universities Announce Online Plans, INSIDE HIGHER EDUCATION (July 7, 2020),
https://www.insidehighered.com/news/2020/07/07/coronavirus-roundup-more-universities-announce-plans-largely-
online-fall-terms; E-mail from Anna Han, Dean, Santa Clara University School of Law, to the Santa Clara Law
Community (July 6, 2020)(on file with the author Catherine Sandoval) (announcing classes will be conducted 100%
online in fall 2020 due to safety concerns as COVID-19 cases rise).
10
• Hybrid classes where at least one-third of students are able to be physically present in a
classroom on a rotating basis, with the remaining students attending virtually.55
State or local orders may thwart plans to offer in person or hybrid classes. Aden Hayes listed
several “deal breakers” that would “derail a return to campus:”1) a severe outbreak occurs, and
local hospitals reach or exceed capacity; 2) the state governor forbids or strongly recommends
against students returning to campus; 3) national organizations speak out against reopening; 4)
faculty members broadly refuse to teach face-to face out of health concerns.56
The U.S. Dept. of Labor and U.S. Dept. of Health & Human Services issued Guidance on
Preparing Workplaces for COVID-19 classifying schools as a Medium Risk for COVID-19
transmission.57 U.S. Centers for Disease Control (CDC) Guidance for Institutions of Higher
Education (IHE) classifies educational activities by risk:
• Lowest Risk: Faculty and students engage in virtual-only learning options, activities, and
events.
• More Risk: Small in-person classes, activities, and events. Individuals remain spaced at
least 6 feet apart and do not share objects (e.g., hybrid virtual and in-person class
structures or staggered/rotated scheduling to accommodate smaller class sizes).
• Highest Risk: Full-sized in-person classes, activities, and events. Students are not spaced
apart, share classroom materials or supplies, and mix between classes and activities.58
“The more an individual interacts with others, and the longer that interaction, the higher the risk
of COVID-19 spread,” CDC advises.59
Santa Clara County issued guidelines for K-12 School Reopening recognizing COVID-19
transmission is less common among younger children than adults.60 These guidelines observe
55
Dean Gillian Lester, Columbia Law School Announces Plans for Returning to Campus, COLUMBIA UNIVERSITY IN
THE CITY OF NEW YORK (July 7, 2020), https://covid19.columbia.edu/news/columbia-law-school-announces-plans-
returning-campus (emphasis in the original).
56
Aden Hayes, First, Consider the Deal Breakers, INSIDE HIGHER ED (July 16, 2020),
https://insidehighered.com/views/2020/07/16/key-threatening-developments-colleges-should-consider-if-planning-
reopening-fall.
57
U.S. DEPT. OF LABOR, U.S. DEPT. OF HEALTH & HUMAN SERVICES, GUIDANCE ON PREPARING WORKPLACES FOR
COVID-19, 8, https://www.osha.gov/Publications/OSHA3990.pdf (last visited June 22, 2020) [hereinafter USDOL,
US HHS, Guidance on Preparing Workplaces for COVID-19].
58
Coronavirus Disease 2019, (COVID-19), Considerations for Institutes of Higher Education, CDC (May 30,
2020), https://www.cdc.gov/coronavirus/2019-ncov/community/colleges-universities/considerations.html
[hereinafter, CDC, Considerations for Institutes of Higher Education.]
59
Id.
60
SANTA CLARA COUNTY PUBLIC HEALTH, COVID-19 PREPARED, REOPENING OF SANTA CLARA COUNTY K-12
SCHOOLS COVID-19 PREPARED: FOR THE 2020-2021 SCHOOL YEAR, 2,
11
that COVID-19 transmission among teenagers is closer to the pattern seen for adults.61 A South
Korean study found “household transmission of SARS-CoV-2 was high if the index patient was
10–19 years of age.”62
“There are currently a higher proportion of COVID-19 cases among Hispanic/Latino

children as compared to non-Hispanic white children,” CDC reported.63 “Children and adults
with certain underlying medical conditions are at increased risk of severe illness from COVID-
19.”64 “Children with intellectual and developmental disabilities are more likely to
have comorbid medical conditions (e.g., diseases of the respiratory system; endocrine, nutritional
and metabolic diseases; and diseases of the circulatory system) that may put them at increased
risk for severe illness from COVID-19,” CDC advised.65
Acute COVID-19 illness or death is not confined to those with pre-existing health
conditions. Around the world, many healthy people in their 20s (or younger), and 30s-50s have
become extremely ill or died from COVID-19 infection and its complications.66
Law schools host a diverse student body with a broad age range. As a graduate school,
most American law students have completed college. Many American law students are in their
early twenties, while others range from mid-to-late 20s to 60s or beyond), have extensive work
histories, possess another advanced degree, have served in the military, or maintain other
responsibilities (including supporting families). Most faculty and staff members range from their
20s through late 70s or 80s, while some older faculty and staff still actively participate in Law
School teaching or administration. The “median age of the faculty members of Harvard’s Faculty
of Arts and Sciences is over 60 years old.”67
Older adults are at the highest risk for severe illness from COVID-19; they are more
likely to “require hospitalization, intensive care, or a ventilator to help them breathe, or they may
https://www.sccgov.org/sites/covid19/Documents/ReopeningofSantaClaraCountyK12Schools.pdf.
61
Id.
62
YJ Park et al., Contact tracing during coronavirus disease outbreak, South Korea, 2020, 26 EMERG. INFECT. DIS.,
(forthcoming Oct., 2020), original publication date, July 16, 2020, https://doi.org/10.3201/eid2610.201315.
63
Coronavirus Disease 2019, (COVID-19), Preparing a Safe Return to School, CDC, July 23, 2020,
https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/prepare-safe-return.html.
64
Id.
65
Id.
66
Ariana Eunjung Cha, Healthy People In Their 30s and 40s, Barely Sick With Coronavirus, Are Dying From
Strokes, MSN, (Apr. 24, 2020), https://www.msn.com/en-us/health/medical/healthy-people-in-their-30s-and-40s-
barely-sick-with-coronavirus-are-dying-from-strokes/ar-BB13bJst.
67
Complaint for Declaratory and Injunctive Relief, President and Fellows of Harvard College et al., v. United States
Dep’t of Homeland Security et al., No. 1:20-cv-11283, 13 (Mass. Dist. Ct. 2020) [hereinafter Harvard/MIT DHS
Complaint].
12
even die.”68 CDC also warns people of any age with “certain underlying medical conditions
are at increased risk for severe illness from COVID-19.”69 “The more underlying medical
conditions someone has, the greater their risk is for severe illness from COVID-19,” CDC
advised.70 Law Schools convene multiple generations in class and academic activities for hours
at a time, placing Law Schools in a higher risk category for COVID-19 transmission than K-12
schools.
CDC suggests higher education institutions offer “distance learning in addition to in-
person classes to help reduce the number of in-person attendees.”71 CDC also counsels offering
“options for faculty and staff at higher risk for severe illness (including older adults and people
of all ages with certain underlying medical conditions) that limit their exposure risk (e.g.,
telework and modified job responsibilities).”72
Many law students, as well as law faculty and staff members, are parents of children in
pre-K through K-12 education. President Trump and U.S. Education Secretary Devos have
pushed for opening schools through in-person classes. Secretary Devos argued K-12 schools
“must fully open and they must be fully operational.”73 Given the surging rates of COVID-19
infection, hospitalization, and death in July 2020, several local school boards and states have
decided to delay in-person openings for K-12 schools.74 As debate and uncertainty about K-12
68
Santa Clara County Public Health, supra note 60 (citing Coronavirus Disease 2019, (COVID-19), Older Adults,
June 25, 2020, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html.
69
Coronavirus Disease 2019, (COVID-19), People of Any Age with Underlying Medical Conditions, CDC
(June 25, 2020), https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/people-with-medical-
conditions.html?CDC_AA_refVal=https%3A%2F%2F1.800.gay%3A443%2Fhttps%2Fwww.cdc.gov%2Fcoronavirus%2F2019-ncov%2Fneed-
extra-precautions%2Fgroups-at-higher-risk.html (listing conditions that increase risk for COVID-19 for people of
any age: Chronic kidney disease; COPD (chronic obstructive pulmonary disease); Immunocompromised state
(weakened immune system) from solid organ transplant; Obesity (body mass index [BMI] of 30 or higher); Serious
heart conditions, such as heart failure, coronary artery disease, or cardiomyopathies; Sickle cell disease; Type 2
diabetes mellitus. Listing conditions that might increase COVID-19 risk: Asthma moderate-to-severe);
Cerebrovascular disease (affects blood vessels and blood supply to the brain); Cystic fibrosis; Hypertension or high
blood pressure; Immunocompromised state (weakened immune system) from blood or bone marrow transplant,
immune deficiencies, HIV, use of corticosteroids, or use of other immune weakening medicines; Neurologic
conditions, such as dementia; Liver disease; Pregnancy; Pulmonary fibrosis (having damaged or scarred lung
tissues); Smoking; Thalassemia (a type of blood disorder); Type 1 diabetes mellitus).
70
Id.
71
CDC, Considerations for Institutes of Higher Education, supra note 58.
72
Id.
73
Laura Meckler, Trump and DeVos want schools ‘fully’ open, but not many are listening, THE WASHINGTON POST
(July 10, 2020), https://www.washingtonpost.com/education/trump-devos-schools-hybrid/2020/07/10/117b7ea2-
c2d0-11ea-b4f6-cb39cd8940fb_story.html.
74
See e.g., Are schools in your California county required to teach students online this fall? Here’s the list, THE MERCURY
NEWS (July 17, 2020), https://www.mercurynews.com/2020/07/17/are-schools-in-your-california-county-required-to-
teach-students-online-this-fall-heres-the-list/ (declaring K-12 schools in California counties on the state’s watchlist
for COVID-19 outbreaks should begin fall instruction online only and may convene in-person instruction after the
13
education continues during the COVID-19 pandemic, Law Schools must recognize the
difficulties of supervising children who may attend school online, while also encouraging
students, faculty, and staff to study or work at the Law School in person.
Law Schools are not islands isolated from the community in which their campus is
located. In-person or hybrid classes encourage students, faculty, and staff to travel from their
communities to a Law School that may be in another state or country.75 “Travel increases your
chances of getting and spreading COVID-19,” CDC advises.76 Virus mutations may also be
introduced through travel. Several scientists found a mutation in the COVID-19 virus that
appears to have made it more infectious.77 Drawing students, faculty, and staff from all over the
nation and the globe to study and work together in person increases the potential for viral
recombination and mutation that may increase community infection risks.
Gathering the Law School community to study in person would draw together many
people under age 45 who have since Memorial Day made up the majority of COVID-19
infections, a switch from the pre-Memorial Day pattern.78 COVID-19 infections are rising among
people ages 18-34, the age cohort of a large portion of American law students.79 In-person and
hybrid classes may seed superspreader events, “a phenomenon where certain individuals
disproportionately infect a large number of secondary cases relative to an ‘average’ infectious
individual.”80
The American Bar Association (ABA), the governing body for Law School accreditation,
issued an emergency order in February 2020 emphasizing the flexibility given to Law Schools to
county in which they are located is off the watchlist for 14 days.”); Howard Blume & Sonali Kohli, L.A. Unified will
not reopen campuses for start of school year amid coronavirus spike, L.A. TIMES (July 13, 2020),
https://www.latimes.com/california/story/2020-07-13/l-a-unified-will-not-reopen-campuses-start-of-school-year;
Kristen Taketa, San Diego Unified will start school this fall with online learning, SAN DIEGO UNION-TRIBUNE (July 13,
2020), https://www.sandiegouniontribune.com/news/education/story/2020-07-13/san-diego-unified-will-start-this-
fall-with-online-learning; Matt Barnum, Pediatricians distance themselves from Trump’s school reopening push in
new statement, CHALKBEAT (July 10, 2020), https://www.chalkbeat.org/2020/7/10/21320020/school-reopening-
american-academy-pediatrics-trump-devos-statement.
75
Coronavirus Disease 2019, (COVID-19), Travel in the US, CDC (June 28, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/travelers/travel-in-the-us.html.
76
Id.
77
B. Korber et al., Tracking Changes In SARS-Cov-2 Spike: Evidence That D614G Increases Infectivity Of The
COVID-19 Virus, CELL (2020)., https://www.sciencedirect.com/science/article/pii/S0092867420308205.
78
Fraser et al., supra note 17.
79
Berkeley Lovelace, Jr., Fauci Warns Of ‘More And More’ Coronavirus Complications In Young People, CNBC,
(June 23, 2020), https://www.cnbc.com/2020/06/23/fauci-warns-of-more-and-more-coronavirus-complications-in-
young-people.htmlc.
80
Max SY Laua et al., Characterizing super-spreading events and age-speciﬁc infectivity of COVID-19
transmission in Georgia, USA, MEDRXIV, preprint 3 (June 22, 2020), https://doi.org/10.1101/2020.06.20.20130476.
14
address disasters and extraordinary circumstances.81 ABA Standard 107(a)(1) provides for
variances from the requirements of the standards “in extraordinary circumstances in which
compliance … would create or constitute extreme hardship for the Law School and/or its
students.”82 The ABA memo gives flexibility to Law Schools that “must rely on the good
common sense of its leadership,” particularly when “many disasters and emergencies require
quick decisions and action.”83
ABA standard 306(e) limits the amount of credit hours a Law School can provide through
distance education to “up to one-third of the credit hours required for the J.D. degree” and up to
10 credits during the first one third of legal education.84 In February 2020 the ABA recognized
that “[d]istance learning often may be a good solution to emergencies or disasters that make the
Law School facilities unavailable or make it difficult or impossible for students to get to the Law
School.”85 Distance learning must be consistent with the ABA’s requirements for rigorous legal
instruction, and consider:
[W]hether the distance learning is appropriate for that course, whether the course was
designed for or can easily be adapted to that method of delivery, whether the faculty
member has the experience and training needed to deliver a distance education course
meeting the requirements of the Standards, whether the school has the technological
capacity (in general and in the context of the disaster or emergency) to support that form
of instruction, and whether students have or can be provided with the technology needed
to access the course.86
ABA standard 306(d) permits distance learning on three conditions: if “(1) there is opportunity
for regular and substantive interaction between faculty member and student and among students;
(2) there is regular monitoring of student effort by the faculty member and opportunity for
communication about that effort; and (3) the learning outcomes for the course are consistent with
Standard 302.”
81
MANAGING DIRECTOR’S MEMO, EMERGENCIES AND DISASTERS, A.B.A. (Feb. 2020),
https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/20-feb-
guidance-on-disasters-and-emergencies.pdf [hereinafter, ABA, MANAGING DIRECTOR’S MEMO].
82
GENERAL PURPOSES AND PRACTICES, STANDARD 107, A.B.A.,
https://www.americanbar.org/content/dam/aba/administrative/legal_education_and_admissions_to_the_bar/standard
s/2019-2020/2019-2020-aba-standards-chapter1.pdf.
83
ABA, Managing Director’s Memo, supra note 81, at 1.
84
Program of Legal Education, Standard 306(e), A.B.A.,
85
ABA, MANAGING DIRECTOR’S MEMO, supra note 81, at 1.
86
Id.
15
The Council of the ABA Section of Legal Education and Admission to the Bar proposed
changes to ABA rule 2 to “permit the council, in response to the pandemic, to provide Law
Schools more timely relief if necessary, including continued expansion of online classes.”87
The ABA House of Delegates meets virtually on August 3 and 4, 2020 to consider this proposal
along with other business matters.88 The proposed change to ABA rule 2 “would permit the
Council to provide temporary relief from a rule or the requirements of a standard to allow Law
Schools to respond to a regional or national emergency, such as weather disasters and
pandemics.”89 The rule change would authorize the Council to “adopt emergency policies and
procedures in response to extraordinary circumstances in which compliance with the Standards
would create or constitute extreme hardship for multiple Law Schools.”90 The Council would
determine the “term certain and limited to the duration of the extraordinary circumstance,”
during which the emergency policies would be in effect.91
The ABA meeting date in the weeks immediately preceding the usual start of the Law
School semester in mid-August complicates Law School planning during the COVID-19
pandemic. The Council’s aspiration to define a term certain and limited duration of the
extraordinary circumstance reflects a desire for more certainty than the pandemic’s evolution has
allowed. The ABA should consider the science of COVID-19 transmission, disease
manifestation and its disparate effects on many groups of Americans, and the limits of mitigation
measures to stop spread and protect health and safety. The ABA should recognize the need for
more flexibility to increase online education during the COVID-19 pandemic, including the
years it may take to distribute a COVID-19 vaccine once developed, approved, and distributed.
IV. COVID-19 Transmission, Mutation, Disparate Effects, and Mitigation Strategies;

Science Relevant to Legal Education
A. COVID-19 Contagion Underscore the Risks of In-Person and Hybrid Classes

As of July 20, 2020, more than 605,000 people have died, and 14.4 million infections
have been reported around the world in the months since COVID-19 was diagnosed in
November 2019.92 Following economic reopenings initiated around Memorial Day, 2020,
COVID-19 infection rates rose in many states. CDC Director Dr. Robert Redfield
“acknowledged that the country is seeing ‘significant increases’ in the southeast and southwest
87
Council Moves To Expand Flexibility For Fall Academic Year, A.B.A. (June 1, 2020),
https://www.americanbar.org/news/abanews/aba-news-archives/2020/06/council-moves-to-expand-flexibility/.
88
Id.
89
MEMORANDUM FROM THE STANDARDS REVIEW SUBCOMMITTEE TO THE COUNCIL, Proposed Changes to Rule 2,
A.B.A (May 8, 2020), https://taxprof.typepad.com/files/aba-proposed-covid-rule-change.pdf.
90
Id.
91
Id.
92
COVID-19 situation update worldwide, EUROPEAN CENTRE FOR DISEASE PREVENTION AND CONTROL (July 20,
2020), https://www.ecdc.europa.eu/en/geographical-distribution-2019-ncov-cases.
16
regions. Redfield said hospitalizations are going up in 12 states, and as of this weekend, the daily
death toll has increased in the state of Arizona.”93 CDC reported the death of more than 140,000
Americans due to COVID-19 as of July 2020.94 CDC forecasts there “will likely be between
150,000 and 170,000 total reported COVID-19 deaths by August 8th.”95
In contrast to many flu viruses, COVID-19 did not follow the pattern of diminishing in
the summer.96 Dr. David Weber, medical director of hospital epidemiology at the University of
North Carolina Medical Center in Chapel Hill, observed that as of late June 2020, the COVID-19
“first wave” is continuing.97 CDC reported that during the week of July 10, 2020, “Nationally,
the overall percentage of respiratory specimens testing positive for SARS-CoV-2 decreased
slightly from week 27 (9.4%) to week 28 (9.2%) but increased in four regions.”98 “From June 20
– July 4, there was a two week consecutive increase in overall weekly hospitalization rates, the
first multiple-week increase seen since early April.”99 Dr. Anthony Fauci testified to Congress on
June 30, 2020 that he believes “coronavirus cases could go up to 100,000 a day if the upward
trend in cases in some states doesn't turn around.”100
People under 45 are leading the surge in diagnosed COVID-19 cases during summer
2020.101 “People under 45 made up 42% of cases before Memorial Day weekend but 55% of
cases reported since then, a new USA TODAY analysis has found.”102 “Total cases among
people younger than 45 have grown nearly twice as fast as for people 65 and older since late
93
Meg Wagner et al., Fauci, Redfield Testify On Covid-19 Reopening As Cases Rise, CNN, (June 30, 2020),
https://edition.cnn.com/politics/live-news/covid-19-school-work-reopening-testimony-06-30-20/index.html.
94
CDC, Coronavirus Disease 2019 (COVID-19), Cases in the U.S., CDC, https://www.cdc.gov/coronavirus/2019-
ncov/cases-updates/cases-in-us.html (lasted visited July 20, 2020).
95
CDC, Coronavirus Disease 2019 (COVID-19), Forecasts of Total Deaths, CDC (July 15, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/forecasting-us.html.
96
Bruce Yee, Will COVID-19 Coronavirus Decline This Spring And Summer? Here Is What It May Depend On,
FORBES (April 5, 2020), https://www.forbes.com/sites/brucelee/2020/04/05/will-covid-19-coronavirus-decline-this-
spring-and-summer-here-is-what-it-may-depend-on/#258c99811e3b.
97
Erika Edwards, Is this the Second Wave of COVID-19 in the U.S.? Or Are We Still in the First? NBC NEWS (June
16, 2020), https://www.nbcnews.com/health/health-news/second-wave-covid-19-u-s-or-are-we-still-n1231087.
98
CDC, Coronavirus Disease 2019 (COVID-19), COVID Weekly Summary, CDC (July 10, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/covid-data/covidview/index.html.
99
Id.
100
Wagner et al., supra note 93.
101
Fraser et al., supra note 17.
102
Id.
17
May, USA TODAY's analysis of CDC data shows.”103 Many young people infected have no
underlying health conditions, but risk getting sick or spreading infection.104
Bars appear to be fertile ground for COVID-19 spread. As “bars and other public places
reopen, rates of infection in younger adults are rising, and bars are a particularly dangerous
vector. Several outbreaks have been traced to bars that cater to college students” in Louisiana,
Florida, Texas, and several other states.105 “There are certain counties where a majority of the
people who are tested positive in that county are under the age of 30, and this typically results
from people going to bars,” Texas Governor George Abbott said at a press conference.106
Fraternity and sorority parties at U.C. Berkeley during the 2020 summer session spurred
an increase of COVID-19 on the Berkeley campus.107 "The majority of these new cases stem
from a series of recent parties connected to the CalGreek system, which included students both
within the CalGreek community and others, and led to some secondary spread within households
and within other smaller gatherings."108 "Generally, these infections are directly related to social
events where students have not followed basic safety measures such as physical distancing,
wearing face coverings, limiting event size, and gathering outside.”109 Such behavior is
consistent with findings that “less than 30% of people aged 18-24 said they were consistently
staying 6 feet away from other people.”110 “Young invincibles” who flout COVID-19 health
precautions are driving COVID-19 infections while more young people are falling ill due to the
virus.111 High infection rates among young adults bode poorly for university plans to open
classes in-person or through a hybrid model.
103
Id.; Karina Zaiets & Ramon Padilla, Younger People Are Driving New Cases Of COVID-19, Putting The Elderly
At Risk, USA TODAY (July 7, 2020), https://www.msn.com/en-us/news/us/younger-people-are-driving-new-cases-
of-covid-19-putting-the-elderly-at-risk/ar-BB16rIV6?ocid=spartan-dhp-feeds.
104
Meredith Cohn, Experts Alarmed by Coronavirus Surge Among Young Adults in Maryland. Some saying bars
should be closed, BALTIMORE SUN (July 15, 2020), https://www.baltimoresun.com/coronavirus/bs-hs-young-adults-
fueling-covid-rise-20200715-odzy2oin3zbcvh24eglr5yteey-story.html (discussing “the testing positivity rate among
Marylanders under the age of 35, which is now 83% higher than among Marylanders who are 35 and older.”).
105
Packed Bars Serve Up New Rounds Of COVID Contagion, KAISER HEALTH NEWS (June 25, 2020),
https://khn.org/news/packed-bars-serve-up-new-rounds-of-covid-contagion/.
106
Id.
107
CBS Los Angeles, University of California, Berkeley Blames Spike In Coronavirus Cases On Frat,
Sorority Parties, CBS NEWS (July 9, 2020), https://www.cbsnews.com/news/coronavirus-university-of-
california-berkeley-cases-blamed-on-fraternity-and-sorority-parties/.
108
Id.
109
Id.
110
Mark É Czeisler et al., Public Attitudes, Behaviors, and Beliefs Related to COVID-19, Stay-at-Home Orders,
Nonessential Business Closures, and Public Health Guidance - United States, New York City, and Los Angeles, May
5-12, 2020, MORBIDITY MORTALITY WEEKLY REP., (June 19, 2020), https://pubmed.ncbi.nlm.nih.gov/32555138/.
111
Rong-Gong Lin Ii, et al., Young Adults Who Think ‘They Are Invincible’ Increasingly Infected By Coronavirus,
Newsom Says, L.A. TIMES (July 6, 2020), https://www.latimes.com/california/story/2020-07-06/young-adult-who-think-
they-are-invincible-hit-hard-by-coronavirus-newsom-says.
18
Doctors are preparing for the double peril of COVID-19 and flu season in fall and winter
2020-2021.112 As temperature and humidity drop, “the combination of low humidity,
temperature, and sunlight may trigger an impairment of the local and systemic antiviral defense
mechanisms,” a process that may increase susceptibility to viruses.113 The confluence of
COVID-19, seasonal flu virus, and the expiration of any protective effect of COVID-19
antibodies during the heart of the Law School semester underscore the dangers of convening
classes in-person or through a “hybrid” model.
CDC’s survey found that COVID-19 undermined afflicted patient’s health for weeks
after hospital discharge. “ Fewer inpatients (39%, 20 of 51) reported a return to baseline level of
health at 14–21 days than did outpatients (64%, 150 of 233) (p = 0.001).”114 The CDC study
authors concluded that these findings “highlight the need for screening, case investigation,
contact tracing, and isolation of infected persons to control transmission of SARS-CoV-2
infection during periods of community transmission. The need for enhanced measures to ensure
workplace safety, including ensuring social distancing and more widespread use of cloth face
coverings, are warranted.”115
B. Viral Mutation Increases Risk of Infection and Recombination into New Virus
Strains
The “Spanish flu” pandemic of 1918-1920, believed to have started after the virus took
root in Kansas in early March 1918 among World War I soldiers at Camp Funston, offers grim
predictions for virus spread.116 The “Spanish flu” was so named because the first reports of it
were filed from Spain, which enjoyed more press freedom during World War I than many other
countries.117 The war effort, desire to keep business and schools open, and limited information
112
Autumn Bracey, Doctors Prepare For Impact Of COVID-19 During Upcoming Flu Season, CBS 42 (June 30, 2020),
https://www.cbs42.com/news/local/medical-doctors-prepare-for-impact-of-covid-19-during-the-flu-season/ (“if a
person has COVID and influenza back to back it can leave you more vulnerable to other types of infections like
pneumonia,” said Dr. Wesley Willeford, medical director of disease control for the Jefferson County Department of
Health); Berkeley Lovelace Jr. & Kevin Breuninger, Dr. Anthony Fauci warns US could ‘be in for a bad fall’ if
coronavirus treatments don’t work, CNBC (April 28, 2020), https://www.cnbc.com/2020/04/28/fauci-warns-us-
could-be-in-for-a-bad-fall-if-coronavirus-treatments-dont-work.html; Len Strazewski, What’s ahead on COVID-19?
Expert offers forecast for summer, fall, AMA PUBLIC HEALTH (April 6, 2020), https://www.ama-
assn.org/delivering-care/public-health/what-s-ahead-covid-19-expert-offers-forecast-summer-fall.
113
Miyu Moriyama, Walter J. Hugentobler, & Akiko Iwasaki, Seasonality of Respiratory Viral Infections, 7 ANN.
REV. OF VIROLOGY (March 16, 2020), https://doi.org/10.1146/annurev-virology-012420-022445.
114
Id.
115
Id.
116
Eric Adler, A coronavirus lesson? How KC’s response to 1918 flu pandemic caused needless death, THE KANSAS
CITY STAR (March 15, 2020), https://www.kansascity.com/news/business/health-care/article241058181.html.
117
Why Was It Called the 'Spanish Flu?', The HISTORY CHANNEL (Mar. 27, 2020),
https://www.history.com/news/why-was-it-called-the-spanish-flu.
19
about the virus contributed to the “Spanish flu’s” death toll.118 Almost “50 million people died
worldwide in a world already ravaged and weakened by World War I.”119 In the United States,
“an estimated 25 million--some 25% of the population--had the disease; over 550,000 died.”120
In October 1918, 195,000 Americans died that month from the Spanish flu, not counting those
abroad.121 A virus mutation made the flu more deadly in fall 1918 than the strain appearing
earlier that year.122
Viral mutation is a common feature in coronaviruses.123 CDC reports that the “virus that
causes COVID-19 is spreading very easily and sustainably between people.”124 In April 2020
several scientists detected a mutation in the COVID-19 virus that increases its infectiousness.125
A genetic mutation in the SARS-CoV-2 virus, called G614, has been observed as COVID-19
spread from China through Europe and the United States.126 That mutation made COVID-19
more infectious as compared to the strain first detected in humans in China in 2019.127 The more
contagious form of the virus circulating in the United States and Europe, compounded by people
118
Adler, supra note 116.
119
Why Was It Called the 'Spanish Flu?' THE HISTORY CHANNEL, supra note 117.
120
Stephen Pate, Law in A Time of Pandemic, How Texas Courts and Lawyers Responded to the Pandemic of 1918-
1920, 83 TEX. B.J. 384 (2020).
121
Why Was It Called the 'Spanish Flu?', The HISTORY CHANNEL, supra note 117.
122
Id.
123
B. Korber et al., Tracking Changes In SARS-Cov-2 Spike: Evidence That D614G Increases Infectivity Of The
COVID-19 Virus, supra note 77, at 2 (“with extended human-to-human transmission,
SARS-CoV-2 could also acquire mutations with fitness advantages and immunological
resistance.”); Bilal et al. supra note 23, at 2 (“COVID-19 may behave more like SARS-CoV and will continue to
adapt to the human hosts).
124
CDC, Coronavirus Disease 2019 (COVID-19), How It Spreads, CDC (June 16, 2020),
https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/how-covid-spreads.html.
125
B. Korber et al. Spike mutation pipeline reveals the emergence of a more transmissible form of SARS--‐CoV--‐, 2
bioRxiv, preprint (forthcoming, April 30, 2020), https://doi.org/10.1101/2020.04.29.069054; B. Korber et al.,
Tracking Changes In SARS-Cov-2 Spike: Evidence That D614G Increases Infectivity Of The COVID-19 Virus, supra
note 77.
126
Mutated coronavirus shows significant boost in infectivity, SCRIPPS RESEARCH (June 12, 2020),
https://www.scripps.edu/news-and-events/press-room/2020/20200612-choe-farzan-coronavirus-spike-
mutation.html; B. Korber et al., Tracking Changes In SARS-Cov-2 Spike: Evidence That D614G Increases
Infectivity Of The COVID-19 Virus, supra note 77.
127
Lizhou Zhang et al., The D614G mutation in the SARS-CoV-2 spike protein reduces S1 shedding and increases
infectivity, BIORXIV 19, preprint (forthcoming June 12, 2020), https://doi.org/10.1101/2020.06.12.148726 (“viruses
bearing the mutation Spike D614G are replacing the original Wuhan form of the virus rapidly and repeatedly across
the globe”).
20
working or gathering without masks or with ineffective masks, may be among the reasons
COVID-19 did not decreased with summer’s heat as some had hoped.128
The COVID-19 virus, SARS-CoV-2, enters the body by “using its spike to latch onto a
receptor - called an ACE-2 receptor - inside someone's airways. ACE-2 receptors are essentially
tiny gateways that the virus uses to get into the blood and then multiply rapidly, destroying cells
around them in the process and triggering illness.”129 "If we think of the human body as a house
and 2019-nCoV as a robber, then ACE2 would be the doorknob of the house’s door. Once the S-
protein [the surface spike on SARS-CoV-2] grabs it, the virus can enter the house."130
Gathering people together appears to contribute to viral recombination, which “provides

an opportunity for the virus to bring together, into a single recombinant virus, multiple mutations
that independently confer distinct fitness advantages but that were carried separately in the two
parental strains.”131 “Recombination requires simultaneous infection of the same host with
different viruses, and the two parental strains have to be distinctive enough to manifest in a
detectable way in the recombined sequence.”132 Korber et al. found in Belgium evidence of
“recombination of distinct viruses within a coinfected host,” resulting in the S943P COVID-19
mutation.”133 Exposing people to two strains of COVID-19 creates the conditions for viral
recombination which may produce new viral mutations whose consequences are yet unknown.
Santa Clara County, California, where Santa Clara University is located, offers an
important example of the role of travel restrictions and lockdowns in reducing virus mutation and
spread. A study by the Los Alamos Laboratory found that the version of COVID-19 first
detected in Wuhan, China, continues to dominate the local epidemic in Santa Clara County,
California.134 Santa Clara county samples gathered in mid-March through early April and labeled
128
See Courtney Subramanian, Savannah Behrmann, David Jackson, Trump Says Coronavirus Will Be Gone By
April When The Weather Gets Warmer, Doesn't Offer Scientific Explanation, USA TODAY (Feb. 10, 2020),
https://www.usatoday.com/story/news/politics/elections/2020/02/10/trump-rallies-new-hampshire-eve-democratic-
primary/4716223002/ (“The president continued to suggest the Coronavirus outbreak, which has claimed 1,000 lives
as of Monday, will be gone by April. He told the crowd that "in theory" once the weather warms up Coronavirus,
which he referred to as "the virus," will "miraculously" go away.”).
129
Sam Blanchard, Daily Mail, World's dominant strain of coronavirus 'is 10 TIMES more infectious than the one
that jumped to humans in China' because it mutated so its vital spike protein doesn't snap as often in the body,
scientists say, DAILY MAIL (June 29, 2020), https://www.msn.com/en-us/health/medical/world-s-dominant-strain-of-
coronavirus-is-10-times-more-infectious-than-the-one-that-jumped-to-humans-in-china-because-it-mutated-so-its-
vital-spike-protein-doesn-t-snap-as-often-in-the-body-scientists-say/ar-BB167e7l?ocid=spartan-dhp-feeds.
130
Researchers at Westlake University Unveiled Structure of the RBD-ACE2-B0AT1 Complex, Westlake
University, Feb. 25, 2020, https://en.westlake.edu.cn/news_events/westlakenews/202002/t20200225_3069.shtml.
131
B. Korber et al. Spike mutation pipeline reveals the emergence of a more transmissible form of SARS--‐CoV--‐2,
supra note 125, at 13.
132
Id. at 8.
133
Id. at 9.
134
Id. at 20.
21
“Stanford” “have a mixture of both the G614 and D614 forms. These distinct patterns suggest
relatively little mixing between the two local epidemics.”
B. Korber, et al. theorize that Santa Clara County’s stay-at-home orders initiated
relatively early, March 16, 2020, may be one reason why the more infectious G614 variation has
not become predominant in Santa Clara County.135 Which variant circulates in a region is
important because researchers including Korber et al. found that the “G614 variant is associated
with greater infectivity, as well as clinical evidence that it is associated with higher viral
loads.”136 Virus mutation and viral recombination compound the risks of activities that bring
people together in person for long periods of time, such as occurs in Law School classrooms.
C. Loud Talking (Lecture-Level Speaking) as a Virus Spread Mechanism

A May 2020 study on Loud Talking and COVID-19 spread published in the Proceedings
of the National Academy of Sciences of the USA, found that loud talking, consistent with lecture-
level speaking, transmits COVID-19.137 The authors concluded that “normal speech generates
airborne droplets that can remain suspended for tens of minutes or longer and are eminently
capable of transmitting disease in confined spaces” such as indoor spaces which are conducive to
COVID-19 transmission.138 “The distance over which droplets travel laterally from the speaker’s
mouth during their downward trajectory is dominated by the total volume and flow velocity of
exhaled air.”139 The researchers found that the total volume [of exhaled air] and droplet count
“increase with loudness” of the speaker.140
Study co-author Adriaan Bax responded to Professor Catherine Sandoval’s request for
clarification about the level of loudness that promotes COVID-19 nuclei transmission. Dr. Bax
from the National Institutes of Health (NIH) responded that a professor’s voice when lecturing,
or a student speaking loudly in class in response to the professor’s request to speak up so others
can hear, is consistent with the loudness levels their study identified as effective at COVID-19
and other respiratory virus spread.141 NIH author Bax responded to Professor Sandoval:
135
Id.
136
Id.at 4.
137
Valentyn Stadnytskyi et al., Thousands of droplets produced from the mouths of people who are talking loudly
can stay in the air for between eight and 14 minutes before disappearing, according to a new study, PROCEEDINGS
OF THE NATIONAL ACADEMY OF SCIENCES (PNAS), first published May 13, 2020, ,
https://doi.org/10.1073/pnas.2006874117.
138
Id. at 3; See also Hua Qiani, et al., Indoor transmission of SARS-CoV-2, preprint, MEDRXIV (April 7, 2020),
https://www.medrxiv.org/content/10.1101/2020.04.04.20053058v1 (“sharing indoor space is a major SARS-CoV-2
infection risk.”)
139
Stadnytskyi et al., supra note 137, at 1.
140
Id.
141
Email from Adriaan Bax to Catherine Sandoval, May 17, 2020 (on file with Professor Catherine Sandoval).
22
The level of “loud speaking” used in our setup is comparable to a lecturing voice,
or a professor asking a student to “speak up.” So, louder than a private dinner
conversation, more like public lecturing.142
This study is consistent with previous studies on speaking loudly as an effective mechanism to
transmit airborne viruses.143 “The particle emission rate [for respiratory pathogens], during
speech is linearly correlated with the amplitude (loudness) of vocalization, for four different
languages tested,” according to a 2019 study by Asadi et al.144
Asadi et al. concluded “simply talking in a loud voice would increase the rate at which an
infected individual releases pathogen-laden particles into the air, which in turn would increase
the probability of transmission to susceptible individuals nearby.145 “For example,” Asadi et al.
explain “an airborne infectious disease might spread more efficiently in a school cafeteria than a
library, or in a noisy hospital waiting room than a quiet ward.”146 Their “results suggest a new
hypothesis: that speech superemitters might contribute to the phenomenon of superspreading, in
which a relative few contagious individuals infect a disproportionately large number of
secondary cases during infectious disease outbreaks.”147
Studies on loud talking as a virus transmission method indicate that speech by faculty
members and students during in-person classes and meetings creates a high-risk of COVID-19
spread. Closed and indoor environments have also been found to promote COVID-19 spread.148
When the duration of classes is considered, the risks of COVID-19 spread during in-person
classes and meetings increases, even when masks that do not block the spread of small virus
particles are worn.
142
Id.
143
See e.g., Sima Asadi, et al., Aerosol Emission and Superemission During Human Speech Increase With Voice
Loudness, 9 SCI. REP. 2019 2348 (Feb. 20, 2019), https://pubmed.ncbi.nlm.nih.gov/30787335/ (the rate of particle
emission during normal human speech is positively correlated with the loudness (amplitude) of vocalization, ranging
from approximately 1 to 50 particles per second (0.06 to 3 particles per cm 3) for low to high amplitudes, regardless
of the language spoken (English, Spanish, Mandarin, or Arabic)).
144
Id. at 1.
145
Id. at 7.
146
Id.
147
Id. at 2.
148
Hiroshi Nishiura et al., Closed environments facilitate secondary transmission of coronavirus disease 2019,
MEDRXIV, preprint (April 16, 2020), https://doi.org/10.1101/2020.02.28.20029272, (“The odds that a primary case
transmitted COVID-19 in a closed environment was 18.7 times greater compared to an open-air environment”);
Qiani, et al., supra note 138.
23
D. Virus-Exposure Vectors: Time + Indoor Exposure + Other Factors
Erin Bromage, explains that time is an important factor in virus exposure and potential
infection.149 CDC uses 15 minutes of close exposure as an operational definition for community
exposure to a COVID-19 positive person.150 “Brief interactions are less likely to result in
transmission; however, symptoms and the type of interaction (e.g., did the infected person cough
directly into the face of the exposed individual) remain important,” CDC advises.151
Dr. Bromage examined several high COVID-19 transmission events among a choir, at a
call center, restaurant, and meat packing plant. “In all these cases, people were exposed to the
virus in the air for a prolonged period (hours). Even if they were 50 feet away (choir or call
center), even a low dose of the virus in the air reaching them, over a sustained period, was
enough to cause infection and in some cases, death.”152
Indoor spaces appear to be conducive to COVID spread. Koen Swinkels compiled a

database of COVID “superspreading events” (SSEs).153 Swinkels reports that of the more than
1,100 SSEs his database recorded as of June 12, 2020, 97% of them occurred indoors.154
Jonathan Kay studied SSEs and reported that with “few exceptions, almost all of the SSEs took
place indoors, where people tend to pack closer together in social situations, and where
ventilation is poorer.”155 Kay reported he had “trouble finding any SSEs that originated in
university classrooms, which one would expect to be massive engines of infection if COVID-19
could be transmitted easily through airborne small-droplet diffusion.”156
The shift of hundreds of Law Schools and universities to online education in March 2020
as COVID-19 spread may be one reason the universities have not yet become superspreader hot
149
Erin Bromage, The Risks - Know Them - Avoid Them, ERIN BROMAGE BLOG, May 6, 2020,
https://www.erinbromage.com/post/the-risks-know-them-avoid-them.
150
Coronavirus Disease 2019 (COVID-19), Public Health Guidance for Community-Related Exposures, CDC (June
5, 2020), https://www.cdc.gov/coronavirus/2019-ncov/php/public-health-recommendations.html.
151
Id.
152
Bromage, supra note 149.
153
Koen Swinkels, COVID-19 Superspreading Events Around the World,
https://docs.google.com/spreadsheets/d/1c9jwMyT1lw2P0d6SDTno6nHLGMtpheO9xJyGHgdBoco/edit#gid=18129
32356 (last visited June 22, 2020, showing last edit on June 22, 2020).
154
Koen Swinkels, Covid-19 Superspreading Events Database, MEDIUM, June 12, 2020,
https://medium.com/@codecodekoen/covid-19-superspreading-events-database-4c0a7aa2342b.
155
Jonathan Kay, COVID-19 Superspreader Events in 28 Countries: Critical Patterns and Lessons, QUILETTE, April
23, 2020, https://quillette.com/2020/04/23/covid-19-superspreader-events-in-28-countries-critical-patterns-and-
lessons/.
156
Id.
24
beds.157 As COVID-19 cases increase in several states throughout June 2019,158 concerns rise
about the risks of teaching higher education classes indoors during this pandemic.
Mitigation measures such as sitting six feet apart for hours at a time in an indoor space
may not suffice to deter COVID-19 virus spread indoors. “Social distancing guidelines don't
hold in indoor spaces where you spend a lot of time,” Dr. Bromage concluded.159 A study of a
COVID-19 outbreak in a South Korean office building found that “[d]espite considerable
interaction between workers on different floors of building X in the elevators and lobby, spread
of COVID-19 was limited almost exclusively to the 11th floor, which indicates that the duration
of interaction (or contact) was likely the main facilitator for further spreading of SARS-CoV-
2.”160 “Indoor spaces, with limited air exchange or recycled air and lots of people, are concerning
from a transmission standpoint. We know that 60 people in a volleyball court-sized room (choir)
results in massive infections. Same situation with the restaurant and the call center.”161
The main facilitator of infection “wasn’t common touch points, such as doors and
elevator buttons, but rather common airspace. When people talk—or sneeze or cough—they
produce respiratory droplets that can come to rest in other people’s mouths, noses, and lungs,”
Derek Thompson observed.162 “Talking for hours in close quarters, in an unventilated space, can
create an ideal petri dish for COVID-19 transmission. If someone sneezes or coughs in that room
the exposure risks increase.”163
Mitigation measures such as sitting six feet apart for hours at a time in an indoor space
may not suffice to deter COVID-19 virus spread indoors.
Scientists are studying the role of small droplets capable of lingering in the air in COVID
transmission, as compared to large droplets which fall to the ground faster. Lydia Bourouiba’s
study of droplet exhalation from sneezes and coughs found that “[p]eak exhalation speeds can
reach up to 33 to 100 feet per second (10-30 m/s), creating a cloud that can span approximately
157
See e.g., Karen Sloan, Here Are the Law Schools Moving Classes Online Amid Coronavirus, LAW.COM, March
10, 2020, https://www.law.com/2020/03/10/here-are-the-law-schools-moving-classes-online-amid-coronavirus/.
158
Mark Katkov, U.S. Sets Daily Record For New Coronavirus Cases, NPR KQED (June 26, 2020),
https://www.npr.org/sections/coronavirus-live-updates/2020/06/26/883799638/u-s-sets-daily-record-for-new-covid-
19-cases.
159
Bromage, supra note 149.
160
SY Park et al., Coronavirus disease outbreak in call center, South Korea, EMERG. INFECT. DIS., preprint
(Aug.2020), https://wwwnc.cdc.gov/eid/article/26/8/20-1274-f1.
161
Id.
162
Derek Thompson, Social Distancing Is Not Enough, We will need a comprehensive strategy to reduce the sort of
interactions that can lead to more infections, THE ATLANTIC (May 22, 2020),
https://www.theatlantic.com/ideas/archive/2020/05/how-will-we-ever-be-safe-inside/611953/ (emphasis in original).
163
Id.
25
23 to 27 feet (7-8 m).”164 “Currently used surgical and N95 masks are not tested for these
potential characteristics of respiratory emissions,” Bourouiba reported.165
Bourouiba found sneezes may travel much farther than six feet and contain large and
small droplets of virus and “gas clouds” capable of transmitting COVID-19. Bourouiba also
found “exhalations, sneezes, and coughs not only consist of mucosalivary droplets following
short-range semiballistic emission trajectories but, importantly, are primarily made of a
multiphase turbulent gas (a puff) cloud that entrains ambient air and traps and carries within it
clusters of droplets with a continuum of droplet sizes.”166 “Given various combinations of an
individual patient’s physiology and environmental conditions, such as humidity and temperature,
the gas cloud and its payload of pathogen-bearing droplets of all sizes can travel 23 to 27 feet (7-
8 m).” Bourouiba’s study embeds a video of emissions from a sneeze that can reach across a
room.
Morawska et al. stressed the “significant potential for inhalation exposure to viruses in
microscopic respiratory droplets (microdroplets) at short to medium distances (up to several
meters, or room scale).”167 A study of virus transmission in a restaurant in Guangzhou, China
found that “strong airflow from the air conditioner could have propagated droplets from table C
to table A, then to table B, and then back to table C,” infecting diners in the air flow path.168
WHO recognized that “reports related to indoor crowded spaces have suggested the
possibility of aerosol transmission, combined with droplet transmission, for example, during
choir practice, in restaurants or in fitness classes,” and called for more research on the potential
of airborne transmission of COVID-19.169 A commentary by Lidia Morawska and Donald K.
Milton, along with 239 scientists, appealed to “the medical community and to the relevant
national and international bodies to recognize the potential for airborne spread of COVID-19.”170
They advocate “preventive measures to mitigate this route of airborne transmission.”171 Air
164
Lydia Bourouiba, Turbulent Gas Clouds and Respiratory Pathogen Emissions: Potential Implications for
Reducing Transmission of COVID-19, 18 JAMA 1837 (2020),
https://jamanetwork.com/journals/jama/fullarticle/2763852.
165
Id.
166
Bourouiba, supra note 164.
167
Lidia Morawska, Donald K Milton, It is Time to Address Airborne Transmission of COVID-19, CLINICAL
INFECTIOUS DISEASES 2 (July 6, 2020), https://doi.org/10.1093/cid/ciaa939.
168
J. Lu et al., COVID-19 Outbreak Associated with Air Conditioning in Restaurant, Guangzhou, China, 2020, 26
Emerging Infectious Diseases, 1628 (July 2020), https://dx.doi.org/10.3201/eid2607.200764.
169
WHO, TRANSMISSION OF SARS-COV-2: IMPLICATIONS FOR INFECTION PREVENTION PRECAUTIONS, WHO
Scientific Brief (July 9, 2020), https://www.who.int/publications/i/item/modes-of-transmission-of-virus-causing-
covid-19-implications-for-ipc-precaution-recommendations.
170
Morawska & Milton, supra note 167, at 2.
171
Id.
26
conditioning, heating, and ventilation may play a role in COVID-19 transmission as these
systems affect air circulation and may affect airborne particles.172 Morawska and Milton
emphasized the heighted importance of analyzing airborne transmission of COVID-19 “when
countries are re-opening following lockdowns - bringing people back to workplaces and students
back to schools, colleges, and universities.”173
When people share a common airspace for an hour or more in an indoor class, COVID-19
infection risks rise. John Brooks, MD, Chief Medical Officer of the CDC's COVID-19 response,
revised CDC guidance to recognize that if someone “sneezes in close proximity to you during a
brief interaction, ‘That may last only a few seconds, but that's a high-risk circumstance.’”174 As
discussed below, non-medical face masks, even if consistently worn, may be insufficient to
contain viral particles contained by sneezes, coughs, or loud talking at lecture level.
E. Mask-Wearing May be Inadequate to Mitigate Virus Spread in Universities

Wearing masks properly at all times when in public, including in class and while at the
university campus, may diminish virus spread. Kai et al model the effect of masking on virus spread,
predicting that “universal masking at 80% adoption…flattens the curve significantly more than maintaining a strict
lockdown…. Masking at only 50% adoption…is not sufficient to prevent continued spread.”175 The US
Department of Labor recommends that workplaces take steps to “limit spread of the respiratory
secretions of a person who may have COVID-19. Provide a face mask, if feasible and available,
and ask the person to wear it, if tolerated.”176
The type of mask worn influences protection against virus spread. While “surgical masks
don’t protect against infection with SARS-CoV-2, they can help trap infectious respiratory
172
Harvard Staff Writer, Is Air Conditioning Helping Spread COVID In The South?, THE HARVARD GAZETTE (June
29, 2020) ( “hot summer temperatures can create situations similar to those in winter, when respiratory ailments tend
to surge, driving people indoors to breathe — and rebreathe —air that typically is little refreshed from outside.”).
173
Morawska & Milton, supra note 167, at 4.
174
Sarah Crow, The CDC Just Changed This One Major Coronavirus Guideline, BEST LIFE, MICROSOFT NEWS, July
28, 2020, https://www.msn.com/en-us/health/medical/the-cdc-just-changed-this-one-major-coronavirus-
guideline/ar-BB17fNLj?ocid=msedgdhp.
175
De Kai et al., Universal Masking is Urgent in the COVID-19 Pandemic: SEIR and Agent Based, p. 5,
ACADEMIA.EDU, preprint, April 2020,
https://www.researchgate.net/publication/340933456_Universal_Masking_is_Urgent_in_the_COVID-
19_Pandemic_SEIR_and_Agent_Based_Models_Empirical_Validation_Policy_Recommendation (“universal
masking at 80% adoption…flattens the curve significantly more than maintaining a strict lockdown…. Masking at
only 50% adoption…is not sufficient to prevent continued spread.”); R. Stutt, et al., A Modelling Framework To
Assess The Likely Effectiveness Of Facemasks In Combination With ‘Lock-Down’ In Managing The COVID-19
Pandemic, PROC. R. SOC. A 476: 20200376, https://royalsocietypublishing.org/doi/10.1098/rspa.2020.0376
(“facemask use by the public could significantly reduce the rate of COVID-19 spread, prevent further disease waves
and allow less stringent lock-down regimes. The effect is greatest when 100% of the public wear facemasks.”).
176
USDOL, US HHS, Guidance on Preparing Workplaces for COVID-19, supra note 57, at 10.
27
secretions.”177 N95-type masks are more effective at limiting virus transmission when properly
fit and constantly worn. Due to limited supply, officials recommend reserving these types of
masks to health care professionals and other front-line workers.178 “Surgical masks provided
about twice as much protection as homemade masks, the difference a bit more marked among
adults. FFP2 masks [similar to N95 masks] provided adults with about 50 times as much
protection as homemade masks, and 25 times as much protection as surgical masks.”179
“Homemade face masks only offer a small degree of protection, but they may help
prevent the spread of SARS-CoV-2 from asymptomatic people.”180 Siddhartha Verma, Manhar
Dhanak, and John Frankenfield found that the “stitched mask made of quilting cotton was
observed to be the most effective, followed by the commercial mask, the folded handkerchief,
and, finally, the bandana.”181 Their study found that a mask’s “higher thread count by itself is not
sufficient to guarantee better stopping capability; the bandana covering, which has the highest
thread count among all the cloth masks tested, turned out to be the least effective.”182
Face shields may help deter virus spread, but more study is needed about their
effectiveness with and without a mask and other measures.183 Dr. Solmaz Nabipour, Clinical
Assistant Professor, Department of Anesthesiology, Anesthesiology Medical Director, Stanford
Cancer Center at Southbay, reports that she and her colleagues at Stanford’s cancer center “really
have to yell when wearing a mask and face shield at work.”184 Dr. Nabipour and her health care
colleagues wear N95 masks and personal protective equipment (PPE) appropriate to the health
profession, PPE levels not currently recommended for schools and universities. Face shields and
non-medical grade masks could encourage loud talking that promotes virus transmission. “Proper
177
Jill Seladi-Schulman, Ph.D., Medically reviewed by Meredith Goodwin, MD, FAAFP, Can Face Masks Protect
You from the 2019 Coronavirus? What Types, When and How to Use, HEALTHLINE (March 24, 2020),
https://www.healthline.com/health/coronavirus-mask.
178
Id.
179
Marianne van der Sande, Peter Teunis & Rob Sabel, Professional and Home-Made Face Masks Reduce Exposure
to Respiratory Infections among the General Population, 3 PLOS ONLINE A PEER REVIEWED OPEN ACCESS JOURNAL
(July 2008), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2440799/.
180
Seladi-Schulman, supra note 177.
181
Siddhartha Verma, Manhar Dhanak &John Frankenfield, Visualizing the effectiveness of face masks
in obstructing respiratory jets, 32 PHYS. FLUIDS 061708, 061708-5, preprint June 30, 2020, 5 (forthcoming 2021), ,
https://aip.scitation.org/doi/10.1063/5.0016018.
182
Id.
183
E.J. Mundell, Face shields a more effective deterrent to COVID?, WEBMD, April 30, 2020,
https://www.webmd.com/lung/news/20200430/face-shields-a-more-effective-deterrent-to-covid#1; Eli
N. Perencevich; Daniel J. Diekema; Michael B. Edmond, Moving Personal Protective Equipment Into the
Community Face Shields and Containment of COVID-19, Viewpoint/Opinion, JAMA (April 29, 2020),
https://jamanetwork.com/journals/jama/fullarticle/2765525.
184
Solmaz Nabipour, M.D., written comments to Catherine Sandoval on the text of this Article, July 3, 2020 (on file
with the author, Catherine Sandoval).
28
hygiene practices and social distancing are still the best methods of keeping yourself safe,” Dr.
Seladi-Schulman advises.185
Compliance with mask wearing recommendations and mandates has not been universal.
Concern about mask wearing compliance and enforcement motivated approximately 12% of the
faculty at Pennsylvania State University to sign a petition “demanding the right to bar from their
classrooms students who refuse to wear masks, and the autonomy to decide whether to teach in
person or online. They have asked the university to outline clear procedures for handling violations
of social distancing, mask wearing, and other safety protocols.”186 The resistance of some people to
wearing a mask (which may be linked to political ideology, concepts of masculinity, or other
factors)187 while bars, restaurants, and businesses reopened in localities throughout the United
States propelled the surge in COVID-19 infection in June 2020.188
A popular taco restaurant in Los Angeles, Hugos Tacos, closed two locations after hourly
conflicts with some customers who refused to wear masks, threw liquids at workers who asked
them to wear masks, and told Latino workers to “go back to where you came from.”189 We
would not expect any law student, faculty, or staff member to behave in this fashion or to engage
in racist taunts or assaults. Sadly, the conflict about mask wearing is unlikely to be left outside of
the Law School door.
The Governor of the State of Georgia issued an Executive Order suspending any state,
county, local, municipal order, ordinance, rule, or regulation that requires persons to wear face
coverings masks, face shields, or any other Personal Protective Equipment while in place of
public accommodation or on public property to the extent they are most restrict than the
Governor’s Executive Order.190 This order poses challenges for public universities whose Law
School is considered public property. As subdivisions of the state, public universities may be
185
Seladi-Schulman, supra n. 177.
186
Susan Snyder, What If Students Won’t Wear Masks In Class? Professors Want Assurances That Universities Will
Enforce A Mandate, PHILADELPHIA INQUIRER (June 17, 2020), https://www.inquirer.com/education/college-classes-
fall-semester-face-masks-covid-19-20200617.html.
187
See e.g., Zach Anderson, Many Republicans Are Opposing Mandatory Mask Wearing Requirements, While
Democrats Have Been More Supportive, HERALD TRIBUNE (June 28, 2020),
https://www.heraldtribune.com/news/20200628/mask-mandates-face-gop-resistance-across-florida; Emily
Willingham, The Condoms of the Face: Why Some Men Refuse to Wear Masks, SCIENTIFIC AMERICAN (June 29,
2020), https://www.scientificamerican.com/article/the-condoms-of-the-face-why-some-men-refuse-to-wear-masks/.
Cf. Reuters, 'Wear a Mask!' Republicans Split With Trump as Virus Cases Surge, US NEWS, June 29, 2020,
https://www.usnews.com/news/us/articles/2020-06-29/wear-a-mask-republicans-change-tune-as-covid-19-surges.
188
Lulu Garcia-Navarro, U.S. COVID-19 Cases Surge, Worldwide Deaths Near 500,000, NPR (June 28, 2020),
https://www.npr.org/2020/06/28/884351876/u-s-covid-19-cases-surge-worldwide-deaths-near-500-000.
189
Kyung Lah, Exhausted by Conflicts Over Guests Refusing to Wear Masks, A Popular California Taco Spot
Temporarily Closes, L.A. TIMES (June 30, 2020), https://www.mercurynews.com/2020/06/30/exhausted-by-
conflicts-over-guests-refusing-to-wear-masks-a-popular-california-taco-spot-temporarily-closes/.
190
STATE OF GEORGIA, EXECUTIVE ORDER, Empowering a Healthy Georgia, p. 32 (July 15, 2020),
https://static.fox5atlanta.com/www.fox5atlanta.com/content/uploads/2020/07/07.15.20.01.pdf.
29
subject to Georgia’s or similar Executive Orders suspending requirements to wear a mask while
on public property.
Even for those willing to wear masks, over the hours of class, transition between classes,
meetings, and study, some people will likely take off their mask to eat, drink, wipe their nose, or
tend to coughing and sneezing. In-person classes during the COVID-19 pandemic can
transmogrify common activities such as sneezing, coughing, drinking, eating, or touching your
face from the mundane to a cue that predicts harm and triggers fear.191
During the COVID-19 pandemic, once ordinary behaviors become distractions that can
limit cognitive abilities and interfere with learning and class participation.192 Such actions signal
danger of COVID-19 transmission that promotes fear and interferes with learning.193 “Responses
to danger can include reflexes, such as freezing or fleeing an imminent threat, and active
responses, such as learned avoidance responses.”194
Concern about virus transmission and the effectiveness of mitigation measures may
produce fear and chronic stress. Chronic stress and anxiety can contribute to inflammation that
appears to increase susceptibility to severe COVID-19 illness.195 Chronic stress may also inhibit
191
Cf. Susan Sangha, et al., Know Safety, No Fear, 108 NEUROSCIENCE & BIOBEHAVIORAL REVIEWS 218, 218 (Jan.
2020), https://www.sciencedirect.com/science/article/pii/S0149763419300491 (“threat expectations and the
associated behavioral responses must be sensitive to changes in the predictive status of cues. Cues that once
predicted harm may no longer do so...”)
192
See James Lang, The Distracted Classroom, CHRONICLE OF HIGHER EDUCATION (April 14, 2017),
https://community.chronicle.com/news/1767-the-distracted-classroom (citing Adam Gazzaley & Larry D. Rosen,
THE DISTRACTED MIND: ANCIENT BRAINS IN A HIGH-TECH WORLD (MIT, 2016) (“We have a restricted ability to
distribute, divide, and sustain attention; actively hold detailed information in mind; and concurrently manage or even
rapidly switch between competing goals.")
193
T. Scott Bledsoe & Janice J. Baskin, Recognizing Student Fear: The Elephant in the Classroom, 62 COLLEGE
TEACHING, 32, 39 (2014), https://eric.ed.gov/?id=EJ1025024 (“active learning takes place when students feel safe
and supported by instructors and fellow classmates.”); Id. at 33 (“fear…impacts our cognitive processes—how we
perceive our environment, how we remember things, whether we can focus and pay attention, how well we plan and
then execute that plan, and how well we problem-solve.”)
194
Sangha et al., supra note 191, at 218; See e.g., Rany Abend, et al., 87 In Fear-Related Neuroplasticity and
Anxiety Disorders, BIOLOGICAL PSYCHIATRY, 916 (May 15, 2020) (anticipatory response to potential threats result
in anxiety measurable by heightened skin conductance); Adriano Schimmenti, et al., The Four Horsemen Of Fear:
An Integrated Model Of Understanding Fear Experiences During The Covid-19 Pandemic, 17 CLINICAL
NEUROPSYCHIATRY, 41, 41 (Apr. 2020) (describing four interrelated dialectical domains of fear experiences during
the COVID-19 pandemic: (1) fear of the body/fear for the body, (2) fear of significant others/fear for significant
others, (3) fear of not knowing/fear of knowing, and (4) fear of taking action/fear of inaction)).
195
Barbara Jacquelyn Sahakian et al., How Chronic Stress Changes the Brain – and What
You Can Do to Reverse the Damage, CONVERSATION (Mar. 11, 2020),
https://theconversation.com/how-chronic-stress-changes-the-brain-and-what-you-can-do-toreverse-
the-damage-133194; Yun-Zi Liu, et al., Inflammation: The Common Pathway of Stress-Related Diseases, 11 FRONT
HUM NEUROSCI., Article 316, 2 (June 20, 2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5476783/ (“stress
can activate inflammatory response in brain as well as peripherally.”); Sonja Chiappetta et al., COVID-19 and The
Role Of Chronic Inflammation In Patients With Obesity, INTERNATIONAL JOURNAL OF OBESITY, 1 (May 5, 2020),
https://doi.org/10.1038/s41366-020-0597-4 (“The current pandemic of COVID-19 and the risk of SARSCoV-2
30
learning by laying down in the brain “scaffolding linked to anxiety, depression, and post-
traumatic stress disorder,” inhibiting connections to “the prefrontal cortex, which would improve
learning and memory.”196 Chronic stress can trigger persistent inflammation, a condition that
contributes to diabetes and heart disease,197 both risk factors for poor COVID-19 outcomes
including death.198 Chronic stress can affect motivation, mental agility, and disturb sleep.199
Depression can impair “cognition in both non-emotional domains, such as planning and
problem-solving, and emotional and social areas, such as creating attentional bias to negative
information.”200
CDC warns pandemics cause stress. “Fear and anxiety about a new disease and what
could happen can be overwhelming and cause strong emotions in adults and children.”201
Teaching in person under such conditions undermines the educational objectives of promoting
high-quality teaching, learning, professional development, and unduly risks health and safety.
F. Antibody-Testing Accuracy Questions, Short-Term Immunity from Antibodies,

and the Surge in COVID-19 Cases in Summer 2020
The field of COVID-19 antibody testing is evolving, leading the CDC to warn that
antibody tests may lead to false positives (falsely indicating the presence of antibodies).202 The
extent and duration of antibody protective effects of COVID-19 remains unknown.
Consequently, “it cannot be assumed that individuals with truly positive antibody test results are
protected from future infection,” CDC cautions 203
poses a particular risk to people living with preexisting conditions that impair immune response or amplify pro-
inflammatory response.”).
196
Christopher Bergland, Chronic Stress Can Damage Brain Structure and Connectivity, PSYCHOLOGY TODAY
(Feb. 12, 2014), https://www.psychologytoday.com/us/blog/the-athletes-way/201402/chronic-stress-can-damage-
brain-structure-and-connectivity.
197
Sahakian et al., supra note 195.
198
CDC, Coronavirus Disease 2019 (COVID-19), People of Any Age with Underlying Medical Conditions, supra
note 69.
199
Sahakian et al., supra note 195.
200
Id.
201
CDC, Coronavirus Disease 2019 (COVID-19), Pandemics can be stressful, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/managing-stress-anxiety.html (last visited June 26,
2020).
202
Coronavirus Disease 2019 (COVID-19), Antibody Testing Interim Guidelines,
https://www.cdc.gov/coronavirus/2019-ncov/lab/resources/antibody-tests-guidelines.html (last visited May 28,
2020).
203
Id.
31
Two studies of COVID-19 infections found that antibody levels decreased two to three
months after illness onset.204 Long et al. concluded that the short duration of the antibodies
studied reveals the “risks of using COVID-19 ‘immunity passports’ and support the prolongation
of public health interventions, including social distancing, hygiene, isolation of high-risk groups
and widespread testing.”205
A study of four types of seasonal coronaviruses (other than COVID-19) that followed a
small number of patients (10) over a period of 35 years following infection by any of the
coronaviruses found “frequent reinfections at 12 months post‐infection and substantial reduction
in antibody levels as soon as 6 months post‐infection.”206 “Coronavirus protective immunity is
short‐lasting,” the University of Amsterdam study authors concluded.207
V. COVID Testing and Screening

Several Law Schools, universities, workplaces, and indoor spaces open to workers or the
public during the COVID-19 pandemic are taking or planning steps to screen entrants to
minimize the risk of COVID-19 spread. Local health departments may require screening
measures that may vary over time.
The effectiveness of temperature checks at building entry points as a COVID-19 screen
remains unproven. A British study of temperature checks at airports found that “46% (95%
confidence interval: 36 to 58) of infected travellers would not be detected, depending on
incubation period, sensitivity of exit and entry screening, and proportion of asymptomatic
cases.”208 CDC reports the “the incubation period (the time from exposure to development of
symptoms) of SARS-CoV-2 (COVID-19) and other coronaviruses (e.g. MERS-CoV, SARS-
CoV) ranges from 2–14 days.”209 Temperature checks may not identify those who are infected
with COVID-19 but are presymptomatic, remain asymptomatic, or who may be ill but not
204
Q. Long, et al., Clinical and immunological assessment of asymptomatic SARS-CoV-2 infections, NAT MED
(2020), https://doi.org/10.1038/s41591-020-0965-6; S. M. Kissler, C. Tedijanto, E, Goldstein, Y.H. Grad, M.
Lipsitch, Projecting the transmission dynamics of SARS-CoV-2 through the postpandemic period, 368 SCIENCE, 860
(2020), https://science.sciencemag.org/content/sci/early/2020/04/14/science.abb5793.full.pdf; Berkeley Lovelace,
Jr., Coronavirus Antibodies May Last Only Two To Three Months After Infection, Study Suggests, CNBC, June 18,
2020 (“Within eight weeks, 81% of the asymptomatic people saw a reduction in neutralizing antibodies, compared
with 62% of symptomatic patients. Additionally, antibodies fell to undetectable levels in 40% of asymptomatic
people, compared with 12.9% of symptomatic people, according to the study’s findings.”)
205
Id.
206
Arthur W.D. Edridge, et al., Human coronavirus reinfection dynamics: lessons for SARS‐CoV‐2, MEDRXIV,
preprint, May 18, 2020, https://doi.org/10.1101/2020.05.11.20086439.
207
Id. at 1.
208
Billy J. Quilty, et al., Effectiveness of airport screening at detecting travellers infected with novel coronavirus
(2019-nCoV), 25 EURO SURVEILL. Issue 5 (Feb. 6, 2020), https://doi.org/10.2807/1560-7917.ES.2020.25.5.2000080.
209
CDC, Coronavirus Disease 2019 (COVID-19), FAQ, (Transmission), June 25, 2020,
https://www.cdc.gov/coronavirus/2019-ncov/hcp/faq.html#Testing,-Diagnosis,-and-Notification.
32
develop a fever.210 Dr. Nabipour observed that temperature checks may yield a “false sense of
security” that reduces vigilance once the threshold is crossed.211
Seyed Moghadas et al. found that silent transmission “during the presymptomatic and
asymptomatic stages are responsible for more than 50% of the overall attack rate in COVID-19
outbreaks.”212 Kimon V. Argyropoulos et al. found that COVID-19 positive patients in their
study who had mild COVID-19 carried a higher viral load than those hospitalized with severe
symptoms.213 They recommended addressing viral shedding by those with mild symptoms to
protect public health.214 The prevalence of presymptomatic and asymptomatic COVID-19
transmission indicates that temperature or symptom checks are an inadequate screen.
Some universities are planning to administer COVID-19 tests to least some members of
the campus community with varying degrees of frequency.215 Testing frequency, the number of
people tested, and the speed of testing results and contact tracing will influence the effectiveness
of testing regimes to limit COVID spread. If positive cases are identified, contact tracing and
quarantine protocols are needed to limit contagion.216
Stanford University announced its plans to reopen its campus to undergraduates and
graduate students for the 2020-2021 academic year, using “testing, contact tracing and isolation”
on campus for those diagnosed with COVID-19.217 Stanford plans to dramatically reduce the
student body on campus at any one time, “inviting only freshmen, sophomores and new transfer
students to come to campus for the fall quarter. Juniors and seniors will be permitted on campus
210
Claire Gillespie, Are Coronavirus Temperature Checks Really Effective? Here's What Experts Say, HEALTH,
April 29, 2020, https://www.health.com/condition/infectious-diseases/coronavirus/coronavirus-temperature-checks.
211
Solmaz Nabipour, M.D., written comments to Catherine Sandoval on the text of this Article, July 3, 2020 (on file
with the author, Catherine Sandoval).
212
Seyed M. Moghadasa, et al., The implications of silent transmission for the control of COVID-19 outbreaks,
PNAS (July 6, 2020), https://doi.org/10.1073/pnas.2008373117.
213
ASSOCIATION OF INITIAL VIRAL LOAD IN SARS-CoV-2 PATIENTS WITH OUTCOME AND
SYMPTOMS, The American Journal of Pathology, 9 (2020),
https://www.sciencedirect.com/science/article/pii/S000294402030328X.
214
Id.
215
Doug Most, BU to Set Up COVID-19 Testing for Students, Faculty, and Staff, BU TODAY, May 21, 2020,
http://www.bu.edu/articles/2020/covid-19-testing-for-bu-students-faculty-and-staff/.
216
See Coronavirus Disease 2019 (COVID-19), Principles of Contact Tracing, CDC,
https://www.cdc.gov/coronavirus/2019-ncov/php/principles-contact-tracing.html (last visited June 26, 2020)
(Identifying contacts and ensuring they do not interact with others is critical to protect communities from further
spread.).
217
A Message From President Marc Tessier-Lavigne and Provost Persis Drell on Academic Planning for the Fall
Quarter And 2020-21 Academic Year, Stanford University, last modified June 12, 2020,
https://healthalerts.stanford.edu/covid-19/2020/06/03/a-message-from-president-marc-tessier-lavigne-and-provost-
persis-drell-on-academic-planning-for-the-fall-quarter-and-2020-21-academic-year/ [hereinafter Stanford President
Tessier-Lavigne Message].
33
for the winter and spring quarters, with freshmen and sophomores returning next summer.”218
Stanford’s Clinical Virology Laboratory developed a rapid COVID-19 test following the Food
and Drug Administration’s February 29, 2020 ruling that allows laboratories to develop tests and
apply for certification.219 Access to rapid, reliable testing can support testing, tracing, and
isolation plans, but cannot be presumed. In July 2020, wait times to take a test and get results in
many states create a “hot mess” in the Arizona sun and the Texas heat.220
In July 2020 shortages of testing materials including reagents and test tubes reemerged,
replicating shortages experienced in March 2020.221 The University of California at Davis is
trying to make test tubes.222 These shortages highlight the danger in relying on testing and
contact tracing as a cornerstone of in-person or hybrid teaching during this pandemic.
Stanford’s plan recognizes that if “we are to continue our on-campus operations even if
there is a resurgence of infections in our community, we will need to have sufficient residential
space available to allow students to quarantine or self-isolate on campus.”223 Stanford represents
that it has sufficient on-campus housing for this objective, a luxury many universities do not
share. Increases in infection rates may test the sufficiency of quarantine facilities and measures.
Aden Hayes asks if five percent of students test positive on move-in weekend will a university
with 10,000 students be able to effectively isolate 500 students in single rooms?224 Will the
university be able to test all of their contacts and isolate those on-campus contacts?225 Will the
university timely retest those identified as COVID-19 positive, though delays in testing are
challenging contact tracing methods?226
218
Ron Kroichick, Stanford’s Plan For Fall Quarter: Most Classes Online, Half The Students On Campus ,
S AN F RANCISCO C HRONICLE , June 29, 2020, https://www.sfchronicle.com/education/article/Stanford -s-
plan-for-fall-quarter-Most-classes-15375374.php.
219
Krista Conger, Stanford Medicine COVID-19 Test Now In Use, STANFORD MEDICINE, March 5, 2020,
https://med.stanford.edu/news/all-news/2020/03/stanford-medicine-COVID-19-test-now-in-use.html.
220
Americans face COVID-19 test delays as virus surges: "A hot mess," CBS NEWS, July 9, 2020,
https://www.cbsnews.com/news/coronavirus-testing-delays-results-surge/.
221
Genoa Barrow, Local COVID Testing Sites To Reopen, SACOBSERVER.COM, July 10, 2020,
https://sacobserver.com/2020/07/local-covid-testing-sites-to-reopen/.
222
Id.
223
Stanford President Tessier-Lavigne Message, supra note 217.
224
Hayes, supra note 56.
225
Id.
226
See Morgan McFall-Johnsen, The US is in the middle of another coronavirus testing crisis — on a far larger
scale than before, BUSINESS INSIDER, July 10, 2020, https://www.businessinsider.com/another-coronavirus-testing-
shortage-has-hit-us-2020-7.
34
Several Ph.D. students developed a model for return to campus at Cornell University in
Ithaca, New York. 227 Their model depends heavily on testing every five days, on-campus
quarantine of up to 700 in the two weeks after campus move-in, and extensive contact tracing
once COVID-19 infection is detected.228 The Cornell model does not address the likely effects of
COVID-19 infection on campus community members who are particularly vulnerable to the
virus. Models which accept infection and hospitalization rates resulting from bringing more than
a thousand people together must analyze the equity issues raised by COVID-19 affliction.
The Cornell model analysis assumes that following the peak infection after move-in, “the
greatest sustained source of infection will be interaction with the outside community, the
quarantined population is likely to contain a larger fraction of faculty, staff, and students living
off campus.”229 Law Schools do not operate in the bubble the Cornell model envisions. Law
Schools form a hub with spokes that reach into the surrounding community, other states, and
nations. Contact with extended networks raises the potential for COVID-19 transmission that can
“link infected hosts from the same epidemiological transmission clusters.”230
Contact tracing relies on accurate testing.231 Test processing delays ranging from four to
seven days contribute to virus spread. Some people may not self-quarantine while waiting to get
a test or for test results.”232 Others may not know they should self-quarantine because they have
not been made aware through contact tracing of their potential contact with individual(s) infected
with COVID-19. Harvard epidemiologist Michael Mina said “[o]ur modeling efforts more or less
show that if you don't get results back in a day or so, outbreaks really can't be stopped without
isolating and quarantining all contacts preemptively."233
The elongated testing process destabilizes the memory-based foundation for contact
tracing that tracks who the infected person was in contact with over the past weeks.234 A CDC
227
J. Massey Cashore, et al., COVID-19 Mathematical Modeling for Cornell’s Fall Semester, June 15, 2020, (no
publication site stated), https://people.orie.cornell.edu/pfrazier/COVID_19_Modeling_Jun15.pdf.
228
Id.
229
Id.
230
For an analysis of COVID-19 transmission networks see, Pavel Skums, et al., Global transmission network of
SARS-CoV-2: from outbreak to pandemic, medRxIV, Preprint (March 27, 2020),
https://doi.org/10.1101/2020.03.22.20041145.
231
Brianna Abbott & Sarah Krouse, Growing Wait Times for Covid-19 Test Results Hinder Virus Response, THE
WALL ST. JOURNAL, July 16, 2020, https://www.wsj.com/articles/growing-wait-times-for-covid-19-test-results-
hinder-virus-response-11594891800.
232
Id.
233
McFall-Johnsen, supra note 226.
234
Abbott & Krouse, supra note 231 (“As days go on, people are less likely to be able to recall to a contact tracer
where they were and who they were with, public-health experts said. At that point, the disease investigators have
likely missed the chance to break the chain of transmission.”)
35
survey multistate telephone survey of 350 adult inpatients and outpatients who tested positive for
SARS-CoV-2 infection highlights the challenges with contact tracing. CDC’s survey found that
“only 46% reported recent contact with a COVID-19 patient.”235 CDC’s survey found that
among “339 (97%) participants who provided exposure histories, 46% (153 of 332) reported a
close case contact, defined as being within 6 feet of someone with a diagnosis of COVID-19,
during the 2 weeks preceding illness onset or the date of testing for asymptomatic patients.”236
The close contact “was most commonly a family member (45%, 69 of 153) or a work colleague
(34%, 52 of 153).”237
Use of cell phone and App tracking to identify where people were before they received a
positive COVID-19 diagnosis may not reveal who that person was with at those locations. Some
Apps depend on people downloading the App or allowing COVID-19 tracking technology.238
California issued guidelines in July 2020 prioritizing testing “for individuals who are at
high risk, including hospitalized patients, healthcare workers, first responders and essential
workers, people with symptoms, residents and employees in group living facilities and people
who may have been exposed in high-risk situations.”239 Testing shortages and delays highlight
the danger of relying on testing and contact tracing as a cornerstone of plans to reconvene in-
person classes and campus activities prior to availability and distribution of an effective COVID-
19 vaccine and treatment.
VI. Physical Factors at Universities that May Contribute to Virus Spread
A. Toilet Plumes Can Spread Virus Particles
Virus exposure risks may be compounded by other factors such as the indoor
environment’s physical features. Do the windows open? Does the building’s ventilation system
displace room air at the rate required by the public health department.240 Are there separate
stairways for going in different directions (up vs. down)? Do restrooms have lids that close to
235
MW Tenforde, et al., Characteristics of Adult Outpatients and Inpatients with COVID-19 — 11 Academic
Medical Centers, United States, March–May 2020, 69 MMWR MORB MORTAL WKLY REP. 841, 841 (June 30 2020),
https://www.cdc.gov/mmwr/volumes/69/wr/mm6926e3.htm.
236
Id. at 2.
237
Id.
238
See David Nielo, How Covid-19 Contact Tracing Works on Your Phone, WIRED, June 7, 2020,
https://www.wired.com/story/covid-19-contact-tracing-apple-google/ (“your phone will be logging other phones it
comes into contact with, assuming both your device and the others are running a Covid-19 tracking app that's
been fully enabled.
239
CA.GOV, Testing and Treatment, COVID19.CA.GOV, July 16, 2020, https://covid19.ca.gov/testing-and-
treatment/.
240
Dean Chemerinsky, supra note 54, at 1.
36
reduce “toilet plumes” that effectively spread COVID-19? Are there sufficient facilities to
support hand washing? Risk factors need to be layered to analyze workplace and study safety.
Many local health rules require handwashing stations or hand sanitizer availability as a
measure to mitigate COVID-19 spread?241 In many universities, handwashing stations are
typically only available in restrooms. Many campus buildings do not have restrooms on every
floor or “don’t have women’s bathrooms on every floor, so the idea that everyone could just
wash their hands between classes seems implausible.”242 CDC recommends that hand washing is
more effective than hand sanitizers, although hand sanitizers may be a useful backup.243
Several studies indicate that toilets flushed without a lid or with the lid up spray a “toilet
plume” into the air capable of transmitting viruses such as COVID-19.244 Yi et al. reported that
toilet flushing is “capable of expelling aerosol particles out of the toilet bowl,” and found that
“40%–60% of the total number of particles can rise above the toilet seat to cause large-area
spread, with the height of these particles reaching 106.5 cm [3.4 feet] from the ground.245 “Even
in the post-flushing period (35 s–70 s after the last flushing), the upward velocity of the diffused
particles can reach 0.27 cm/s–0.37 cm/s, and they continue to climb.”246 Yi et al. recommend
putting the toilet lid down before flushing.247
Toilets do not have lids in many university buildings, making the lid closing method
unavailable to reduce toilet plume spread. Wearing a mask while visiting a public or university
restroom should be encouraged, particularly in restrooms that have no toilet lids. The potential
for COVID transmission through the eyes248 may, reduce the effectiveness of wearing a mask
that covers the nose and mouth to avoid a toilet plume after a recent flush.
241
USDOL, US HHS, Guidance on Preparing Workplaces for COVID-19, supra note 57, at 8.
242
Huang & Austin, supra note 39, at 26.
243
CDC, Show Me the Science – When & How to Use Hand Sanitizer in Community Settings,
https://www.cdc.gov/handwashing/show-me-the-science-hand-sanitizer.html (last visited June 27, 2020).
244
Joshua Bote, Can a toilet flush spread coronavirus? Here's why you might want to put the lid down, USA
TODAY, https://www.usatoday.com/story/news/health/2020/05/15/coronavirus-transmission-flush-lid-down-prevent-
toilet-plumes/5198015002/ (reporting that fecal matter, along with various pathogens and water particles, can blast
through the air and on surfaces after flushing the toilet without the lid on, a phenomenon known as a “toilet
plume.”); Brian Wong, Coronavirus: pathogens linger in toilet for hours if you flush without closing lid – and some
may still sneak through even if it is down, Hong Kong study finds, SOUTH CHINA MORNING POST, Feb. 13, 2020,
https://www.scmp.com/news/hong-kong/health-environment/article/3050502/coronavirus-hong-kong-study-shows-
pathogens-can (reporting that a toilet flush can release up to 80,000 polluted droplets and leave them suspended a
metre in the air for hours if the lid is left up).
245
Yun-yun Li, et al., Can A Toilet Promote Virus Transmission? From A Fluid Dynamics Perspective, 32 PHYS.
FLUIDS, 065107 (June 16, 2020), https://aip.scitation.org/doi/10.1063/5.0013318.
246
Id.
247
Id.
248
Ping Wu, et al., COVID-19 May Be Transmitted Through the Eye, Report Finds, 138 JAMA OPHTHALMOLOGY,
2020 575 (March 31, 2020), https://jamanetwork.com/journals/jamaophthalmology/fullarticle/2764083.
37
Dean Erwin Chemerinsky’s memo about the U.C. Berkeley Law School’s decision to
hold all classes online in Fall 2020 cited U.C. Berkeley Campus restrictions on restroom
occupancy to “only one person in a restroom at a time, no matter how large the restroom” as a
factor that effectively restricted the classrooms that U.C. Berkeley could simultaneously
convene.249 Neither the memo nor any publicly available documents explain the basis for U.C.
Berkeley’s restroom occupancy restriction policy. The one person at a time limitation no matter
the size of the restroom suggests this restriction is not simply driven by social distancing
protocols. The University of Denver’s reopening protocol requires only one person at a time in
the restroom “if distancing a 6-foot separation cannot be maintained.”250 Restroom occupancy
restrictions, often a small but important space, make it difficult to schedule even one class, let
alone several classes.
CDC recommends that IHE add “physical barriers, such as plastic flexible screens,
between bathroom sinks…especially when they cannot be at least 6 feet apart.”251 Sink faucets
that need to be touched require disinfection between uses. The imperative of handwashing,
particularly after using the bathroom, indicates that people will remain in the restroom while the
toilet plume lingers in the air. For campuses that provide housing, CDC advises placing plastic
barriers between beds that are not at least six feet apart.252 Such barriers and shared bathrooms
may be insufficient to prevent virus spread in dorms and other shared spaces.
B. Reducing Shared Use of Objects Including Electronics May Diminish Contact

Transmission
CDC recommends reducing use of shared items.253 CDC reports that while COVID is
primarily spread from person to person, it “may be possible that a person can get COVID-19 by
touching a surface or object that has the virus on it and then touching their own mouth, nose, or
possibly their eyes.”254
“Use of shared objects (e.g., lab equipment, computer equipment, desks) should be
limited when possible, or cleaned between use,” CDC advises.255 In a classroom setting, chairs
249
Id.
250
University of Denver, Reopening Protocol for Social Distancing & PPE Issued, May 11, 2020,
https://www.du.edu/sites/default/files/2020-
05/DU%20COVID%20Protocol%20Social%20Distancing%20PPE_5.11.2020%20Final_0.pdf.
251
252
CDC, Coronavirus Disease 2019 (COVID-19), Shared and Congregate Housing, May 7, 2020,
https://www.cdc.gov/coronavirus/2019-ncov/community/shared-congregate-house/index.html.
253
Id.; USDOL, US HHS, Guidance on Preparing Workplaces for COVID-19, supra note 57, at 9 (“Discourage
workers from using other workers’ phones, desks, offices, or other work tools and equipment, when possible.”)
254
CDC, How it Spreads, supra note 124.
255
Id.
38
are often shared, as are markers and erasers for whiteboards, textbooks, and physical materials.
CDC suggests encouraging “students, faculty, and staff to use disinfectant wipes to wipe down
shared desks, lab equipment, and other shared objects and surfaces before use.”256 Monitoring
proper cleaning and use of disinfecting wipes before class may require providing disinfecting
wipes and assigning someone to ensure that these tasks are carried out consistently. Faculty
members would face challenges fulfilling that role while they are setting up for their lecture and
focusing on educational content and delivery.
Shared spaces also include library areas where students may study between in-person
classes or appointments. Even if prolonged library study is discouraged, Law Schools offering
in-person classes should anticipate that students will sit and study between classes. Students will
use tables, desks, chairs, computer plugs, and other equipment that will need cleaning and
disinfecting between uses by different people. Law Schools that encourage students to “leave the
building asap after class--no socializing in the hallways or other public spaces,”257 may find
students scheduled for multiple in-person classes on a particular day studying outside, on
benches, or in their car if they have one, and do not have a campus dorm or nearby room.
CDC recommends removing or storing soft and porous materials, such as area rugs and
seating to reduce cleaning and disinfecting challenges. Administrators need to examine the types
of chairs provided to faculty and students in shared settings such as classrooms, carpeting, and
area rugs to determine whether they can be removed or changed to facilitate cleaning between
shared uses.
“Avoid sharing electronic devices, books, pens, and other learning aids,” CDC advises.258
This advice challenges the design of classrooms that feature an installed computer, keyboard,
and mouse for the instructor and a central control panel for displaying material from the
computer. Those keyboards, computer, and electronic controls are shared by each faculty
member and lecturer who uses the room to deliver classes.
In modern classrooms, students share plugs to charge computer and electronic equipment.
Lighting controls may range from an old-fashioned switch to motion controls or toggles that
control dimmers. Information Technology departments should be consulted about the appropriate
types of cleaning supplies and disinfecting wipes for use on keyboards, control panels, computer
display screens, and plugs.
CDC recommends closing “shared spaces such as dining halls, game rooms, exercise
rooms, and lounges if possible; otherwise, stagger use and restrict the number of people allowed
in at one time to ensure everyone can stay at least 6 feet apart, and clean and disinfect between
256
Id.; See CDC, Guidance For Cleaning And Disinfecting, Public Spaces, Workplaces, Businesses, Schools, And
Homes, https://www.cdc.gov/coronavirus/2019-ncov/community/pdf/ReopeningAmericaGuidance.pdf.
257
Dan Rodriguez, Nonsense And Sensibility: Hybrid Is Not The Answer, PRAWFSBLAWG, June 30, 2020,
https://prawfsblawg.blogs.com/prawfsblawg/2020/06/nonsense-and-sensibility-hybrid-is-not-the-
answer.html#comments (citing Professor Merritt’s Facebook post).
258
39
use.”259 For food service, CDC recommends proving “grab-and-go options for meals” or serving
“individually plated meals (versus buffet or any self-serve stations).”260 CDC counsels closing
student and faculty lounges with shared microwaves and coffee stations. Elimination of
microwaves may increase food costs and limit options for some who rely on reheating food
brought from home. Ensuring sufficient “grab-and-go options for meals” or individually plated
meals may also increase food and staff costs.
Derek Thompson offers a helpful mnemonic phrase, SAFE, to encapsulate the lessons of
the science relevant to COVID-19 mitigation: social distancing, airflow awareness, face masks,
expectoration.261 The physical features in many university buildings, potential for virus spread
across the room through sneezing, coughing, or talking loudly, varying effectiveness of masks
(even if worn consistently), and consequences of COVID-19 infection raise concerns about the
safety of meeting in person for higher education classes for hours at a time during this pandemic.
VII. Increased Risks of Poor Outcomes for People with Certain Underlying Conditions
and Several Communities of Color, and COVID-19 Complications
A. Community Members at High Risk of COVID-19 Infection, Illness,

Hospitalization, and Death
Law Schools must recognize that students, as well as faculty and staff, may fall into
categories that increase their risks of poor outcomes with COVID-19 infection. These facts
require Law Schools to align their safety policies with their commitment to diversity and
inclusion and work to attract a diverse class to promote robust dialogue that enriches education.
CDC reports elevated COVID-19 hospitalization rates among African-Americans, Native

Americans, and Latinx Americans.262 “As of June 12, 2020, age-adjusted hospitalization rates are
highest among non-Hispanic American Indian or Alaska Native and non-Hispanic black
persons, followed by Hispanic or Latino persons.”263 Hospitalization rates for American Indians,
Alaska Natives, and African-Americans were approximately 5 times higher than for non-
Hispanic White persons, while hospitalization rates for Latinx people was 4 times higher than
non-Hispanic whites, CDC reported.264
259
Id.
260
Id.
261
Thompson, supra note 162.
262
Asthma and Allergy Foundation of America, Coronavirus (COVID-19): What People With Asthma Need to
Know, April 29, 2020, https://community.aafa.org/blog/coronavirus-2019-ncov-flu-what-people-with-asthma-need-
to-know; CDC, COVID-19 in Racial and Ethnic Minority Groups, supra note 35; James Ramos, For California
Native Americans, COVID-19 is yet another existential threat to survive, SACRAMENTO BEE, May 7, 2020,
https://www.sacbee.com/opinion/article242555401.html#storylink=cpy.
263
CDC, COVID-19 in Racial and Ethnic Minority Groups, supra note 35 (emphasis in the original).
264
Id.
40
COVID-19 risks increase for those who have one or more underlying conditions, share a
household with other highly vulnerable people, lack access to health care, or whose immigration
or other status may induce concerns about seeking health or government assistance. CDC’s
survey of 350 COVID-19 inpatients and outpatients found that “inpatients were older (median
age = 54 versus 42 years; p<0.001) and differed by race/ ethnicity (p = 0.008) and annual
household income (p = 0.003). Inpatients were less likely to be white (19% versus 37%) and
more likely to have annual household income <$25,000 (28% versus 13%).”265 Inpatients also
had “more underlying chronic conditions (median = two) than did outpatients (median = one)
(p<0.001), including cardiovascular conditions, chronic respiratory disease, and diabetes.”266
Many members of communities of color and immigrants are “at higher risk for exposure
to the virus because many cannot work from home, cannot afford not to work, and often have
jobs that require interacting with large numbers of other people.”267 Elise Gould and Heidi
Shierholz reported that in March 2020, only “16.2% of Hispanic workers and 19.7% of black
workers can telework” compared to 29.9% of White workers and 37% of Asian workers.268 Dr.
Mary Bassett, the Director of the FXB Center for Health and Human Rights at Harvard
University, “said a big determinant of who dies is who gets sick in the first place, and that
infections have been far more prevalent among people who can’t work from home. “Many of us
also have problems with obesity and diabetes, but we’re not getting exposed, so we’re not getting
sick,” she said.”269
The federal government’s “public charge” rule which allows consideration of use of
government services in deciding asylum cases, and applications for residency or citizenship,
enhances fear of using public health services including medical care “because they fear doing so
could lead to deportation or prevent them from receiving permanent residency in the future.”270
The Supreme Court’s January 2020 grant of a stay in Department of Homeland Security v. New
York allows the Trump Administration to enforce its interpretation of the “public charge” rule.271
The Department of Homeland Security defined “public charge” to refer to “noncitizens who
receive a variety of government benefits, including cash, health care or housing, for more than 12
265
Tenforde, et al., supra note 235, at 2.
266
Id.
267
Usha Lee McFarland, Fearing Deportation, Many Immigrants At Higher Risk Of Covid-19 Are Afraid To Seek
Testing Or Care, STAT, April 15, 2020, https://www.statnews.com/2020/04/15/fearing-deportation-many-
immigrants-at-higher-risk-of-covid-19-are-afraid-to-seek-testing-or-care/.
268
Elise Gould & Heidi Shierholz, Not everybody can work from home, ECONOMIC POLICY INSTITUTE, March 17,
2020, https://www.epi.org/blog/black-and-hispanic-workers-are-much-less-likely-to-be-able-to-work-from-home/.
269
Oppel et al., supra note 38.
270
McFarland, supra note 267.
271
Department of Homeland Security v. New York, ___U.S. __, 140 S.Ct. 599 (2020).
41
months over a three-year period. The rule also considers factors such as age, employment history
and finances to determine whether a noncitizen might become a public charge in the future.”272
U.S. Citizenship and Immigration Service (USCIS) announced that it will not consider
COVID-19 “testing, treatment, nor preventative care (including vaccines, if a vaccine becomes
available) related to COVID-19 as part of a public charge inadmissibility determination, nor as
related to the public benefit condition applicable to certain nonimmigrants seeking an extension
of stay or change of status.”273 USCIS stated it will not apply the public charge rule to COVID-
19 treatment even if it is paid for by one or more public benefits such as federally funded
Medicaid.274
Fear of the public charge rule and exposure to deportation proceedings, has led many to
disenroll from public programs including health and nutrition programs.275 Lack of health care
and fear of going to the doctor increase susceptibility to poor outcomes when infected by
COVID-19.
Several Law Schools have students or graduates who have Deferred Action for
Childhood Arrivals (DACA) status, “which allows certain unauthorized aliens who arrived in the
United States as children to apply for a two-year forbearance of removal.”276 The Supreme Court
remanded the Trump Administration’s decision to rescind DACA on Administrative Procedures
Act (APA) grounds, faulting the Department of Homeland Security for failing “to consider the
conspicuous issues of whether to retain forbearance and what if anything to do about the
hardship to DACA recipients.”277 During the program’s remand, fear and anxiety may undermine
access to healthcare and education.
B. COVID-19 Illness and Long-lasting Complications
While some infected people are asymptomatic, “some get mild symptoms and some get
symptoms enough to put them at home for a few days. Some are in bed for weeks and have
272
Amy Howe, Government Gets Green Light To Implement “Public Charge” Rule Pending Appeals, Scotus blog,
Jan. 27, 2020, https://www.scotusblog.com/2020/01/government-gets-green-light-to-implement-public-charge-rule-
pending-appeals/.
273
USCIS, Public Charge, updated, May 27, 2020, https://www.uscis.gov/green-card/green-card-processes-and-
procedures/public-charge.
274
Id.
275
Jeremy Raff, How Fear Spreads the Coronavirus, THE ATLANTIC, May 29, 2020,
https://www.theatlantic.com/politics/archive/2020/05/immigrants-sick-covid-19-are-scared-seek-help/612142/;
Howe, supra note 272 (reporting that Congresswoman Norma Torres who represents a district in California’s Inland
Empire that is 70% Latinx is increasingly seeing “constituents unenroll from public services like school lunch
programs and Medicaid,” and expressing concern that “the public charge rule could spark a health crisis.”)
276
Dept. of Homeland Security v. Regents of the University of CA., __ S.Ct. __, 2020 WL 3271746, at *1 (U.S.,
June 18, 2020, No. 18-587).
277
Id. at *17.
42
symptoms even after they recover, others go to the hospital, some require oxygen, some require
intensive care, some get intubated and some die.”278 Dr. Fauci testified to Congress in June 2020
that increasing numbers of young adults are experiencing serious illness when infected by
COVID.279
Approximately “80% of patients, especially children and young adults,” with COVID-19
are asymptomatic or experience minor symptoms while “20% will develop COVID-19 with
various degrees of severity.”280 COVID-19 may trigger “formation of blood clots that can lead to
strokes and other life-threatening complications, even in younger people.”281
In addition to affecting the respiratory system, some infected by COVID-19 experience

symptoms that affect multiple other organs, including the “central and peripheral nervous system
central nervous system (CNS), and postinfectious immune mediated processes.”282 COVID-19
CNS diseases include “encephalopathy, encephalitis, acute disseminated encephalomyelitis,
meningitis, ischemic and hemorrhagic stroke, venous sinus thrombosis, and endothelialitis. In the
peripheral nervous system, COVID-19 is associated with dysfunction of smell and taste, muscle
injury, the Guillain-Barre syndrome, and its variants.”283
A study of 43 patients in the United Kingdom referred to the COVID-MDT

[multidisciplinary team] neurology/encephalitis and neurovascular multi-disciplinary team
meetings for a wide range of neurological symptoms including strokes, acute disseminated
encephalomyelitis, inflammation affecting the brain and spinal cord,284 and hallucinations.285
278
Id.
279
Berkeley Lovelace, Jr., Fauci Warns Of ‘More And More’ Coronavirus Complications In Young People, supra
note 79.
280
Igor Koralnik & Kenneth Tyler, COVID-19: A Global Threat to the Nervous System, ANNALS OF NEUROLOGY, 7,
June 1, 2020, https://onlinelibrary.wiley.com/doi/epdf/10.1002/ana.25807.
281
Dr. Francis Collins, Searching for Ways to Prevent Life-Threatening Blood Clots in COVID-19, NATIONAL
INSTITUTES OF HEALTH (NIH) DIRECTOR’S BLOG, June 11, 2020,
https://directorsblog.nih.gov/2020/06/11/searching-for-ways-to-prevent-life-threatening-blood-clots-in-covid-19/.
282
Koralnik & Tyler, supra note 280, at 1.
283
Id.; The Mayo Clinic, Guillain-Barre Syndrome, https://www.mayoclinic.org/diseases-conditions/guillain-barre-
syndrome/symptoms-causes/syc-20362793 (last visited July 2, 2020) (“Guillain-Barre (gee-YAH-buh-RAY)
syndrome is a rare disorder in which your body's immune system attacks your nerves…,eventually paralyzing your
whole body.”)
284
Acute Disseminated Encephalomyelitis (ADEM), WEBMD (“Acute disseminated encephalomyelitis (ADEM) is a rare
kind of inflammation that affects the brain and spinal cord, usually in children. It damages the coating that protects nerve
fibers, called myelin.”) (last visited July 16, 2020).
285
Ross W. Paterson et al., The emerging spectrum of COVID-19 neurology: clinical, radiological and laboratory
findings, BRAIN, awaa240, 2, https://doi.org/10.1093/brain/awaa240 (“A 55-year-old female (Patient 7), with no
previous psychiatric history, was admitted with a 14-day history of fever, cough, muscle aches, breathlessness, as
well as anosmia and Hypogeusia... She reported visual hallucinations, seeing lions and monkeys in her house.”)
43
“The high incidence of acute disseminated encephalomyelitis, particularly with haemorrhagic
change, is striking,” the study reported, adding “[t]his complication was not related to the
severity of the respiratory COVID-19 disease.”286 Their study reported that the “strokes we have
encountered with COVID-19 have been severe.”287
Scientists do not yet know whether COVID-19’s effects will be long-lasting, even for
those who “recover.” Recognition of the disproportionate risks of COVID for communities of
color, those with underlying medical conditions, older Americans, and its consequences even for
those who appear to recover underscores the imperative of prioritizing health, safety, and equity
in making decisions about legal education during this pandemic.
VIII. Online, Hybrid, or In-Person Class Models; Health, Safety, and Equity as
Prevailing Values
A. Practical Barriers to In-person and Hybrid Legal Education During the

Pandemic
UC Berkeley School of Law (formerly Boalt Hall) had hoped to offer in-person classes in
Fall 2020, particularly for first-year law students.288 On June 26, 2020, U.C. Berkeley Law
School Dean Chemerinsky published a letter informing the U.C. Berkeley community that after
working to develop a calendar to convene in-person classes consistent with social distancing and
university protocols, Berkeley Law School decided that all of its “Fall 2020 classes will be
conducted remotely.”289 After developing and submitting contingency plans to reduce “building
occupancy by 75-80% as required by campus, and taking all necessary health precautions,” Dean
Chemerinsky and the Contingency Planning Committee “concluded that the best course—for the
health of those in our community and for our educational program—is to have the Fall
semester’s classes be online.”290
Dean Chemerinsky reported that the U.C. Berkeley “campus policy is no more than 25
students in a classroom at a time, seated at least six feet apart.291 Only the two largest classrooms
could accommodate students in this fashion. The 25-student limit would not allow for a Law
School small section to meet in one room.292 “Students and professors would have to wear masks
at all times while on campus, both inside and outside of the building and during classes.” “We
286
Id. at 2.
287
Id. at 15.
288
Fall 2020-21 Options: Frequently Asked Questions, Berkeley Law,
https://www.law.berkeley.edu/academics/llm/traditional -llm/fall-2020-21-options-faqs/ (last
visited June 29, 2020).
289
Dean Chemerinsky, supra note 54, at 1.
290
Id.
291
Id.
292
Id.
44
also have concerns about the ventilation system for these parts of the building and its ability to
displace room air at the rate required by the Public Health Department,” Dean Chemerinsky
explained.293
The U.C. Berkeley law working group determined that “[c]leaning and disinfecting
between uses of classrooms would be essential, but likely would be available only once or at
most twice a day.”294 More time would have to be scheduled between classes to accommodate
“the reduced bathroom capacity and need for classroom cleaning,” while the Law School’s café,
would be closed, vending machines and water fountains would not be available, and department
kitchenettes and break rooms would be closed.295 The U.C. Berkeley campus informed the Law
School that it was “considering requiring that all students arriving from out of the area be tested
and not attend in-person for two weeks. This likely would mean that all classes would need to be
online for the beginning of the semester.”296
After considering these obstacles, and taking into account the desire of many students and
faculty members including Dean Chermerinsky to hold in-person classes in Fall 2020, the Dean
announced that he is “convinced we can provide an excellent education via remote learning this
semester and frankly a better education than we can through a limited number of in-person
classes taught in a hybrid fashion.”297 “I also believe it is the safest course for the health of our
faculty, staff, and students,” Dean Chermerinsky stated.298
Harvard Law School (HLS) went through a similar evolution in early June 2020, initially
hoping that the 2020-2021 academic year “could begin, at least in part, on campus.”299 Harvard
Law School announced on June 3, 2020 that “in light of the daily news about the continuing
health risks of the pandemic, advice from public health experts, and the very real concern that
testing will not yet be available on the scale or frequency needed to adequately monitor COVID-
19-related illness in the Harvard community, we have found it necessary to conclude that Fall
Term 2020 will be online.”
“This is not the announcement we’d hoped to make. But our first priority is, and must
continue to be, the health and safety of our community, and we cannot reliably conclude at this
time that we can safely provide an effective on-campus program this fall,” HLS stated.300
293
Id.
294
Id. at 2.
295
Id.
296
Id.
297
Id.
298
Id.
299
HLS Fall Term 2020, Harvard Law School, June 3, 2020, https://hls.harvard.edu/hls-fall-term-2020/.
300
Id.
45
Harvard expressed its hope “that scientific developments with respect to COVID-19 will allow
greater in-person activity, here and elsewhere, very soon.”301 The University of California
Hastings College of Law, Vermont Law School, the University of Connecticut School of Law,
Santa Clara University School of Law, Western Michigan University Cooley Law School, and
Pepperdine Caruso School of Law announced that they will conduct classes fully online for the
fall semester 2020.302
B. The Hopes of Hybrid Legal Education During the Pandemic
In contrast, Yale Law School announced on July 1 that it will operate under a hybrid of
learning model in Fall 2020.303 Yale will offer in-person Law School classes in Fall 2020 with
opportunities for students to participate online or faculty to teach online.304
Stanford University announced its plans to bring students, faculty, and staff back to
campus in-person in fall 2020, but stated that it “will need to view online as the default teaching
option for 2020-21, to be supplemented by in-person instruction as much as is safe and feasible
for students and faculty who are present on campus.”305 Stanford expects “that all classes larger
than 50 students will need to be taught online, although the limits could be smaller depending on
local health conditions.”306
“Most [U.S.] Law Schools” as of July 1, 2020, “are pushing to offer at least some courses
in person, even if the bulk of instruction takes place via the internet. Law deans are also warning
that all courses could switch to a remote format if the pandemic worsens.”307 Plans may change
before the fall semester begins. “The resurging pandemic was a factor in Vermont Law School’s
decision to remain remote, given that many students come from outside of the state,” a reversal
from Vermont’s announced intention in early May to “return to campus with various health
protocols in place.”308 As Law Schools evaluate their options during the COVID-19 pandemic,
health, safety, and equity must remain at the forefront and are central to legal education.
C. Magical Thinking and Hybrid Hopes
Measures necessary to prevent COVID-19 spread will not allow for a return to “normal
teaching” and activities “as usual,” at least not until a viable vaccine is widely available. Peter
Huang and Debra Austin observe that “status quo bias” may influence thinking about whether in-
301
Id.
302
Karen Sloan, Online or In person? Law Schools Diverge in Fall Semester Plans, supra note 53.
303
Yale Law School, COVID-19 Information, July 1, 2020, https://law.yale.edu/yls-today/media-inquiries/office-
public-affairs/yale-law-school-covid-19-information.
304
Id.
305
Stanford President Tessier-Lavigne Message Stanford, supra note 217.
306
Id.
307
Sloan, Online or In person? Law Schools Diverge in Fall Semester Plans, supra note 53.
308
Id.
46
person or online classes are the best option as universities decide how to deliver higher education
prior to an effective COVID-19 vaccine.309
Professor Josh Blackman described with humor the likely scenario for in-person classes
held during the COVID-19 pandemic.310 Professor Blackman anticipates that students wishing to
avoid the restrictions of going into the building, those in vulnerable groups, and those who find it
difficult to hear others speaking while wearing masks may switch to online classes (or listen to
recordings instead of attending mandatory classes) as a more effective means of learning.311
Professor Deborah Merritt of Ohio State commented that plans to hold hybrid classes
with participants wearing masks, kept six feet apart, and other adaptations sounds like as
“Ptolemaic model of the universe, with eccentricities and epicycles continuously added to
address all the problems.”312 “I think it's time to realize that on-campus classes will not be the
center of our universe this fall. We need to embrace a model in which online classes are at the
center, with careful prep by professors over the next two months,” Professor Merritt urged.
Professor and former Dean Dan Rodriguez predicts that “the hybrid/in-person plans will end up
being scuttled in any event (maybe as early as July; maybe at the beginning of the term; maybe
just as soon as there is an outbreak in a particular Law School).”313
Professor William Widen at the University of Miami Law School recommends that
“[a]dministrators should strategically reduce overall campus population density by teaching law
online because law adapts well to distance learning.”314 “Lowering student density on campus
reduces the risk to our overall academic communities. A maintenance crew cleaning a needed
chemistry lab is not exposed to the risk of infection from Law School students.”315 Law School
classes interpret words, not specimens, and analyze cases, not chemicals.
Professor Widen’s article observes that financial concerns factor into the push for in-
person or hybrid Law School education. Many schools fear that “law students will only pay for
the in-person Socratic experience. Economics drives the decision to take the risk to open with in-
person classes,” Professor Widen argued.316 We all hope that the day does not arrive when “the
309
Huang & Austin, supra note 39, at 11 (citing Kendra Cherry, How the Status Quo Bias Affects Your Decisions,
11 VERYWELLMIND, May 11, 2020, https://www.verywellmind.com/status-quo-bias-psychologicaldefinition-
4065385.
310
Josh Blackman, A Typical University Day in the COVID-19 Era, The Volokh Conspiracy, May 22, 2020,
https://reason.com/2020/05/22/what-would-in-person-classes-look-like-in-the-fall/.
311
Id.
312
Rodriguez, supra note 257 (citing Professor Merritt’s Facebook post).
313
Id.
314
William H. Widen, The Only Question for Law School Re-Openings, JURIST, June 29, 2020,
https://www.jurist.org/commentary/2020/06/william-widen-law-schools-reopening/.
315
Id.
316
Id.
47
lethal effect of the decision [to hold in-person Law School classes] becomes manifest. This is
particularly so when the calculus of decision compared lives lost against the economic gain.”317
“Law students learn about a disastrous choice made in the design of the Ford Pinto,
which exposed consumers to an increased risk of death to save money.”318 “In this crisis, the
legal academy has a choice to operate in a safer manner and we should seize that opportunity—to
avoid the need to even engage in the types of calculations for a Law School that landed Ford
Motor Company in such trouble,” Professor Widen advised.319
Consistent with the lesson of cases that found legal liability for failing to put safety
320
first, ethics, good sense, our commitment to diversity and inclusion that enriches education
compel the choice that values safety of life and our community’s health and equity. The
utilitarian calculus that weighs money and perceptions about the superior nature of in-person
classes against lives and safety is a balancing exercise Law Schools should reject.
IX. Ethical Framework to Put Health and Safety First, Respect the Inherent Dignity
and Worth of Each Person, and Align Commitments to Diversity and Inclusion with
Educational Excellence
A. Ethical Planning for Legal Education During the COVID-19 Pandemic
Evaluation of legal education models during the COVID-19 pandemic, should begin with
an inquiry into the mission of legal education. The 2007 Carnegie Report observed:
The calling of legal educators is a high one—to prepare future professionals with enough
understanding, skill and judgment to support the vast and complicated system of the law
needed to sustain the United States as a free society worthy of its citizens’ loyalty. That
is, to uphold the vital values of freedom with equity and extend these values into
situations as yet unknown but continuous with the best aspirations of our past.321
The decision about how to execute that responsibility — to prepare law students to develop the
skill and judgment to ethically apply their knowledge of the law, legal method and process to
legal, business, non-profit, public policy, and other fields and to serve their clients and
community — calls us to focus on the substance and goals of legal education, not on its
traditional methods of its delivery.
317
Id.
318
Id.
319
Id.
320
See e.g. Grimshaw v. Ford Motor Co. (1981) 119 Cal.App.3d 757, 776 [174 Cal.Rptr. 348, 361] disapproved of
by Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21 [237 Cal.Rptr.3d 205, 424 P.3d 290] (“The Pinto crash tests
results had been forwarded up the chain of command to the ultimate decision-makers and were known to the Ford
officials who decided to go forward with production.”)
321
Carnegie Report, Educating Lawyers, supra note 10, at 11.
48
ABA Standard 302 requires that Law Schools establish learning outcomes that shall, at a
minimum, include competency in the following:
(a) Knowledge and understanding of substantive and procedural law;

(b) Legal analysis and reasoning, legal research, problem-solving, and written and oral
communication in the legal context;
(c) Exercise of proper professional and ethical responsibilities to clients and the legal
system; and
(d) Other professional skills needed for competent and ethical participation as a member
of the legal profession.322
Notably missing from these and other ABA standards is a requirement to train law students to
make ethical decisions regarding public health and safety. Most legal training on law student and
lawyer “well-being” focuses on substance use, mental health disorders, and work-life balance.323
The Carnegie Report observed that most “Law Schools give only casual attention to teaching
students how to use legal thinking in the complexity of actual law practice.”324
Law Schools have largely focused on training students to “think like a lawyer.”325 The
case method is the primary tool to develop patterns of legal thinking that trains students to
identify relevant facts, glean legal rules, choose among competing rules, and “analyze situations
by looking for points of dispute or conflict.”326 American Law Schools prize in-class dialogue
among students and faculty, as well as the interactions that result from bumping elbows in the
hallway to discuss legal issues, work on projects, or form community. The Supreme Court
recognized in 1950 in Sweatt v. Painter that “[f]ew students and no one who has practiced law
would choose to study in an academic vacuum, removed from the interplay of ideas and the
exchange of views with which the law is concerned.”327
Online education in 2020 allows for synchronous classes conducted over the Internet to
facilitate dialogue, class, and group discussion, a method unimaginable at the twentieth century’s
mid-point when the Supreme Court decided Sweatt v. Painter. In 2003 when the Supreme Court
in Grutter v. Bollinger upheld the University of Michigan’s admission program designed to
322
ABA, Program of Legal Education, Standard 302,
323
See e.g., BAR SCHOOL: THE PATH TO WELL-BEING: PRACTICAL RECOMMENDATIONS FOR POSITIVE CHANGE,
ABA, https://www.americanbar.org/events-cle/mtg/web/293085509/.
324
Id. at 6.
325
Carnegie Report, Educating Lawyers, supra note 10, at 6.
326
Id. at 6.
327
Sweatt v. Painter, 339 U.S. 629, 634 (1950).
49
create a diverse student body to promote a “robust exchange of ideas,”328 synchronous,
interactive video conferencing technology that allows access to vocal and digital chat, sharing
document and screens, and more was barely a gleam in the Internet’s eye. We confront the
COVID-19 pandemic with online platforms that promote collaboration between law students,
faculty, and clients, tools increasing essential to legal practice and civic engagement. These tools
allow Law Schools to accomplish the goals of legal education while training students in online
legal practice tools.
Assessment of legal education methods during this pandemic must be grounded in ethics
that reflect the democratic values legal education serves. This Article uses Santa Clara
University’s Markkula Ethics Center App as a construct to pose questions that help guide ethical
decision-making for legal education in the time of COVID-19. The Markkula Ethics App draws
from several major ethical values: Utility, Rights, Justice, Common Good, and Virtue, to ask
questions that guide ethical decision-making.329 Ethical decision-making is not a process of
checking off a list of ethical or philosophical approaches. This inquiry calls us to locate our
North Star to anchor decision-making, in this case, ethical, effective legal education.
Respect for the inherent worth and dignity of every human, safety, and a commitment to
diversity and inclusion that recognizes its essential role in legal education, set the North Star of
the compass we adopt to steer legal education. Justice Stewart argued that the “basic concept of
the essential dignity and worth of every human being—a concept at the root of any decent
system of ordered liberty” underlies first amendment values such as those protected by laws
regarding defamation.330 The first amendment likewise recognizes the democratic values
education promotes. This value foundation supports our conclusion that online education is the
best approach to legal education during the COVID-19 pandemic.
B. Ethical Frameworks to Guide Legal Education Decision-making
1. Know the Facts and Identify Stakeholders
The Markkula Ethics App begins by asking about the relevant facts and factual gaps
facing a decision-maker. “What are the relevant facts of the case? What facts are not known? Do
I know enough to make a decision?” the Ethics App asks its users.331
Sections IV-VIII of this Article analyze the emerging science about the “novel”
coronavirus. The evolving scientific understanding of COVID-19 and potential mitigation
328
Grutter v. Bollinger, 539 U.S. 306, 329 (2003).
329
Id.
330
Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring); Hardin v. Obstetrical and Gynecological
Associates P.A., 527 S.W.3d 424, 439 (Tex. App. 2017) (citing Justice William J. Brennan, Jr., Address at the
Georgetown University Text and Teaching Symposium (Oct. 12, 1985) (stating that “the Constitution embodies the
aspiration of ... human dignity that brought this nation into being.... For the Constitution is a sublime oration on the
dignity of man.... [It] is a sparkling vision of the supremacy of the human dignity of every individual.”)
331
Markkula Ethics Center, Making an Ethical Decision, Santa Clara University, https://www.scu.edu/ethics-
app/#getTheFacts (last visited July 21, 2020) [hereinafter Markkula Ethics App].
50
measures, changing levels of COVID infection, delays in testing and contact tracing delays leave
decision-makers to act during this pandemic with incomplete information. Doing so requires
clear-eyed judgement that rejects “magical thinking,”332 the belief the facts will be different from
what they are or conform to our wishes. It also requires courage to act based on available facts
and clearly articulated principles.
Caldwell observes that the “best safety processes and systems could be undermined by
organizational behaviors that suppress or dismiss information.”333 Previously public data on
availability of hospital beds and intensive care units across the country, information critical to
assessing health care system capacity during the COVID-19 pandemic “disappeared from the
Centers for Disease Control and Prevention’s website after the Trump administration quietly
shifted control of the information to the Department of Health and Human Services.”334 Law
Schools act within the larger framework of government, governing bodies, and communities,
creating complex interacting networks that affect information availability and complicate
decision-making. Law Schools like other Critical Infrastructure providers, must make ethical
decisions about how to act in the absence of important information (and decide what to do about
the conduct that shielded that information from public view).
The Markkula Ethics App next asks the user to consider the “individuals and groups
[who] have an important stake in the outcome?”335 This Article considers the impacts of
convening classes in-person, online, or through a hybrid model on law students, faculty, staff,
each of their families and households, the communities in which each of us lives and works, and
the people with whom each of us will come into contact including the community where the Law
School is located.
2. Utility
“Does this action produce the most good and do the least harm for all who are affected?
What good and what harm will or may result?” SCU’s Markkula Center App asks.336 These
questions reflect the utilitarian philosophy Jeremy Bentham articulated.337 Utilitarianism is a
332
Bridget J. Crawford, Magical Thinking and Trusts, 50 SETON HALL L. REV. 289, 338 (2019) (“Magical thinking”
is a phrase from anthropology literature that describes non-rational, non-fact-based thought” (citing Emile
Durkheim, THE ELEMENTARY FORMS OF THE RELIGIOUS LIFE 26 (Joseph Ward Swain trans., 1969)); John Warner,
Lurching Toward Fall, Disaster on the Horizon, Can we dispense with magical thinking?, INSIDE HIGHER ED., June
28, 2020, https://www.insidehighered.com/blogs/just-visiting/lurching-toward-fall-disaster-
horizon?ga=2.209963605.1743382391.1595026193-731120218.1583560623.
333
Caldwell, supra note 24, at 16.
334
Will Fuerer, Coronavirus data has already disappeared after Trump administration shifted control from CDC,
CNBC, July 16, 2020, https://www.cnbc.com/2020/07/16/us-coronavirus-data-has-already-disappeared-after-trump-
administration-shifted-control-from-cdc-to-hhs.html.
335
Markkula Ethics App, supra note 331.
336
Id.
337
Jeremy Bentham, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (Oxford, Clarendon
Press. 1907).
51
teleological theory (from Greek telos, “end”; logos, “science”) “that derives duty
or moral obligation from what is good or desirable as an end to be achieved.”338 Utilitarianism
holds that the “moral correctness of an action is directly correlated to the good produced by its
goal or purpose.”339
John Stuart Mill was a leader in the form of utilitarianism known as consequentialism,
“where consequences are all that matter in making a moral decision.”340 Like utilitarianism,
consequentialism focuses on the end result and gives little or no weight to other factors.
Utilitarian decision-making “produces winners and losers among the options, and there is no
guarantee that anything whatsoever is owed to the losers.”341 Santa Clara University Philosophy
Professor Brian Buckley observes that utilitarianism fails to recognize the inherent worth of each
person, relationships or promises.342
Amartya Sen criticized the utilitarian focus on consequences to the exclusion of rights or
distribution issues.343 Consequentialism, he wrote, depends in part on “what is or is not included
in the list of consequences.”344 Lynn Huntsinger & Lucy Diekmann observed that the history of
Native American tribes such as the Yurok in Northern California “amply demonstrates a
shortcoming of the utilitarian approach, wherein a minority group disproportionately bears the
burdens of a policy designed to produce the greatest good for the greatest number.”345
Utilitarianism and consequentialism have been used to justify decisions that fail to consider or
value the interests of all those affected by the decision. Professor Catherine Sandoval observed
that “bureaucratic erasure,” failure to consider or mention tribes or tribal members, was used to
support proposals to appropriate “tribal lands without consideration of rights of or risks to tribal
members and the tribes.”346 Utilitarianism risks sacrificing the values and interests of some for
338
Teleological Ethics, Encyclopedia Britannica, https://www.britannica.com/topic/teleological-ethics (last visited
July 19, 2020).
339
Corey A. Ciocchetti, Tricky Business: A Decision-Making Framework for Legally Sound, Ethically Suspect
Business Tactics, 12 CARDOZO PUB. L. POL'Y & ETHICS J. 1, 9 (2013).
340
Id.
341
Brian Buckley, Distinguishing the Common Good from the Greater Good in an Applied Ethics Case, Paper
presented at Thomas Aquinas: Teacher of Humanity Conference, University of St. Thomas, Houston, 4 (Oct. 2013)
(on file with author Catherine Sandoval).
342
Id.
343
Amartya Sen, DEVELOPMENT AS FREEDOM 59 (1999).
344
Id.
345
Lynn Huntsinger & Lucy Diekmann, The Virtual Reservation: Land Distribution, Natural Resource Access, and
Equity on the Yurok Forest, 50 NAT. RESOURCES J. 341, 349 (2010).
346
Catherine J.K. Sandoval, Energy Access is Energy Justice, The Yurok Tribe’s Trailblazing Work to Close the
Native American Reservation Electricity Gap, in ENERGY JUSTICE, US AND INTERNATIONAL PERSPECTIVES, p. 181
(Edward Elgar, Pub. Raya Salter; Carmen G. Gonzalez, and; Elizabeth Ann Kronk Warner, Eds., Nov. 2018).
52
the benefit of others, a calculus that often falls hardest on minority, vulnerable, and
disadvantaged groups.
ETHICAL GUIDELINES IN PANDEMIC INFLUENZA, a 2007 guideline prepared for

the CDC, recognizes the shortcomings of utilitarianism as a decision-making guide for pandemic
preparation or response. “We have concluded that a classic utilitarian approach to defining
priorities, ‘the greatest good for the greatest number,’ is not a morally adequate platform for
pandemic influenza planning.”347 Those guidelines recommend a consequentialist approach with
guardrails that consider equity. The guidelines recommend “an approach to ethical justification,
that, like utilitarianism, evaluates the rightness or wrongness of actions or policies primarily by
their consequences, but, we further recommend that planning should take into account other
checks (‘side constraints’) grounded in the ethical principles of respect for persons, non-
maleficence, and justice.”348
ETHICAL GUIDELINES IN PANDEMIC INFLUENZA recommends that a “classic

utilitarian approach, which might accept imposing suffering on the few for the greater benefit of
all, should be tempered by such principles as:
Refrain from harming or injuring individuals and communities;
Equal opportunity to access resources should be assured to those within agreed upon
priority groups;
Respect for individual autonomy by, for example, employment of the least restrictive
interventions that are likely to be effective.”349
Likewise, ETHICAL GUIDANCE FOR PUBLIC HEALTH EMERGENCY PREPAREDNESS AND RESPONSE:
HIGHLIGHTING ETHICS AND VALUES IN A VITAL PUBLIC HEALTH SERVICE, counsels that when
allocating health resources, “traditional utilitarian goals of public health, e.g., maximizing the
number of lives saved or the number of quality-adjusted life years,” must also consider equity,
fairness, and vulnerable populations. They recommend that “public health should seek to achieve
fairness or equity by focusing efforts on the most vulnerable sectors of the population, e.g., the
poor, racial minorities, and people living with disabilities.”350
For Law Schools, analysis of the good or harm that will result from convening classes
through an in-person, hybrid, or fully online model must consider the decision’s effects on
vulnerable members of the Law School and surrounding community including those with
underlying medical conditions, members of groups which bear disproportionately poor COVID-
347
Kathy Kinlaw & Robert Levine, ETHICAL GUIDELINES IN PANDEMIC INFLUENZA, Report Prepared for
the Ethics Subcommittee of the Advisory Committee to the Director, Centers for Disease Control and Prevention, 6,
February 15, 2007, https://www.cdc.gov/od/science/integrity/phethics/panFlu_Ethic_Guidelines.pdf.
348
Id.
349
Id. at 6.
350
Jennings & Arras, supra note 47, at 56.
53
19 outcomes: African-Americans, Native Americans, Latinx Americans, and people over 65.
This decision-making process must consider Law School students, staff, and faculty, the campus
community, everyone in their households, and the communities with which they interact. A Law
School, like other institutions of higher education and schools, forms part of a community
ecosystem.
Law students hail from many areas of the United States and from other countries. These
facts influence the risk level of gathering people in person. CDC classifies as “Higher
risk: Medium-sized in-person gatherings that are adapted to allow individuals to remain spaced
at least 6 feet apart and with attendees coming from outside the local area.”351 “Highest
risk: Large in-person gatherings where it is difficult for individuals to remain spaced at least 6
feet apart and attendees travel from outside the local area.”352
“The more people an individual interacts with at a gathering and the longer that
interaction lasts, the higher the potential risk of becoming infected with COVID-19 and COVID-
19 spreading,” CDC warns.353 Most full-time law students meet in class for 12-15 hours a week
and spend three times as many hours studying and preparing for class. They devote additional
hours to legal and campus activities and projects. The length of time spent in class, virus
screening failures, and mask issues (ranging from non-compliance with mask mandates, to taking
off or slipping down a mask to eat, drink, sneeze, or “take a breather,” and the varying
effectiveness of masks depending on materials and fit), raise the risks of convening Law School
classes through an in-person or hybrid model.
The COVID-19 pattern where “80% of patients, especially children and young adults,”
with COVID-19 are asymptomatic or experience minor symptoms while “20% will develop
COVID-19 with various degrees of severity”354 may fuel the demographic and health dichotomy
between those attending class in person and those studying or teaching online. The 80/20 split in
COVID-19 outcomes could foreseeably lead younger people who lack underlying health
conditions to study or teach in the Law School building, while older students, faculty, and staff,
those with underlying conditions, and African Americans, Native Americans, and Latinx
Americans participate online. While this outcome might protect the health of those who
participate online, it undercuts diversity, inclusion, and equity, and frustrates the dialogue among
diverse participants that enriches legal education.
The utility perspective, even with ethical guardrails, weighs benefits and burdens in a
way that does not fully respect other principles and values. The utilitarian calculus fails to put
351
Id.
352
Id.
353
Coronavirus Disease 2019, (COVID-19), Considerations for Events and Gatherings,
https://www.cdc.gov/coronavirus/2019-ncov/community/large-events/considerations-for-events-gatherings.html
(last visited June 30, 2020) (emphasis in the original).
354
Koralnik, supra note 280.
54
safety first, recognize the inherent worth and dignity of each person, and value diversity and
inclusion as central to ethical and effective legal education.
3. Rights and Dignity
The Markkula Center Ethical decision-making App also offers questions based on an
ethical framework focused on rights and dignity. “Does my action best respect the rights of all
who have a stake? Does this action respect the dignity of others? If I take this action, am I
treating others simply as a means to an end?”355
Philosopher Immanuel Kant exhorted that one should “act that you use humanity,
whether in your own person or in the person of any other, always at the same time as an end,
never merely as a means.”356 “For Kant this meant that human beings have an ‘inner
transcendental kernel’ which is the basis for their autonomy (dignity = the exercise of
autonomy).357 “Humanity itself is a dignity; for a human being cannot be used merely as a means
by any human being (either by others or even by himself) but must always be used at the same
time as an end. It is just in this that his dignity (personality) consists,” Kant argued.358 “Everyone
is born free and equal in dignity and rights,” the United Nations Universal Declaration of Human
Rights Article 1 declares. 359 Human rights determine a sphere of individual liberty against other
subjects (governments or individuals); action constraints place limits on exercise of rights which
are justified by prevention of harms to the agent in question or by protection of an impersonal
value.”360
Recognition of equal rights and dignity of each person calls us to reject strategies that
treat people as a means to an end, not an end in themselves. The infection, hospitalization, and
death rates among communities of color calls us to ask whether convening classes in-person or
through a hybrid model is consistent with respect for the worth and dignity of every person, the
values of diversity and inclusion, safety, and the respect for the rights of each person. Ethical
355
356
Immanuel Kant, GROUNDWORK OF THE METAPHYSICS OF MORALS 38 (Mary Gregor ed. & trans., Cambridge
Univ. Press 1998) (1785).
357
John Laughlin, Human Dignity: the Foundation of Human Rights and Religious Freedom, 19 MEMORIA Y
CIVILIZACION, 313, 328 (2016),
https://www.researchgate.net/publication/312130204_Human_Dignity_the_Foundation_of_Human_Rights_and_Rel
igious_Freedom.
358
George Wright, TREATING PERSONS AS ENDS IN THEMSELVES: THE LEGAL IMPLICATIONS OF A KANTIAN
PRINCIPLE, 36 U. Rich. L. Rev. 271, 295 (2002) (citing Immanuel Kant, THE METAPHYSICS OF MORALS 209 (Mary
Gregor ed. & trans., Cambridge Univ. Press 1996).
359
United Nations, Universal Declaration of Human Rights, https://www.un.org/en/universal-declaration-human-
rights/index.html.
360
Łuków, supra note 34, at 34.
55
action constraints should put the brakes on educational options that undermine our values, and
compromise educational excellence.
Constructing a scenario where students and teachers can choose to teach or learn through
a hybrid format makes personal safety contingent on choices of each person and others.
Organizations are responsible for their safety plans, including plans that leave safety to
individual choice.361 Relinquishing safety to individual choice fails to recognize organizational
responsibility for safety, including the decision to subject safety to individual decision-making.
That process and its consequences are inconsistent with ethics, safety, valuing each person,
policies to promote diversity and inclusion and educational excellence.
Hybrid classes with some students or the faculty member participating via remote create
pedagogical challenges. Deciphering writing on a classroom whiteboard through an online
window is challenging. Video conferencing technologies make a virtual whiteboard more visible
to all participants.
The split attention between monitoring questions inside the classroom and the chatroom
online add to the challenges of managing a hybrid class. The hybrid model appears to undercut
the educational quality for everyone. The health and safety dangers in-person classes pose during
this pandemic, the split demographics of in-person and online classes that undermine robust
educational dialogue, and the challenges of integrating online and in-person participants indicate
that during the COVID-19 pandemic, the hybrid or in-person model is incompatible with Kantian
respect for persons and their potential.362
4. Justice
“Justice, as every law student soon discovers, is an abstract, undefinable thing, about
which men disagree,” Dean William Prosser observed in his treaty on Torts.363 The Markkula
Center’s Ethical decision-making App asks about the justice of a proposed action. Does it treat
“people equally or proportionally? Does it give each person affected his or her due?”364 Tomas
Aquinas observed that “Right” (Ius) may be understood as “what is due,” so justice is the
ingrained habit that ensures others get their due.365 John Rawls in his THEORY OF JUSTICE seeks
361
See Xi Zou, et al., Risk Preference: How Decision Maker’s Goal, Current Value State, and Choice Set Work
Together, PSYCHOLOGICAL REVIEW, Vol. 127, No. 1, 74–94 (2020), http://dx.doi.org/10.1037/rev0000162 (“the
choice set (i.e., perceived available options) can affect whether people choose a more or a less risky option.”)
(emphasis in the original).
362
Cf. Wright, supra note 358, at 329-330 (arguing that poor, unhealthy, and dangerous conditions in some public
schools undermines education, the opportunity to transform potential into competencies, and respect for persons
advocated by Kant).
363
Thomas C. Grey, The First Virtue, 25 STAN. L. REV. 286 (1973) (citing W. PROSSER, LAW OF TORTS 249
(4th ed. 1971)).
364
365
Brian Buckley, Distinguishing the Common Good from the Greater Good in an Applied Ethics Case, supra note
341.
56
to maximize the minimum level of welfare when making a choice that affects people
differently.366 “What are people due?” is the question we are left to answer.367 What levels of
welfare are we trying to achieve, not for those relegated to the “minimum level,” but for all.
ABA standards help to define what is due. ABA Standard 301 requires that Law Schools
maintain a “rigorous program of legal education that prepares its students, upon graduation, for
admission to the bar and for effective, ethical, and responsible participation as members of the
legal profession.”368 ABA Standard 302 requires Law Schools to establish learning outcomes to
promote knowledge and understanding of substantive and procedural law; legal analysis and
reasoning, legal research, problem-solving, and written and oral communication in the legal
context; exercise of proper professional and ethical responsibilities to clients and the legal
system; and their professional skills needed for competent and ethical participation as a member
of the legal profession.369 These guidelines leave Law Schools with latitude to achieve ABA’s
learning objectives but do not articulate standards for ethical conduct during this pandemic. This
Article defines what is due as a high-quality, ethical, and compassionate legal education,
consistent with health, safety, and equity.
The Markkula Center Ethics App invites the user to consider whether they have “some
prejudice or interest that might make me favor one person over another?”370 If treating people
differently, it asks “is there a valid reason to treat someone differently?”371 Aristotle described a
principle of proportional justice in the Nicomachean Ethics, “those who are equal in relevant
respects should be treated alike, and those who are unequal in relevant respects should be treated
differently in proportion to their difference.”372 This proportionate philosophy manifests in
contemporary legal and political debates “over rights and the legal status of different social
groups.”373
366
John Rawls, A THEORY OF JUSTICE, 152-154 (London: Oxford University Press, 1971).
367
See Norman Bowie, The Law: From A Profession to A Business, 41 VAND. L. REV. 741, 754 (1988).
368
American Bar Assn., 2019-2020 Standards and Rules of Procedure for Approval of Law Schools, Ch. 3, Program
of Legal Education,
s/2019-2020/2019-2020-aba-standards-chapter3.pdf (last visited May 26, 2020) [hereinafter ABA Standard 301].
369
ABA, Program of Legal Education, Standard 302,
370
371
Id.
372
ARISTOTLE, NICOMACHEAN ETHICS bk. V, reprinted in THE BASIC WORKS OF ARISTOTLE (R.
McKeon ed. 1941).
373
Patricia Mann, Dimensions of Justice in 21st Century Legal Practice and Law School Pedagogies, 9
CHARLESTON L. REV. 251, 253 (2015).
57
Law Schools like other IHE, schools, and workplaces have long recognized the duty to
accommodate students, faculty, and staff with medical needs, consistent with the Americans with
Disabilities Act (ADA) and concepts of equity and justice.374 COVID-19 may afflict healthy
people, those with underlying medical conditions who ADA does not classify as disabled, and
puts those over 65 or in particular racial or ethnic groups at higher risk.375 ADA accommodation
needs must be respected in the educational models we choose, but the ADA approach alone is
insufficient to protect all Law School, campus, household, and community participants during
the COVID-19 pandemic.
CDC recommends that IHE offer “distance learning in addition to in-person classes to
help reduce the number of in-person attendees” and provide “options for faculty and staff at
higher risk for severe illness (including older adults and people of all ages with certain
underlying medical conditions). 376 These guidelines reflect Aristotle’s principle of treating
people differently to achieve a just result.
The hybrid approach based on “distance learning” options does not address the
pedagogical effectiveness of this mixed modality for classroom teaching and learning. Neither
does it address transmission risks for those who attend in person and may expose each other and
members of the faculty, staff, and community to COVID-19. Neither does it examine the likely
demographic divisions between those participation online and those attending in person. That
cleavage cuts against diversity and inclusion commitments. While trying to give each person
what is due, to achieve a just educational model, Law Schools must focus on the goals of legal
education. Ethical approaches to analysis of the common good raise important questions that
help define the common good Law Schools seek to achieve.
5. Common Good
“Does this action best serve the community as a whole, not just some members? Will this
option be equally to everyone's advantage?” the Markkula Center’s Ethics App asks.377 These
questions reflect philosophical traditions that inquire into which actions promote the “common
good.” John Locke characterized the common good as the good of each and every person, not
374
See e.g., Office of Accessible Education, Guidelines for Disability Documentation, Santa Clara University (last
visited July 1, 2020), https://www.scu.edu/oae/guidelines-for-disability-documentation-/ (“requires students who are
seeking accommodation on the basis of disability to provide documentation from a qualified medical professional
that describes the disability/health condition and the functional impacts of the disability/health condition.”);
Americans with Disabilities Act, 42 USC § 12101.
375
Fraser, et al., supra note 17; Tenforde, et al., supra note 235, at 2.
376
377
58
maximal aggregate utility.378 Rawls envisioned the common good as general conditions that are
in an appropriate sense equally to everyone's advantage.379
Pope Paul IV in Guadium et Spes “defines the common good as ‘the sum total of social
conditions which allow people, either as groups or as individuals, to reach their fulfillment more
fully and more easily.’” 380 “This common good—the protection and promotion of the dignity of
the human person—must be the primary orientation of society,” Pope Paul IV urged.381
Philosophy Professor Brian Buckley observed that the Common Good “does not
concentrate on winners and losers and total aggregate good, but instead asks, “which option best
promotes the thriving of each person?: This can sound close to greater good that is the object of
the utilitarian calculus, but the difference is the attention paid to each individual.”382 The
common good does not pit individual members of the community against each other; it creates
opportunities for individual and collective fulfillment. Aquinas in Summa Theologiae, speaks to
this: “He that seeks the good of the many, seeks in consequence his own good.”383
“Does this action contribute to the conditions of social life that give everyone an
opportunity to thrive? How will my action affect the resources everyone must share, such as the
environment?” the Markkula App asks.384
Asking which legal education method creates opportunities to thrive is an ambitious but
important question during a pandemic. Health and safety are predicates to thriving. Safety is a
paramount value that reflects respect for the worth and dignity of each person. Consistent with
our educational goals and values, Law Schools should ask which is the safest teaching option,
online, hybrid, of fully in-person classes?
Centering the common good on safety reflects a safety culture that recognizes safety as a
core value. “The U.S. Nuclear Regulatory Commission (NRC) defines nuclear safety culture as
the core values and behaviors resulting from a collective commitment by leaders and individuals
to emphasize safety over competing goals to ensure protection of people and the
378
John Locke, SECOND TREATISE OF GOVERNMENT, chs. IX, XI (1690).
379
Rawls, supra note 363, at 246.
380
Susan J. Stabile, A Catholic Vision of the Corporation (2005) 4 SEATTLE J. FOR SOC. JUST. 181, 184 (citing POPE
PAUL VI, Gaudium et Spes (Pastoral Constitution on the Church in the Modern World) ¶ 26 (1965))).
381
Id. (citing PONTIFICAL COUNCIL FOR JUSTICE AND PEACE, COMPENDIUM OF THE SOCIAL
DOCTRINE OF THE CHURCH ¶ 165 (2004))
382
Brian Buckley, email from Brian Buckley to Professor Sandoval, July 11, 2020 (on file with author).
383
Id. at 8 (citing Aquinas at Summa Theologiae, II-II, 47, 10, ad 2 (Timothy McDermott, Ed., Christian Classics
1991)).
384
59
environment.”385 The National Aeronautical and Space Administration (NASA) defines safety as
“freedom from those conditions that can cause death, injury, occupational illness, damage to or
loss of equipment or property, or damage to the environment.”386 “NASA's safety priority is to
protect: (1) the public, (2) astronauts and pilots, (3) the NASA workforce (including contractor
employees working on NASA contracts), and (4) high-value equipment and property.”387 To
date, Law Schools have not developed a safety culture that articulates safety as a core value to
guide action and decision-making.
Safety is also an educational value and responsibility for academic institutions. Academic
institutions articulate safety culture through their practices, values, and the habits they teach.
Academic laboratories have shifted from “rule-and-reminder-based programs” to “a culture
where our scientists don’t think about safety as a compliance issue or a set of guidelines distinct
from their research activities, but as a fundamental value embedded in everything they do.”388
Academic institutions also reflect safety culture through research guardrails on human subjects.
To date, Law Schools have not thought of their field as a safety related discipline or
articulated their safety culture, in contrast to other organizations operating in high-risk
environments.389 Nor have most Law Schools developed safety plans beyond building
evacuation, self-locking doors, and ad hoc responses to natural disasters.
A COVID-19 outbreak in a Law School could quickly become a high consequence,

suprespreader event. One COVID-19 positive person could infect multiple classes, faculty, staff,
community, and household members of those with whom they are in contact. Law Schools and
universities need to recognize that COVID has dramatically shifted the risk profile of the central
Law School activity, holding classes where people gather to study and discuss reading material
and apply that knowledge to legal problems.
Organizations socially construct risk and the choices available to increase or mitigate
390
risk. Sociologist Charles Perrow rejected safety and accident theories that focused on actions
of individuals and emphasized the relations between errors and the system in which people work,
385
United States Nuclear Regulatory Commission, Safety Culture, Jan. 22, 2018, https://www.nrc.gov/about-
nrc/safety-
culture.html#:~:text=The%20U.S.%20Nuclear%20Regulatory%20Commission%20%28NRC%29%20defines%20n
uclear,culture%20commensurate%20with%20the%20safety%20and%20security%20.
386
¶ 70,047.223 NASA FINAL RULE: NASA FAR SUPPLEMENT: SAFETY AND HEALTH MEASURES AND
MISHAP REPORTING, Cont.Cas.Fed. (CCH) P 70047.223.
387
Id.
388
Kenneth Hover & Michael Schneider, Constructing an Affirmative Safety Culture in Educational and Research
Laboratories, 42 CONCRETE INTERNATIONAL 37, 37 (Feb 2020) (citing Advancing Safety Culture in the University
Laboratory, Stanford University, Stanford, CA, 2014).
389
Cf. Caldwell, supra note 24, at 5, 7.
390
Id. at 4 (“The organization socially constructs a view that the essence of safety is to prevent individuals from
committing errors.”)
60
as opposed to the errors and the operators.391 Perrow’s observations draw us to look at the
construction of safety systems, not just individual choices that affect safety. Safety risk reduction
should not be relinquished to individual choice. Law Schools must develop a safety culture and
plan that respects the worth and dignity of each person and promotes excellence through
diversity and inclusion. Online education best achieves these objectives and supports safety.
6. Virtue:
This value asks whether selecting an option will lead the decision-maker “to act as the
sort of person I want to be?”392 “What type of life must I live to be a good person?” is a question
at the heart of Aristotle’s philosophy.393 The Markkula Ethnics Center invites the App user to
consider the character traits they would exhibit if they select a particular action, and which habits
of character the action would develop.394
Ciocchetti observed that “the task of considering ethical implications” of a problem and
“acting accordingly is morally required of legislators (and the citizens who elect them), lawyers,
and, most importantly, business professionals who confront the business ethics dilemmas on a
regular basis.”395 Law Schools find themselves at the fulcrum of a decision-making process that
requires considering the institution’s core values as society confronts a pandemic the scale of
which has not been seen in a century since the “Spanish flu.”
ABA Standard 302 requires Law Schools to produce ethical professionals. Law Schools
should ask whether in-person or hybrid teaching models are consistent with ethical behavior.
Gathering in person increases infection risks and can lead to illness, serious complications, or
death. Social distancing, mask wearing mandates, testing and contact tracing, and other
precautions may be insufficient to protect everyone in the class, building, campus, and
community. Despite knowledge of the higher risk of infection, hospitalization, and death for
many communities of color, older Americans, people with certain medical conditions, and the
growing infection rate among young people, would teaching in person or through a hybrid model
be consistent with ethical professional conduct? Would such a choice communicate respect for
our diverse community and the dignity and worth of every human being?
In the face of growing COVID-19 infection rates, online legal education presents an
opportunity to put safety first, minimize disruption, and ensure continuity of excellent and
inclusive education. Electricity was not widely available during the Spanish Flu of 1918,
telephone services were in their infancy, and the Internet would not be developed for more than
391
Charles Perrow, NORMAL ACCIDENTS 372 (New York: Basic Books, 1984) (observing that system characteristics
affect safety inducing factors).
392
393
Ciocchetti, supra note 339, at 18–19; See generally Aristotle, NICOMACHEAN ETHICS (Robert C. Bartlett & Susan
D. Collins trans., University of Chicago Press 2011).
394
395
Id. at 7.
61
fifty years. While the Internet does not replicate the Law School classroom experience as if it
were a virtual reality game, video conferencing presents opportunities for students and faculty to
meet in live synchronous classes.
The Internet facilitates posting of reading and video materials and discussion boards that
feature “many to many” communication that exceed the reach of individual emails or one-on-one
talks. Ruben Puentedura’s online module known as SMAR, substitute, modify, augment, and
redesign, highlights online education’s transformational potential.396 Augmentation can occur
through using Internet-enabled services such as Google Docs, for example, to collaborate and
share feedback.397 Online education can redefine educational methods and deepen understanding
such as by enabling video creation.398 Online education allows Law Schools to live the virtue of
valuing the worth and dignity of every human being, putting health and safety first, honor
commitments to diversity and inclusion, while training law students to use Internet-based tools
and platforms legal practice has embraced.
X. Commitment to Diversity and Inclusion Supports Online Education
Many Law Schools and educational institutions have adopted commitments to diversity
and inclusion. These commitments call on IHE to embed diversity and inclusion in all aspects of
the institution ranging from student admission to faculty and staff hiring, course offerings, course
design, and school activities. COVID-19’s disparate effect on many communities of color links
commitments to diversity and inclusion to decision-making about legal education during this
pandemic.
University of Houston Law School Dean Leonard Baynes observed that commitments to
diversity and inclusion embrace diversity as a “bedrock principle, grounded in the equality
provisions of the Fourteenth Amendment.”399 “Our justice system depends on people from all
backgrounds to preserve democracy and further the rule of law. Absence of diverse
representation calls into question the objectivity and credibility of legal decisions by courts,
juries, prosecutors, and others.”400 Dean Baynes points to studies that show “more diverse and
inclusive groups make better decisions.”401
396
Will Fastiggi, Technology for Learners, https://technologyforlearners.com/the-samr-model/ (last visited July 21,
2020).
397
Id.
398
Id.
399
Leonard M. Baynes, A Dean's Roadmap to Diversity and Inclusion: The University of Houston Law Center As A
Template for Success, 50 U. Tol. L. Rev. 221, 221 (2019).
400
Id.
401
Id. (citing Erik Larson, New Research: Diversity + Inclusion = Better Decision Making at Work, FORBES (Sept.
21, 2017), https://www.forbes.com/sites/eriklarson/2017/09/21/new-research-diversity-inclusion-better-decision-
making-at-work/#95431264cbfa).
62
Following decades of legal challenges and efforts to open American Law Schools to
racial and ethnic minorities and women,402 many Law Schools and universities have adopted
commitments to diversity and inclusion.403 Dean Baynes notes that “just about every Law
School's website describes its commitment to diversity. Most, if not all, Law Schools admit
diverse students or hire diverse faculty candidates who are well credentialed and at the top of
their classes.”404
The U.S. Supreme Court in 1978 in Regents of the Univ. of California v. Bakke espoused
the benefits of diversity in education, a value the court previously recognized in Sweatt v.
Painter decided in 1950. In its evaluation of petitioner’s argument that “universities must be
accorded the right to select those students who will contribute the most to the “robust exchange
of ideas,” Baake recognized that “even at the graduate level, our tradition and experience lend
support to the view that the contribution of diversity is substantial.”405 Baake cited Sweatt v.
Painter which decided in 1950 that segregated Law Schools, separate Law Schools in Texas for
African-American students and white students, did not provide equal education:
The Law School, the proving ground for legal learning and practice, cannot be effective
in isolation from the individuals and institutions with which the law interacts. Few
students and no one who has practiced law would choose to study in an academic
vacuum, removed from the interplay of ideas and the exchange of views with which the
law is concerned.406
The Amicus brief written by the daughter and nephews of Heman Marion Sweatt for the 2013
Fisher v. University of Texas case regarding U.T. Austin’s admissions policies highlight Sweatt
v. Painter’s foundational role in educational and desegregation jurisprudence. “In 1950 - four
years before Brown v. Board of Education - this Court held that Sweatt must be admitted to UT,
because the separate Law School created to accommodate him was not equal in - among other
things - intangibles such as reputation.”407 Consigning African-Americans such as Sweatt to a
separate Law School would leave him “removed from the interplay of ideas and the exchange of
views” with “members of the racial groups which number 85% of the population of the State” at
the time of the lawsuit.408
402
See e.g., Sweatt v. Painter, 339 U.S. 629, 634; Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978); Gratz
v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306, 330-31; Fisher v. Univ. of Tex., 136 S. Ct.
2198, 2214 (2016).
403
Baynes, supra note 399, at 245.
404
Id. at 224.
405
Regents of University of California v. Bakke, 438 U.S. at 313 (citing Sweatt v. Painter, 339 U.S. at 634).
406
Id.
407
Allan Van Fleet, Nicholas Grimmer, Amicus Curiae Brief of the Family of Heman Sweatt in Support of Appellees
in Fisher v. University of Texas, 39 T. MARSHALL L. REV. 119, 129 (2013).
408
Id.
63
In Grutter v. Bollinger, the Supreme Court in 2003 endorsed Justice Powell's view in
Baake “that student body diversity is a compelling state interest that can justify using race in
university admissions. The Court defers to the Law School's educational judgment that diversity
is essential to its educational mission.”409 Grutter’s analysis rests on Sweatt v. Painter’s insights
about the educational value of dialogue among diverse participants. Each student contributes to
their own learning and to that of others through this dialogue. Through “promoting the good of
the other, people are themselves completed. There is an identification of interests here that is
reciprocal—in helping others perfect their lives, I perfect my own; and in perfecting my own, I
help others perfect their lives,” Buckley observed about the common good.410
Grutter upheld the University of Michigan Law School’s commitment to admitting a

“critical mass” of diverse students “by reference to the substantial, important, and laudable
educational benefits that diversity is designed to produce, including cross-racial understanding
and the breaking down of racial stereotypes.”411 The Supreme Court found that the “Law
School's claim is further bolstered by numerous expert studies and reports showing that such
diversity promotes learning outcomes and better prepares students for an increasingly diverse
work force, for society, and for the legal profession.”412 Grutter cited comments submitted by
businesses that “the skills needed in today's increasingly global marketplace can only be
developed through exposure to widely diverse people, cultures, ideas, and viewpoints.”413 High-
ranking retired officers and civilian military leaders asserted that a “highly qualified, racially
diverse officer corps is essential to national security.”414 Grutter recognized that “because
universities, and in particular, Law Schools, represent the training ground for a large number of
the Nation's leaders, Sweatt v. Painter, 339 U.S. 629, 634, the path to leadership must be visibly
open to talented and qualified individuals of every race and ethnicity.”415
Harvard and MIT stressed the importance of diversity to education in their complaint
seeking a temporary restraining order against the Immigration Customs Enforcement rule
announced and then dropped in early July 2020 that would have barred foreign students from
remaining in the United States if their universities move all courses online due to the coronavirus
409
539 U.S. 306, 308.
410
Buckley, Distinguishing the Common Good from the Greater Good in an Applied Ethics Case, supra note 341, at
8-9.
411
Grutter v. Bollinger, 539 U.S. at 308.
412
Id.
413
Id.
414
Id.
415
Id.
64
pandemic.”416 “The value of the education offered by Plaintiffs hinges on the diversity of
perspective offered by these international students,” Harvard and MIT emphasized.417
COVID-19’s disparate impact on African-Americans, Native Americans, and Latinx

Americans, as well as those with certain underlying medical conditions, and older Americans,
would foreseeably lead to a divided classroom that evokes concerns underlying Sweatt v.
Painter. Many diverse students, older students, and those with certain underlying medical
conditions may watch classes via remote during the COVID-19 pandemic while those inside a
hybrid classroom may be younger and less diverse. This division, whether intentional or not,
undercuts “the interplay of ideas and exchange of views among students” and “interaction among
members of different racial groups” recognized in Sweatt v. Painter as educational values that
support first amendment goals.418
Managing the split classroom of raised hands for those physically present and virtual
hands and chat threads for those participating online makes it challenging to create the interplay
of ideas and exchange of views Sweatt v. Painter recognized as central to legal education. The
split classroom confounds pedagogical strategies such as breaking students into small groups to
promote discussion and deeper understanding. Video conferencing technology platforms such as
Zoom separate students into breakout rooms with a few clicks. Students seated six feet from each
other in person during the COVID-19 pandemic would have to turn to each other and speak loud
enough for other discussion group members to hear. In a room with several discussion groups,
each talking loudly, discussion will transform from a murmur to a roar.
Integrating students participating online into the physical classroom’s discussion groups
increases the challenges each student and their instructor would face. Imagine discussion groups
of four with students seated at directional coordinates, north, south, east, and west. Add one
online student, accessing the in-person discussion group through laptops held by each student.
While the students in the room strain to hear their socially distanced discussion group, the
student participating online must attempt to filter out their discussion group from the rising
cacophony in the room. Students attending in person may look at each other to signal talking and
listening, but will have to check their laptop or assign one person to monitor the video
conference to ensure that the person online has the opportunity to speak, hear, and participate.
If the faculty member cleaves discussion groups by those in the room and those
participating online, demographic differences between the online students and those in the
classroom will manifest in the discussion groups. Creating separate discussion groups for those
participating online (likely to include many older students and faculty, those from vulnerable
communities, and those with certain underlying health conditions) and those participating in
416
Reuters, Harvard, MIT Seek Temporary Halt to Trump Administration Rule on International Students, US NEWS,
July 8, 2020, https://www.usnews.com/news/top-news/articles/2020-07-08/harvard-mit-seek-temporary-halt-to-
trump-administration-rule-on-international-students.
417
Harvard/MIT DHS Complaint, supra note 67, at 18.
418
Fleet & Grimmer, supra note 407, at 131.
65
person (who will likely be younger and less diverse), undermines the pedagogical aims of
diversity recognized from Sweatt to Baake to Grutter.
Ongoing protests about police brutality and the killing of African-Americans and other
people of color by police cry for justice and equity.419 As people around America and the world
cry for justice and equal treatment, we cannot imagine Law School classes held in-person or in a
hybrid format when the data shows that African-Americans, Native Americans, and Latinx
Americans suffer disproportionately from COVID-19 illness, hospitalization, and death.
The prospect of diverse and older students and those with underlying medical conditions
online and younger and likely more white students in the classroom produces a division Law
Schools and our country have sought to eradicate. Failure to consider diversity and inclusion in
the Law School’s COVID-19 decision-making matrix deploys “bureaucratic erasure”420 to
obscure the loss of diverse dialogue, educational interaction, and equity endemic to hybrid and
in-person classrooms during this pandemic. Commitment to equity, justice, diversity, inclusion,
safety, recognition of the dignity and worth of each person, and educational excellence supports
putting all law students on the same platform, united in virtual classrooms during the COVID-19
pandemic.
XI. Online Education and Virtual Platforms Fosters Educational Excellence and
Prepares Lawyers for the Contemporary Legal Profession
A. Online Excellence in Pedagogy
Most ABA-approved Law Schools moved their remaining coursework online in March
2020 as COVID-19 spread in many American communities.421 Although online education is still
new for many Law Schools, decision-making during this pandemic should question the premise
that in-person classes or hybrid classes are the best method to achieve a Law School’s core
educational mission and responsibilities.
Yale Law School announced on July 1 that it will operate under a hybrid learning model
in Fall 2020.422 Yale Law School’s Dean Heather Gerken announced that to “hew to our core
educational mission, we will do all we can to create opportunities for in-person learning while
ensuring that everyone has access to engaging online courses when in-person classes are not
possible.”423 Her letter recognized that we “all yearn for a sense of normalcy and miss our old
419
Meg Wagner, et al., Black Lives Matter Protests, CNN, June 12, 2020, https://www.cnn.com/us/live-
news/george-floyd-protests-06-11-20/index.html.
420
Sandoval, Energy Access is Energy Justice, The Yurok Tribe’s Trailblazing Work to Close the Native American
Reservation Electricity Gap, supra note 346, at 181.
421
ABA, Council Moves to Expand Flexibility For Fall Academic Year, supra note 87.
422
Yale Law School, supra note 303.
423
Id.
66
routines.”424 The Dean’s letter did not explain in more detail why Yale determined that holding
in-person classes under a hybrid model was the best way to hew to their educational mission.
Neither did it address state requirements imposed on visitors coming from 22 other states into
Connecticut, as well as New York, and New Jersey, to self-quarantine for fourteen days.425 Nor
did the Dean’s message discuss Yale’s plans to enforce a two-week self-quarantine prior or
during the start of Law School classes.
Each of the law professor authors of this Article attended Law School when online legal
education was unimaginable. While we look forward to the day when we can work with our
students and colleagues in person, we have developed online resources to enhance student
understanding of legal materials, promote engagement, and provide students with meaningful
feedback. Several of the authors are enrolled in the Creating Optimal Online Learning course
offered at Santa Clara University to learn more online educational techniques.
Professor Sandoval was the first among this Article’s authors to use video to record
online classes and hold online review sessions in 2018 during the Camp Fire that caused Santa
Clara University to close due to poor air quality as the massive wildfire destroyed the town of
Paradise, California and killed 84 of its residents.426 Her videos recorded on YouTube provided
in-depth lectures on several contracts topics. Those video resources helped each of her students,
including those who had asthma and were sensitive to the poor air quality in the region. She also
engaged live with her students in a Zoom review session in November 2018 as poor air persisted
and people with asthma were advised to stay indoors.
Professor Love engaged in Socratic dialogue in her Torts class in Spring 2020 going up
and down the virtual rows. Socratic interaction between student and teacher trains students “in
spontaneous oral analysis and argument,” deepens understanding, and improves students’ ability
to apply the material.427 In Fall 2020, Professor Love plans to assign students to "law firms" and
call on two firms each day to make arguments for the plaintiff or defendant. She then opens the
virtual floor to questions from students on call and from all students in the class.
In an online classroom conducted through Zoom, Professor Love asks a student who had
most recently been "on call" to take questions from the class via chat and relay the questions to
her when they pause for discussion. In person, the faculty member can see raised hands and
sense questions on students faces, often before they articulate them. Online education forces
424
Id.
425
Hayes, supra note 56.
426
See Broadband Institute of California @ Santa Clara University School of Law, Reply Comments, In the Matter of
Internet Freedom (WC Docket Nos. 17-108, 17-287, 11-42), May 20, 2020, 31,
https://ecfsapi.fcc.gov/file/1052104890909/BBIC%20Mozilla%20Remand%20Reply%20Comments%20Final.pdf
(discussing poor air quality during the Camp Fire).
427
Helen Leskovac, Distance Learning in Legal Education: Implications of Frame Relay Videoconferencing, 8 ALB.
L.J. SCI. & TECH. 305, 310 (1998).
67
more channeling of questions and development of strategies to handle the multitasking of taking
questions while advancing understanding of legal cases, concepts, and materials.
Online education offers the opportunity to “flip the classroom” to spend class time
analyzing problems and legal hypotheticals rather than reviewing reading assignments. “In the
traditional classroom, professors spend the majority of their time dispensing information. The
students spend the majority of their class time taking notes. Professors have little time to help
them connect the analytical dots.”428 In a Socratic method classroom, the dominant mode of legal
education first introduced by Christopher Langdell of Harvard University in 1870, the faculty
member’s questions interrupt note taking with dialogue about the cases and material studied.429
In the flipped model, new content may be presented online through videos viewed prior to class
to highlight key points in or approaches to assigned material. Class time may then focus on
activities that enhance and deepen understanding and help students analyze and apply the
material to legal hypotheticals.430
Each of the law professor authors uses a partially flipped model for online education,
combining Socratic dialogue in class with videos and written materials students review before
class. Professor Sandoval assigns her Contracts Law students to review hypothetical legal
problems (Hypos), derived from past California bar exam Contracts Law questions or her past
exams. Student teams present their Hypo analysis to the class using power points shared on the
screen. After this dialogue, students submit a written analysis of the Hypo for Professor
Sandoval’s written feedback. This process scaffolds understanding and analysis. It helps students
apply the cases and materials they studied and gives them feedback on their analytical methods
and writing before the final exam.
Professor Love gives her Torts Law students multiple choice questions at the end of
topical units in their virtual class to check their understanding and provide feedback before the
final exam. Each of the law professor authors of this Article attended Law School when Legal
Research and Writing was the only class in which we received written feedback during the first
year of Law School before final exams. ABA standard 306(d)(2) requires that online classes
offer “regular monitoring of student effort by the faculty member and opportunity for
communication about that effort.” Online learning requires and facilitates faculty-student
interaction that promotes accountability and fosters learning and support.
B. Training Students to Practice Online Teaches Valuable Professional Skills
Conducting courses electronically trains students for the increasing use of the Internet in
many fields of work and in our society. Researching, collaborating, and presenting work online
are important skills for many fields including legal practice.
428
William R. Slomanson, Blended Learning: A Flipped Classroom Experiment, 64 J. LEGAL EDUC. 93, 95 (2014).
429
Jamie R. Abrams, Reframing the Socratic Method, 64 J. LEGAL EDUC. 562, 565 (2015) (citing Christopher M.
Ford, The Socratic Method in the 21st Century, U.S. MILITARY ACAD. 1 (2008),
http://www.usma.edu/cfe/literature/ford_08.pdf (summarizing Langdell’s distinct but related contributions: “the
introduction of the case method and the Socratic method.”)
430
Id.
68
COVID-19 produced a sea change that shifted legal practice to online forums. In
response to the COVID-19 pandemic, the Supreme Court heard oral argument by telephone for
the first time in 2020.431 Legal practice including courtroom trials, arguments, and motions are
increasingly moving online to mitigate risks during the COVID-19 pandemic.432 Several
California county and appellate courts have shifted to online motion and limited trial calendars
through electronic means, including telephone or Internet resources.433 Law firms are
increasingly using video conferencing to conduct interviews, onboard attorneys, provide training,
and practice law.434
Development of online practice skills is consistent with ABA Standard 301 which
requires a rigorous program of legal education that prepares students for effective, ethical, and
responsible participation as members of the legal profession.435 Teaching law students how to
communicate in writing and orally through online mechanisms prepares them for the legal
context of modern practice. Online training enables law schools to achieve and monitor the
objectives of ABA Standard 302.436
As we collaborate to promote online education and study, academics, policy makers,
businesses, regulators, and researchers must also address the role of Internet Service Providers
(ISPs) in deepening the digital divide. ISP policies that, for example, slow subscribers to speeds
too slow to support classroom participation through video conferencing if the subscriber used
levels of Internet data commensurate with online education undercut educational opportunity and
equity.437 Students and faculty using mobile devices to access classes and conduct their research
or study for one to two weeks may hit ISP-induced slowdown caps that will reset the subscriber’s
speeds to early 1990 levels before video conferencing was widely available through mobile
devices. Those 1990 speeds will not just make video conferencing appear slow or “janky.” It will
431
Supreme Court of the United States, Press Release, April 13, 2020,
https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_04-13-20 (listing Supreme Court oral arguments to
be heard by telephone).
432
See e.g., Chacour Koop, The first Zoom jury trial: Texas jurors use phones, iPads from sofas and a backyard,
FORT WORTH STAR TELEGRAM, May 19, 2020, https://www.star-
telegram.com/news/coronavirus/article242846441.html.
433
See e.g., Cheryl Miller, How COVID-19 Is Impacting California Courts: Roundup of Services, LAW.COM, THE
RECORDER, May 22, 2020, https://www.law.com/therecorder/2020/05/06/how-covid-19-is-impacting-california-
courts-roundup-of-services/.
434
Victoria Hudgins, COVID-19 Shifts Law Firms' Hiring, Onboarding Process Online—To a Limit, LAW.COM,
LEGAL TECH NEWS, May 31, 2020, https://www.law.com/legaltechnews/2020/03/31/covid-19-shifts-law-firms-
hiring-onboarding-process-online-to-a-limit/.
435
ABA Standard 301, supra note 368.
436
Id.
437
Broadband Institute of California @ Santa Clara University School of Law, supra note 42, at 14 (“BBIC is
concerned that current ISP practices including throttling those who use more than certain quantities of data to 2G
speeds will interfere with education, public health access, and undercut public safety”); Id. at 19-20, 44-50.
69
make it difficult for the student or faculty member to connect to or participate in twenty-first
century online classes.438
Not all students live in households that have or can secure wired Internet access. Many
places in America still lack Internet access at speeds sufficient to support video education.
Students who live in crowded dwellings with multiple family members or several households
may not be able to install or access wired Internet facilities and services. Increasing numbers of
students are homeless and have no option to secure wired internet.439 Homeless students, like
many low-income students, and students living in crowded residences, rely heavily on wireless
methods for Internet access.
As we invest in online education, we must address digital divide issues, ISP policies,
access, and affordability gaps to ensure equitable access to high-quality online education.
Internet access will promote educational access as well as form a gateway to health and other
services, increasingly offered online during the COVID-19 pandemic.
XII. Conclusion: Online Legal Education During the COVID-19 Pandemic Promotes
Health, Safety, Equity, and Educational Excellence
Law Schools must recognize that COVID-19’s infectiousness and limited effectiveness of
mitigation measures render classes convened in-person or through a hybrid model a high-risk
activity. Risks of serious and persistent illness or death from COVID-19, the variety of
conditions that increase risks of COVID-19 illness, and the disproportionate effects of COVID-
19 on many communities of color call for rejecting the in-person or hybrid legal education model
during this pandemic. We recommend that Law Schools focus on training faculty and students to
increase the effectiveness of online teaching and learning, and address Internet and computer
access issues and ISP policies that undercut educational equity.
Peter Huang and Debra Austin emphasize that the “well-being of students staff, and
faculty is irreplaceable. Death is irreversible. During COVID-19, online higher education is
socially responsible higher education.”440 Law Schools must develop a safety culture that
prioritizes health, safety, and well-being, respects the dignity and worth of every person, and
values diversity and inclusion that supports robust education. This Article urges Law Schools to
provide ethical and effective legal education online during the COVID-19 pandemic.
438
Id. at 37-39.
439
Charisse Jones, Homeless In College: Students Sleep In Cars, On Couches When They Have Nowhere Else To
Go, USA TODAY, Dec. 30, 2019, https://www.usatoday.com/story/money/2019/06/10/homelessness-among-college-
students-growing-crisis/3747117002/.
440
Huang & Austin, supra note 39, at 26 (citing Dr. Amina, Letter to My Beloved Students: Why I Will be Offering
My Courses Remotely This Fall Semester (Hint: Pandemic), MEDIUM, June 16, 2020,
https://medium.com/@womanistpsych/letter-to-my-beloved-students-why-i-will-be-offeringmy-
courses-remotely-this-fall-semester-hint-afab70e2fa8b).
70

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Legal Education in the Era of COVID-19:

Putting Health, Safety and Equity First

The COVID-19 contagion challenges the historical model of in-person teacher-student

The COVID-19 virus appears to be “zoonotic” in origin, arising from animals or a

“Leadership is commonly accepted as the primary influence on organizational culture and

Safety is an organizational value grounded in recognition of the inherent worth and

COVID-19 creates grave safety risks as it undermines equity. “Long-standing systemic

As universities redouble their commitments to equity and inclusion, particularly in the

B. Organization of this Article

Section IX examines ethical decision-making frameworks using Santa Clara University’s

Distributive justice. PHEPR activities should be conducted so as to ensure that the

Public accountability and transparency. PHEPR activities should be based on and

Community resiliency and empowerment. A principal goal of PHEPR should be to

Responsible civic response. PHEPR activities should promote a sense of personal

III. COVID-19 Guidance for Institutions of Higher Education and Workplaces

“There are currently a higher proportion of COVID-19 cases among Hispanic/Latino

IV. COVID-19 Transmission, Mutation, Disparate Effects, and Mitigation Strategies;

A. COVID-19 Contagion Underscore the Risks of In-Person and Hybrid Classes

Gathering people together appears to contribute to viral recombination, which “provides

C. Loud Talking (Lecture-Level Speaking) as a Virus Spread Mechanism

Indoor spaces appear to be conducive to COVID spread. Koen Swinkels compiled a

E. Mask-Wearing May be Inadequate to Mitigate Virus Spread in Universities

F. Antibody-Testing Accuracy Questions, Short-Term Immunity from Antibodies,

V. COVID Testing and Screening

VI. Physical Factors at Universities that May Contribute to Virus Spread

A. Toilet Plumes Can Spread Virus Particles

B. Reducing Shared Use of Objects Including Electronics May Diminish Contact

A. Community Members at High Risk of COVID-19 Infection, Illness,

CDC reports elevated COVID-19 hospitalization rates among African-Americans, Native

B. COVID-19 Illness and Long-lasting Complications

In addition to affecting the respiratory system, some infected by COVID-19 experience

A study of 43 patients in the United Kingdom referred to the COVID-MDT

A. Practical Barriers to In-person and Hybrid Legal Education During the

A. Ethical Planning for Legal Education During the COVID-19 Pandemic

(a) Knowledge and understanding of substantive and procedural law;

1. Know the Facts and Identify Stakeholders

ETHICAL GUIDELINES IN PANDEMIC INFLUENZA, a 2007 guideline prepared for

ETHICAL GUIDELINES IN PANDEMIC INFLUENZA recommends that a “classic

Refrain from harming or injuring individuals and communities;

3. Rights and Dignity

A COVID-19 outbreak in a Law School could quickly become a high consequence,

X. Commitment to Diversity and Inclusion Supports Online Education

Grutter upheld the University of Michigan Law School’s commitment to admitting a

COVID-19’s disparate impact on African-Americans, Native Americans, and Latinx

A. Online Excellence in Pedagogy

B. Training Students to Practice Online Teaches Valuable Professional Skills

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