Story updated at 2:15 p.m., 8/11/20

Some private schools in Hawaii are asking parents to sign a release of liability waiver to send their children to school during the COVID-19 pandemic.

St. Andrew’s Schools in downtown Honolulu sent out such a form to parents this summer but others say it goes against their philosophy.

Ruth Fletcher, head of school at St. Andrew’s, said the school simply isn’t able to prevent every student from contracting the virus.

Punahou School entrance gate.

Punahou is not requiring families to sign waivers but all families are expected to abide by community safety protocols and procedures and accept a level of risk, according to a spokesman.

Cory Lum/Civil Beat

The St. Andrew’s form notifies parents that they “voluntarily assume the risk that you and your child(ren) may be exposed to or infected by COVID-19 by attending the school in person … and that such exposure or infection may result in illness, disability and/or death.”

Fletcher said her school wanted to convey to parents that the virus “is much bigger than the school” but that officials would do everything in their power to keep children safe.

The move reflects just how heightened the subject of children returning to campus has become, when it’s still not entirely clear how easily they can contract the virus or spread it to others.

New data this week from the American Academy of Pediatrics shows a sharp rise in the number of U.S. children testing positive for coronavirus for the period between July 9 and Aug. 6, though pediatric cases represent 9% of total U.S. cases.

At one Georgia high school, where students were shown unmasked and crowded into hallways, nine students tested positive for coronavirus in the first week back, causing the school to close temporarily for disinfecting.

Hawaii Association of Independent Schools Executive Director Phil Bossert said private schools are not unique in wanting legal protection, pointing out how community soccer leagues have also turned to waivers.

“It is up to each school to decide what to do and I do not know which schools plan to use either of these forms,” he said, referring to sample waiver language drafted by the association’s general counsel.

Relying on tight-knit communities and carefully planned safety protocols, some school leaders said a legal form of this kind goes against the spirit of trust and relationships grounding their operations.

Le Jardin Principal Earl Kim speaks thru car window to kids as parents drive to school to pickup packets.

Le Jardin Principal Earl Kim speaks to kids as parents drive to school to pick up packets.

Cory Lum/Civil Beat

“The primary reason is philosophical,” said Earl Kim, head of school at Le Jardin Academy in Kailua. “LJA is a community bound by a sense of duty to one another as opposed to a system of individuals bound together by regulations and laws.”

Josh Watson, head of La Pietra Hawaii School for Girls, said he considered a waiver but in the end, decided against it, since the school covered most of the same general points in its back-to-school communications with families.

“Moving to a more formal, legalistic or liability-focused approach did not feel like the right way to go,” he said.

Robert Graham Jr., a partner at Ashford Wriston, who has represented entities like the Roman Catholic Church in Hawaii and Kamehameha Schools in trust law, said private schools are looking for a way to protect themselves with a waiver.

“Private schools are private operations and you can decide to attend or not to attend a private school,” he said. “Any private facility or private operation can have private rules as long as they’re not discriminatory.”

Fletcher, of St. Andrews, said since the school began its summer programs, with kids kept in cohorts of 12, no positive case had been reported. When the campus opens to 120 preschoolers and 310 K-12 students in the fall, they’ll also be limited to bubbles, with in-class instruction provided five days a week.

“The way I look at this is, if a parent is unwilling to sign the waiver and release, I would say, then let’s just go online for you,” she said, adding that in the two weeks since the Episcopalian school mailed waivers for the new school year beginning Aug. 27, no parent has asked to opt out.

Update: On Tuesday, the parent of a second-grader at St. Andrew’s said she did not receive a waiver in the mail. She found the form on the school website and told the school she would not sign the waiver. She said she has not heard anything back from the school yet regarding a plan for all-distance learning. She said she knows of at least two other parents who are refusing to sign the waiver.

While not sending a separate form outright, Iolani tucked waiver language into its 73-page 2020-21 school reopening guide. “By sending their student to school on-campus,” one passage says, parents “assume the risk” that attendance could expose their children to others infected with COVID-19.

It also states parents waive the right to sue the school except for “gross negligence or willful or wanton conduct” by Iolani.

Kamehameha Schools has not asked parents to sign a COVID-19 waiver of liability, according to spokesman Darren Pai.

“Keeping our haumana (students), kumu (teachers) and campus communities safe is everyone’s responsibility and we have asked parents, students along with all faculty and employees to acknowledge that kuleana,” he said via email.

While Punahou is not specifically requiring families to sign waivers, families are expected to “uphold school community safety protocols and procedures and an acceptance of risk,” said spokesman Scott Osborn.

“This effort requires the cooperation of the entire school community,” he said.

Llewellyn Young, acting superintendent of Hawaii Catholic Schools, which counts 28 member schools comprising about 6,000 students, said it’s within each school’s discretion to use a waiver.

“We have told them the need to create very concrete, very explicit plans for preparations for reopening and sustaining the reopening through the pandemic,” he said.

Kaneohe Elementary School summer school teacher Jacque Yoshizumia helps a student during COVID-19 pandemic. June 12, 2020

Kaneohe Elementary School summer school teacher Jacque Yoshizumia helps a student during the COVID-19 pandemic. Public schools won’t be requiring waivers.

Cory Lum/Civil Beat

Because of their funding prowess and endowments, some private schools in Hawaii have far greater flexibility in their back-to-campus plans than public schools.

Punahou, for instance, has spent $3 million on health and technology upgrades and has a “pandemic response team” that developed its health guidelines.

Private schools in Hawaii educate roughly 16% of all school-age children in the state, or about 37,000 kids spread throughout roughly 90 schools.

Hawaii public schools, meanwhile, are struggling to find enough funding to safely prepare classrooms or be able to provide all-distance learning for families who prefer that.

The Hawaii Department of Education announced Friday that all public schools on Oahu would start with distance learning on Monday through at least Sept. 12.

Due to record, triple-digit positive coronavirus cases in Hawaii in recent days, some private schools on Oahu have already adjusted how the new academic year will begin.

Punahou, originally set to welcome students back on campus on Aug. 19, said it would start the year with all-distance learning and bring students back onto campus no earlier than Sept. 14.

Iolani School is also eyeing Sept. 14 as a target return date.

Kamehameha Schools, which was planning to see students back Monday, also switched to an all-distance model through at least Aug. 31, “in response to current conditions on Oahu,” said Pai.

While face masks, face shields, smaller class sizes, staggered pick-up and drop-offs for students and individually packaged grab-and-go meals are now de rigueur for schools’ back-to-campus preparations, there is only so much that can be done to contain the possible spread of the virus.

Since most school campuses shuttered in the middle of March, there has been no real litmus test yet of how consequential it could be to bring kids and staff back to a school building under one roof.

While many Hawaii schools welcomed children back for summer school, the programs served only as a partial simulation of a regular school environment since they hosted far fewer numbers of kids than expected on a regular school day.

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