8 Things to Know About Using Surety Bonds to End School District Mask Mandates
As several blue states have been ending their school mask mandates, a recent grassroots effort is pushing the notion of using surety bonds to end these mask mandates. As the theory goes, concerned parents can assert a claim against the surety bond that insures school district officials and demand the officials rescind their school district mask mandate, or else face monetary liability for keeping the mandate in place. This strategy has some appeal: it posits that concerned parents don’t need to use lawyers to implement it, and the mere threat of these officials shouldering individual liability will incentivize them to immediately walk back mandates.
Like many of the strategies parents have attempted over the last two years to protect their children in school settings, this one has some benefits but also poses some significant challenges. I was a guest on the Team Reality podcast a couple of weeks ago, and we discussed some of these issues.
Below are eight things you should know about this strategy:
What is a Surety Bond?
It helps, first, to understand what a surety bond actually is. A surety bond is a contract between three parties: (a) the principal, (b) the surety, and (c) the obligee. The principal is the individual or business that purchases the bond to guarantee future work performance. The obligee is the entity that requires the bond. Obligees are typically government agencies that regulate industries and reduce the likelihood of financial loss. The surety is the insurance company that backs the bond. The surety provides a line of credit in case the principal fails to fulfill the task. The surety financially guarantees to an obligee that the principal will act according to the terms and conditions established by the bond. If the principal fails to act according to those terms and conditions, the surety is obligated to cover any losses or damages that result from that failure.
In our situation, the obligees are the parents; the principal is the school district official; and the surety is the insurance company.
Is There a Surety Bond Requirement?
Before looking to see if your school districts or school district officials have surety bonds in place, you should consult your state’s statutes to determine if there is a requirement they have such a bond. Believe it or not, some states don’t require it. Some states may require state-level officials to be bonded. Other states usually require public officials such as treasurers (whether at the state or municipal level) to be bonded. But school district officials and superintendents do not always have to be bonded under state law. A simple review of your state’s statutes (or asking an attorney) will help you answer this question.
If There is a Surety Bond, Request a Copy of It
If your state requires that school district officials be bonded, you can request a copy of it. Under every state’s public records or freedom-of-information-act law, citizens may request copies of public records. In nearly every instance, a surety bond will be considered a public record subject to disclosure. You may request a copy in writing (or even verbally). Direct the request to your school district or town clerk.
What if There is No Surety Bond?
If there is no statutory requirement for school district officials to be bonded, or if there is such a requirement but the school district does not have a surety bond (yes, it’s possible), you should request other “insurance policies” or “errors and omissions” policies that cover school district officials. Such policies would function in the same way as surety bonds.
Now that You Have the Bond or Policy, Who Does it Cover?
Once you have a copy of the bond or policy, review it (preferably with an attorney) and determine who it covers. For this strategy to have any potential, your bond or policy must cover school district officials specifically, school district bodies in general, or public officials in general. If it does not cover these individuals, then you likely may not be able to use it in an attempt to force school district officials to end a mask mandate.
What does the Bond/Policy Cover?
Assuming the bond or policy covers school district officials, then you should review (again, preferably with an attorney) what kind of conduct it covers. These documents are very specific and will contain a section that identifies what specific conduct it covers and what kind of conduct it excludes from coverage. Usually these bonds or policies will insure against financial loss, or the mishandling of funds by treasurers or officials in such roles. In other instances, these bonds or policies will be much broader and cover other conduct, like mistakes or misstatements by public officials, employment claims, or attorney malpractice. For our purposes here, a bond or policy should insure against errors or omissions, mistakes, misstatements, breaches of duty, or civil rights violations by school district officials. It is important to review the specific language in the coverage and exclusion sections of the bond or policy to determine if it covers this kind of conduct. If it does, then you are closer to your goal because the implementation of a school district mask mandate usually implicates these types of errors.
If the Bond/Policy Covers the Conduct in Question, Determine if a Court in Your State Has Addressed It
Now comes the hard part. If the bond or policy is broad enough to cover the conduct of enacting a school district mask mandate, then you need to determine if another parent in your state has challenged the mandate on some basis in court. If a court has already ruled on such a challenge, then you may be limited with respect to how you can challenge the mandate.
The courts that have enjoined or stayed school district mask mandates have done so on the basis that the school districts in question lacked the authority to pass such broad health measures. If a court in your state has not addressed this issue, and if the bond or policy covers this kind of conduct, then you likely have an avenue for asserting a claim against the insurance company.
If You Have a Claim, How Do You Proceed?
Assuming all the boxes above are checked off, you should confer with an attorney (if you haven’t already) about how to proceed with asserting a claim against the insurance company. Normally, this is done in writing, through a demand letter. Folks advocating this strategy recommend sending a “notice of intent” or a “letter of intent.” Those are terms that roughly mean the same thing: a written demand to the insurance company or public officials requesting that the mask mandate be rescinded immediately. Either way, I highly recommend consulting an attorney if you intend to pursue this next step.
Concerned parents have attempted many strategies over the last two years to protect their children in school settings. This approach has some benefits, but it also poses some challenges that need to be navigated. Hopefully, some combination of strategies will ultimately end school district mask mandates once and for all.