Opt in or Opt out?
Basketball situation prove fear and self-preservation continue to drive decision-making, not the well-being of Illinois athletes
(Photo Credit: Shutterstock)
There are several virus-originated phrases now permanent in our culture’s vernacular.
Abundance of caution. Adaptive pause. Opt in, opt out.
One week away from the Illinois High School Association-approved Nov. 16 start date for basketball, we don’t know how many schools will participate.
A few Chicagoland school districts have said they won’t play. A few have said they plan to practice, albeit with public health guidelines that severely restrict what ‘practice’ will look like. Games can be played beginning Nov. 30 but if the majority of schools ‘opt out’, as expected, what is the incentive for ‘opt in’ programs to participate in the winter sports season as currently constructed?
As the start date inches closer this week, it is expected more school districts will announce in the coming days intentions for the 2020-21 season. It is likely a majority of districts will opt out and choose not to play, hoping a basketball season can be salvaged in the spring of 2021. The IHSA is mulling options, surveying members, thus far not in favor of re-classifying another sport to an already crowded spring.
In this article, The Kerr Report examines the reasons given by districts for oping out, their potential risk, and how a continued failure of leadership is the most glaring problem facing youth and high school sports in Illinois in the Year of the Virus.
When the Illinois Department of Public Heath labeled basketball ‘high risk’ two weeks ago, the label severely limited activities allowed. The state-provided guideline document states how high-risk sports are at Level 1, allowing for 'no contact practices, trainings only.’
Basically, basketball players can lift weights, do conditioning and some skill work.
“We’re not shutting down,” one North Suburban Conference coach said. “We can still train and go to the weight room.”
By following guidelines, schools are avoiding ‘liability issues’, as Pritzker said on Oct. 27.
But what is the ‘liability? What does that mean?
For any school that chooses to ‘opt in’, they are technically defying state-mandated public health guidelines.
In terms of the law, there is nothing illegal about ignoring the guidelines.
In first few paragraphs of the “All Sports Policy” document issued by the Illinois Department of Public Health, the word ‘guidance’ is written several times.
Not ‘mandate’ but ‘guidance.’
At Pritzker’s pressers and in written statements, he uses much of the same terminology.
“When you read these releases (from the Governor), read carefully of the word choice being used,” a source said.
Indefinitely. Might. Could. Potentially.
Not given as instruction, but meant to be instructive.
When schools decide to adapt ‘guidelines’ they are doing so of their own free will, based on the threat of liability.
So what is the actual liability?
All public schools are part of an insurance cooperative. In Chicagoland, one of the more popular co-ops is underwritten by a company called CLIC, or the Collective Liability Insurance Cooperative. On its website it states:
Collective Liability Insurance Cooperative (CLIC) is a strong and stable member-driven insurance pool that utilizes risk sharing and excess insurance to provide a comprehensive, cost-effective, school-specific Risk Management Program…CLIC provides package programs and other ancillary lines of coverage needed by a school district. Low district deductibles, high per-occurrence limits for all coverages, loss prevention services and efficient claims administration services.
On a digital brochure, CLIC states it represents schools in 13 Illinois counties, including Lake and Cook.
The Kerr Report reached out to CLIC with a list of questions.
Here are the questions asked:
On your brochure, you said 'program design is flexible to meet the needs of each individual district.' What typically are those needs?
is there a type of insurance you offer most popular with school districts? If so, why?
does COVID-19 fall into any line of coverage?
are there insurance protections for viral diseases such as COVID-19?
would the flu or another viral disease or illness fall under the same category as COVID-19?
As of filing this article, I’m still awaiting a response and will update the article if/when answers are given.
One source familiar with school-related insurance said Covid coverage is not included in these policies.
“Schools don’t cover infectious diseases,” the source said.
If someone filed a lawsuit claiming their son or daughter got Covid from playing basketball, school officials would not have insurance to fall back on, according to the source. But the same scenario could come up with the influenza with someone suing a district over a flu outbreak, the source also added.
But when was the last time we heard of an influenza lawsuit?
I searched and couldn’t find one. The same for Covid, specifically schools being sued for sports-related activity. Almost all Covid school lawsuits thus far are litigating the loss of personal freedoms due to the virus (in-person schooling, wearing masks, etc), not claimants suing over getting sick.
For schools that play in defiance of public health guidelines, they could be found negligent in a lawsuit, another source said.
Attorney Terry Elk said this to the Joliet Herald-News:
The problem you are going to have is, even if you have parents sign waivers, if a kid gets [COVID-19] and then goes out and gives it to someone else, you have a potential of a lawsuit against the school district. The basis of the lawsuit is they ignored the Illinois Department of Public Health and went ahead and allowed these kids to play.
There’s a proof issue involved here, but that doesn’t mean the school district is not going to get sued and have to engage in costly defensive litigation. Sometimes the cost of litigation exceeds the cost proven to be a damage. You win the case, and you still have to pay the cost of defense, which could be tens of thousands of dollars.
[Insurance carriers] may very well say to the school district, ‘If the department of public health is saying they are recommending you should not play basketball, and you go ahead and do it, we would negate your insurance coverage. We’re telling you right now you should not engage in athletic activities that are in conflict with the Illinois Department of Public Health.
I spoke Monday with Brad Skertich. He’s the Collinsville (IL) School District Superintendent who organized a letter signed by a few hundred downstate superintendents, pleading with Pritzker to have a conversation and re-think his ‘high-risk’ labeling of basketball.
Skertich is clear about wanting a basketball season. But he knows it can’t be done with current public health guidelines.
“If the public health department says basketball is high risk and we say ‘the heck with that we are going to play’ and we get sued, then we are sitting there with no coverage and that’s what we have to be mindful of,” Skertich said. “For example if I have a playground that is damaged and unsafe and we continue to let kids play on it, we’d be willful and wanton and negligent that we didn’t act on that.
“School districts are a state agency and we have to follow state guidance. If we knowingly defy health guidance we’d be negligent if something occurred and that would jeopardize our insurance coverage if litigation was brought against a school district.”
The ‘liability’ reason for not playing is the risk exposure when disregarding a public health recommendation. And that’s a legitimate reason, the ‘negligence’ piece. School lawyers, paid by the district, will do as instructed and recommend not playing.
Skertich said the letter was sent to Pritzker on Nov. 5.
“All we’re asking is that we can sit at the table, with superintendents, coaches and athletic directors and come up with a plan the department of public health to give our kids an opportunity (to play),” Skertich said.
As of Monday night, Skertich said he had yet to hear back. Again the bottleneck is Pritzker and the IDPH.
But also, as we saw during football season, there are not enough loud voices speaking out, demanding government officials engage on this subject.
That is what Skertich said, that he can only do so much.
“As we advocate for kids to try and get this done, I’m embarrassed that we don’t have more people fighting to make this work for our kids,” Skertich said.
I asked Skertich to be more specific when referring to ‘people.’
“Educators, legislators, parents, coaches. All of the above,” he said.
So we are seeing history repeat itself here in Illinois. A week after Election Day, the politics still run deep.
I wanted to dig a little deeper on the issue of school funding. First, let’s go back a few weeks.
On Oct. 28, the Illinois State Board of Education released a statement in response to the IHSA’s decision to forge ahead with a basketball season:
The letter put an agency signature on Pritzker’s verbal threat—how the ‘ramifications’ are cuts in state funding to schools who defy public health orders.
The amount of state funding schools receive varies from district to district. But what state funds pay for is very similar amongst districts, according to financial reports.
“State sources of revenue assist in funding many activities at the District,” said Cathy Johnson, Associate Superintendent for Finance and Operations at Township High School District 214. Buffalo Grove, Wheeling, Hersey, Rolling Meadows, Prospect and Elk Grove High Schools make up District 214, the second largest in the state based on enrollment.
According to D214’s 2020 Annual Financial Report—covering the period from July 1, 2019 to June 30, 2020—$12,225,772 of revenues came from state sources. The bulk of the money (just over $10m) went to what the AFR lists as ‘Evidence based funding’.
“(Evidence based funding) recognizes individual student needs, accounts for differences in local resources, closes funding gaps and keeps them closed, and provides a stable, sustainable system that gets districts across the state to adequacy over time,” Johnson said.
The remaining $2m went to pay for services such as special education, adult and driver education and technical services.
The percentage of state revenue in D214’s 2020 AFR is .03% of its $368m total revenues. The majority of district’s revenue comes in the form of property taxes, accounting for 63% of revenues.
If schools in D214 decided to disobey public health guidelines and play basketball in 2020-21, and if Pritzker followed through on his threat to cut funding, any amount chopped in D214 would be a very small percentage of its total revenues.
The D214 2020 AFR lists total revenues at $368m and total expenses at $348m. So even if the state withheld all $12.2m of the district’s funds, it would remain solvent.
District 128, which includes Vernon Hills and Libertyville, opted out of basketball on Nov. 2. According to a source, the school’s superintendent, Dr. Prentiss Lea, cited ‘liability’ concerns for opting out. Worries over losing state funding was not mentioned as a reason, nor should it be according to the district’s FY19 AFR, a period from July 1, 2018-June 30, 2019.
The document lists the district’s revenues at $88.8m. The amount coming from ‘state sources’ is $3.5m, coming to an overall percentage of .040%.
Based on the numbers, it’s safe to say D128 could exist without funds from Springfield although Johnson said any amount of cuts negatively impact students.
“The area most impacted by funding cuts is our students, every reduction in funding is a reduction in our ability to serve them,” Johnson said.
But not all districts are in the same financial position.
Waukegan High School is a lone member school district, District 80.
In D80’s FY19 Annual Financial Report—a period from July 1, 2018 to June 30, 2019—it lists total revenues at $228.7m. Of that total, $140.7m is from ‘state sources,’ or 61.5 percent. That means District 80 relies on state funding for well over half of its annual revenues.
Zion-Benton High School is another lone member school district (District 126) that plays in the North Suburban Conference.
No annual financial reports are available. But I was able to access the district’s FY21 Budget, an estimate of its finances for the fiscal year of 2020-21.
The budget documents estimated revenues in FY21 at $54.9m. The estimated amount to come from ‘state sources’ is $20.8m. While only an estimate, Zion-Benton District 126 projects 38 percent of its revenues to come from the state in 2020-21.
An analysis of the financial reports in these four districts yields this objective conclusion—not all school districts are created equal. Cuts in state funding to Waukegan and Zion would result in a more negative outcomes than other suburban districts that rely less on state sources.
The risk of the governor following through on funding threats is simply too great for a number of schools to move forward with basketball this winter. Skertich referred to this in our conversation.
Many schools have resources to get by without a Springfield hand out. But no amount of resources can buy schools out of the insurance/negligence problem if they choose to play.
The ‘liability’ excuse gets to the fundamental issue I have had with sports and the virus from the beginning.
We are going to be living with this thing for awhile. So how are we going to live? In the basement with covers over our head or co-existence?
I choose co-existence. We have to get on with it and figure out how to live safely before a vaccine hits the market.
School leaders and the close-the-shutters and board-up-the-windows-types can always fall back on ‘abundance of caution.’ If one child gets sick, it’s not worth it. Sure, no one ever wants any kid to get sick. If only they could all be healthy forever.
Welcome to Wonderland. Alice, your table is ready.
I am not going to call bullshit on the ‘liability’ excuse. It is real and it would be irresponsible for public school leaders to disregard legal advice and play basketball anyway.
But here’s what I will call bullshit on.
Skertich and a few hundred downstate superintendents and coaches signed the letter I referenced earlier in the article.
Here is an excerpt from the letter:
School districts have shown that when given the opportunity, we rise to the challenge and find the delicate balance between health and safety of all our school communities while providing for continuity of learning. Districts this summer created a plan, adhered to state safety measures, implemented cleaning protocols and made decisions in the best interest of our students during COVID-19 pandemic.
You can read the full letter here.
The superintendents who initiated the letter, from downstate Collinsville, Rochester, Litchfield and others, deserve recognition for this act of leadership. They did what they felt was right not just for their communities but the state, unconcerned with potential backlash from lockdown coronabros within their own industry.
But what happened to that letter once it got north of I-80? It got shredded. Not a single Chicagoland superintendent put their signature on it.
Many superintendents in the Chicago suburbs are paid in the $300,000 per year range, with retirement packages up to 75% of that salary. They don’t want to risk their personal futures by signing a letter (or penning one of their own) that could have political consequences in their own backyard.
So is this truthfully all about ‘health and safety’ or is it about preserving retirement benefits?
Is the ‘liability’ really all about personal injury lawsuits or not rocking the six-figure pension yacht (which most assuredly will be docked somewhere out of state)?
“They (superintendents) will not say anything that is conflicting or controversial. They will pass the buck on,” a source said.
I’ve said it before and I’ll say it again…when it comes to the virus and sports and those in charge at the highest levels of education and government, preserving self-interest is top of mind. Rather than think imaginatively, leaders continue to bend the knee to Pritzker. It makes life easier for them. Kids’ mental and emotional well-being are unfortunate casualties of their insular small-mindedness.
The IHSA deserves credit for its attempt to out-maneuver Pritzker in allowing for a winter basketball season. The IHSA can now just say, ‘well, we’ll be here in February for anyone who makes it that far.”
But very few will, if any. And the IHSA had to know that. It did what every other education leader does in this state—protect their own house. Now the IHSA is once again in scramble mode with no idea when or if Pritzker or the IDPH will take it’s calls.
“If we aren’t fighting for these kids, who is?” Skertich said.
Very few, Mr. Superintendent. Not when fear and self-preservation, rather than ingenuity and will, continue to drive decision-making.
That’s a shame for the thousands of basketball-playing kids in Illinois who are stuck at home for what will likely be a very long winter.