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Kendall Stiles: There are ways to enforce COVID accountability

(Rick Bowmer | AP file photo) In this Sept. 12, 2020, photo, people protest Gov. Gary Herbert during an anti-mask rally outside of the Governors Mansion in Salt Lake City.

During this COVID-19 pandemic, we have seen organizations and groups of all types and sizes behave in ways that have endangered lives. Most so-called superspreader events are the result of conscious decisions by people to ignore local and federal laws and guidelines and to disregard the risk that their actions will cause harm.

Under tort law, it should be possible to hold them accountable and secure compensation. This is the normal way reckless behavior is restrained. For the most part, however, this is not happening.

In a few cases, municipalities have punished people, as in the case of the $25,000 fine assessed on the Miller Place Inn in Long Island, which held a reception that exceeded local size limits that was discovered through contact tracing. Likewise, some cities have been able to anticipate and block events that would have likely become superspreader events, such as a very large wedding ceremony planned in Brooklyn. But these are the exception.

In fact, many organizations are explicitly exempted from tort liability. The Trump administration adopted an executive order in April to protect meatpacking plants from COVID-related lawsuits. Cruise ship passengers are routinely asked to sign a legal waiver before boarding. Hospitals also have protections, along with other nonprofits and private residences. At any rate, it is proving increasingly difficult to establish liability since COVID-19 is endemic.

Where does this leave us? There are three key mechanisms that might provide some form of accountability. To begin, we can hope that market forces will lead people to punish superspreaders. Cruise ships are being dismantled largely because passengers are finding other ways to travel. Airlines, too, were forced to adjust their protocols to attract flyers. Walmart and other large retailers adopted rules that were often stricter than local guidelines to encourage shoppers to come back.

We might expect to see some movement away from colleges, churches and other nonprofits that fail to effectively protect their students, parishioners and clients. But market mechanisms tend not to work well where nonprofits are concerned. As we’ve seen, people attend church in defiance of local rules precisely because they believe they will be protected through miraculous intervention. More important, the market works only when good information is available to all, and the amount of disinformation is so extreme that many people cannot accurately judge what is safe and what isn’t.

The second mechanism is shaming. This entails publicly identifying and criticizing the bad behavior of certain organizations. This can work even when the law is silent. We’ve seen this in connection with several events held by the Trump administration — in particular the Rose Garden gathering to announce Amy Coney Barrett’s nomination to the Supreme Court, as well as events in Tulsa, Okla., Janesville, Wisc., and Bedminster, N.J. Whistleblowers are among the most effective at shaming, because they have inside information. Shaming works best on targets that care about their reputations, though. And in this polarized political environment, it is often dismissed as a mere partisan attack.

This leads us to the third mechanism: institutional morality and self-policing. We typically don’t associate remorse of conscience with organizations, but this is not unreasonable. After all, groups are made up of people who have consciences, and so the decisions they make together can be influenced by these individual feelings. Most organizations have mission statements that are intended to clarify their often lofty moral parameters. Many professions also have codes of conduct that constrain the actions of individuals no matter where they work. This is embedded in the broader moral standards of society.

We have seen a few cases where institutional morality has worked. Barbara Jean Morris recently resigned as president of the State University of New York at Oneonta after it was forced to close its campus when more than 700 students and faculty tested positive for COVID-19. Hospitals are models of excellent sanitation and patient protection even though they cannot be sued for an outbreak.

For the most part, though, institutions and their staffs lack this sort of moral center. As early as mid-September, 19 of the country’s top 25 COVID-19 outbreaks were in college towns. But college administrators have generally blamed their students, not themselves. This despite the fact that the colleges invited students to come to campus, and the students' behavior was entirely predictable. Colleges have generally denied responsibility for the community spread of the virus that followed campus outbreaks.

Ultimately, what is needed is greater engagement by the trustees and directors of these organizations — as in the case of SUNY-Oneonta — to better police staff and administrators and ensure accountability to the community at large. This will in turn be encouraged by more shaming — especially by politically neutral actors — as well as a greater willingness of civic authorities to remove exemptions and impose penalties — even merely symbolic ones.

Kendall Stiles

Kendall Stiles, Springville, is a professor of political science at Brigham Young University and a specialist in organizational behavior.

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