Opening School Facilities to Private Youth Programs — A Legal Analysis

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In his overview analysis, Professor Tom Baker wrote that “public schools in most states are subject to liability in some situations that could arise out of the recreational use of school facilities.” 

Should public schools open their spaces for public use after school hours? Can outside youth-serving programs use these facilities for programs and recreational activities? What risks do schools face?

In 2008, the National Policy & Legal Analysis Network to Prevent Childhood Obesity sought to answer some of these questions through a survey it commissioned by a well-known insurance and tort law scholar, Professor Tom Baker of the University of Pennsylvania. NPLAN and Baker created the resulting 50-state survey to help prevent childhood obesity through the opening of public school buildings for recreational uses after hours.  

In his overview analysis, Baker wrote that “public schools in most states are subject to liability in some situations that could arise out of the recreational use of school facilities.” Nevertheless, he said, public schools are also protected by various forms of government immunity in every state and in many states they are also protected by recreational use statutes.  In addition, many state laws limit the amount of money that can be assessed against a public school in a tort lawsuit. Baker, therefore, concluded that “while there are real liability risks [for schools] ... these risks are unlikely to be substantial enough to denying recreational access to children.”

Focusing solely on schools’ liability risks when outside entities use school property, Baker found that it only made sense for schools to open their spaces when third parties (1) receive the benefit of liability protection rules that do not apply to the school or (2) have their own coverage and policies that do a better job managing the liability risks. In his research, however, Baker only found one situation where a third party would reap the benefits of a liability protection that the school did not have — namely, when a state recreational use statute applied to private entities rather than public. Private nonprofits, therefore, may need to carry their own insurance when seeking to use public school spaces for after-school programming.

In his analysis, Baker concluded that the “optimal approach” is for schools to provide direct access to its spaces, using its own staff or for the school to partner with other government entities, such as parks and recreation departments. In those instances where a school and private entity need or choose to partner, he suggests that schools receive financial support from the third party to minimize risk.