By Andrew McIntyre

Law360 (October 6, 2020, 5:28 PM EDT) -- Kansas State University's general counsel recently chatted with Law360 about the politicization of COVID-19 testing and the challenge of keeping athletes safe amid the Big 12 football season. 

Shari Crittendon, who started as general counsel at Kansas State in June, discussed the host of testing questions she was presented with upon joining the school and the procedures she has helped put in place to allow football to go forward.

This article is the last of a four-part series of talks with general counsel at colleges and universities about the issues they face as students return to classes remotely or in person. This interview has been edited for length and clarity.

So the students at KSU have been on campus for ... weeks now. What has the last month been like from your point of view, in terms of the legal work on your desk and your roles and responsibilities?

We use the terms unprecedented, uncharted, unparalleled. It's been all of those things. And for me particularly, because I moved here from Dallas but most of my legal practice has been in the Maryland and the Washington, D.C., area. So moving here, I was new to the community as well as to the campus, and I didn't know what to expect. What has it been like? ... It's been like drinking from the fire hose. One, there's been a little anxiety because we had hoped that we had put together some best practices in the opening. We went towards this hybrid model, but we thought if we put these best practices aligned with the CDC [Centers for Disease Control] and with data and with the medical professionals, that we could stay open. And so, you know, the hygiene protocol. The mask wearing. The social distancing. And initially, telling 18-to-24-year-olds that you can't cluster together. It's very challenging. And especially those who live off-campus, who live in congregate housing. The first week or two were challenging because students really weren't adhering to the protocol. They would wear masks in the classroom but not outside. So they walk with their masks in their hands ... and then they'd walk into the building and put on the mask. Who knows what contagion or virus they could have caught by not adhering to those protocols before entering into the building? So there was an education that was important, and not a heavy-handed education but leading by example. ... Working with student government associations. Working with the faculty senate. Working with the leaders of the fraternities and the sororities to really share with them why it was important that they adhere to these protocols. So after the first week or two, and we had a small little spike, they got it. And I'm really proud of how they've been able to continue, no matter how uncomfortable it may be. They are voluntarily adhering to the protocol.

For me, being new to the university, communicating with clients has been novel. We're doing the Zoom meetings. The high tech doesn't give you the high touch. There is a barrage of meetings that attorneys I know are finding themselves in from morning to night. I was on a Zoom call with students in the flight school from 9 p.m. [one recent] night, talking to them about testing and the importance of that. So that barrage of, again, unrelenting issues and novel issues, and having to deal with it all through technology has been a challenge. And then lastly I'll say is the potential challenges to the best practices that we put in place. So the testing, some of it's mandated depending on the type of program or activity. And then we've had some litigation around the university having to pivot and have some education disruption in the spring semester this past spring, and how that impacts [students'] experience. And the argument over reimbursement of tuition fees.

A major part of best practices, of course, is testing. Can you talk more about how the conversation went this summer in terms of how to figure out what the best approach was for testing?

Yeah, so that has been challenging, because testing, just like mask wearing, has really become politicized. And so it depends on what part of the country you're in or what are your cultural or political beliefs. And that's unfortunate. Our focus of the university is, again, based on research and data and science. And we also will look to our peer institutions about how we will approach that. Since there was such a limited supply of tests, in the beginning, we really focused on symptomatic people. So if you're sick, stay home. Here are the issues that you may have. Here are the symptoms that you may have. If you think you have some of these symptoms ... we have a medical center. Dr. [Kyle] Goerl is our head medical professional there. And they provide a test for symptomatic students. Once the supply increased, then we started asking for voluntary testing ... especially for those who are living in congregate housing, such as the residence hall. And then from there, if there ... [was] exposure ... we would have a quarantine period and we would provide housing. We actually allotted some dorms for that. And if there was a positive test, we'd offer options for quarantine. So that has been a positive event that students have responded to — the voluntary testing. We also did temperature checks. But we did temperature checks, again, only in those high-risk areas such as the residence halls, the dining halls. Athletics is another area. Health care workers. And in any program or activity where they really couldn't adhere to the protocol, especially socially distancing.

I want to ask you about athletics. The Big 12 Conference is going ahead with the football season. Were you in discussions with the Big 12 in terms of protocol for how to handle safety? Or were you in discussions with the athletic department at KSU? What was your role in those talks?

I started the end of June, so a lot of the talks happened before I began this position. However, I am in monthly conversations, and sometimes weekly, with the Big 12, with the commissioner, with the athletic directors, with the president and primarily with the other general counsel. And so the protocol has been established. ... Over the summer, the university had some positives, and how [do] we remediate and respond to that? We've trusted the commissioner. We've trusted the athletic directors and the head coaches. We're taking about football right now, about what the protocol should be. And we always adhered to it. And based on that we thought we could have a season. And so we delayed the season, as you know, the start. And we also didn't have as many games. We were looking at that, and so far it's been successful. We talk about once a month. ... Because, again, the health and safety of our students is the prime issue. Not just, you know, the monetary issues. And so we thought also, with this downturn in the economy ... if we could play and the student athletes wanted to play, that would be a positive thing for the community. We've done everything that we can, with the frequent testing, the constant messaging. You can't social distance [on the football field]. The mask wearing where appropriate. And also communicating with the other teams ... like Arkansas State, Oklahoma, ensuring that they were adhering to those same protocol. Not having family or friends come into the locker room. Creating a semi-bubble for the students but still ensuring that they were able to perform not only their athletic goals but their academic ones as well. And not increase the spread because of any deviation from what those protocols were.

You mentioned that you moved in June to KSU. It's hard to imagine taking on a new job as general counsel of a university that has multiple campuses amid a global pandemic. What was the most challenging part for you of the transition to your new role this summer?

For me, it was not being able to see my clients, and even my team, in person. That was challenging, because even though we talked remotely, via Zoom or via some type of technology, I had not visited the campus. I had been to Kansas before on other occasions, but not to Manhattan, [Kansas]. So the challenge was trying to understand not only what the legal issues were [but also] who were the players and who were the stakeholders and what their anxieties were. So for me, I wanted to immediately get with the senior team and get with my team, and then talk to the dean, the departmental chairs, the head football coach, the athletic director, all the key stakeholders, and understand what were their issues on the ground. What from a practical point of view do they need? The urgency of that. And how, from a legal point of view, a policy and a technical point of view, to be of help. And then from there set the priorities. The biggest challenge for me was meeting [with] and understanding who my clients were, what their needs were and what they'd experienced in the six months previously. And then how could I step in and be able to have an impact that would help them through this COVID-19 [pandemic].

Are there also certain Kansas state rules and regulations regarding COVID that you had to get up to speed on in terms of how they apply to the university setting?

I represented 37 to 45 Historically Black Colleges and Universities when I was a general counsel at United Negro College Fund. And then I was in-house at Morgan State some years ago. So I was somewhat familiar with what the protocols should be. And I had stayed abreast of those, following CDC, the Department of Education, and having conversations with the team. But yeah, having to understand how Kansas applied. ... For example, they passed the bill about contact tracing and who can do contact tracing. Ensuring that we weren't violating the privacy and the confidentiality of students, faculty and staff. Not every state has that. Texas did not. ... [I've been] reaching out to the GCs and attorneys at the University of Kansas at Wichita State. ... At Emporia [State University]. Fort Hays [State University]. I've talked to other universities. And leveraging the relationship with the National Association of College and University Attorneys, affectionately called NACUA. They have webinars every day on some of these issues. It really was an opportunity to work collaboratively on these issues to share information in real time, and [for others] to help me on state-specific regulations and laws.

I also wanted to ask you about the Fort Riley campus. I understand that a big part of that campus is some collaborations the military, and I'm wondering how COVID has affected those collaborations and whether you've had to have discussions with the military in terms of best practices for those collaborations?

I'm not as familiar with those collaborations, but what I will say is we put a lot of collaborations on pause ... to see, again, how many students were coming back and where the gaps were. How do we protect their health and safety and how do we provide classes either online or in-person. And how do we, again, communicate, because we are so decentralized. What the protocols are inherent to those? And with the military, our president is a retired four-star general. We were very confident that their protocols were aligned with ours. ... They definitely made sure that their soldiers that were in collaboration with our polytechnic campus or even our main campus adhered to those same protocols, and especially for testing but also mask wearing; where possible, social distancing. Using exterior space versus prolonged interior space for any coursework or collaboration. And ensuring that we were adhering to our terms and conditions of those collaborations. But you bring up a good point. As lawyers, we had to reassess some of those collaborations. What did we say we would do? And if there were any material changes because of COVID, to see if there is flexibility in relaxing maybe some of those terms. Maybe delaying performance of it. Delaying the course. Changing the scope. Just to accommodate COVID. And so far, whether with the military or the federal government or state government, we've been successful in being able to assuage some of those issues.

So what sorts of issues and matters are you addressing now and what do you expect the next month to look like.

The biggest issue now is there's COVID fatigue, right? People say, I've warn the mask, I've done the social distancing, I even volunteered to get tested. I'm doing all these things. When is this going to end? When do we get back to normal? And trying to impress this is the new normal. ... So that's one issue that we're dealing with. The other is we're dealing with a lot of the Americans with Disabilities Act, ADA, accommodations. Students who, for medical reasons, or even faculty, who then can't wear the common face covering. And what other accommodations can we make? Can we make accommodation where they can wear face shields? If they need service animals, can we accommodate that? Do they have to shift to an online platform of modality? And if their coursework will accommodate online? Some does not. Some have to be in person. If you're in labs, if you're doing a medical rotation. So how do we manage that to make sure they still get the quality education that their degree would indicate that they would have? Those are some of the bigger issues that we're dealing with.

Another is face coverings. ... We've had some surprising issues with our employees. ... And we're in a political season. So the messaging on your face covering, and can that upset the department or the unit that you're in? Counseling about that. Also, the other issues we're coming across because we had a dip in in enrollment. ... We may have to look at our budgets a little bit more tightly and see how we can button a few things up. That may have some implications. So as a lawyer, it's looking at those issues and making sure that the university is not at risk. And that we're still able to provide the same high-quality education and civic engagement and opportunities for our students, faculty and staff and the community. That's what I anticipate would probably be some of the issues. And then what does the spring look like? Our calendar, we're going to forego spring break. Folks aren't happy about that. ...  And then what does graduation look like? We will have a fall graduation in November right before Thanksgiving, and we hope to have a May graduation in 2021.

--Editing by Jill Coffey.

This is the last of a four-part series of interviews with general counsel at colleges and universities as schools start their fall semesters amid the COVID-19 pandemic. The prior article featured the top two in-house lawyers at the University of Maine.

For a reprint of this article, please contact reprints@law360.com.