When parents trust schools such as yeshivas with their children, they expect excellent safety as much as an excellent education. When schools ignore basic health measures, they fail that duty. Like all schools, yeshivas that do not protect their students should pay for harms that result.

As the measles outbreak spreads in New York, the city's Department of Health has focused on the large outbreak in the Orthodox Jewish community. It now stands at 214 cases identified since the outbreak began in October 2018. The vast majority are children under 18, with 11 people hospitalized. The Health Department has publicly focused on several yeshivas, which it says has ignored directives and allowed unvaccinated children to attend school during the period of danger. Some of the named yeshivas even allowed children to attend school while they were contagious. Earlier in March, the Health Department issued commissioner's orders requiring the yeshivas to exclude unvaccinated children or face fines.

In 2018, there was a disturbing rise in measles cases and deaths worldwide and in the United States. Less than three months into 2019, the United States had 268 cases of measles in fourteen states. One potential response is strengthening school mandates, and several states—including New York—are looking at that. But new mandates do not help those already harmed or put at risk by non-vaccinating, especially when emergency health directives are ignored.

One option New York State should consider is to allow tort suits—civil actions for damages—against schools which allow non-vaccinating parents to send their children when their actions substantially increase the risk of spreading the outbreak of this highly contagious disease. Not acting to protect students seems to be reckless behavior by the leadership of these yeshivas, exacerbating harm caused by the negligence of the non-vaccinating parents.

The risk to the students is clear. Allowing infectious students to attend means that others are exposed to a very contagious, dangerous disease and could be infected. First, any student with medical reasons not to vaccinate is at risk—for example, students with transplants who are immune suppressed cannot get live vaccines like MMR. Students treated for cancer lose their immunity and cannot get MMR again. These students are vulnerable. Second, although MMR is very effective, with 97% of people protected after two doses, that leaves 3% of vaccinated students who are not protected—and they can be infected. Finally, other students whose parents did not vaccinate may be at risk, too. While in that case, the parents made their own bad choice, the students did not. They were left intentionally unvaccinated by their parents.

Schools that have not enforced vaccination mandates, or worse, have ignored specific directives to exclude unvaccinated children during an outbreak, owe a duty of care to all of the children enrolled in the school, as well as others who may legitimately come onto the school property (such as a baby too young to be vaccinated who is brought along to pick up an older sibling).

Further, when specific health directives are ignored by the school's leadership, the school may well be found responsible for the senior staff acting in reckless disregard of the health of others. This could potentially lead to the imposition of punitive damages, as well as compensatory damages, payable to victims of this dangerous failure to act.

One point of letting such suits go forward is partially to compensate victims of negligent and even reckless behavior. This social choice can be made easier by state legislatures creating laws that impose liability when non-vaccinating or ignoring health directives is shown to cause harm.

But, an even more important reason to allow these suits would be to deter the risky behavior. If the specter of substantial compensatory and punitive damages awards against schools, like these yeshivas, causes a change in behavior, the law of personal injury would have done its job.

We compensate victims of intentional and unintentional harms in many contexts. Victims of preventable diseases caused by non-vaccinating and ignoring health directives deserve protection, too. Our tort system can help them and help prevent even greater harm, especially from reckless behavior. Legislatures and courts can—and should—make this occur.

Dorit Rubinstein Reiss and David I. Levine are professors of law at the University of California, Hastings College of the Law.