Colleges Seek Waivers From Risk-Taking Students

As fall semester approaches, students are increasingly opposing liability waivers and "informed consent" agreements required by colleges as a condition of returning to campus.

August 3, 2020
 

Maria Gray, a rising junior at Bates College, said she was “on the fence” about returning to the campus in Lewiston, Me., to take classes in person this fall because of the risk of contracting the coronavirus.

Bates plans to offer smaller class sizes for face-to-face instruction. The liberal arts college will also allow students back into residence halls closed last spring because of the pandemic, which Gray believes to be “an objectively bad idea.” But it wasn’t until she viewed Bates' “Acknowledgement of Shared Responsibility and Risk” agreement, which all students returning to campus are asked to sign, that Gray decided an in-person college experience wasn’t for her this semester.

“I am voluntarily assuming any and all risks that notwithstanding the college’s best efforts to implement and require compliance with these prevention and mitigation measures I may be exposed to the coronavirus and may become ill with COVID-19, and that such exposure and illness may result in personal injury, illness, temporary or permanent disability, or even death,” the agreement says.

The electronic agreement included a prompt asking Gray to enter her student PIN, which meant she would be “legally agreeing to these statements.” She did not enter her PIN; she forwarded the document to her parents instead.

“That was kind of the last straw,” Gray said. “On the one hand, I guess they’re not sugarcoating it. But on the other hand, if you’re signing that to go back, it’s not safe.”

As the start of the fall semester approaches, students enrolled at various colleges across the country are being prompted by their institutions to sign similar agreements acknowledging, and in some cases even assuming, all the risks of returning to campus. Some of the agreements are more explicit than others, such as the contract used by Bates, which legal experts say implies that students are waiving their right to pursue litigation for negligence on the part of the college.

Mary Pols, a spokesperson for Bates, said in an email that the college’s fall reopening plan “emphasizes student choice” and the written acknowledgment is “intended to help students and their families make an informed decision about the fall semester.”

“Students may choose to return to campus, study remotely, or take a leave,” Pols wrote. “That choice lies squarely with students and their families, depending on their personal circumstances … the college has been and will continue to be flexible as students’ plans change over the summer.”

Agreements at other institutions attempt to conceal the legal language within statements about students’ responsibility to follow public health guidance and general information about how to prevent the spread of coronavirus, some students said.

Law students at the University of New Hampshire are actively opposing a requirement for returning students to sign an “Informed Consent Agreement,” which they say is confusing and has significant legal implications despite the university’s assertion that it is not a liability waiver.

One line in the agreement, which says, “I assume the risks associated with being at the University of New Hampshire including the risk of exposure to COVID-19,” is causing most of the backlash, said Nicole Demas, a second-year law student who is on the board of the People’s Parity Project at UNH, a law student organization that advocates to correct injustices in the legal system.

The organization, which is also working with other undergraduates and graduates students enrolled at the university, organized a letter-writing campaign to university administrators calling for the "assumption of risk" line to be removed from the agreement and for the deadline for students to sign it to be pushed back. The deadline was first moved from July 24 to July 31, but during a July 31 virtual town hall meeting about the university reopening in the fall, an administrator subsequently told students that the deadline will remain open, Demas said.

She said the first two-thirds of the document outlines the university's “commitment to health and safety,” a suggestion that “we work together to follow protocols, policies and guidelines” and tips for if students become ill. But the final paragraph of the agreement reads like a liability waiver, she said.

“The majority of the document looks like I’m agreeing to my own responsibility for how I’m going to act towards my fellow students,” Demas said. “If I weren’t a law student … I don’t know that I would’ve seen that paragraph asking me to assume the risk. Even when I first saw it, I texted some of the other people at the project, asking, ‘Is this what I think it is?’”

Lisa Thorne, director of communications for the University System of New Hampshire, which includes the flagship campus in Durham, N.H., and three other state colleges and universities, said in an emailed statement that the system’s Informed Consent Agreement is not the same as a liability waiver. Students who sign it “retain their right to sue their institution in the event they contract COVID-19 and believe it was a result of the institution’s failure,” the statement said.

According to the statement, the purpose of the “assumption of risk” language is so students understand the risks of being on campus during the pandemic and the practices that can help prevent coronavirus spread.

“By signing the Informed Consent Agreement a student agrees to partner with their institution to help keep the entire community healthy,” the statement said. “The student also acknowledges the coronavirus is a general public risk and the university system cannot guarantee they will not contract the coronavirus … The decision of whether or not to attend a university system institution in the fall resides with the student (and the student’s family).”

Demas said the agreement is “legally significant … regardless of what you call it.”

“Functionally, I’m not 100 percent sure what they’re trying to accomplish with that language if it is not to limit or waive liability,” she said of the sentence about students assuming risks by returning to campus and potentially contracting COVID-19. “If it’s not a liability waiver, you should take this sentence out.”

Heidi Li Feldman, a Georgetown University Law Center professor who is an expert on legal liability and negligence law, advises against students signing such agreements. Feldman said she has received several calls and messages from students, parents and faculty members across the country who are trying to better understand how signing the agreements affects their rights.

While many of the people who sought Feldman's advice found the agreements “surprising,” she found them “appalling.”

“Universities encourage students to think that the universities they are enrolled in are benevolent towards them, that they care about them as people,” she said. “You cultivate a climate of trust, and in the context of a deadly disease, you’re busy laying the groundwork for your litigation defense.”

Agreements that require students or faculty members to acknowledge or assume the risk of returning to campus are attempts by institutions to protect themselves against negligence claims in state courts, Feldman said. The intent is to relieve colleges of their “duty of care” over students and make even “reasonable” attempts to protect students from harm unnecessary in order to disprove a negligence claim, she said.

Even without requiring risk assumption or liability waivers, colleges that adopted “hybrid” course models for the fall have a compelling legal defense against negligence claims, because students appear to have the option to take classes fully online, Feldman said. This may even be a more “clever” approach for colleges to take, she said.

“You can make an argument from circumstances to claim someone was knowingly and responsibly assuming risk and relieving you from your duty of care,” Feldman said. “If they come to campus and fall ill, say, ‘Everyone knew that congregating on campus could create excellent circumstances for transmission of infectious disease, and we gave you a choice.’”

Some colleges and higher education associations continue to lobby Congress for liability protection against “excessive and speculative lawsuits arising out of the pandemic,” said a July 29 letter to congressional leaders signed by Ted Mitchell, president of the American Council on Education, or ACE, and about 70 other associations.

“As colleges and universities assess how quickly and completely campuses can resume full operations, they are facing enormous uncertainty about COVID-19-related standards of care and corresponding fears of huge transactional costs associated with defending against COVID-19 spread lawsuits, even when they have done everything within their power to keep students, employees, and visitors safe, if as seems inevitable someone gets sick on campus despite their best efforts,” the letter said.

The People’s Parity Project at UNH and other universities oppose such liability protections. University of New Hampshire students have been petitioning the university to stop paying membership dues to ACE as a result, said Demas, the law student.

“That’s pretty counter to what we believe as students,” Demas said of the risk agreements. “If the school is safe enough to open and they’re taking all reasonable precautions to open, it shouldn’t be necessary … And if it’s not safe, we would hope they would do what they can to make it possible for students to attend their classes.”

The pandemic clearly poses risks for students and colleges -- and lots of uncertainty about the best way to proceed during an unprecedented event with which neither side has any experience.

Jim Keller, a litigation lawyer who co-chairs Saul Ewing Arnstein & Lehr’s higher education and K-12 practice in Philadelphia, addressed this dilemma a few months ago.

A waiver of liability or informed consent constructed by a college ideally has students "recognize that the institution cannot guarantee an entirely COVID-19-free environment and that, knowing this, they wish to come onto campus and waive any claim against the institution should they suffer the effects of COVID-19," he wrote in a May 27 guidance document for the National Association of College and University Attorneys. He noted that the enforceability of such agreements in court will vary from state to state.

"The author’s suggestion is this. Follow the law of your jurisdiction on this point," Keller wrote. "If waivers are permitted, they still might not be the right way to proceed either with students or employees. Do we feel that this is something we want to send out to our community? That may be the determinative question."

Read more by

Be the first to know.
Get our free daily newsletter.

 

We are retiring comments and introducing Letters to the Editor. Letters may be sent to [email protected].

Read the Letters to the Editor  »

Today’s News from Inside Higher Ed

Inside Higher Ed’s Quick Takes

Back to Top