ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Wednesday, August 12, 2020

A Big Red Alternative to Waivers

CornellContracts giant Peter Linzer shared with us a link to Cornell University's alternative to COVID waivers.  From her perch high above Cayuga's waters, Cornell President Martha Pollock has determined to use the powers of contract (well, "compact") to nudge students towards behaviors that are healthy not only for themselves, but also for the entire Cornell community.

Instead of pulling students onto campus and disclaiming any liability when students get sick, Cornell is pushing students away unless the students agree to take responsibility for their own conduct.  The compact spells out the necessary conduct of students, and here's the rub:

I understand that violations of this Compact will be handled expeditiously by the Cornell Compact Compliance Team (“CCCT”). I agree that should the CCCT determine that my behavior violated the Compact, I may lose the privilege of engaging in on-campus activities (including research and in-person classes), residing in on-campus housing, or accessing Cornell facilities and buildings, and that my Cornell net id and/or Cornell card may be deactivated for a period of time (blocking my ability to participate in remote learning and other online Cornell activities) as determined by the CCCT. I acknowledge and agree that there is no appeal of the decisions and directives of the CCCT, as these determinations will be made on an urgent basis to protect the health and safety of the community as a whole.

Professor Linzer is enthusiastic about the Cornell alternative to waivers.  I'm not so sure.  This is a lot of power to put in the hands of the CCCT, and the need for urgent action does not explain the absence of recourse.  If students must forfeit rights and privileges for which they have paid, why can't there be a post-apocalypse right of appeal for a refund and perhaps even an apology?  After all, Cornell carves out an exception to FERPA and threatens to tell your Mom if you violate the compact.  That kind of reputational harm is hard to undo.

Another problem with the compact is that Cornell reserves the right to change the rules on the fly.

The expectations set forth below are based on recommendations by public health authorities and may change based on the spread of COVID-19 in the Ithaca community or developments in medical knowledge. To protect myself and others, I understand and agree to adhere to the following expectations, and with supplemental health and safety responsibilities the university or public health authorities may establish.

Would you advise a client to accept such terms?

Finally, the compact includes language about assumption of risk that comes very close to forcing students to sign a waiver:

I acknowledge that, even with the mitigation steps taken by Cornell and my anticipated compliance with the expectations set forth above, I may be exposed to and contract COVID-19. I further understand that there are risks to participating in the Cornell on-campus community, whether in live classrooms, residence halls, or other activities.

Well, at least it's conspicuous.

On the whole, I like Cornell's approach, and with a few tweaks, I might throw the weight of my two Cornell degrees behind it.  But neither of those degrees are in law, and they don't weigh much on any scale.

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A state university presumably would need to provide some type of appeal to satisfy due process; I'm not sure why a private university shouldn't do the same -- it could be informal and inexpensive but meaningful. The question of unilateral modification of health and safety requirements reminds us of a contract that provides for unilateral modification by one of the parties, upheld by a court in a recent case on the ground that the parties agreed to that procedure at the outset, and the non-modifying party could exit the contract at any time. Whatever we think about that decision, it strikes me that potential changes in measures to avoid Covid-19 community spread are easily foreseeable and justified. The scientific community is constantly learning new things about the virus, and surges in the virus in a community may call for changes on campus, such as a switch from hybrid classes to completely remote teaching, as took place last March. To take another example, some schools might have listed bandanas and "gaiter" neck masks as among the acceptable kinds of mask until a Duke study recently found that bandanas are completely ineffective and gaiter masks -- although easy to raise and lower and quite breathable -- might actually be worse than no mask at all because they do not stop droplets but simply break them up into small droplets that hang in the air longer. Opening universities during pandemic is already a risky experiment, and the ability to be nimble and change with circumstances and new knowledge is justified in my view.

Posted by: Charles Calleros | Aug 12, 2020 7:33:48 AM

Interesting point about public v. private universities. Cornell is actually a hybrid. Part of it is a public university.

As to the reasonableness of having a rolling contract in this context, I certainly agree with you that it is reasonable for universities to adapt their policies as we learn more about the best ways to contain the virus. I'm less certain that such open-endedness works well in combination with the draconian penalties and lack of recourse that Cornell proposes. In your analogous case, both parties can back at at will, but a student who has moved into a dorm, registered for classes, and invested in the university's COVID regime cannot simply walk away from the deal when the student thinks the latest requirements are too much.

Just as an example, my daughter is an R.A., and so she is on campus at her college, along with the first-year students. Upon arrival, she learned that all of the common kitchen areas in the dorms are closed, and THERE IS NO COFFEE ON CAMPUS, so she had to invest in a min-fridge, a microwave, and a coffee maker. Those sunk costs are non-refundable if the school changes its rules in a way that would make her want to give up on being on campus.

Posted by: Jeremy Telman | Aug 12, 2020 3:11:45 PM

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