Wednesday, August 12, 2020
Contracts 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.