Wednesday, August 5, 2020
Contracts Profs have been alerting one another to egregious COVID waivers. Washburn Law's Andrea Boyack blogged here about the Kansas Board of Bar Examiners' demand, at the end of the linked document, that each bar taker "acknowledges and voluntarily assumes all risk of exposure to or infection with COVID-19 by attending the July 2020 Kansas administration of the Uniform Bar Examination." Kansas is not alone. According to Professor Boyack, "the Kansas waiver seems to be modeled on a similar document that North Carolina bar examiners provided to their examinees this year." Other states have attempted similar moves. Professor Boyack's post suggests that such waivers may not be binding, either because they are not supported by consideration (take that, Alan White!), or because they are extracted through duress and are unconscionable.
Think law graduates are sophisticated enough to negotiate this territory on their own? How about law students? According to Inside Higher Education, University of New Hampshire law students protested when faced with the following language in an "Informed Consent Agreement: “I assume the risks associated with being at the University of New Hampshire including the risk of exposure to COVID-19,”
But law students are pretty well-positioned to organize opposition to such language. What about undergraduates? Inside Higher Education reports that some colleges are making their students sign COVID waivers as well. Students wishing to return to campus at Bates College, for example, have to electronically sign the following statement: “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.”
Bates defends this language as giving students choice. Faced with this choice, students may decide to stay away from campus, and that may be for the best.