ContractsProf Blog

Editor: Jeremy Telman
Valparaiso University Law School

Thursday, August 6, 2020

The Function of University Waivers

Yesterday, Jeremy posted about university liability waivers.  I have written about the differences between notices and contracts in the past, and am in the middle of writing another article on the topic, and so found this issue particularly interesting.  Generally, I am not a fan of liability waivers because they tend to be hidden in fine print and the person “agreeing” to it has no choice. The university liability waivers, however, seem to be very different.

First, they are presented in a conspicuous way and require a much more deliberate act of consent (it’s not simply a click to a link that nobody reads).  The wording is clear and the student has to do something conscious that takes time, such as inputting their student ID number.  The language does not mess around about the legal effect of the “manifestation,” unlike the typical wrap contract where users click without even knowing what they are doing.  The students also have a choice - I think all universities that are planning to open are allowing their students to opt-out and study from home.  (If not, then the waivers are coercive, IMHO).  In other words, students don't have to sign them if they want to stay enrolled and continue their studies.

Second, the waivers seem to be serving a very different function.  No university wants to be known for having a COVID-19 outbreak, and they all want to protect their students, faculty and staff.  This is not a cold-hearted corporation acting irresponsibly, hiding important terms in fine print.  Universities will make efforts to reopen safely.  The concern – the weak link in all these efforts – is that students will not act responsibly and that they won’t follow the safety protocols.  Generally, members of this particular demographic group (19-25) seem to be discounting the possibility of contracting the virus or the risks associated with catching it, and they are getting it as a faster rate than other groups as a result (and spreading it).*  Colleges can reopen safely if everyone, follows the rules; but commonsense tells us that many people will not unless they are informed of the consequences.  These consequences must be made clear to them, and they should be made relevant to them (not just a hypothetical older person in a nursing home)  I personally think universities should emphasize not only waivers but repercussions to the students like academic probation or disciplinary action if they violate the protocols.  Prevention is more important than escaping liability in this case. 

I don't know if the waivers should or would be enforceable to waive liability, but they seem pretty effective at emphasizing the severity of the problem and the need to follow the protocols.  They are bringing a lot of attention to students who might otherwise downplay the risks (optimism bias, anyone?)  In other words, they are effective as notices even if they should not be as contracts.

 

*I apologize for having to make this generalization; I know there are many 18-25 year olds who are taking this very seriously and being very responsible – much more responsible than older adults.

https://lawprofessors.typepad.com/contractsprof_blog/2020/08/the-function-of-university-waivers.html

Commentary, Current Affairs | Permalink

Comments

Nancy, your post suggests what I have long believed, which is that students and schools are bound in an extensive web of contractual relationships. Managing health risks and allocating responsibility is certainly part of those relationships, one that is made apparent if schools require express waivers. I also think that many other aspects of university life, including the school's published rules governing student's conduct toward each other, should be conceived as contractual commitments and understandings rather than as a feature of the exercise of authority by the school. On this view, students' compliance with health and civility requirements is a condition to their right to receive the education that the school has promised to give them, and breach by the student would justify the school in cancelling the agreement (expulsion) or lesser contract remedies.

Posted by: Sidney DeLong | Aug 6, 2020 1:59:16 PM

Agreed. And the consequence will be judged as "fair" only if notice and consent (two different things IMHO) are adequate. Students don't have to be on campus so if they do want to be there, they should understand they have to play by different rules - and suffer the clearly stated consequences if they don't.

Posted by: Nancy Kim | Aug 6, 2020 4:49:02 PM

This is a very interesting and thoughtful post, but I have a couple of disagreements with it. First, I think waivers are coercive even if they are conspicuous and students have the option of studying online, because I don’t think that’s the right comparison. For example, imagine that last spring, a student, torn between two comparable schools, put down a deposit at School A and declined School B’s offer. Neither the student nor the schools were thinking about virus waivers at that time. Now School A says the student can attend in-person only if the student signs a waiver while School B does not require a waiver for in-person attendance. If the student had known about the waiver in the spring, that might have tipped the balance. I admit this example may be rather unusual, but maybe the students’ parents include a consumer lawyer. The student has lost the opportunity to take in-person classes without signing a waiver, and didn’t have the relevant information at the time the consumer made the decision. I think that’s coercive.

I am also skeptical about the assumption that all schools will take every reasonable step to protect students from catching the virus. I have heard far too much about deceptive practices by for-profit schools to assume all educational institutions always have the best interests of their students at heart—though many, indeed most, surely do. But even assuming schools always act in good faith, I’m also concerned about the temptation schools will face to cut corners at a time when many have declining revenues and increased expenses during the pandemic. Liability for negligence imposes an incentive to exercise reasonable care and I don’t see why schools should be excepted from that obligation, any more than anyone else is for their negligence or schools are for their negligence in other arenas.

Here’s a thought experiment: how would you feel if the waiver were not just for the virus but for any negligent act by a university? If the goal is to give students notice that the pandemic protocols are serious, I think there are better, and probably more effective ways to do that. And if the waivers are unenforceable, as I hope they are, but am not certain of, then isn’t there an issue with schools telling students that they are waiving rights that they may not in fact be waiving? What about students who come down with the virus because of the school’s negligence, but forego their legal rights because they incorrectly believe that they have waived their rights? Studies have shown that consumers tend not to realize that unenforceable clauses are in fact unenforceable. What kind of example does it set for students when universities employ contract terms that are of questionable enforceability?

All in all, I think these waivers are not worthy of universities.

Posted by: Jeff Sovern | Aug 7, 2020 12:28:08 PM

Jeff - Sorry for the delayed response - I didn't see your post until now. You raise a lot of good points. My post was essentially that whether or not these waivers are or should be legally enforceable, they do serve a useful function. I think there is a signaling that happens when universities open up (and many have been under tremendous pressure to do so). Many students and their parents may suffer from optimism bias regarding their chances of getting sick. This waiver makes plain that there are risks and the risks are not ones that the university is willing to take on. The courts may decide that these waivers should not be enforceable - nobody knows now so it's not intentionally including an unenforceable provision as you state, right? - but the act of presenting them makes clear to students that attending classes on campus is an "inherently risky" activity and that they should not count on the university to "protect" them if they act irresponsibly. As for whether they will or should protect the university - I think they should not protect the university from negligence and seriously doubt that any court would either. But what about other situations? Even if universities are careful (not negligent/act reasonably), students will get sick. Should universities act as insurers in this situation? Should they just make the decision to stay closed even if many of the students are willing to take the risk? Or should they let students and their parents decide - and make it crystal clear that this is an inherently risky activity and the university is unable to protect them from getting sick. As far as better ways to communicate to students - a waiver shouldn't take the place of other forms of communication and it may not be the best way, but it has been very effective at drawing attention to the inherent risks of attending classes on campus. It should also make students and their parents reconsider the pressure that they may have been putting on institutions to open up.

Posted by: Nancy Kim | Aug 12, 2020 3:20:40 PM

Post a comment

If you do not complete your comment within 15 minutes, it will be lost. For longer comments, you may want to draft them in Word or another program and then copy them into this comment box.