Thursday, August 6, 2020
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.