Legal Updates
Navigating Enrollment Agreements In The "New Normal"
With 2021 nearly behind us, it is time for schools to plan ahead and take a fresh look at their enrollment agreements. A well-drafted enrollment agreement is critical to risk management. It should not only confirm a family’s financial obligations to the school, but also establish the non-financial responsibilities of both parties, while providing the school with flexibility to handle various situations that may arise throughout enrollment.
As schools prepare for another school year during the “new normal,” it is critical to carefully consider how to update annual enrollment agreements for legal developments and evolving best practices. Addressed below are several provisions that schools should consider incorporating into their enrollment agreements.
Tuition Enforcement
A school’s enrollment agreement should clearly delineate a family’s financial responsibility in the event the student does not attend the school, whether for voluntary or involuntary reasons. Perhaps on account of the ongoing pandemic and family relocations, schools have seen an uptick in last-minute and mid-year withdrawals. Having a solid contract to hold parents accountable for their tuition obligations is essential. The enrollment agreement should be carefully drafted to comply with applicable state laws—including usury restrictions, restrictions on penalties for late payments, and liquidated damages frameworks—which may establish specific circumstances under which the agreement will be enforced by the courts.
Force Majeure
If the COVID-19 pandemic has taught us anything, it is to prepare for the unknown. A strong force majeure provision—whereby the school preserves the ability to alter or suspend programs and activities in the event of unforeseen circumstances—is indispensable. During the ongoing pandemic, or in the event of another unforeseen significant event, a well-drafted force majeure clause can provide a basis for a school’s transitioning to remote learning, implementing a hybrid learning environment, or even temporarily or permanently closing, as the school may deem appropriate for the health and safety of its students and employees.
The force majeure clause allows for unanticipated modifications to school operations, such as altering the school’s programs, activities, academic calendars, schedules, virtual and hybrid learning options, and curricula. It should also emphasize that families’ obligations under the enrollment agreement are unconditional, regardless of any force majeure modifications, by explicitly stating that the only remedy for non-performance under the agreement is future or altered performance.
COVID-19 Notice And Disclosure
Given that the pandemic is not yet in the rear-view mirror, schools will want to address, in the enrollment agreement, the inherent risks of students and families contracting COVID-19 through students’ attendance at school. This provision might include a notice of such risk, an assumption of risk, or a waiver of liability. Not only should local and state guidelines regarding COVID-19 be considered when implementing these types of provisions, but each school should also consider its culture and risk management philosophy in determining the best language to include.
COVID-19 And Influenza Vaccine Requirements
Should schools include a provision requiring eligible students to receive an approved COVID-19 vaccine and/or influenza vaccine? Federal, state, and municipal laws on vaccine requirements continue to evolve every day. Thus, even schools undecided on this issue may want to build in discretion to implement such requirements. By including appropriate language in the enrollment agreement, schools can mitigate potential breach-of-contract-like claims for requirements implemented in the future. In drafting these provisions, it is important to consider all applicable state and local vaccine mandates (or restrictions on such mandates) and any required exemptions.
Educational Outcomes
An educational outcomes provision helps establish a school’s contractual right to modify the school’s programs, activities, and curricula at its discretion. Unlike a force majeure provision, however, an educational outcomes provision does not require that the school point to a specific qualifying crisis. A well-drafted educational outcomes provision will advise families that the school does not guarantee any specific type of educational program, curriculum, benefit, or experience for students, communicate a school’s plan to use virtual and hybrid learning to supplement in-person instruction in appropriate circumstances, and require families to acknowledge that the school does not guarantee any specific academic result for students.
Web-Based Applications And Remote Learning Recording
Given the ongoing reliance on virtual and hybrid learning during the pandemic, it is helpful to incorporate into the enrollment agreement a consent with respect to the use of online learning platforms and recording. Schools need to be able to lawfully and effectively provide instruction to all of their students, whether that is through virtual, hybrid, or in-person learning. Depending upon the state in which the school (and/or its students) is located, the school may be required to receive written consent to record students under federal, state and municipal laws, and consent may be required by certain technology providers. For elementary schools, this can be particularly important given the requirements of COPPA.
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Independent schools should carefully re-examine their enrollment agreements in light of the ongoing pandemic and lessons learned from challenges that have ensued. If you have any questions about, or need assistance with, updating your school’s enrollment agreement, please feel free to contact one of the Firm’s education attorneys.
