Legal Updates
Should Your School's Enrollment Agreement Include A General Liability Waiver?
The enrollment agreement (also called an enrollment contract, tuition agreement, etc.) is the foundational document setting forth the key legal elements that define the relationship between an independent school and a student’s family. Enrollment agreements are complex because they must be robust enough to protect the school’s interests, but not so one-sided that parents refuse to sign them, or courts refuse to enforce them – either in whole or in part.
While the key provisions of any enrollment agreement concern the family’s financial obligations toward the school, the enrollment agreement also typically includes (among others) provisions related to behavioral expectations, tuition refund insurance, and the use of student images for marketing purposes.
Recently, we have received multiple questions from our independent school clients asking whether they should include a release of claims or general liability waiver in their enrollment agreement. Such a waiver would purport to release the school from liability – and protect the school from litigation – based on the student’s experiences at the school in the upcoming year.
Legal Landscape
Including a general release of claims or waiver of liability in an enrollment agreement sounds like a logical way to protect the school from liability, right? Unfortunately, the answer is not so cut and dried. In some jurisdictions, a general waiver may be enforceable, but in other jurisdictions, general waivers are not enforceable. In still others, a parent or guardian may not be permitted to validly waive the rights of a minor child.
To provide a few examples, Massachusetts generally upholds waivers entered into knowingly; Illinois courts have found that a parent cannot waive or release a minor child’s right to sue; Virginia courts hold almost all pre-injury releases to be invalid; and Connecticut courts have frequently found that pre-injury releases – particularly those that involve minors – violate public policy.
Even if a school’s jurisdiction allows parents to waive their children’s rights, courts closely scrutinize releases of claims. Part of courts’ concern regarding general releases in enrollment agreements is that such agreements are typically non-negotiable. If a school includes a release in its enrollment agreement, a court may determine that the agreement is so one-sided that the release language (or even the entire agreement) is unenforceable.
Along with the uncertainty regarding whether a court will enforce a general release, including broad release language in an enrollment agreement could have implications for the school’s enrollment. Parents may object to a general waiver as a condition of enrollment. If the parent/guardian objects to this provision and does not enroll their child, the school has lost a potential student.
Alternatives To General Releases
Instead of including a general waiver of liability in the enrollment agreement, we suggest schools use individual permission and release forms tailored to the specific activities – particularly activities that fall outside the normal school day and/or involve a relatively high risk of injury (such as field trips, athletics, or robotics). Tailoring release forms to specific activities allows parents/guardians to make decisions on an activity-by-activity basis. Importantly, it also permits the school to describe the specific risks associated with each activity.
In the case of threatened or actual litigation, a tailored permission slip that describes recognized risks allows the school to argue that the family understood and knowingly acknowledged the risks associated with the activity in question. Even in states that disfavor pre-injury releases, acknowledgment of risk language may help a school to mitigate – or even avoid – liability.
Takeaways For Schools
It is understandable why schools might prefer general releases to having families sign multiple releases throughout the school year. The latter approach can be administratively burdensome, and the hassle of “tracking down” missing forms can be substantial. However, as a general rule, schools are better protected if they use releases that are tailored to the risks associated with particular activities.
When considering an approach to having families sign releases, a school should consider a number of factors, including the school’s overall risk management philosophy, the school’s culture, families’ expectations, and other strategies for mitigating risk.
If you have any questions about enrollment agreements or releases, please feel free to contact one of our experienced education attorneys.
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