Enrollment Contracts: Best Practices For The COVID-19 Landscape
Across the country, schools have been navigating through uncharted waters as they reopen in the midst of the global COVID-19 pandemic. School community members have expressed wide-ranging hopes and concerns for the new school year, including concerns about the quality of student education, risks to community members’ safety, and the very safety protocols designed to keep them safe. Unsurprisingly, litigation against institutions of higher education has already started in earnest, with lawsuits—both individual and class actions—seeking partial tuition refunds.
As courts have acknowledged, the relationship between independent schools and the families they serve is fundamentally a contractual one. The COVID-19 crisis has put a renewed focus on this relationship, specifically with examinations of schools’ enrollment contracts.
As schools look to prepare for the future unknown, it is critical that they carefully consider how to draft their annual enrollment contracts to better protect their interests. There are several provisions that schools should consider incorporating into their enrollment contracts to help achieve that goal.
Current litigation in the higher education context is generally based upon the premise that remote learning constitutes a breach of the university’s contractual commitment to provide students with in-person learning. Therefore, force majeure provisions—whereby schools preserve their authority to suspend or alter their programming in the event of extreme circumstances, such as a pandemic—are perhaps the most important component of enrollment contracts in the COVID-19 era.
As these lawsuits highlight, it is crucial that independent school enrollment contracts include language that clearly explains to families that the school’s contractual obligations and duties may be suspended due to forces outside of its control. Schools should be mindful to include a non-exhaustive list of examples, including epidemics, pandemics, and viral outbreaks.
Well-drafted force majeure clauses in the COVID-19 era provide a basis for transitioning to remote learning during the course of the school year, provided that the pandemic is ongoing and additional risks associated with it arise (or in the event of a new qualifying crisis). These provisions allow for alterations to school operations, which may include programming, academic calendars, schedules, and curricula. They should also emphasize that families’ obligations under the contract are unconditional, regardless of the type of programming being offered, such that the only remedy for non-performance under the contract is future performance or altered performance. In other words, these provisions should clearly state that there is no set of circumstances that will allow for a tuition refund.
Along with force majeure provisions, educational outcomes provisions are an important way to establish a school’s contractual right to alter its programming, in its sole discretion. Unlike force majeure provisions, however, educational outcomes provisions do not require that the school point to any specific precipitating event. Well-drafted educational outcomes provisions should instruct families that the school does not guarantee any specific type of educational program, curriculum, benefit, or experience to students.
Further, this provision can help protect a school from consumer protection and educational malpractice-like claims by having families acknowledge that the school does not guarantee any specific academic results for students. The goal is to protect schools from claims on behalf of students who do not graduate with top grades, become fluent in a foreign language, succeed in a next school, or receive high scores in standardized testing. Given the utility of such provisions, their inclusion in enrollment contracts will remain a best practice even after the COVID-19 pandemic has ended.
Remote Learning Recording
In light of the need to employ remote or hybrid education, schools have leaned heavily on synchronous or asynchronous learning that requires recorded classes or lectures. In the COVID-19 era, this can occur as a result of the student’s location and/or time zone, illness, a choice made by either the student or the school, or a mandatory quarantine.
Regardless of the reason, a school needs to be able to effectively provide instruction to all of its students whenever and wherever they may be learning, and recording consents are necessary to ensure that this can occur. Depending upon the state in which the school (or its remote students) is located, however, the school may be required to receive written consent to record students’ voices under applicable wiretapping laws.
It is therefore advantageous to include recording consents in enrollment contracts. Indeed, by ensuring that all families sign these provisions as a condition of enrollment, schools can eliminate the stress of having to obtain widespread parental consent on the eve of a transition to remote learning.
Schools in the COVID-19 era must familiarize themselves with the requirements of the federal Children’s Online Privacy Protection Act (COPPA). COPPA requires entities covered by the law to notify parents and get their approval before they collect, use, or disclose personal information from children under the age of thirteen. While schools generally are not covered entities under COPPA, schools increasingly use online service providers that are covered by COPPA and are often required to obtain parental consent for such services.
The Federal Trade Commission has advised that schools can consent on parents’ behalf to student use of such service providers, consistent with COPPA, within the online learning context. Web-based application provisions in enrollment contracts are designed to allow schools to consent to ongoing use of their providers’ services, without the need to obtain further direct permission from parents should these services be used during the course of the year.
Expectations And Parental Comportment
It has long been a best practice to include a section on student and parent comportment in an enrollment contract. Such provisions should outline expectations for students, parents, guardians, and others associated with the student to ensure that a school has the necessary flexibility to dismiss families whose behavior negatively impacts the learning environment at the school. These provisions are increasingly critical in the COVID-19 era, so that families understand that schools have the authority to expel or otherwise discipline students if they, or persons connected with them, flagrantly or repeatedly violate health and safety rules.
Schools should generally consider referencing their student/parent handbook within their enrollment contacts to indicate that compliance is required. This provision may be particularly helpful for schools that are also trying to enforce pandemic policies and families’ compliance with such expectations. Enrollment contracts that make this reference, however, should explicitly state that neither the handbook nor any other school policy statement constitutes a binding contract. Families should further be informed that, in the event of a conflict between the documents, the enrollment contract is determinative of the family’s rights and obligations.
International Student Guardian Provisions
Schools with boarding students and international students should consider requiring that a local guardian be available to pick up the student in the event that the student must quarantine off-campus (due to contracting the virus or having close contact with someone who has), or in the event that the school must shut down and the student is not able to travel home. A provision emphasizing the family’s responsibility for the student during school vacations and other periods of closure is strongly recommended.
COVID-19 Waivers, Assumptions Of Risk, And Notices
One further issue that schools may want to carefully consider in the current climate is whether to include in their enrollment contract a COVID-19 waiver, an assumption-of-risk provision, or a notice and disclosure of risks. Incorporating any one of these types of provisions may be beneficial in preventing or defending against lawsuits, but could also cause community backlash, as families and other community members may question whether the school is doing all it can to prevent COVID-19 infections. The wisdom of including such provisions should be considered in light of each state’s law and each school’s individual culture.
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Independent schools should carefully re-examine their enrollment contracts in light of the COVID-19 pandemic. Our education attorneys have a wealth of experience in drafting enrollment contracts for schools, and we would be happy to assist your school in this area.