Q: Can a university ask students to sign a waiver (COVID) if not signing puts their registration on the line? (coercion?)
Our university has asked students to sign a waiver in order to return to campus in the fall. Those who sign the waiver relinquish their rights to sue the university or claim compensation if they get sick and/or die of COVID-19. Failure to sign the waiver means a student will have their student account frozen, and be unable to return to campus or register for classes (in-person or online).
The most troublesome clause: "I understand that I may be infected by COVID-19 as the result of negligence on the part of the Releasee or other persons, including other students and visitors. I understand that negligence includes failure on the part of the Releasee to take reasonable steps to safeguard or protect me from COVID-19 risks while I am at [the university] or participating in [university] activities."
Does the fact that students are being coerced into signing the document (re: their education is on the line if they don't), make the waiver invalid?
A:
You raise good questions, but the validity of the waiver might be something requiring the ruling of a court. As a general premise, waivers against injury tend to be frowned upon by courts as a matter of public policy. Another issue is that even if a waiver was upheld, lawsuits based on COVID-19 will probably be difficult for plaintiffs anyway. Only time will tell that, as courts re-open and whether dockets start to see such cases in significant numbers. But those cases will likely encounter heavy challenges on causality because of the difficulty in establishing root cause of illness. Good luck
Tim Akpinar
A:
I represent college students in disciplinary matters so, by analogy, there's all kinds of attempts by the corporate personas now running higher ed, to get the students to pay the school as much as possible with the school doing as little as possible in return. This seems to be just one more classic example of that trend. School staff go out of their way to hire lawyers so that there is little responsibility in their work life. Yet, seen honestly, it is the school, not the student, who is best placed to stop the spread of COVID, and if the school fails at that, it is also the school who is best placed to price that out--all that the school needs to do is get insurance. The student is not able to do that on his or her own.
Specifically, each school needs to act under the law of the state it is in. There could be 50 different answers to this.
Many states say that students and schools have contracts and that those contracts include the student handbook. So, for example, the waiver you mention may well violate some broad promise of "fairness" and "care" that the school offers in the handbook. It is also very iffy to say that the student had a free mind to agree into that. Sign this or go elsewhere is not a meeting of the minds.
There will be litigation on this for sure. School staff can't have it both ways--charging ever increasing fees for services they continuously pare down. All the while, students need education, and COVID keeps spreading.
Raul Jauregui
www.studentmisconduct.com
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