Why are colleges requiring liability waivers from students? - YouTube

If you are in higher education, then you don’t need me to tell you that colleges are

concerned about enrollment.

But in the last couple of weeks, as students have actually begun to complete the final

steps for returning to campus, an interesting issue has reared its head: liability waivers

that colleges are requiring students to sign.

Podcast listeners and colleagues alike have asked me to comment on this.

An example is Maria Gray, a rising junior at Bates College who said that she was on the fence

about returning to college, when Inside Higher Ed reported that she was confronted with this

screen when she tried to login to her account: Just think about how unusual this is: you’ve

got a student entering junior year, who during the course of an ordinary login to the college

system, and she was actually alone at that moment without a professional to explain the

significance, is confronted with a short disclaimer and a button to push.

And that button, once pushed, appears to absolve the college of all COVID-related liability,

even in the event of death.

Oh, and did I mention that there’s no other way to get into the system except by pushing

that button?

Maria isn’t alone.

Schools everywhere are asking students to make these kinds of legal commitments.

And some students are more vulnerable than others, or at least create more liability

than others, because of specific lifestyles.

It appears, for example, that student athletes are more likely to be asked to sign such waivers

than other students.

Ohio State, the University of Missouri, and Southern Methodist University are among the

schools that are currently requiring students to sign such waivers before they can show

up to play and claim their athletic scholarships.

Colleges face a significant dilemma.

On the one hand, colleges can be likened to what Heidi Feldman of the Los Angeles Times

calls “a cruise ship, a cinema multiplex and a restaurant all rolled into one.”

On the other hand, colleges are in unfamiliar waters, and the extent to which colleges could

be held liable if their students or employees catch coronavirus while involved in college

classes or activities has become a central question as they contemplate different approaches

to reopening.

Colleges and their lobbying groups believe that they are vulnerable to lawsuits – both

in large numbers and with the potential for significant liability – if they re-open

and transmission explodes.

If that explosion occurs, students will experience various degrees of illness, and some will

undoubtedly die.

It’s not enough for colleges to argue that they took precautions – partly because there

is obviously plenty of room for argument around whether the precautions colleges are taking

are sufficient, to say nothing of the central question of whether colleges should have reopened

in the first place.

Ultimately, higher education wants blanket legal protections, but so far it hasn’t

gotten it.

There is strong opposition to the idea of legal protection for colleges.

This opposition isn’t limited to just colleges; it’s an opposition to the idea that employers

should have these legal protections, whether in manufacturing or service industries or

in education.

The opposition primarily comes from congressional Democrats and labor unions, who are concerned

that the organizations these laws would protect would do too little to protect vulnerable

students and workers, and that the result of such protections may in fact appear to

be, in retrospect, reckless behavior.

Particularly influential are the players associations for the NFL, the NBA, the NHL, major-league

baseball, and major league soccer, who have all stated in a letter to top Republican and

Democratic lawmakers that they oppose inserting blanket liability protections for employers

in legislation.

In contrast, a Republican proposal would offer considerable protections: it would provide

five years of legal protection for businesses, hospitals, schools and nonprofits that make

“reasonable efforts” to comply with government standards to protect their workers and customers

(presumably that would include students).

Plaintiffs would need to prove that their illness resulted from “gross negligence”

or “willful misconduct.”

That’s a very high standard, since many cases would presumably arise merely from ignorance

or lack of resources.

Perhaps the biggest bar, or the biggest obstacle, to litigation under the Republican’s proposal:

a provision subjecting those who are found to have brought claims without merit to punitive

damages and civil penalties of up to $50,000.

Currently, both top Republicans and the White House view liability protection as a “red

line” that must be part of any agreement.

Polls of the public on this issue have turned out to be useless, simply mirroring the views

of whoever paid for the poll.

When the American Association for Justice, a group representing plaintiffs’ lawyers,

polled the public, it showed that nearly two-thirds of the public opposed employer liability protections,

but when the US Chamber of Commerce funded a poll, it found that 61% support protections.

So what to do?

Trick question – because the answer is that if you’re interested in what you’re hearing

in this video, let me know – this is your chance to hit the Like and Subscribe buttons

below, and you can hit the notification bell button if you want to be informed about the

newest releases on this channel.

But once you’ve done that, consider this: if you are an administrator at a school that

is contemplating such liability waivers, I strongly urge you to avoid them.

First, they don’t look good.

But second, and more importantly, I seriously question their effectiveness.

College students are smart people and are legally adults, but I have not found a single

legal expert who believes that merely entering a student ID number during what can be often

a first time, rushed, unfamiliar enrollment process constitutes a legally binding act

on the part of the student.

Colleges are offering such liability waivers because they can’t think of anything else

to do, not because there is any specific reason to believe that they actually offer substantial

liability protection for the college.

They hope to discourage claims, or require a specific setting for resolving claims (like

mediation), or create a legal hurdle to a lawsuit, since the student would first have

to show that the waiver was not binding, all of which would make a lawsuit more difficult,

expensive, and cumbersome to the plaintiff.

If you are a student who encounters such a form, you should not complete it, unless the

school refuses to budge and you have no other educational options.

I think that scenario is unlikely - schools will budge because they know that most people

have other options, and unless the school has a very deep waiting list, they are not

going to let a liability waiver cost them a student.

Above all, schools should remember: while it is the nature of a college to convene large

groups of employees and students under the umbrella of a college’s operations, with

that comes a responsibility toward those who work and study there.

Sweeping liability releases are really just an abdication of that responsibility.

If the danger to the students, and therefore also to the college, is so great that students

need to be coerced into signing away their rights to hold the school accountable for

its decisions, perhaps that might be the first clue that the school may have its priorities

wrong.

I hope this information has been helpful to you, and I hope that as you begin the fall

semester you are safe and healthy.

I urge you to have a listen to this week’s podcast, in which the Harvard student body

president outlines the difficult decisions that Harvard University has had to make in

the way it is approaching the fall semester.

I’ll put a link to that podcast in the notes below.

I look forward to talking with you again next week.