Are We Out of the Woods Yet? Getting Your School Enrollment Contract in the Clear for the 2022-2023 School Year

7 min

A well-drafted enrollment contract serves many purposes: it not only confirms the tuition obligation, but can also serve to reinforce particular school policies, set the tone for the relationship between schools and families, and establish the expectations for membership in the school community and the consequences for conduct that is inconsistent with those expectations. As schools continue to provide their educational programs amid the challenging circumstances presented by, among other things, a seemingly ever-evolving pandemic, an enrollment contract serves another important role: affirming the ability to modify school policies and protecting the school against unanticipated scenarios. Before issuing or reissuing enrollment contracts for the 2022-2023 school year, independent schools should consider addressing these common trouble areas.

COVID-19 Policies

Every state has a statutory scheme detailing vaccination requirements before a child may attend school, with certain exemptions (depending on state law) for medical, religious, or philosophical beliefs. Once the COVID-19 vaccine receives full FDA approval, it is probable that certain states will institute a COVID-19 vaccine mandate for school attendance, as they have in the past for polio and chickenpox. If and when that occurs, schools will be obligated to follow their state’s guidelines for vaccines that are mandatory for school entry.

Until such time as the COVID-19 vaccine is mandated for school entry under state law, schools may require students to be fully vaccinated against COVID-19 as a matter of school policy. Federal law will require schools to consider medical exemptions to such a policy; however, depending on state law, schools may or may not be required to consider religious exemptions. Schools that have already mandated or anticipate mandating the COVID-19 vaccine for students would be well advised to expressly reference this requirement in their enrollment contracts, to avoid any potential dispute regarding the policy (and any continued tuition obligation in the event of late withdrawal).

Even if your school does not require students to be vaccinated at this time, a well-drafted enrollment contract should also reaffirm the expectation that parents and students will continue to comply with any school policies, as they are issued or amended, that endeavor to protect the health and safety of the school community. These may include, but are not necessarily limited to, requiring students to show proof of vaccination, limiting certain activities based on vaccination status, and/or observing travel quarantines.

With breakthrough cases and variants, schools would be wise to also consider including an express COVID-19 Assumption of Risk, Waiver and Release of Liability in their enrollment contracts. This clause should inform parents that there are inherent risks of in-person learning, regardless of preventative measures taken by the school; state that students and families are expected to adhere to all school health and safety protocols, whether in effect now or adopted later; and obtain a release from all claims, liabilities, and damages that a student or parent may have.

Student Mental Health Evaluation and Supports

As the pandemic continues to wear on, schools are seeing an increasing number of students who perhaps require or would benefit from a mental health evaluation and supports to assist them in tending to their mental health. Given the frequency with which schools are now managing student mental health concerns, it would be wise to consider including language in the enrollment contract requiring parents to have their child evaluated, if requested by the school, and reaffirming the commitment to work together in partnership to support their child’s mental health. Parents should understand that failure to comply with the school’s request compromises the school’s ability to provide an appropriate education and may interfere with the learning of other students in the class.

Student Digital Privacy

Even as schools resume in-person learning, the technology used during the pandemic is hardly a thing of the past, and websites and online services remain a key part of any school’s curriculum. Generally speaking, the Children's Online Privacy Protection Act (COPPA) requires operators of websites or online services directed to children to obtain parental consent for use and authorizes schools to consent on parents’ behalf when used as educational programming. However, recently some of these operators have revised their vendor contracts to require the school to obtain affirmative parental consent. To address this issue, the enrollment contract should authorize the school to consent to the student’s use of online services on the parents’ behalf. An ideal Student Digital Privacy policy should describe the types of online services accessible to students and provide a list of online platforms used by the school, as well as the terms and conditions/privacy policies of those platforms.

Payment Upon Withdrawal/Cancellation

Even before the pandemic, a key component of any enrollment contract was a withdrawal or cancellation provision that detailed the school’s ability to enforce the financial obligation in the event of a student's withdrawal or dismissal after the contract is considered binding and before the end of the academic year. The uncertainty created by the COVID-19 pandemic has only reaffirmed the need for this provision. A well-drafted contract will clearly and unambiguously outline the circumstances under which the school will refund the deposit, refund tuition paid, and/or consider any waiver of the continuing tuition obligation, consistent with the school's culture and existing policies.

In the wake of the pandemic, some schools have considered moving to a staggered continuing tuition obligation in the event of late withdrawal, meaning that parents are not held to the full tuition obligation but instead to a proportion of the tuition obligation relative to the date of withdrawal.

If drafted appropriately, such contractual provisions can be considered liquidated damages clauses, providing for a previously agreed-upon amount, as established in the enrollment contract, that the parents agree to pay the school in the event of breach. However, such clauses must be carefully worded to comply with applicable state law, which may establish specific circumstances under which the provision will be enforced by the courts.

Fee Shifting and Attorneys’ Fees

Generally speaking, the “American rule” in legal disputes is that the two opposing sides of any legal matter must pay their own attorneys’ fees, regardless of who ultimately prevails. One important exception to this rule is when the parties agree, via contract, that in the event of a legal dispute, the non-prevailing party will be responsible for the prevailing party’s attorneys’ fees. Schools may wish to consider including such a provision in their enrollment contracts to ensure parents’ responsibility for the school’s attorneys’ fees in the event of a dispute over the enrollment contract.

In addition, schools often find themselves on the receiving end of subpoenas to provide documents for or testify in, among other things, custodial disputes. Many schools’ enrollment contracts currently provide that the party who subpoenas the school is responsible for the costs and attorneys’ fees incurred by the school in connection with the subpoena. However, schools may also want to consider requiring the subpoenaing parent to provide an up-front payment to the school for costs and attorneys’ fees, to guard against parents’ refusal to pay or delay in paying after the documents or testimony have been provided.

Program Flexibility

As the Delta and Omicron variants demonstrate, the words “post” and “pandemic” are closer to an oxymoron. As a result, schools should ensure their enrollment contracts reserve the right to modify programs as needed to address evolving circumstances that variants or other conditions may present. To preserve flexibility, schools should ensure the enrollment contract does not guarantee any particular program, activity, or curriculum or promise that it will provide such programs in any particular manner (i.e., in-person vs. distance learning). Instead, the school should reserve the right to modify its programs, curriculum, method of delivery, activities, and workforce at its discretion.

Standards of Conduct and Parent Cooperation

As previously mentioned, an enrollment contract sets expectations for the relationship between schools and families and allows schools to take responsive action if expectations are not met. It is wise to explain, in the Enrollment Contract itself, that disruptive or overly aggressive behavior on the part of parents is detrimental to the school’s educational program, demonstrates a loss of confidence in the school, and thus the school has the right to take appropriate action in response, up to and including dismissal from the school community.

The Venable Independent School Law Practice Group is prepared to assist independent schools as they begin to review their enrollment contracts in light of the lessons learned from COVID-19. Independent schools with questions are encouraged to contact Caryn Pass, Grace LeeJanice Gregerson, or Ashley Sykes for assistance. The Venable Independent School Law team is grateful for the contributions of law clerks Imani Menard and Page Kim in preparing this newsletter.