The enrollment contract sets the foundation and expectations for the relationship between the school and its community members. As such, it is important to ensure that your enrollment contract is well drafted and unambiguous and addresses current and salient issues facing the school. Before issuing or reissuing enrollment contracts for the 2023-2024 school year, independent schools should consider addressing the following updates.
COVID-19
Some (including President Biden) have declared that the COVID-19 pandemic is over. Despite a projected increase in Omicron infections this fall, the country by and large has transitioned to treating COVID-19 as endemic. Does this mean that independent schools should follow suit and remove previously added language addressing COVID-19 from their enrollment contracts? Not necessarily, but independent schools may consider streamlining the COVID-19-specific information addressed in the enrollment contract to focus on items carrying legal significance, such as a waiver and release of liability for harm related to contracting the COVID-19 virus. Other topics, such as mandatory COVID-19 vaccination policies and COVID-19 health and safety protocols, could be addressed in schools’ student/family handbooks or on the school’s website.
Student Mental Health
More than ever, a school’s enrollment contract should reaffirm a commitment to work in partnership to respond to rising student mental health issues. Enrollment contracts should require parents to have their child evaluated, if requested by the school, and allow the school to exchange information with outside professionals if needed to best support the student. 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.
In addition, the enrollment contract should include language describing with whom student medical and mental health information may be shared at the school. In many instances students may disclose information to school counselors, which would trigger an obligation/responsibility to respond, such as allegations of child abuse, threats of self-harm, or threats of harm to others in the community. It is vital to be able to share information of this nature with school administrators and other employees with a need to know in order to take actions to ensure the safety of the student and the greater school community. Students and parents should be notified of the limits of a school counselor’s confidentiality obligations in advance, to obtain parents’ informed consent to share information disclosed in counseling meetings if and when the need arises.
Gender-Neutral Language
It is becoming more common for students and parents alike to express a preference with regard to personal pronoun use. To be sensitive to this issue, schools should review their enrollment contracts to ensure that all pronouns used in the enrollment contract are gender neutral.
Student Digital Privacy
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 the website or service is 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 provision 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.
Indemnification Clauses
In most contracts, an indemnification clause serves to compensate a party for harm or loss arising in connection with the other party’s actions or failure to act. When students are placed in a school’s care, the school acts in loco parentis to their children and are legally responsible for the actions of the students in its care. Should students cause damage to property during a school field trip, for example, an indemnification clause would require that the parents of the student responsible for such damage cover the school’s costs to defend against any legal claim brought against the school for the student’s conduct.
Although most independent schools already have robust language in their enrollment contracts releasing the school from liability arising from any injury or harm to a student while they are in the school’s care, this release does not ordinarily address third-party claims against the school arising from a student’s behavior or actions. Independent schools would be wise to include language addressing indemnification for third-party claims to further reduce their legal risk exposure.
Attorneys’ Fees
With increasing frequency, schools have had to take legal action to enforce tuition obligations under the enrollment contract. Schools may wish to consider including a provision in their enrollment contracts to ensure that parents are responsible 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 legal disputes where the school is not a party, such as divorce or custodial disputes. While many enrollment contracts already 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, 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.
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 Lee, Janice Gregerson, or Ashley Sykes for assistance.