Evan Thompson is a Washington-based writer for TBS covering higher education. He has bylines in the Seattle Times, Tacoma News Tribune, Everett Herald, and others from his past life as a newspaper reporter.
Karol Ludena hasn't been asked to sign a COVID-19 waiver. But if signing one became a condition to completing dental school, she wouldn't hesitate.
"The most important thing is the hands-on experience," said Ludena, a senior at the University of Washington School of Dentistry. "You can't mimic a tooth from home."
But what happens if she contracts coronavirus? Could she sue the school for compensation? Would the waiver hold up in court?
"The most important thing is the hands-on experience. You can't mimic a tooth from home."- Karol Ludena, senior at University of Washington School of Dentistry
Questions like these first arose earlier this summer, when college football players returned to campus for workouts. Schools across the country opened their doors for summer practices, and many required student-athletes to sign liability waivers before they could participate in team activities. A medical school in South Carolina also turned to the forms in hopes that students wouldn't sue if they contracted the virus while on clinical rotations.
Legal experts believe the next wave of liability waivers may come in the fall, when in-person classes resume. But critics worry that students will surrender their rights to hold schools accountable, and some may unknowingly consent to the risks without ever being asked to sign anything.
Just like how athletic departments used waivers to kick off summer workouts, colleges may lean on them to resume in-person classes. The reason is apparent: Many schools face intense political and financial pressure to reopen, despite the likelihood that campuses will become hotspots for outbreaks.
Paul Finkelman, president of Gratz College in greater Philadelphia and a well-respected legal historian, worries colleges might hold too much power over students if they require signed waivers for enrollment.
"I'm very skeptical of essentially saying to students, 'You can only get your degree if you sign a waiver,'" he said.
What Is a COVID-19 Waiver?
A COVID-19 waiver is much like a form you would sign before participating in a dangerous recreational activity, such as river rafting or rock climbing. For college students, the waiver signifies that you voluntarily accept the risk of catching COVID-19 and waive your right to sue.
Some institutions may also refer to them as disclaimers, releases, or agreements, but the purpose is the same: Mitigate the damages.
"Waivers are generally written to provide an obstacle to a lawsuit," explained Chris Michael Temple, an attorney at Fox Rothschild in Pittsburgh, Pennsylvania, and graduate of the University of Pittsburgh School of Law. "It's an acknowledgment that the provider is not a guarantor of safety, that there are things beyond the control of a provider, and that even with the most vigilant, most dedicated, most motivated provider, the risk may still come to pass."
"The laws of various states differ, but as a general proposition, waivers are not favored by the law. There are limitations to what can effectively be waived."- Chris Michael Temple, attorney at Fox Rothschild
Liability waivers are a logical precaution for colleges and universities to take as students return to campus, Temple said. He believes many institutions will have similar disclaimers in place by the time they reopen in the fall.
But how much legal protection do they provide for schools? Not as much as you might guess, Temple said.
"Waivers such as these have two roles: putting the person on notice and eliminating some liability," he said. "But it doesn't eliminate all liability. The laws of various states differ, but as a general proposition, waivers are not favored by the law. There are limitations to what can effectively be waived."
If colleges can prove they made reasonable efforts to protect students — with enhanced cleaning and sanitation, written warnings, and compliance with health safety measures — then students may have a difficult time making a case that the school acted irresponsibly.
On the other hand, schools with sloppy safety protocols may prove more vulnerable to a lawsuit, and there may be unexpected issues in courts during the COVID-19 era.
"Negligence is generally the standard," Temple said, "but it's hard to say in the context of COVID-19. It's not all that clear what constitutes negligence."
"Acknowledgement of Risk" Forms May Be Equally As Effective
Students at the University of Georgia are allowed to participate in an off-campus internship that requires in-person meetings, despite the pandemic. But first, they must sign an agreement.
"I acknowledge that my participation in the internship may result in risk of exposure to contagious diseases, such as COVID-19, property damage, bodily or personal injury, including death," reads a stipulation from the form. "I acknowledge and agree that I am voluntarily engaging in this internship at my own risk and that I remain responsible for my well-being, including taking necessary steps to ensure my personal safety."
Acknowledgment of risk forms may turn out to be more common than waivers in the fall, said Monica Barrett, an attorney who provides legal advice and counsel to educational institutions. While they contain similar language, acknowledgments typically don't ask students to forfeit their right to sue.
Acknowledgments may include provisions that explain safety measures and protocols implemented by an institution and expressly certify that students understand and accept that they may still contract COVID-19, despite those measures.
"That gives some protection from liability," Barrett said. "To me, it's just as effective. If you're acknowledging something is risky, in some sense, you're accepting the risk. That is almost as good as a waiver."
Language Differences Between Waivers and Acknowledgments
|"I release [the institution] from any and all claims arising out of or in any way connected with the event and my participation in the event."||"I acknowledge that all risks cannot be prevented and I assume those risks beyond the control of the university staff."|
|"I agree...to assume all the risks and responsibilities surrounding my participation in the course."||"I acknowledge that such risk cannot be eliminated without jeopardizing the essential qualities of the activities."|
|"Participant acknowledges that participation in the program may involve...bodily injury, and, in some cases, even death."||"I acknowledge that my participation in the internship may result in risk of exposure to contagious diseases, such as COVID-19, property damage, bodily or personal injury, including death."|
University of Washington, George Mason University, University of Georgia
"I Wouldn't Be Comfortable Doing That"
Gratz College President Paul Finkelman considers himself lucky not to face the same pressure to reopen that many other school presidents across the country are facing. Most of Gratz's classes are online, and the small college doesn't have dorms.
Meanwhile, other public and private colleges lost millions after campuses closed, and they will lose even more if they remain shut down. Refunds for room and board fees and potential lost revenue from lower enrollment in the fall may cause some higher education institutions to close permanently.
"I am deeply sympathetic to my presidential colleagues who have to deal with the huge financial issues," Finkelman said. "They're facing a tremendous problem. Their backs are against the wall."
The pressure to reopen is not only financial: The Trump administration is pushing college and state leaders to open campuses this fall. The president has even threatened to withhold federal funding if they don't, though the likelihood of that happening is very low.
It's hard to estimate how many schools will ask students to sign waivers, or if they will be a condition for enrollment. While legal experts agree that liability waivers are good business practice, Finkelman is against using them.
"I'm not in a position where I have to make that decision, but there's a moral dynamic here, asking people to sign waivers," Finkelman said. "I wouldn't be comfortable doing that."
"I'm not in a position where I have to make that decision, but there's a moral dynamic here, asking people to sign waivers. I wouldn't be comfortable doing that."- Paul Finkelman, president of Gratz College
Heidi Li Feldman, a professor of law at Georgetown University, opined in the Los Angeles Times that liability waivers are the "most heavy-handed way" universities can argue that students were aware of the risks and voluntarily accepted them. She believes colleges that plan to reopen and encourage physical gatherings take an "adversarial and exploitative stance" against students.
Feldman is also wary of schools offering "hybrid" operations for the fall term, which give students and faculty the option of remote participation. By showing up in person, people may unknowingly accept legal responsibility for the risks of COVID-19 without signing anything.
"They [schools] can claim that attendance itself proves consent," Feldman wrote. "To pave the way, colleges and universities will try to make it seem as though those physically returning to the school grounds are being given meaningful options other than coming to campus — and that those who do come are well-informed of the dangers of doing so."
Feldman contends that students, faculty, and employees should reject "explicit waivers." She also urged returning students to inform administrators that showing up doesn't mean they surrender their rights to "hold schools accountable for sloppiness in safeguarding their health."
Schools With Various Plans to Reopen
Total (as of July 2020): 1,210
Do Waivers Cross Ethical Boundaries?
The waiver controversy first emerged in June after student-athletes returned to campus for voluntary workouts. Players at more than a dozen schools soon tested positive for the coronavirus.
Athletes who don't sign a waiver may not participate in practices or use the school's athletic facilities. Many of the students feel pressure to sign, worried that they'll otherwise lose their scholarships or jeopardize their chance to play.
In a letter to NCAA president Mark Emmert, Sens. Richard Blumenthal (D-CT) and Cory Booker (D-NJ) expressed "grave concern" that schools are compelling athletes "to sign away their right to hold their school accountable." The Democratic senators also recently introduced a bill to prohibit liability waivers for student-athletes.
"That alone should defeat claims that waivers demonstrate that students and school personnel knowingly and voluntarily assumed risk and relieved the school of its duty of care."- Heidi Li Feldman, professor of law at Georgetown University
Feldman has similar concerns about waivers for students returning to campus in the fall. She sharply criticized the waivers for creating an unfair power dynamic between students and schools.
"Schools that try to force the issue by requiring signed waivers as preconditions for enrollment or pay are obviously coercing people into surrendering their rights to sue," Feldman wrote. "That alone should defeat claims that waivers demonstrate that students and school personnel knowingly and voluntarily assumed risk and relieved the school of its duty of care."
Temple empathizes with the challenges that schools face. He believes they are doing the best they can to navigate a difficult situation.
"It's a tough spot," Temple said. "You want to provide a reasonably safe environment, but if you look at the pronouncements, it's clear that accumulating people in a small space is a risk factor."
Students May Accept Risks to Avoid Graduation Delay
Karol Ludena, the senior dental student at the University of Washington, would sign a waiver for two reasons: to avoid delaying her graduation and to continue her education.
Ludena has to complete clinical requirements in oral surgery, orthodontics, and pediatrics before she can graduate in 2021. She missed three months of training after the coronavirus outbreak began, but started making up for the lost time in June.
"I'm nervous that I'm not going to get the experience I signed up for," she said. "When you apply to be a dentist, you want to get as much experience as possible in every aspect of the field. With everything slowing down, there's a chance you won't get the same number of fillings you would've gotten if things were normal."
Until there is a vaccine, Ludena is taking her chances at the clinic. She wears a face shield, mask, gown, and gloves for protection from patients who could have COVID-19.
But the toll is deadly for those in patient care: 939 healthcare workers have died fighting the virus, according to National Nurses United, the nation's largest nurses union. Health experts predict the number of reported deaths to grow.
The Association of American Medical Colleges (AAMC) strongly recommended that students "not be involved in any direct patient care activities" unless there is a "critical [healthcare worker] need locally."
Ludena said she assumes personal risk when she goes to the clinic. She also trusts the safety protocols at her school to keep her safe.
The University of Washington School of Dentistry currently has no plans to use a COVID-19 waiver in the fall, but Ludena would sign it if it came to that.
"Getting into medical or dental school takes so much effort. To quit when you almost reach your goals would be devastating."- Karol Ludena, senior at the University of Washington School of Dentistry