From our good friend, David Wolowitz at McClane Middleton. While aimed primarily at independent schools, there are some good nuggets here for public schools.
Independent schools planning to have students return to school before there is a vaccine for the COVID-19 virus are understandably concerned about potential liability if a returning student becomes severely ill after contracting the virus at school. In many states, existing laws provide some form of limitation of liability for public schools, but not for private schools. In response to the pandemic, some state legislatures are enacting safe harbor legislation to protect private businesses that reopen during the pandemic from liability. However, not all states have passed such legislation and even those that have require businesses to follow specific guidelines to gain protection from liability.
Some independent schools are considering requiring parents to release the school from liability as a condition of enrollment. This option presents a number of issues that may make it unacceptable for many schools. First, requiring a release from liability may send the message that the school is not doing all it can to keep their child safe, thereby discouraging parents from sending their child back to school just when independent schools are concerned about declining enrollment due to the financial crisis. Second, requiring a release for reenrollment would, in effect, be an alteration to the enrollment agreement. For one party to change a material term of an existing contract, the other party must provide something of value in return. It is not clear what a school would offer in these circumstances. Third, if a school did offer a revised enrollment agreement with a release provision and a parent was unwilling to sign it, the school would likely not be able to enforce the previous agreement and would not be able to collect or retain tuition payments.
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