Legal Notes: What Schools Need to Know About Informed Consent
Fall 2020
By
Megan Mann
Megan Mann, NAIS legal counsel and vice president of government relations, hears from NAIS member schools across the country on a daily basis. Here’s what’s on members minds now, what schools need to know, and questions they need to consider.
The COVID-19 era has precipitated a renewed focus on informed consent: when an individual gives consent to something—a procedure, a trip, or returning to campus—after being informed about its details, including the risks and benefits. Schools typically explain the contours of an event or trip to parents and students, describing the risks associated with it. Then they ask them to agree.
Returning to campus during a pandemic is really no different. This past summer, schools communicated the factors of reentry; however, they didn’t promise a coronavirus-free environment—just as they would never pledge to provide a risk-free trip abroad. The communications were meant to inform but also served as caution tape.
Schools did not want to see parents, employees, or third parties return only to feel they had been the victim of a bait-and-switch. Many schools asked for acknowledgments that families had received and read the communications. Some schools allowed employees and families to opt out of enrollment or employment agreements if they were not comfortable with the risk or would not agree to the pandemic policies. There were various iterations of this practice, and one major trend that emerged was the “community agreement,” also referred to by schools as “back-to-school” or “social” agreements or contracts. These are different than waivers of liability, although some schools have incorporated waivers into these broader agreements. Waivers are generally used to ask parents to abandon their right to bring a lawsuit for negligence or other claims (depending on the waiver). The enforceability of waivers varies from state to state, and the general consensus is that courts do not favor them.
Community agreements outline the risks of returning, the new policies or playbook the school would endeavor to employ, the expectations for families, and the consequences for failing to abide by these new policies or meet these new expectations. Naturally, in the ever-shifting landscape, these build in flexibility for the school; they avoid promises. It remains to be seen how these documents will play into prospective pandemic litigation, how they will evolve as the virus does, and what their role will be in the post-COVID-19 era. What we do know is that schools are now keyed into the concept of informed consent in a new and interesting way.