Liability Waivers in the Wake of COVID-19
As school districts wrestle with reopening decisions, one question is whether a district can require families to sign a liability waiver to protect against claims related to COVID-19 as a condition of attending in-person instruction. Unfortunately, the law is not clear on this point.
Missouri courts have not directly addressed whether a school district can require a liability waiver from a student (or the student’s parents/guardians) in the context of returning to regular, in-person classes. An eligible student has a legal right to a free public education – what is referred to as “gratuitous instruction” under Article IX, Section 1(a) of the Missouri Constitution and § 160.051, RSMo. Requiring a waiver as a condition of class attendance would arguably interfere with that right. Following that logic though, the implication would be that school districts cannot establish any types of conditions for a student to attend school since such conditions would interfere with the student’s right to a free public education; but as we know, schools are permitted to establish enrollment requirements and other similar parameters. As you can see then, there are arguments on both sides of this issue, and as we said, this has not been addressed by Missouri courts directly. Furthermore, there are other considerations that come into play as well.
First, some districts have already decided to continue offering virtual education as an option for students; and even if your district is not, a student may be able to enroll in virtual classes under MOCAP (assuming all of the requirements are met). If virtual education is an option, then the question becomes whether the district’s virtual education satisfies the mandate to provide “gratuitous instruction” to all eligible students for those students who have not submitted a liability waiver. In other words, does providing virtual education satisfy a student’s right to a free public education? This question has not been directly addressed by Missouri courts either, and arguments can be made on both sides.
Because Missouri has established a virtual school program through MOCAP, it can be argued that virtual education should be considered the equivalent of in-person instruction. The counter to that argument though is that participation in the MOCAP program is voluntary, and enrollment in a virtual course must be in the student’s “best educational interest.” If a student is instead given a choice to either sign a waiver for in-person classes or enroll in virtual classes, then it could be seen as no longer being voluntary or based on the student’s “best educational interest.” Additionally, there may be situations where a student is not able to participate in virtual education, either because the student’s parents/guardians do not have the means to provide adequate supervision for the student during the day because they have to work, or the student does not have the resources to meaningfully participate in virtual education (e.g., a laptop, tablet, internet connection, etc.). In such a situation, virtual education may not even be an option for the student and requiring a liability waiver from the student could be viewed as invalid since it interferes with the student’s right to a free public education.
A second, related consideration involves the enforceability of the waiver itself. Liability waivers must be signed voluntarily and in exchange for some type of consideration (something in return). The ability to come to school would seem like the obvious consideration. However, as stated, the student may have a legal right to come to school, so the argument would be that the family would not truly be receiving anything in return. Additionally, a defense to a liability waiver is that it was signed under duress, meaning that the conduct of one party to the waiver prevents the other party from using free will. In a situation where a district is requiring the waiver in order for a student to return to school, it can be argued that signing the waiver was not the free will of the signatories because the family was given no choice but to sign the waiver in order for their student to receive something to which he or she was already legally entitled. This argument would be further strengthened if it was determined that virtual education did not satisfy a student’s right to a free public education, or if the family is not able to effectively utilize virtual education. The parents/guardians have a legal requirement to ensure the student is in school, and if physically attending school is the only viable option for them then they would have no choice but to sign the waiver.
With all of this in mind, you can see that the use of liability waivers for regular in-person classes presents a gray area, with viable arguments on both sides of the issue. We therefore caution school districts in the use of liability waivers for this purpose. Each community is different, and whether the use of liability waivers for this purpose is even a potential option should be carefully considered for your school district, keeping in mind the legal issues described above.
If your district does decide to use liability waivers for this purpose though, then we recommend taking steps to ensure that every student returning to in-person classes has such a waiver on file, since the protection the district would have from the waivers that are actually signed would be greatly diluted by the fact that not every student has a signed waiver. It’s very possible that a student with a waiver would get sick and then transmit the illness to a student without a waiver, so the protection of the waiver in that instance would not apply to the student who did have a signed waiver. On the other hand, if your district decides not to use liability waivers for in-person classes, there are other ways in which waivers can be effectively used and other options that are available to put the district in a better legal position.
Even though a district may not be able to require families to sign a liability waiver to attend in-person classes, it can still include a page or two in each registration packet notifying families of the potential risk with returning to school and steps that can be taken to lessen the risk of transmission. Additionally, some districts have planned to give families the option of continuing to take online courses for the first semester instead of returning to in-person classes. If your district is offering this option, then that notice to families can also include information about this option. By taking these steps of providing information to families, notifying them of the risks, and potentially giving them alternative options, you will be putting your district in a much better position if a family brought a claim against the district for their student contracting COVID-19, since you would be able to show that the family was advised of the risk and potentially given an alternative option. It is worth noting that there are likely other defenses available if such a claim is brought, but that is a topic that deserves its own blog post.
You can also require a liability waiver for extracurricular activities that do not involve class credit for participation. While liability waivers for normal classes may be suspect, extracurricular activities are a different matter. Extracurricular activities are a privilege, not a right; and districts have the legal authority to place certain restrictions on participation in these activities so long as the restrictions are uniformly applied and do not target a protected class. However, if participation in the activity involves the student receiving class credit, then we get back to the issue of whether the waiver was truly voluntary and enforceable. To avoid that argument, the best practice would be to limit the waiver requirement to activities that are not for class credit. In those situations, districts would be permitted to require a waiver from students for their participation in the activity and exclude those that did not sign the waiver, much in the same way that students are required to sign a MSHSAA waiver for participation in certain sports or activities. It will be important to ensure that each participant has a signed waiver on file though, or else your district would run into the same situation discussed earlier where the protection afforded by the waiver is greatly diluted.
We know that this pandemic has already required a lot of patience and hard work on the part of Missouri’s school leaders, and it will continue to do so. As you make plans to reopen, it is natural to seek out ways to protect your students, staff, and district. While it is unclear if the use of liability waivers for regular classes would be effective in accomplishing this, there are other ways that such waivers can be utilized and other options that can be implemented. If you have any additional questions about what other measures may be available or what other steps can be taken as you make plans to reopen your district, please feel free to contact the attorneys at EdCounsel.