As more private and public primary and secondary (K-12) schools move to reopen in-person, we need to ensure reopening plans protect public health—and also protect the legal rights of parents and students, as well as schools’ core ethical imperative of nurturing and guiding young people. The pressures to reopen are mounting, and so are the risks that reopening plans could cause lasting harm to these legal rights and schools’ mission through the use of “education contracts of adhesion”.
“A national emergency.” That’s the phrase Vice-President Kamala Harris recently used to describe the departure of mothers from our country’s work-force due to the difficulty—at times, impossibility—of holding down a job while also holding down the domestic fort during the ongoing COVID-19 global pandemic.
Key to addressing this national emergency, as well as other pandemic-related crises such as the deterioration of children’s mental health and the inequitable impacts of lost academic progress among children: reopening our brick-and-mortar primary and secondary schools, as expeditiously and safely as possible.
As working parents of school-age children—who also have been our work-from-home co-workers for a significant amount of time since March 16, 2020—we join with the millions of families in the United States who are navigating the unprecedented, ever-evolving terrain of educational options available for children in kindergarten through twelfth grade.
As legal academics, as well as attorneys (one currently practicing, the other formerly practicing), we have been alarmed by one feature of these options that has received limited attention in the popular press and essentially no attention in legal scholarship: what we call “education contracts of adhesion” that parents are being asked, encouraged, or required to sign to send their K-12 students back-to-school in person. We have unpacked this device, its features, and its problematic impacts thoroughly in a piece in the University of Illinois Law Review, and we offer key takeaways from this analysis below.
Here is how education contracts of adhesion work: in advance of a K-12 student returning to school in-person, a private or public K-12 school asks, encourages, or requires parents to waive their rights to bring legal claims against the school if the student acquires COVID-19 through school participation, becoming sick or dying. Although precise figures on the location, number, and exact terminology do not yet appear to be available, these devices are in use around the country. In general, contracts of adhesion have the following features: they are proposed to a consumer by a repeat actor on a take it or leave it basis; they cannot be altered or negotiated by the consumer; and they contain provisions requiring the waiver of rights by the consumer otherwise established as belonging to the consumer as a matter of law.
Here is why we are concerned about education contracts of adhesion: K-12 students nationwide have protected legal rights to access public education. While the source and scope of these rights vary somewhat between states, they share the core feature of promising minor children a basic education, which is essential to their career success, personal fulfillment, participation in our democracy, and other vital spheres of activities. Parents are also legally required to send their minor children to school, subject to civil or criminal penalty. Education contracts of adhesion shave away, or shear wholesale, the rights of parents and children in this context. Concerns the law already expresses about contracts of adhesion apply as strongly, if not more so, in the education context. Moreover, to condition a child’s right to attend school on the demand that parents sign a non-negotiable device that demands the waiver of important safety and welfare rights as the price of entry injects into the education context the dynamic of domination and subordination. It does so where education should be designed to encourage the development of character in a manner consistent with the demands of citizenship in a liberal democracy. To solicit, encourage, or require this concession at a time of enormous stress on parents and children alike—the “national emergency” faced by working families—is an unconscionable extraction: a “bargain” in name only.
Here is what we hope parents, schools, and courts will do with education contracts of adhesion: if faced with a request, encouragement, or demand to sign this device, we hope parents will take the opportunity to instead try to negotiate a fair allocation of rights and responsibilities on their and their children’s behalf. We hope schools will look to other devices— more consistent with their core societal obligation to nurture students—to determine this allocation in ways that don’t undermine children’s rights to school attendance and parents’ obligation to send their children to school. When these devices inevitably lead to litigation, we hope courts will make full, thoughtful use of the discovery process to create a complete picture of the responsibilities, rights, and values at play, as well as to consider the substantive merits of these devices as part of the larger body of law around contracts of adhesion that raises powerful questions/concerns about their validity in any context—especially in the classroom context.
Above all, we hope that children, parents, and families trapped in their homes during the pandemic do not wind up in a legal trap with potentially lifelong implications.
Leah A. Plunkett: Meyer Research Lecturer on Law and Special Director for Online Education at Harvard Law School; Harvard University – Berkman Klein Center for Internet & Society; University of New Hampshire School of Law
Michael S. Lewis: Rath, Young and Pignatelli; Adjunct Professor of Law at Vermont Law School and University of New Hampshire School of Law