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Penn State changed the compact it was asking students to sign to return to campus after controversy. (Photo: AP Photo/Matt Rourke, File)
When Kyle Britten, a senior at Pennsylvania State University, learned that to log into his email account or sign up for courses he would have to acknowledge that he was assuming the risk of contracting COVID-19 by participating in school activities, he was taken aback.
“I was honestly pretty pissed off,” he said.
Britten, who has been following the science closely since the pandemic began, is planning to take the bulk of his classes online. He doesn’t want to take the risk of exposing his mom, who he lives with, to the COVID-19, especially as Britten’s grandmother died from complications related to coronavirus earlier this summer.
To Britten, the school’s ask that he “acknowledge that exposure or infection may result in personal injury, illness, permanent disability or death,” was not “a very good look.”
Apparently, Penn State officials agreed. After pressure, the school walked back that language.
Now, before returning to campus, students can sign a compact instead that states, “even with the mitigation steps taken by Penn State and my compliance with this Compact, I acknowledge that Penn State cannot prevent the risks of exposure to COVID-19 that may result from attending Penn State or participating in Penn State activities.”
Britten, who wasn’t planning on signing the original agreement, signed the new one, saying the updated language made him feel, “a bit better.”
“They took the death and permanent disability part out of there, which is nice of them,” he said.
The change came after some students “misinterpreted” the language of the compact as a waiver of students’ rights, which was “neither the case, nor the intent,” Lisa Powers, a spokeswoman at the school, wrote in an email.
Colleges are subtly trying to shift responsibility
The controversy over Penn State’s initial language is just one example of the ways in which concerns over so-called liability waivers have been a flashpoint for students, faculty and staff as some colleges across the country start to bring students back to campus for the fall semester amid a global pandemic. Asking students to sign these types of agreements are perhaps the most extreme example of the ways colleges and universities are trying to shift responsibility towards students to keep campus safe.
But the back and forth over the compact also illustrates the more subtle ways colleges are working to make sure they won’t be blamed for a COVID outbreak and, instead, students’ behavior will be held responsible, said Heidi Li Feldman, a professor at Georgetown University’s Law Center.
Stating clearly, as Penn State has done, that the compact is not a waiver of liability is “not nothing” she said, “but it doesn’t settle the larger issue about whether the university is prepared to take responsibility for its own carelessness should it act carelessly.”
“Universities across the country have been aggressively moving on many different fronts to shield themselves from liability while also telling students it’s a good idea to come back to campus,” she said.
The ways colleges have been working to shield themselves from the pandemic generally fit into two categories, Feldman said. On the one hand, college-lobbying organizations have been asking the federal government for months to shield them from lawsuits as part of any coronavirus relief package.
At the same time, some colleges are asking students to agree to intricate codes of conduct or behavioral compacts before participating in school activities. Even when these compacts don’t require students to waive their right to sue the school, they create an environment that would make it difficult for students or families to sue over a COVID outbreak, Feldman said.
At schools across the country, students may have to agree to abide by certain behavioral rules, like limiting the number of people in their space or wearing masks. In addition, these compacts may reference several sources of public-health information and ask that students be aware of them.
Because plaintiffs’ lawyers typically take cases on a contingency basis, this environment could make them hesitant to represent a student or family even if they have a meritorious claim, Feldman said.
Acknowledging they’ve been given the required information
At the University of Pittsburgh, officials are asking students to agree to participate in social distancing, mask wearing, contact tracing and other COVID-mitigation behaviors if they want to return to campus and participate in academic programming on and off campus. Though the university has said explicitly that it is not asking students to waive their right to sue the school, it is asking them to acknowledge that they have “been given all the information I may need to determine the risks associated with returning to the university and to make an informed assumption of those risks”.
Students also have to acknowledge that they are “assuming the risk that I may be exposed to or infected by COVID-19 and that such exposure or infection of COVID-19 is inherently dangerous.”
Rachel Coombs, a biology Ph.D candidate at the school, is scheduled to defend her dissertation three days after the deadline to sign the compact. Not signing it could put Coombs’ ability to submit her dissertation at risk because she needs to use the school’s information-technology infrastructure to do so.
Still, Coombs, 39, said she doesn’t plan to sign. “I’m not going to be coerced into assuming risk that I don’t think is my responsibility,” she said.
“ ‘I’m not going to be coerced into assuming risk that I don’t think is my responsibility.’ ”
Coombs has already been working in her lab this summer and, overall, she has felt safe. The entrance to her lab is secure, so the number of people going in and out is limited. In addition, the other students, faculty and staff she’s seen in the halls have worn masks and respected social distancing.
Still, Coombs is concerned about the fall. “I’m very, very worried about students coming back,” she said. “There’s no way that they aren’t going to have parties. Even under the best of circumstances the disease is going to be spread.”
Though Coombs has been following school town halls and information sent to students, she said she still isn’t clear on the steps the university is taking to prevent the spread of the disease.
“It’s unfair to tell us that we’re responsible for assuming the risk when we don’t have any control or information about how things are going to be safely maintained,” she said. “The assumption is maybe they’ll do what they’re supposed to do, maybe they won’t, but it’s your risk either way.”
Kevin Zwick, a Pitt spokesman, wrote in an email that the school’s return-to-campus student acknowledgment, the document Coombs expressed concerns about, asks students to agree that they understand and acknowledge the risks and behaviors necessary to keep campus safe.
“Students are not being asked to give up their right to sue the University or any other legal right,” he wrote.
Higher education has become more litigious
Higher education has become a more litigious environment over the past several years — as illustrated by the dozens of lawsuits filed at the beginning of the pandemic seeking tuition refunds — as college costs have grown.
“Now it’s viewed as a very significant investment,”said Kevin McClure, an associate professor of higher education at the University of North Carolina Wilmington. In the event that something happens to prevent students from finishing their degree or extends the length of time it takes to graduate, some students may feel like they have grounds to use the courts for redress, he added.
The need to cover costs is part of the reason why schools feel pressure to bring students back. The evolution of this legal responsibility that colleges have to care for students has shifted in line with its cost, McClure said.
Until the 1960s, universities were legally thought of acting in place of their students’ parents while they were on campus. That designation allowed the schools to regulate students’ behavior — at risk of suspension or expulsion — with curfews, and other “character-building requirements,” including rules that forbid students from joining secret societies.
The Civil Rights era ushered in a change to that approach as students who had been punished by their colleges for participating in activism were able to successfully challenge the schools’ legal basis to dismiss them. Following a series of court decisions, universities began to provide students with more autonomy, similar to adults not on college campuses.
But by the 1980s, courts began to rule that while universities couldn’t police students’ behavior, they had a duty to take reasonable steps to keep students safe. McClure ties that shift in part to increasing college costs.
“With the rise in tuition and treating students more like consumers, colleges started to take on once again a much higher level of responsibility to care for the well being of students,” he said.
During the COVID-19 era, it appears that schools “want it both ways,” McClure said. “They don’t want to have the duty of care and they want the tuition money.”
Students and the faculty are asked to police each other
In some cases, students are being asked not just to behave appropriately, but to ensure their peers are following COVID protocols too. Karen Levy, an assistant professor at Cornell University, who studies surveillance, expressed concern in a recent New York Times op-ed about policies like health-ambassador programs, tip lines and other campaigns that ask students to police one another.
What we know from other contexts indicates that these kinds of systems, particularly if they’re anonymous, can be weaponized and often impact different groups of people differently, Levy said.
Colleges should be thinking critically about plans to ask students to report on one another, given that they’ll already be returning to campus in a high-stress, high-anxiety environment and we’ve spent the summer watching confrontations around these issues and others, Levy said.
“It’s not to say that they shouldn’t have these things,” she said, “but they should be thinking about that the results are likely to be mixed.”
It’s not just students who are being asked to take responsibility for keeping campus safe. Faculty and staff are also expected to shoulder some of the burden. Case in point: A group of University of North Carolina employees is suing the UNC system over its decision to bring students back to campus, putting faculty and staff at risk of exposure.
UNC Chapel Hill, the system’s flagship campus, announced Monday that it would be transitioning to remote classes after discovering four clusters of positive cases on and surrounding campus. As of yet, the rest of the system hasn’t made the same transition.
“They are delegating a non-delegable duty to employees to keep themselves safe instead of embracing that, as an employer, they have a non-delegable duty to keep the employees safe,” said Gary Shipman, an attorney representing the group.
The school system is asking faculty and staff to take steps to protect campus, including acting as “mask police” when they see a non-compliant student, Shipman said.
“In this politically active day and time, no faculty and staff member wants to be confrontational with students,” he said. “They fear confrontation with students, that’s not part of their job description to be the mask police.”
At the University System of Georgia, where faculty, staff and students hosted a “die in” earlier this month protesting the system’s reopening plans, instructors are being asked to act as “enforcers of public health,” including making sure that students are following the Center for Disease Control and Georgia Department of Health guidelines, said Bryant Barnes, a graduate student and teaching assistant at the University of Georgia.
The system’s approach to the fall suggests that “the risks that they’re most concerned with are the financial risks,” Barnes said.
He said faculty and staff are required to go through an online training model and, at the end, acknowledge that they’re responsible for maintaining social-distancing guidelines, proper hygiene and other mitigation measures.
“That seems like they are trying to shift liability on to students, staff and faculty, but it’s not entirely blatant,” he said.
