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Education Dive
Can colleges enforce rules designed to prevent coronavirus spread?
Schools are asking students and staff to adopt new behaviors and
practices on campus, but it's not clear what they can do if people
don't comply.
Lorelei Laird
July 9, 2020
Purdue University's plan to reopen this fall expects all community
members to socially distance on and off campus. But more than 90% of
staff, faculty, postdocs and graduate students think undergraduates
won't do it.
That number comes from an early June survey of more than 7,200 people
by Purdue's faculty senate. Its chair, Deborah Nichols, a professor in
the Human Development and Family Studies department, said the
university was not clear on how it would enforce those safety
requirements.
"We did ask several times. And we have gotten, 'Well, the first step is
to educate. And if you educate them, people will listen, and let's
start there,'" Nichols said. "And I kept saying 'Well, that's not
reassuring.'"
Purdue's Office of Marketing and Media did not respond to Education Dive's requests for comment.
Reassured or not, campuses are facing those questions as they plan
whether to reopen this fall. Although many — like Purdue — are making
safety rules for students, it's not clear how they will approach
enforcement. Particularly with regard to off-campus behavior,
institutions have a limited ability to control what students do. And
mechanisms that would give them some control, such as requiring
students to sign formal contracts, risk sending the message campuses
aren't safe.
"Virtually every institution I'm working with is at least considering
something (like a waiver or contract)," said James Keller, partner and
chair of the higher education practice at law firm Saul Ewing Arnstein
& Lehr in Philadelphia. "But (they're) concerned about the optics
and whether that's consistent with their institutional values."
A softer approach
Around 60% of institutions were planning in-person fall semesters as of
early July, according to The Chronicle of Higher Education, which is
tracking fall plans for more than 1,110 campuses. Another 26% were
planning hybrid models, which would include a mix of online, in-person
and blended classes.
Administrators who plan to reopen their campuses have been creating
detailed health and safety protocols for doing so. Purdue's plan, for
example, calls for social distancing in classrooms, ending on-campus
instruction at Thanksgiving, aggressive disinfection and contingency
plans in case of a major outbreak. Importantly, all students, faculty
and staff are being asked to sign and follow the Protect Purdue Pledge,
which requires them to wear masks, socially distance, get flu shots and
wash their hands often.
No government agency requires schools to make these rules, said Audrey
Anderson, counsel at Bass, Berry & Sims in Nashville, Tennessee,
and a former general counsel of Vanderbilt University.
"You don't have a law you can use that says, "Students and faculty,
we're doing this because the law requires it,'" she said. "But there
are lots of things … we require of students and faculty even though the
law doesn't necessarily require it."
That might include safety rules in dorms or science labs, she said.
Keller added that these codes of conduct generally can extend off
campus, if behavior there can impact the institution.
So far, schools seem to be taking one of two approaches. Some are
amending existing honor codes, housing contracts or other documents to
require behavior that prevents the spread of the virus. Other
institutions, such as Purdue, are laying out those expectations in new
documents and asking students to sign them.
Colleges may be reluctant to overtly require students to sign contracts
or waivers, because it could communicate that they expect to expose
students to the virus, or come off as too authoritarian for a community
of young adults. Neal Hutchens, chair and professor in the higher
education program at the University of Mississippi, expects schools to
start gently.
"I think institutions really are not wanting to have those kinds of
standoffs with students," he said. "What they're hoping is that through
outreach and education and being part of a community, people will want
to cooperate."
Unclear risks
If schools think these rules matter, they'll eventually have to enforce
them, Hutchens said. And if that becomes necessary, Keller said schools
would have to argue that such pledges are enforceable contracts. Having
a student's signature on these documents could help.
"You can say it's just part of your code of conduct," he said. "But if
you actually got into a legal fight with a student who says, 'I refuse
to wear a mask,' a legal hook to enforce that provision would be, 'No,
this is a contractual relationship.'"
Enforcement might vary according to the institution and what
information was included in its pledge. But because students will also
be paying for a semester of instruction, penalties are unlikely to
include being barred from classes altogether. Anderson suggested
scofflaws might be moved to online-only classes, just as students can
be removed from on-campus housing for housing contract violations.
Schools have a strong incentive to create some kind of right to enforce
coronavirus-related restrictions. The institution may be held liable in
hundreds of cases in the event of an outbreak. That's an expensive
prospect for colleges already suffering financially because of the
pandemic. Schools have asked Congress for protection from liability,
but that's not a sure thing.
There may also be concerns about lawsuits from students, faculty or
staff who feel their rights are being violated by coronavirus safety
requirements. As an attorney, Anderson was skeptical about the
viability of claims that requirements to wear a mask violate
individuals' constitutional rights. But, she said, public universities
are bound by the Constitution and could be vulnerable to a claim that
social distancing rules violate students' First Amendment right to
freedom of assembly. They may also be vulnerable to political backlash
in the state legislatures that control their budgets.
Private universities are free of those constraints, though they're still bound by other federal laws.
In Keller's experience, schools are more concerned about lawsuits over
coronavirus infections. Uncertainty is part of the problem. This kind
of lawsuit alleges the school failed to take reasonable care with
campus safety — yet it's not clear what constitutes reasonable care, or
how America's public health crisis will look come fall.
That lack of certainty is why institutions are pushing elected
officials for liability protection, and asking students to sign
documents that could be interpreted as contracts. The documents don't
show that schools are taking reasonable care. Rather, legal experts
said, they end-run around the problem by making it difficult for
students to bring a viable claim. If they do sue, the school could use
the document to argue that the student agreed to assume the risk or, in
the case of a waiver, agreed not to sue.
"It's very hard to manage the risk when we're not even sure what the risks are," Keller said
In the end, campuses that reopen may have to accept they're running living laboratory experiments, Anderson said.
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