Remote Learning and Reimagining Enrollment Contracts

Susan Schorr headshot
Susan E. Schorr
Of Counsel, Litigation Department and Vice Chair, Education Law Practice Group
Published: McLane.com
March 30, 2020

Whether you are a boarding school confronted by families hoping to recoup fees for room and board, or a day school with families arguing that the shift to a remote learning platform entitles them to a partial tuition refund, now is the time to consider updating your enrollment contract to address these questions for future school years.  Here are three key provisions to think about revising:

  • Unconditional Obligation to Pay Tuition, Room & Board, and Other Fees.  The contract should already signal that all of these charges are non-refundable if a student is dismissed or withdraws from the school.  Contracts could now provide that these charges are also non-refundable due to a force majeure event.  In order to ensure that a future pandemic be included as such an event it would be necessary to include specific language to that effect in the contract.  If such events are included, it would be helpful to indicate that costs for operating the school are fixed for the entire school year and will therefore not be prorated or adjusted in the event of a situation covered by such an event.  Alternatively, a softer touch would be to provide that tuition and other fees will be recalculated, at the school’s discretion, should the school need to shift to a remote learning platform.  In that case, the contract should indicate how the school will recalibrate tuition and other fees either by applying credits toward sums still owed the school, or by issuing refunds.
  • Remote Learning.  While there may have been other reasons why a school has instituted online learning in the past, the COVID-19 pandemic has forced the issue.  In order to address this possibility for the future, we recommend including language in the contract—beyond what might already be mentioned in a force majeure provision—explicitly stating that the school may convert to online learning whether to comply with government action or for reasons the school determines to be safest for the community.  If the school intends to record online sessions and state law requires two-party consent for video and audio recordings, such a provision should act as both notice and consent for the school to record students and reproduce their coursework.
  • Force Majeure. If your contract did not already include such a provision, it should be updated to do so.  Older versions of force majeure language may not have explicitly addressed “pandemic” or “government action,” which would include mandatory business closures and a limit on who can be on campus to provide “essential services.”  We also recommend that the clause specifically reference the school’s discretion to convert to remote learning or extend the academic year should it be necessary to do so in order to satisfy legal requirements to provide the necessary hours of instruction.

Above all, your school’s enrollment contract should reflect the school’s culture and approach in its tone, as well as in the substance of the commitments it expects from its families.  The goal of implementing these suggested revisions is for independent schools to strike the right balance between ensuring the school’s financial sustainability, while also signaling that it will be flexible and fair to its students and families during unusual events.