Revisiting Your Enrollment Contract for a Post-COVID Pandemic Environment

Brian B. Garrett
Of Counsel, Litigation Department
Published: McLane.com
November 16, 2021

Independent school administrators are finally settling into a rhythm with the academic year, and then the holidays approach and you realize it:  it’s time to update your school’s enrollment contract.  Whether you like this annual tradition or not (and you very well may not), enrollment contracts have time and again proven themselves to be essential foundational documents establishing a transparent relationship between an independent school and a family.  This axiom was made evident through the COVID-19 pandemic.

While the pandemic shown a light on the critical role that enrollment contracts play, and while COVID-19 is not disappearing any time soon, there is a wealth of language unrelated to COVID-19 that schools should consider implementing in their update.  This article will highlight a few trends that we have seen in our practice—including one still directly related to the pandemic—to aid independent school administrators who are seeking to update their schools’ contracts.

Culture Wars and Hostile Parents

Dealing with hostile parents is nothing new for independent schools. And yet, for independent school leaders, it often felt like the pandemic exasperated various culture wars, from DEI to gender issues to public health safety protocols.  There are various approaches schools can take to address this sensitive issue, one of the most important being thoughtful, clear language in an enrollment contract regarding expectations of parent behavior.  The enrollment contract is not only the legal crutch schools can rely upon when difficult parent conflict arises—whether to dismiss a family or to even threaten dismissal—but the enrollment contract is also one of the first official communications that parents receive from a school that can outline expectations for positive behavior and parental partnership.

We recommend that an enrollment contract include a certification that students and families will be familiar and comply with the school’s policies, rules, and standards of social behavior as stated in the school’s family handbook and as may be implemented from time to time.  It is also critical that, while the contract refers to the handbook, it does not “incorporate” the handbook, so that families cannot later assert breach of contract claims based on whatever language or policy they deem has been violated.

Separately, we recommend that an enrollment contract note that a positive and constructive relationship among the school, the student, and the family is essential to fulfilling the school’s mission and values.  Failure to meet these standards could result in dismissal of a student or the placement of restrictions on a family members, such as prohibiting access to school grounds or activities.  This provision should also cover other individuals associated with a student, so as to cover the actions of extended family members or even a nanny or other caretaker.

Divorce and Custody Disputes

Schools are often used as pressure points when families are going through difficult and challenging separations.  Perhaps one parent does not want their child at your school; or another parent does not want their child to comply with pandemic safety protocols; or another parent seeks a teacher’s testimony regarding that parent’s positive relationship with the school.

Enrollment contracts should establish clear protocols and boundaries regarding a school’s involvement in separations and divorces.  Contracts should make clear that the school expects divorced or separated parents to cooperate in the student’s best interests.  Such parents should also keep the school apprised of any living or custody arrangements, including any changes to those agreements.  Schools can consider whether to include other expectations, such as, in the absence of any court order or other legal documentation to the contrary, schools may communicate and share information equally with both parents, and will allow both parents to attend all school functions and events.

Schools may also want to consider whether to include language that parents may be liable for and pay the school all fees and costs, including reasonable attorneys’ fees, if they bring the school into any divorce or custody dispute.  While a school may never enforce this language, it can be a helpful tool when parents are eager to subpoena records from a school or ask a school employee to testify at a divorce or custody hearing.

Information Sharing

It is critical that new relationships with families start smoothly and transparently.  This goal may be complicated by a school’s reluctance to seek sufficient information about a student’s learning and behavioral needs early in the relationship.  This is for good reason:  schools actively seek to avoid potential discriminatory conduct under relevant anti-discrimination laws.  However, there is a way to thread the needle so that schools can receive helpful information without alienating families or creating unnecessary legal exposure.

In addition to carefully drafted admissions documents, schools should consider provisions in their enrollment contracts that puts the obligation on parents to promptly disclose the complete social, disciplinary, medical, and academic history of the enrolling student.  An enrollment contract should clearly state that this information, and the parents’ obligation to keep this information updated, is necessary to best serve the student so that the school is fully aware of the student’s medical, disciplinary, and emotional health history.  Should a family fail to disclose such information, the parent-school partnership is undermined, and such omission could serve as the basis for severing the relationship.

The information-sharing dynamic is equally important for long tenured students, especially ones who turn 18 years old.  As a result of their adulthood, 18-year-old students have rights over the disclosure of information that may impede a school’s ability to speak openly and transparently with parents.  We therefore recommend having language in which both parents and 18-year-old students acknowledge that the school may share any information about students with parents, and that the student waives any right to withhold information or records from the parents.  Key to this arrangement is requiring that 18-year-old students execute the enrollment agreement during the enrollment process, or an addendum during the school year.

COVID-19 Safety Protocols

The 2022-2023 academic year will be the fourth school year impacted by the COVID-19 pandemic.  While there is much hope that the impacts on daily school life will be less noticeable next year, many of us thought the same this past year before the Delta variant upended plans for a smooth summer and fall re-entry.  Regardless, it is low hanging fruit to include language and provisions in which families certify that they will comply with the school’s protocols, which may be changed in accordance with evolving public health guidance.

Perhaps most critical to these expectations will include the school’s position on COVID-19 vaccinations.  While we encourage all schools to have a general immunizations provision in their enrollment contracts (i.e., a student must be immunized by all legally required vaccinations in order to attend school, subject to applicable exemptions), it is unclear whether the COVID-19 vaccine will be included on that list of immunizations required by your respective state’s department of public health.  To the extent that there is any possibility that your school may unilaterally mandate COVID-19 vaccinations, we encourage schools to state that the school may require COVID-19 vaccination.  Doing so creates transparency with and advanced notice to families so that no one is caught off guard by any sudden shift in policy, particularly if new variants arise that further threaten the health and safety of young students.  We also encourage you to consult with your legal counsel before doing so, as state laws regarding COVID-19 safety protocols have been evolving rapidly.

Tuition Remission

We have seen an uptick in tuition remission disputes between independent schools and departing employees in recent years.  This is, in part, due to the greater frequency in which employees are moving jobs – but still hoping to keep their child at the former school.  While schools may assume that they can simply charge the former employee the full amount of tuition, prorated for the remainder of the academic year, it may be challenging to do so without clear contractual language allowing the school to do so.

For any employee enrollment contracts, we recommend that the contract expressly state the tuition remission reduction.  These contracts should also include language that if the parent’s employment relationship with the school ends during the school year, whether voluntarily or involuntarily, the school may rescind the tuition remission benefit and the family will be responsible for the full amount of tuition, prorated through the end of the year.  It is also critical to ensure that the school’s policies are updated in the employee handbook to reflect this dynamic.

Non-Payment Penalties

There are few tools at a school’s disposal should a family be delinquent on, or even refuse to make, tuition payments.  Of course, most schools’ enrollment contracts may place restrictions on the students’ ability to participate in athletics or even attend classes if a family is delinquent.  But if a family withdraws a student, then the school may be left with little leverage to seek repayment.

Enrollment contracts should state that the school may seek all costs and fees, including attorneys’ fees and collection costs, in enforcing payment obligations.  But states vary widely in how they may enforce such terms, or, like in Virginia, that schools may seek only “reasonable” attorneys’ fees.

Schools have also often asserted in enrollment contracts that the school can withhold transcripts in the case of non-payment.  However, such practice may be prohibited under various laws – whether under federal law (if the school accepts funds from the federal government) or state law, such as general school records laws that apply to both public and private schools or other laws, like in Massachusetts, that expressly require all educational institutions to furnish transcripts upon request.  Therefore, schools should give thought as to what penalties and powers the enrollment contract should grant, including by consulting with local counsel regarding the legal contours of such provisions under state law.

*             *             *

Even as schools contemplate the end of the COVID-19 pandemic, they should carefully re-examine their enrollment contracts in light of the changes to the landscape that have occurred over the past few years.

McLane Middleton’s Education Practice Group will be hosting a free webinar on updating your independent school enrollment contract this Thursday, November 18 from 3:00 pm – 4:00 pm ET.  We encourage you and your team to attend to learn more about this topic.  Should you have any questions or need assistance, please reach out to our team of trusted education attorneys.