Education Contracts of Adhesion in the COVID-19 Pandemic

22 Pages Posted: 9 Dec 2020 Last revised: 6 Feb 2021

See all articles by Leah Plunkett

Leah Plunkett

Harvard University - Berkman Klein Center for Internet & Society; Harvard Law School

Michael Lewis

Rath, Young and Pignatelli; Vermont Law School; University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

Date Written: December 7, 2020

Abstract

Stuck inside our house with our young children during the COVID-19 pandemic, we have a newfound appreciation for the vital role that elementary, middle, and high schools play in youth development and the successful functioning of both the home and workplace. At this moment, primary and secondary (K-12) schools and local school districts in the United States hold the key to workforce re-entry for parents. These school systems are positioned to impose an exacting price if they re-open for in-person instruction. Some are doing so by attempting to shift legal responsibility for student campus safety to parents using a device that we call an “education contract of adhesion.” Grounded in terms that are non-negotiable and arcane, this device demands that parents waive their rights to bring suit if their minor children become ill or die due to COVID-19 acquired through school participation. In this article, we examine this device, we call it the “education contract of adhesion,” in the context of K-12 public and private schools re-opening partially or fully residentially during the current pandemic. Our hope is that this essay will bring greater attention to the problematic dynamic that “education contracts of adhesion” pose in this context; in general, a “contract of adhesion” describes so-called “contracts” prepared by one party, to be signed by the party in a weaker position, with the weaker party having little to no choice about the terms. We see these “education contracts of adhesion” as driven by motives in conflict with the core, traditional, and advertised aims of school: to nurture and cultivate students and to prepare them to become members of a liberal democracy facing serious and growing threats from authoritarian forces, both private and public.

Keywords: education, school, student, parent, contract, COVID-19

JEL Classification: K12

Suggested Citation

Plunkett, Leah and Plunkett, Leah and Lewis, Michael, Education Contracts of Adhesion in the COVID-19 Pandemic (December 7, 2020). University of Illinois Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3744505 or http://dx.doi.org/10.2139/ssrn.3744505

Leah Plunkett (Contact Author)

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA 02138
United States

Harvard Law School ( email )

1525 Massachusetts Ave
Cambridge, MA 02138
United States

Michael Lewis

Rath, Young and Pignatelli ( email )

NH
United States

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

University of New Hampshire School of Law (formerly Franklin Pierce Law Center) ( email )

Two White Street
Concord, NH 03301
United States

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