The University of New Hampshire is asking students to sign an informed consent agreement before they return to campus, a requirement some students and law experts say will absolve school officials from any legal responsibility to maintain safe conditions.
The form, sent to all students in the UNH system including campuses in Durham and Concord, outlines a variety of health precautions students must take to return to campus, such as wearing a mask and socially distancing. The last paragraph of the form, asks students to “assume the risks associated with being at the University of New Hampshire including the risk of exposure to COVID-19.”
The deadline to sign the waiver is Friday – well before the planned start of classes on Aug. 31 – leaving some students confused about what exactly they’re being asked to sign and why they’re being asked to sign it so quickly.
Students are concerned this waiver could exonerate the university if school officials are negligent in their handling of the virus.
Joshua Marshall, a first-year student at UNH Law in Concord, said the worst-case scenario is that students sign the form, get sick because of the negligence of the school and find themselves unable to hold the school accountable.
This isn’t the first controversy during the reopening of UNH. Earlier this month, 200 members of the faculty and staff sent a letter to the administration, expressing their concern over a lack of communication about the opening plan.
Marshall said he wants more clarification about the opening procedures and what signing this form means. He has emailed his law professors to ask questions about the form to better understand the implications.
“If I have to email professors to figure this out, how can others figure this out on a week’s notice?” he asked.
Students were given three options in response to the form; “Yes, I agree to the terms to be on campus,” “No, I do not agree and wish to take all classes online,” or “Skip for now.”
Marshall said he reached out to administrators to find out the implications of skipping the waiver but he has not been given a definitive answer.
The American Council on Education, a lobbyist for several universities, including the University of New Hampshire, sent a letter to the U.S. House and Senate, asking them to expand liability protections for universities opening for in-person classes during the pandemic.
Heidi Li Feldman, a professor of law at Georgetown University Law Center who recently wrote an op-ed for the Los Angeles Times about the topic, said students should not sign this document under any circumstance.
Not only does the waiver release students of their basic legal rights, but it also removes the incentive for the university to invest in keeping their students safe, Feldman said.
A major incentive for schools to uphold their legal obligation to put in precautions that protect their students’ safety is the threat that students might sue them. By signing away the threat of a lawsuit, it’s almost like giving someone permission to be risky with your life, Feldman said.
In a statement from Lisa Thorne, the director of communications for the University System of New Hampshire, she emphasized that an informed consent form is not the same as a waiver of liability.
Feldman said parsing apart these definitions is pointless, as they both act functionally the same in court. For example, if UNH underinvests in COVID-19 testing or contact tracing and a student contracts the virus, they have very little chance of winning a lawsuit against the university if they have signed the form. In fact, before the case ever makes it to trial, the university could go to the judge, show them the form, and have it dismissed.
Feldman has seen many of these waivers from universities across the country. This waiver, though, is the most explicit example of a university trying to legally protect itself, she said.
The language in the form is almost identical to the canonical language used in court to craft legal arguments to deny accountability. To Feldman, it is abundantly clear this waiver functions as a litigation tool.
The university is holding a town hall on Friday, to address students’ concerns about the informed consent form. However, students are worried that won’t give them enough time, as their signatures are due hours after the event.
Megan Carpenter, the dean of the law school, told Marshall that Friday was the only time that worked for everyone’s schedule.
Marshall emailed Carpenter asking to push back the deadline so students would have more time to understand what they were signing. Carpenter responded that there was “no flexibility” on the deadline for the form.
Another undergraduate at UNH posted a letter to the president and provost of the university on an undergraduate Facebook group, asking to extend the deadline until Aug. 7, to allow them time to ask questions about the form.
“If you are asking for my informed consent, then I must be truly informed of UNH’s reopening and testing plan,” the letter read. “As young adults, you’re asking us to take responsibility if we get sick, if we have complications, and if we die on your campus.”