Pepper Hamilton LLP

Last spring, I was in my seventh year as general counsel and chief of staff at a private university with a close-knit senior leadership team. I thrived on collaborating with my colleagues to find solutions to our institution’s most pressing challenges. But those challenges did not include the COVID-19 pandemic. In my current role as outside counsel for institutions of higher education (IHEs), I continue to put myself around a virtual table with the president, provost, vice presidents and deans as we collectively navigate previously unimaginable — and still largely unchartered — waters.

Pepper Hamilton’s higher education attorneys are assisting leadership teams at colleges and universities across the country as they face a barrage of new issues every day, including those discussed here.

We have to cancel a signature spring event on campus. Are we going to be responsible for payments under contracts with the tent rental company, caterer, AV contractor and others?

The COVID-19 pandemic has required that colleges and universities cancel or delay indefinitely large-scale spring and summer events, technology upgrades, construction projects and more, triggering a discussion of whether they can back out of a contract without liability. In evaluating their exposure, IHEs should:

  • Create an index of potentially impacted contracts. Be sure to include third-party license agreements for using the institution’s facilities for camps and conferences this summer.

  • Communicate with vendors. In many cases, vendors may be equally unable to fulfill their end of a contract. Open communications — and the vendor’s desire to maintain future business opportunities with the institution — may lead to an acceptable resolution without discussions of force majeure or breach of contract.

  • Understand the scope of force majeure provisions in the relevant contracts. A force majeure provision is one that excuses performance without it constituting a breach when circumstances beyond the parties’ control render performance untenable or impossible. However, courts read force majeure provisions narrowly. The performance-excusing situation must be specifically identified in the language of the contract, the party relying on force majeure must demonstrate that the event rendered performance objectively impossible and not merely more burdensome or expensive, and the performance-excusing event must be beyond the parties’ reasonable control.

    If the force majeure provision does not apply, the institution might find itself defending against a claim for breach of contract. Impossibility of performance could be a defense. Impossibility of performance may be triggered when there has been an unexpected intervening act that was of such a character that its nonoccurrence was a basic assumption of the agreement of the parties, and the occurrence of that intervening act made performance impossible, or at least impracticable.

Families are demanding tuition refunds. What should we be messaging?

Many IHEs are providing prorated credits or refunds for unused room and board as classes have moved to a remote environment, but are declining to provide tuition refunds. As they craft talking points addressing their retention of tuition dollars, IHEs should:

  • Look to the institution’s description of tuition on its public webpages discussing the cost of attendance. Many IHEs reference tuition in the context of their delivery of the academic program. In fact, Merriam-Webster’s Dictionary defines “tuition” as “the price of or payment for instruction.” Although the method of delivery has changed, students continue to receive instruction and the opportunity to earn academic credit in exchange for their tuition dollars.

  • Evaluate the cost of delivering on an institution’s educational promise in the face of the COVID-19 pandemic, identifying those costs that are a constant despite a move to online education (e.g., faculty salaries) and costs that have increased (e.g., licenses for the technology necessary for large-scale delivery of online education).

  • Create a statement for students and families articulating the points above while expressing empathy for the loss of their on-campus experience.

Our students are experiencing unprecedented disruption and stress. Can our mental health counselors provide psychological services remotely?

Although there is a strong desire to support students remotely, there are several issues for IHEs to keep in mind:

  • While there has been much publicity around the provision of telehealth services in response to current circumstances, college and university psychologists and other mental health professionals must be licensed or subject to a waiver in the jurisdiction in which they are practicing (i.e., the state to which the student has returned home). The Association of State and Provincial Psychology Boards is tracking which states are allowing for interjurisdictional practice.

  • If an IHE intends to provide services on a state-by-state basis, it should be prepared to navigate concerns regarding equity and students whom they are unable to serve due to their state of residence. By way of example, an institution may find itself in a difficult position if it is able to assist a student who has gone home to Pennsylvania, but not the student’s roommate who has returned to Idaho.

  • IHEs should ensure their insurance policies cover the provision of remote services. If the counselors carry individual professional liability coverage, they will want to do the same. Even if the policy does not generally exclude teleservices, coverage may be denied if the professional has inadvertently counseled a student in a state in which the counselor is not authorized to do so.

  • IHEs should evaluate counseling protocols to ensure they are properly tailored to the remote delivery of mental health services.

Students are calling for us to move to a pass/fail grading model, as have other schools. What should we be thinking about?

In offering pass/fail or other modified grading systems, IHEs are seeking to minimize the negative impact on students at a time when they and their faculty are required to pivot quickly to virtual classrooms and other forms of remote education. They are acknowledging that students are participating in courses in a manner other than what they expected when they enrolled, and that there are inequities among students with respect to the resources available to them away from campus. IHEs still considering whether to implement changes to their grading systems should consider:

  • Which governance bodies have jurisdiction over grading policies such that their input is necessary to any decision?

  • If the institution elects to make all undergraduate courses available under an alternative grading system, will it extend existing policies or develop a new model specific to spring 2020? (For example, if an institution typically offers a satisfactory/unsatisfactory option for certain classes, will it extend that option to all classes or adopt a pass/fail model specific to spring 2020?)

  • Will the alternative grading model be imposed for all courses, or will students be permitted to elect on a course-by-course basis? (Allowing students to elect might offset an argument that the institution is breaching its enrollment contract. It also gives students some control during this difficult time.)

  • By what point will students be required to make the election (e.g., within days of the new policy being announced, after final exams but before grades are assigned, after grades are assigned, etc.)?

  • Will the institution put a notation on all transcripts describing the change to its grading policy for spring 2020?

  • Does the change require an amendment to the institution’s satisfactory academic progress policy for purposes of receiving federal student aid?

Many of our students had academic accommodations through the Office of Disability Services/Accessibility Resources. Do we need to be thinking differently about those students?

While accommodations for food allergies and facility access may no longer be at the forefront, academic accommodations are playing an increasingly important role in the virtual education environment. IHEs should remain attuned to the following:

  • Accommodations granted for a classroom may not meet a student’s needs in a remote environment, which might look quite different course to course (e.g., some might be taught via live videoconference while others include only written work). A student who previously had a blanket accommodation for every class might require adjustments for some classes but not others.

  • The transition to a remote environment might trigger accommodation needs for students who previously did not have them.

  • The increased reliance on institutional technology platforms and the delivery of content electronically amplifies the risk of faculty using content that does not meet accessibility requirements and highlights existing accessibility deficiencies.

Untenured faculty are raising concerns about their ability to meet review expectations. Should we stop/extend the tenure clock?

At some institutions, faculty have begun raising concerns about the impact of current circumstances on their tenure clocks. Considering whether to extend tenure review periods requires IHEs to have discussions around the following questions:

  • Would permitting faculty to exclude spring 2020 from their tenure clock mean increasing the overall length of time faculty might extend their review period, or would it provide another basis upon which to exclude a semester within the currently established period? In other words, if faculty are currently permitted to have two “dead” semesters for specific delineated reasons, would the COVID-19 pandemic be added to that list of reasons so that spring 2020 could be one of the two “dead” semesters, or would faculty now be entitled to three semesters?

  • By when would a faculty member have to elect to extend their review period to account for the exclusion of spring 2020?

  • How will the institution articulate the basis for excluding spring 2020 in order to distinguish it from future situations where there is a call — by the faculty as a whole or an individual member — to stop the tenure clock (e.g., due to a natural disaster, illness, etc.)?

  • How will the institution document a faculty member’s election to stop the tenure clock so as to avoid later arguments that the faculty member has achieved de facto tenure?

  • On a related note, will teaching evaluations from spring 2020 be included in tenure review files?

We located some PPE in storage and want to donate the supplies to the local ambulance company. Are we opening the institution up to liability?

IHEs might be reluctant to “lawyer up” a donation when looking to help their local communities. However, college and university leaders have a fiduciary obligation to ensure they are preserving the institution’s financial resources, including through risk mitigation efforts. A straightforward donation agreement is one such effort. In laying the groundwork for a donation, IHEs should consider the following steps:

  • Review the institution’s powers of officers resolution or other governing policies to determine who is authorized to approve the donation of resources.

  • Consult with the institution’s insurance carrier to ensure it has coverage for claims arising out of the donation.

  • Taking into account any state-specific requirements, prepare a donation agreement covering at least the following points:

    • The items are being donated “as is.”

    • The institution makes no representations or warranties with respect to the donated items, including that they are free from defect or that they are fit to be used for any particular purpose.

    • The recipient of the donated items will indemnify, defend and hold the institution harmless against any and all claims arising from the use of the donated items, including for personal injury, death and damage to property.

    • The recipient of the donated items has insurance coverage applicable to losses arising from their use.

The local hospital would like to use two of our residence halls to house medical professionals. We want to help, but what can we do to avoid what seems to be potentially significant liability?

As with donations, IHEs should put appropriate agreements in place. In this instance, the agreement will be in the form of a license (not lease) for the space. There are several issues for IHEs to consider in entering into these arrangements:

  • Ensure that licensing the premises for this purpose does not run afoul of the institution’s general liability, property or other relevant insurance coverages.

  • Determine what will be done to ensure the safekeeping of student belongings remaining in the building, including with respect to theft, damage and contamination.

  • The license agreement should:

    • State that the premises are being made available without any representations or warranties, including with respect to their fitness for the desired use.

    • Identify the utilities for which the institution will be responsible. If WiFi service is included, ensure the agreement is clear that it is being provided without any representations regarding its reliability, strength, freedom from interruption or interference, etc.

    • Identify which party is responsible for trash removal and custodial services. Given the risk posed by this use of the facilities, the institution may want the licensee to be responsible.

    • Describe how the licensee will quarantine residents who are experiencing symptoms consistent with COVID-19 or who have been diagnosed with the illness.

    • Require that the licensee maintain a roster of those residing in the premises, documenting when they are present. The license agreement should prohibit visitors, including family members.

    • Describe the specific facilities to which the licensee and its personnel will have access, including parking, if applicable.

    • Make the licensee responsible for the expense of repairs and appropriate cleaning at the termination of the agreement.

    • Require that the licensee comply with all local, state and federal laws, including those continuing to evolve as a result of the COVID-19 pandemic.

    • Require that the licensee indemnify, defend and hold the institution harmless against any and all claims arising from the use of the premises, including claims for personal injury, death and damage to property.

    • Require that the licensee provide proof of appropriate insurance, including identifying the institution as an additional insured on certain policies.

Our colleagues in information technology are spread thin. What can we do to help guard against cybersecurity risks?

College and university IT professionals are being pulled in multiple directions, helping faculty offer remote education, supporting students who remain on campus, and responding to inquiries from students who have returned home to finish the semester. Additionally, with employees and students working remotely, IHEs have significantly increased the number of access points to their systems. Bad actors will leverage the current situation to gain access to institutional, employee and student data. IHEs should consider the following actions to protect their data and IT resources:

  • Remind employees and students about existing policies regarding access to the institution’s IT resources, including through personal devices.

  • Educate the institution’s community about increased cyber threats. Remind employees and students that, if they receive an email that looks like it is coming from a reliable internal source urgently seeking information or directing the recipient to click on a link, they should contact the appropriate office or IT to confirm its authenticity.

  • Despite the many areas requiring the institution’s time and attention, do not give short shrift to security updates, patches and routine monitoring.

  • Review cyber insurance coverage to ensure it covers remote work and the use of personal devices.

  • Pay particular attention to human resources electronic wage and payroll information portals to identify suspicious changes to employee information.

We may see instances of vandalism, theft and other safety concerns during the COVID-19 crisis. Does everyone have the same expectations as to how our public safety officers will respond to any such incidents on campus?

Whether sworn police or unsworn security professionals, campus public safety officers often are on the frontline of any campus disruption. They can quickly become the face of the institution in light of ever-present smartphones recording incidents as they transpire. Campus leadership should convene a working group including not only public safety, but also representatives from communications, facilities, risk management and other offices to ensure there is a shared understanding as to how security personnel will interact with the public in the event of an incident on campus. Creating general guidelines (e.g., interactions with the public will/will not be recorded by public safety, disruptive individuals will/will not be arrested and under what circumstances, etc.) will help to minimize the number of operational decisions made under the pressure of an unfolding event.

Conclusion

The COVID-19 pandemic is requiring that senior leadership teams at colleges and universities across the country make decisions on myriad untried issues impacting their students, employees and resources. Their decision-making processes are as diverse as the institutions themselves. During this challenging time, thoughtful, thorough, cross-office discussions, informed by input from outside counsel when appropriate, will help lead institutions to sound, defensible outcomes.

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