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2021 U. Ill. L. Rev. Online 1 (2021)

handle is hein.journals/uilro2021 and id is 1 raw text is: EDUCATION CONTRACTS OF ADHESION IN THE COVID-19 PANDEMIC Leah A. Plunkett* Michael S. Lewis** Stuck inside our house with our young children during the COVID-19 pandemic, we have a newfound appreciation for the vital role that elemen- tary, middle, and high schools play in youth development and the successful functioning of both home and workplace. Today, 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 de- mands that parents waive their rights to bring suit if their minor children become ill or die due to COVID-19 acquired at school. In this article, we examine this education contract of adhesion in the context ofK-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 con- tracts prepared by one party, to be signed by the party in a weaker posi- tion, 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 de- mocracy facing serious, growing threats from authoritarian forces, both private and public. * Leah A. Plunkett is the Meyer Research Lecturer on Law and Special Director for Online Education at Harvard Law School, a faculty associate at the Berkman Klein Center for Internet & Society at Harvard Uni- versity, and an associate professor of legal skills at University of New Hampshire Franklin Pierce School of Law (on leave 20-21). ** Michael S. Lewis is a shareholder at Rath, Young and Pignatelli, P.C., and an adjunct professor of law at University of New Hampshire Franklin Pierce School of Law and Vermont Law School. The authors are mar- ried and working from home with elementary-school-aged children. Special thanks to Mark Budnitz, Jean Gal- braith, Beth Goddett, Steve Lauwers, Adam Pignatelli, Stuart Rossman, Hannah Sholl, and Chris Sullivan for their comments and feedback on this paper. 1

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