From The Yield, Winter 2013 

Today’s enrollment professionals must be knowledgeable about data analysis, finance, marketing, assessment, and myriad other things. The need to understand legal issues related to enrollment work is also critical but is often placed on one’s professional back-burner … until an emergency arises. The Yield sat down with Caryn Pass, J.D., a partner in Venable’s Labor and Employment Group and specialist working with independent schools, to get her perspective and advice about some of the hot-topic legal issues in admission.

How did you come to specialize in working with independent schools?

Years ago, when I was first starting out in my career, an independent school, rather arbitrarily, hired me as general counsel after a big lawsuit was filed against them. A head of school on the board of my first school brought me in to deal with a problem at his school — and the same pattern kept occurring. Eventually, I was asked to speak at conferences and other events organized by independent school associations. Now, my firm works with schools all over the country on the wide range of legal issues they face.

What are the most common legal issues in the world of independent school admission?

There are always questions/concerns about the application form itself. What can you ask? What can’t you ask? I find that not asking questions on the ap­plication in the “right” way is really what schools want to avoid. Imprecise wording in a question provides candidates with an opportunity to omit crucial information. Instead of asking what schools the candidate previously attended, schools need to ask families to specify by date/months/year all the institutions attended by the applicant. If you are a family looking to hide something, like a student’s dismissal, imprecise questions help you to do so.

One school I worked with admitted a student who had been dismissed after only two months from his previous school on accusations of rape. The applica­tion was worded in such a way that the family omitted this brief enrollment. In this particular case, the school rescinded the admission decision, but, as this situation proves, omissions can be just as serious as misleading or false infor­mation. I also recommend that your application have language at the very end that says, “All information provided in the application is true/accurate and any omissions or false information may lead to the student not being admitted.” This must be the last item above where the family signs.

Second to application questions, I receive many questions about school se­curity. Obviously, schools want to protect their students from any number of threats, but they also need to protect themselves from any liability associat­ed with these threats. While background checks on teachers and other adults working in our communities have become routine, the latest issue schools are grappling with is how to deal with parents, who have a history of criminal contact with minors. Some schools are now conducting criminal background checks on parents, and others have added questions on their application asking specifically about the criminal records of all the adults in the family.

The security surrounding visiting students is also a hot topic. When my son visited colleges and stayed overnight, I had to sign a host of re­leases; independent schools should do the same when hosting prospec­tive students on campus to mitigate the risk. My advice: develop a release form but understand that once you ask the question and have informa­tion, you need a plan in place to deal with that information. For example, if you ask about health issues, and a family provides information about a child’s allergy, then the school should ensure the safety of the child as it relates to that allergy.

Why don’t independent schools have one universal enrollment agreement that has been vetted by legal counsel, tested, and that holds up in court?

There are a number of concerns when considering a “universal en­rollment agreement.” The purpose of the enrollment agreement is to: 1) ensure the school can enforce the obligation to pay tuition; 2) allow for the removal of a student; and 3) other miscellaneous needs such as the use of photos or modification of curriculum. School cultures vary greatly and the enrollment agree­ment should reflect that culture and be drafted in a manner that is consistent with the communication style of the school. Laws vary great­ly from state to state and the enroll­ment contract must be consistent with the state legal requirements. For example, certain states allow for schools to hold transcripts for non-payment of tuition and others forbid such practice.

How should admissions officers gather information related to learning issues?

“Can we ask about kids’ learning is­sues?” is on the minds of many ad­mission professionals. Schools should consider what information is needed to make wise enrollment decisions. There are legal issues associated with asking questions related to disabili­ties and learning issues. The question a school should ask is what amount of risk they are willing to take to get the information they need to deter­mine whether they can service the applicant. Some schools ask, “Is there other information we should know that would assist us in providing edu­cation to your child?” Others will ask specifically if the applicant has been tested and requests copies of any/all educational testing documentation. Having to ask a student to leave the school can be a difficult situation and the admissions office should collect the information necessary to make the enrollment decision.

What is the hot issue that admission officers should be certain to consider?

Making certain that when you place the enrollment agreement online you are being careful to ensure the authenticity of the document. All too often we find that schools aren’t addressing the numerous ways that an online enrollment agreement can be considered invalid and thereby unenforceable. There are very spe­cific steps that must be followed to confirm that the document is true and accurate. The process includes notifying the parent that they are entering into a legally-binding agreement, confirming the parent’s identity, hard-wiring the essential terms and conditions of the agree­ment, offering the parent an op­portunity to review and modify the document prior to completion, and responding to the parent with con­firmation of receipt.

What is the admission office’s legal obligation surrounding the confidentiality of application materials?

There are many things to consider regarding the confidentiality of ap­plication materials. First, you need to limit who in your school has ac­cess to the application and applica­tion related documents. Access to confidential application materials submitted on behalf of a student should be strictly on a “Need to Know” basis, such as to members of the admission committee only. Lia­bility comes in many forms. Provid­ing a volunteer parent access to this information for filing purposes or having a pile of applications sitting on a secretary’s desk out in the open is an issue of confidentiality. We also suggest not collecting social securi­ty numbers on applications, as they pose significant risks if they were ac­cessed by the wrong person.

Second, schools should consider whether they are willing to provide applicant parents access to the ap­plication file. If not, the application should include language notifying the parent that the process is con­fidential, and they will not have ac­cess to the information collected. So, the application should include this waiver above the final signature. This waiver should also be on the teach­er recommendation forms. Teachers should only fill it out if that waiver is signed, and, schools should only accept these documents if they have the appropriate parent signature.

Third, document retention and doc­ument destruction are also import­ant factors to consider. A lot of time schools don’t include the admission office in discussions about document retention/destruction policies. Ad­mission officers should determine if the documents collected during the admissions process are subject to certain retention and destruction rules in the school’s policy. It is wise to engage in a discussion related to the procedures to make certain that the documents are retained or de­stroyed in a manner consistent with the needs of the admission office.

Given that state laws vary as to the retention of various documents, schools need to ensure compliance with those laws as well as the needs of the school to retain information. Should a lawsuit be filed against the school, the document retention and destruction policy will provide di­rection as to what steps must be tak­en to avoid destroying documents relevant to the claim.

Are there items that should always be removed from a student’s file (e.g. post-it notes, voting sheets, interview notes)?

A good rule of thumb is that you should avoid putting in writing any­thing that you would not want seen should the documents be subject to a subpoena and viewed by the ap­plicant’s parents or other parties. Write appropriate comments; keep only what you need; and ensure confidentiality. Admission offices should make a decision about what information you need and why, then apply and enforce the policy consistently.

On a related note, you were part of a panel at SSATB’s Annual Meeting titled, “Placement-Admission: A Legal Look at our Critical Conversations.” Sometimes professionals involved in these conversations find themselves walking a fine legal, ethical, and confidential line. How did you advise admission and placement professionals in this session?

Placement directors are anxious to share information with admission officers that will encourage accep­tance. Admission officers are anxious to gather information that will assist them in making wise admission de­cisions. Unfortunately, parents are not always in agreement as to the na­ture of the information that should be shared. It is possible for a place­ment professional to find himself in a situation where he has released information about an applicant that the parent believes they were not authorized to share and could result in a claim filed for breach of privacy. Having said that, should an admis­sion director depend on statements made by the placement director, which result in injury or damage to the school or its students, there may be legal exposure. It is always best to clearly establish the “rules of the game” with parents prior to starting the admission process. While it may be an uncomfortable discussion, it is prudent for the placement direc­tor to enter into an agreement with the parent to ensure there are clear guidelines as to disclosure. It is also of benefit to make certain the admis­sion director understands the guide­lines used by that placement direc­tor to avoid miscommunication or misunderstanding.