This was a paper presented at Christian Schools National Business Conference on School Enrolment Legal Issues
Dated 11 October 2006
Enrolment involves much more than legal issues but the consummation of the enrolment process involves a set of legal considerations that will now be surveyed.
2. CONTRACT OF ENROLMENT
2.1 Essential relationship is that of contract
By virtue of payment of fees there is a contractual relationship brought into existence between the non-government school and the parents regarding the provision of education services to their child or children.
Form of Contract
Typically, the form of the contract is contained in the application for admission which is accepted by the college.
Terms of Contract
The express terms, such as they are, in the contract of enrolment will usually be found in this document. Other terms can be found elsewhere in policy documents but an important question is whether or not the form of contract is adequate to import these policies into the terms of the contract of enrolment.
Except in circumstances where required by statute, the terms of a contract do not need to be formalized into a written document and there is a whole body of law dealing with the task of identifying the express terms by such things as:
- statements made during negotiations;
- incorporation of terms by notice; and
- incorporation of terms by a course of dealing.
In most cases the express terms of a contract (distilled by the process set out above) will fail to deal adequately with what should happen when a particular event disrupts performance of the contract.
In such a case, a court will be asked to fill the gaps in the express terms and, again, there is a whole body of law dealing with the ways of filling these gaps by implied terms. This involves obviously costly mechanisms and should be avoided wherever possible.
It is best to avoid this necessity by putting in place a contract of enrolment with sufficient express terms to meet most common situations that will arise.
2.2 Contracting Parties
In our experience it is sometimes difficult to identify the correct contracting parties to the contract of enrolment.
The College Contracting Party
In some cases the party named as the college in the application for enrolment doesn’t reflect the legal name of the college operating entity. It is necessary to delve into the circumstances to find precisely which entity within the group is contracting with the parent.
This is sometimes seen within denominations where the college might not form a separate legal entity in its own right, even though it adopts a commonly used name for the college.
In other cases where an individual church, for example, has operated a college within its own structure and thereafter incorporates a special purpose vehicle to operate the college, the changes are not reflected in the application documentation.
Sometimes, there is confusion in the enrolment form between the entity that is the ultimate controller and holder of property and the operating entity formed to operate the college.
The correct entity within a particular group to enter the contract with the parent is a question of fact in particular circumstances and care should be taken not to introduce confusion by naming the wrong entity.
Parent Contracting Parties
Where the child to be enrolled comes from a home with two natural parents living together then, quite obviously, both parents would be party to the contract.
In other circumstances the college will need to be sure that it is dealing with the correct party or parties and unless both natural parents are involved, some enquiry is necessary to correctly identify the “parent” parties to the contract with the college.
On 1 July 2006, the most significant changes to the Family Law Act 1975 in 30 years commenced. Some of the changes include:
- A change in terminology. “Residence” and “contact” have been removed and replaced with “lives with” and “spends time with and communicates with”;
- The introduction of a presumption of “shared parental responsibility”.
Sometimes the circumstances will involve a guardian appointed by a Will.
Before concluding enrolment procedures, the college should look into each child’s background in sufficient detail to ascertain the right of any party to contract with it in respect of a particular child and take advice on these circumstances where necessary.
All parent parties should be made jointly and severally liable.
Copies of all documentation that establish the right to contract (eg. the Will or Court Order) should always be retained on file.
2.3 Essential Terms
Without being exhaustive there are a number of matters that could be considered essential terms in a contract of enrolment. These include:
- Whether or not the enrolment fee is refundable or non-refundable;
- The requirement to pay fees;
- Fee increase provisions;
- Reimbursement of reasonable expenditure on behalf of a student;
- Late payment implications and interest on overdue amounts;
- Notice period for withdrawal from enrolment;
- A provision protecting the school against claims for loss, damage or theft of students’ personal property;
- Provisions for dealing with collection, storage and disclosure of information;
- Indemnity by the parent for damage arising out of failure of the student or parents to comply with any school codes or other rules;
- Variation of contract procedure, for further details of which see below.
Variation of Contract
Many contracts of enrolment do not have any mention of the incorporation, as terms in the contract, of various school policies that are in existence at the time of the contract or promulgated later. These policies include such things as disciplinary and codes of expectation and behaviour of students and medical procedures.
There should be an explicit statement that the policy documents of the school existing at the time of contract of enrolment, and any variation later published by the college, form part of the terms of the contract. This is the same way that college child protection policies are incorporated into the contract of services with an individual teacher so that a breach of the policy becomes a breach of contract.
A proper mechanism for publication of the policy to give each individual parent reasonable notice of the change in such contractual terms should also be put in place. This might be done by a letter to each parent enclosing the new policy as a unilateral variation of the contract or by an arrangement where the new policy is published on the college website and its existence is brought to the attention of individual parents.
Administrative procedures to track these changes should also be put into place so that evidence can be given in any proceedings that reasonable notice of variation came to the notice of the parent party to the contract.
2.4 Trade Practices Issues
Because parents are consumers of educational services and a contract is involved, there is the potential for the application of provisions of the Commonwealth Trade Practices Legislation and the various States’ Fair Trading Legislation.
These provisions would not normally rear their heads unless and until litigation became involved where one of the heads of claim in an action for breach of contract may be for misleading conduct or breach of guarantees or warranties under the legislation.
Generally the legislation, at both Federal and State level, prohibits such things as:
- Misleading conduct – this includes misleading pricing, misleading advertising and misleading and exaggerated claims; and
- Breach of statutory warranties and guarantees.
In our experience these issues have seldom been encountered in practice and they are included for the sake of completeness in the light of the contractual nature of the relationship between the college and parent.
Despite the fact that trade practices legislation imposes statutory warranties and guarantees that override contractual attempts to negate warranties, there should be a statement negating at least the following potentially implied contractual warranties:
- A warranty that it will or can achieve any particular outcome in respect of students;
- A warranty that it can control behaviour or activities of other students or parents.
2.5 Other Contractual Factors
2.5.1 When does the contract commence?
The school should give some thought to the commencement date of the contract and should include a provision to this effect based on its policy.
It may be that the date of commencement be the date upon all fees are paid or on the happening of some other event.
2.5.2 Waiting Lists
In an environment of high demand for placements, school should be careful to include a statement in all preliminary documentation to the effect that placement of a name on a waiting list does not create any legal obligation upon the school to make a place available or in a particular order.
It should also be careful to ensure that it makes no warranties in relation to any particular order in which names are placed on the list.
3. DISCRIMINATION ISSUES
Along with the areas of permitting access to educational benefits and the potential to breach discrimination laws in relation to the process of expulsion or exclusion, the admission process within schools must be viewed through the prism of laws that prohibit discrimination by educational authorities.
As you are aware, both direct and indirect discrimination is prohibited.
Direct discrimination involves less favourable treatment of a person on the ground of a prohibited characteristic, attribute or status.
Indirect discrimination involves the imposition of a term with which the person does not or is unable to comply and with which a high proportion of people without the attribute comply or are able to comply and the term is not reasonable in all the circumstances.
3.2 Considerations at Enrolment Stage
3.2.1 Disability Issues
A potential student with a disability may require expanded or different services or facilities in order to effectively access education.
It is critical that the school properly and thoroughly assess an applicant’s need in this regard prior to any decision to accept the application.
This precaution is necessary to enable the school to consider whether the provision of special services and facilities will amount to unjustifiable hardship upon it as it is not possible to rely on this ground after a student has been admitted.
3.2.2 Religious Discrimination
It is not uncommon for parents of a different religion to seek to enrol a child or children in a Christian school.
Depending upon the circumstances, such an application may or may not offend the enrolment policy adopted by the particular school authorities. Acting in the best interest of the child or children concerned, the school may decide that this best interest would not be served and the child’s well being would suffer through being subjected to one religious world view at home and another very different religious world view at school. The application for enrolment may well be refused on these grounds.
There are exemptions for discrimination in the education area where an educational institution is operated wholly or mainly for students of a particular religion where it is not unlawful to exclude applicants who are not of that particular religion.
Similar exemptions apply to an educational institution wholly or mainly for students of a particular sex or for students who have a general or specific impairment.
It is not within the ambit of this paper to survey each discrimination issue in detail. The purpose of this survey is to highlight the need to take professional advice early in any enrolment process as some mis-steps cannot be remedied later.
4. OTHER ISSUES
4.1 Students Attaining Age of Majority
Because contracts of enrolment are typically entered between school and a parent party there is potential to introduce an unknown element into the arrangements when a student turns 18. It is thereafter possible for legal relationships to exist in a more direct fashion between the college and the mature student.
A recent academic article has hypothesized that “adult students may challenge the notion that their parents are ‘in control’ of their activities and that their information should be reported to parents”.
The authors note these considerations might potentially be of more relevance for government schools where a contract between parents and schools is not implied.
These aspects are included for interest only at this stage but advice should be sought at an early stage if considerations involving potential conflict between mature age students and parents arise, particularly in relation to the provision of report information.
At this stage it may represent an overabundance of caution to seek to make the mature age student an additional party between the parent and the college.