One thing working at a boarding school has made me think about a lot is liability--not because there is anything out of order with my present employer, or with the school's students, but because the caretaking function boarding schools necessarily undertake inevitably makes one highly aware of how vulnerable they are to things going suddenly, massively, scandalously wrong. When you are the one making sure other people's kids are safe and accounted for--that they are not only well taught, but well nurtured and well watched--you become aware of how much you cannot see and cannot know and cannot prevent; you become aware of how, even in a scrupulously run institution, there are always a number of lawsuits seemingly waiting to happen--not because of any institutional negligence, but simply because of the sheer vertiginous contingency of housing dozens, if not hundreds, of teenagers living away from home.

The New Jersey Supreme Court is currently charged with clarifying the precise nature of independent schools' liability in that state--ironically because, as nonprofit and therefore charitable institutions, these schools have access to legal loopholes that appear to absolve them from responsibilities they really should have, such as ensuring that students are not sexually abused by teachers or staff.

The case is a nasty one, the lawyer is a famous one, and the legal issue is a knotty one. Here's a summary of the case from the New York Times:

In a case brought by a man who says he was sexually abused as a pupil at a boarding school that tolerated pedophiles on its staff, the New Jersey Supreme Court was urged on Monday to revisit the legal protection of nonprofit organizations from negligence lawsuits.The case raises accusations against former staff members at the American Boychoir School in Princeton, N.J., that date from the 1970's. Some former students came forward years later, after the sexual abuse scandal involving Roman Catholic priests in Boston, to report abuse at the Boychoir School.

The case is aimed at bringing New Jersey into line with about 40 other states that have abandoned the doctrine of charitable immunity, which protects institutions from most lawsuits by people who were their beneficiaries. It carries potentially damaging consequences not only for the nationally renowned Boychoir School but also for the Catholic Church in New Jersey.

The lawyer for John W. Hardwicke Jr., who was enrolled at the Boychoir School as a 12-year-old in 1969, told the justices the school had "pervasive, institutionalized sexual abuse."

The lawyer, Lawrence Lessig, a Stanford University law professor, noted scholar on intellectual property law, and a former Boychoir School student himself, said that for two years Mr. Hardwicke "was repeatedly raped and sodomized by the choir director, the headmaster, the proctor, even by the cook."

Mr. Lessig urged the court to affirm the decision of its appellate division that the state's charitable immunity law does not excuse a school's duty of care to its students. The main opinion in the appellate division's decision said that "a child's fundamental right to bodily integrity cannot be found secondary to a charity's well-being."

But the school's lawyer, Jay H. Greenblatt, argued that it could not be held liable for the staff members' acts because they were outside the scope of their employment.

"the New Jersey Supreme Court was urged on Monday to revisit the legal protection of nonprofit organizations from negligence lawsuits"...why on earth isn't this a matter for the New Jersey Legislature to decide, rather than a court?

because the New Jersey Supreme Court loves to legislate. We have a rather, er, activist court - Mt. Laurel, Abbott, etc.

-GF

The sexual abuse described occurred under the color of authority. Those people had authority over the children whether they "on the job" or not. They exercised authority and committed acts they would not have been able to do had they nnot occupied a position over those students. Those charities do not deserve protection.

My understanding of a boarding school situation is that whenever a staff member is around the students, he or she is on the job. Correct me if I'm wrong on this.

"why on earth isn't this a matter for the New Jersey Legislature to decide, rather than a court?"

Good question. Because the courts invented the loophole in the first place. But the legislature could abolish it too.

It would be interesting to plot the cost of a boarding school education against COL (cost of living) or in constant-dollar terms, then determine what percentage of the increase was due to greater insurance burdens. (There's also the faculty salary piece, but that's a different issue.)

Even if some form of charitable immunity continues to exist (I happen to think it should), there has to be some sort of limitation for egregious and/or pervasive situations like the ones alleged here.

Just to be a bit iconoclastic here: Why should there be any such thing as charitable immunity? Is there something inherently more virtuous about being a non-profit organization devoted to some nebulous end than about being, say, a railroad that brings fertilizer to farmers and food to consumers? (And remember, executives of many non-profit organizations are very well-paid.)

The analogy with what allegedly happened in the school would be this: certain railroad employees snuck into the yards, month after month, and loosened the wheels on cars, resulting in crashes in which people were seriously injured. They were certainly not told to do this by management, but management also didn't take action to prevent it.

Why shouldn't the liability of the railroad and the liability of the school be determined by the same principles?

Caritable institutions provide necessary public services, often using volunteers. If those institutions go under, the functions woll be left to the state - and will come at greater cost and likely lesser quality of service, not to mention the increasing of the pervasiveness of the state.

If charitable institutions are sheltering child molesters, they should go under. I can't think of a consequence of their going under that's bad enough to justify letting them hide child molesters.

There was an article in our paper today about a local priest who admitted molesting a little boy years ago, who was not reported by the diocese because his not being in a custodial role meant the molestation was "not reportable". (Let me say that I don't believe the current bishop would countenance that view.) Aren't we losing sight of the big picture here?

"Caritable institutions provide necessary public services, often using volunteers"...so, don't railroads also provide essential public services? Grocery stores? Manufacturers of medical electronics?

And if a charitable institution "goes under," what reason is there for assuming that others won't step into the gap?

Putting "non-profit" in one's name does not automatically make on a repository of virtue.

The type of public services traditionally provided by charitable institutions is rather different than that of railroads and grocery stores, and I have yet to hear of a volunteer staffed railroad or grocery store (I don't classify food pantries in the grocery category). While those sorts of traditional things probably could be done for profit (like, say, prisons used to be), they are probably not the sorts of things we would like better if provided on that basis (like we did not like prisons in the for-profit mode).

If the charitable immunity is set aside completely, we may not see others take the place of those that go under. In a sue-happy environment, even good volunteers are getting leery about liability. I'd think twce about some of the homeless shelter volunteer work I do if I did not have the added protection of charitable immunity in my state.

Although you are perfectly correct that not all non-profits are among the ranks of the 'good guys'.

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