Lessig and the Choir

by Kieran Healy on May 25, 2005

A long article in New York magazine about Lawrence Lessig’s participation in a lawsuit against the American Boychoir School. A teacher at the school molested boys during the 1970s and Lessig, a former head boy at the school, was one of the victims. He’s now arguing the case in front of the New Jersey Supreme Court. The crux of the lawsuit is whether the school can be held responsible for the actions of its abusive employees. (They’ve settled cases in the past.) I remember seeing the American Boychoir tour bus around Princeton quite regularly. The place is is just down the road from campus. The school is arguing that it is in no more responsible for the actions of the abusers it employed than it would be for employee “stopping in a bar after work and slugging someone in the mouth. ‘Is the company responsible?’ [the school’s lawyer] asks. ‘No. Why not? Because they’re not acting within the scope of employment.’” That seems like a weak analogy. In this case the employee was in a position to repeatedly abuse his victims in virtue of his role and the authority it carried. The school’s defence seems to come perilously close to arguing that it can’t be held responsible for any illegal action that a teacher perpetrated on a pupil, because of course illegal actions are not within the scope of the teacher’s employment.

I don’t know about the legal merits, of course, but on the basis of their past experiences, together with the evasions and blame-the-victim insinuations from the school’s President and its chief lawyer, it’s easy to see how the litigants’ could have a desire to raze the institution to the ground.

{ 19 comments }

1

Barbara 05.25.05 at 9:10 pm

The analogy with the employee assaulting someone in a bar is totally off point if, as I assume, most of the abuse took place on school property during the school day, or during an authorized school excursion. The employee thus wasn’t “off duty” while committing abuse even if he wasn’t doing what the employer authorized. Indeed, most abuse of the school or church related variety takes place off premises where it’s less likely to be noticed, but during authorized activities. The real legal issue isn’t whether the employee’s actions were criminal, it’s whether it was foreseeable that employees would have or could have engaged in abuse, such that the school should have taken more adequate steps to protect children. Were the standard to be applied the level of protection in place today, there would be no question. Every school in the country has chaperoning and various other policies in place that make it much more difficult for employees to be alone with students involved in school activities. I honestly can’t say what the standard should have been in the 1970s. All of this assumes that school authorities were not on notice of the abuse. If they were and didn’t try to stop it, then obviously, they have a hard case to make.

2

Barbara 05.25.05 at 9:16 pm

The other difference from the assault in the bar is that the employer has no duty to the patrons of the bar while the school surely has a duty to protect its students.

3

bza 05.25.05 at 9:37 pm

According to the article, the school is basing its legal position on a New Jersey law that specifically exempts non-profit institutions from suits charging them with negligence. So what’s at issue isn’t a general rule of employer liability, but rather the applicability of that New Jersey law to the case at hand.

4

rea 05.26.05 at 6:40 am

Well, not beinga memeber of the New jersey bar, can’t comment on specifics of NJ law. But if this were my case, here in the jurisdiction where I practice, I would be arguing that the school is liable because the employees used the power of their postions to carry out the sex crimes.

Generaly speaking, an employer is vicariously liable for criminal acts of an employee if either(1) the criminal acts were carried out in an attempt, however misguided, to serve the employer’s purposes, or (2) the criminal acts were carried out through use of the employee’s official powers.

An employer can also be liable, not vicariously, but for its own negligence, if they hire or retain people they know to be unsuitable–don’t hire know sex criminals to run a school, for example.

5

bi 05.26.05 at 6:43 am

But if the charge changes from negligence to something else…

6

alkali 05.26.05 at 9:17 am

As I understand it, under a New Jersey statute, nonprofits have limited liability for negligent acts but may be entirely liable for intentional acts. The issue Lessig is arguing is whether the abuse of students should be considered a negligent or intentional act on the part of the school.

7

Oskar Shapley 05.26.05 at 9:34 am

Hmmm…

Sen. John Cornyn (R-TX) : “I don’t know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that’s been on the news and I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in – engage in violence.

Kieran:

I don’t know about the legal merits, of course, but on the basis of their past experiences, together with the evasions and blame-the-victim insinuations from the school’s President and its chief lawyer, it’s easy to see how the litigants’ could have a desire to raze the institution to the ground.

Yes, I understand that this is not the same issue and the analogy is not pefect. They never are. On the one hand threats against judges, on the other a lawsuit.

Alas, Kieran did not write about a “desire to sue the institution into bankruptcy”, he wrote about arson.

Comments?

8

david 05.26.05 at 9:59 am

To raze is not to burn.

9

bi 05.26.05 at 10:02 am

Oskar Shapley: Comments? You see, Kieran didn’t write, he typed.

10

Ray 05.26.05 at 10:19 am

Kieran talked about understandable desires.
Senator Cormyn talked about understandable actions.
You talked out of your ass.

11

MNPundit 05.26.05 at 10:32 am

This is a difficult case for me. On the one hand, the person was clearly wronged and should be compensated as much as we can do so (since obviously nothing can erase what happened) but on the other hand holding the school completely responsible strikes me as a mistake.

12

Steve 05.26.05 at 10:49 am

Yes-
Aside from the legal arguments, it is a tricky moral dilemma for me.
1) A kid was abused.
2) Should the kid’s school pay him a whole bunch of money? I realize alot of our tort law is built around this concept, but I still don’t understand why. Why, if a kid was abused, should the school have less money for computers, or books, or air conditioning, or whatever?
3) Should the kid’s school’s insurance company pay him a whole bunch of money? I assume the only difference between the school and the insurance company is that the insurance company has more money, and doesn’t have other kids running around (offices full of white collar workers are less sympathetic than schools full of kids). But I’m still at a loss as to why money should go from the insurance to the kid. Punish the teacher, sue the teacher, I understand. Take money from an organization (which doesn’t appear to be morally guilty of anything-either the school or the insurance company) and give it to the kid, because…

Note: I’m not sure of the argument above. But I do agree that our system of ‘when something bad happens, take money from the nearest deep pocket’ is morally/structurally odd.
Steve

13

Kieran Healy 05.26.05 at 10:50 am

Yes, I understand that this is not the same issue and the analogy is not pefect. They never are. On the one hand threats against judges, on the other a lawsuit.

Er, yeah. Cornyn talked about illegal actions like violently beating people up, and I talked about legal actions, like arguing your case before the courts.

Alas, Kieran did not write about a “desire to sue the institution into bankruptcy”, he wrote about arson.

“Raze” does not mean “burn.” You might also consider the difference between using the word metaphorically in the context of a legal case and saying that people will literally be attacked.

Where I’d really like the analogy to work, of course, is an equivalence between the amount of media attention John Cornyn can command for his remarks and the amount I can generate for mine. That would be neat.

14

bi 05.26.05 at 11:16 am

Steve: well, I do think that protecting students from molestation is a lot more important than buying air conditioning, so if the “deep pockets” that be have decided to pump their money into the latter instead of the former, it’s clear they’re at fault.

15

Uncle Kvetch 05.26.05 at 11:41 am

You might also consider the difference between using the word metaphorically in the context of a legal case and saying that people will literally be attacked.

Actually, Cornyn was talking about attacks that had already happened, and arguing that said attacks were unfortunate, but in a sense understandable. Which makes Oskar Shapley’s “analogy” even stupider than it might appear.

16

a different chris 05.26.05 at 3:14 pm

Steve:

But I’m still at a loss as to why money should go from the insurance to the kid.

Well, call me a crazy idealist, but if an insurance company proffers policies that cover the expenses of sexual abuse, then one would like to make it well worth their while to keep some oversight over their clients.

I wish I could say something like “malpractice insurance weeds out bad doctors, same thing” but alas, that’s not true. Sigh. But that’s the theory, anyway, and it sure seems like a better idea than to task some harried headmaster with the problem, and punish a single school because they were the ones unlucky enough to hire Mr. Creep.

17

Leo Casey 05.26.05 at 3:57 pm

I would think that, all other things being equal, the case would come to down to the extent that the school could be reasonably held responsible for the actions of the abuser. Did they take reasonable and proper precautions in general to precent abuse? Did they have any knowledge that should have led them to know of, or minimally, to investigate into, the possibility of specific acts of abuse? If they had knowledge, did they act on it? It was precisely the fact that various dioceses of the Catholic Church failed to take reasonable and proper precaution, had knowledge or reasonably should have had knowledge of abuse, and yet failed to act on it — to the contrary, covered it up and protected the abuser — that makes them legally and morally liable to the abuse perpetrated by a number of priests. The particulars are important.

18

bza 05.26.05 at 4:16 pm

But that’s the theory, anyway, and it sure seems like a better idea than to task some harried headmaster with the problem, and punish a single school because they were the ones unlucky enough to hire Mr. Creep.

According to the New York article the teacher in question was hired by the school on the recommendation of a donor who at that time was already a convicted pedophiliac. So I’m not sure it’s the most useful portrayal of the facts to describe the school as unlucky in one of their hiring decisions.

The article also provides rather a lot of detail that makes it seem that, if teachers and administrators were ignorant of what was going on, they were willfully so. For example: one teacher had a classroom opposite the abuser’s bedroom (recall that this was a boarding school located in a former mansion). According to Lessig, there were a number of occasions on which this teacher saw him (Lessig)leaving the abuser’s bedroom in the morning.

19

rea 05.26.05 at 5:37 pm

“Take money from an organization (which doesn’t appear to be morally guilty of anything-either the school or the insurance company) and give it to the kid, because…”

. . . because if you entrust somebody with authority to act for you, you are responsible for what he does.

And from the point of view of the insurer (assuming the insurer didn’t have standard policy clauses excluding coverage in this kind of case), because you accepted a premium to defend and indemnify your insured against this kind of risk.

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