The chief federal judge in Harrisburg has tossed out state negligence claims against the $14 billion Milton Hershey School in two lawsuits involving former students, saying that the institution has no broad social responsibilities for the welfare of its impoverished students beyond a four-page contract.
In a legal victory for Hershey, Judge Christopher C. Conner agreed with the boarding school that its relationship with minor students is a narrower, "contractual" one, with parents retaining legal custody of their children even while they're under the Hershey School's 24-hour supervision.
The Aug. 10 order potentially insulates the Hershey School from millions of dollars in personal-injury damages in claims alleging that the school mistreated two people who used to be students. Conner dismissed seven of 13 claims in each lawsuit. He also rejected an emergency appeal of his decision by plaintiffs' attorneys Oct. 10.
Penn Law professor David Hoffman warned this week that the judge's decision could immunize the Hershey School – along with other state private schools — against tort claims for personal injury and said he "doubts" whether the enrollment agreement between the Hershey School and the students' parents is valid, given provisions that allow the school to unilaterally change the contract.
Parents sign the four-page "enrollment agreement" with the school when their children enter the school. The agreement, Hoffman said, was more appropriate for a zip-line operator or ski resort than a boarding school for poor kids.
Hershey School spokeswoman Lisa Scullin had no comment because of the pending litigation. The main attorney representing Hershey is Jarad Handelman, of the Blue Bell-based law firm Elliott Greenleaf.
Conner based his decision on the Pennsylvania legal doctrine "gist of the action" – which means that lawsuit claims should be restricted to breaches of a contract rather than negligence. Conner said in his order that the Hershey School contractually agreed to "house, feed, clothe and educate" students.
Conner's decision stems from separate lawsuits filed in 2016 against the Hershey School, one by the parents of a depressed eighth grader, Abbie Bartels, who committed suicide after she was banned from campus over her parents' objections. The other suit was filed by gay student Adam Dobson, who was expelled after suicidal thoughts. Dobson has claimed in court documents that house parents at the school forced him to watch a religious gay-conversion video.
The Bartels and Dobson cases are scheduled for trial next year. The remaining claims include an alleged violation of the Americans With Disabilities Act for Dobson, and wrongful death for Bartels, as well as contract breaches for both students.
The central Pennsylvania school has been repeatedly investigated by the state attorney general and is reconstituting its boards under a 2016 agreement with the state agency to end the latest probe.
Critics note that it has lacked national education and child-psychology experts on its oversight boards, whose members earn a minimum of $110,000 a year. The Hershey School enrolls slightly more than 2,000 students, mostly from Pennsylvania.
"There is no question that the school funds their students' educational and financial needs," said Mark Momjian, a Philadelphia lawyer and adjunct law professor at Villanova Law School. "But in order to stand in loco parentis, the question is whether the parents acquiesced to surrendering their legal rights, even if their children received free tuition, room, and board, and beyond that, medical, dental, and mental-health related care while at the school."
The Hershey School, a former orphanage, has historically marketed itself to poor families as a nurturing homelike environment with on-campus doctors and house parents who look after children.
An enrollment agreement reviewed by the Inquirer and Daily News contained a waiver for the right to sue, and the provision that says the school can unilaterally change provisions.
The institution is basically "offering poor kids a Hobson's choice: Take our terms and let us treat you negligently if we want to, or hit the road," Hoffman said. "That sort of waiver makes sense in certain contexts — a ski-mountain operator — but not for a school."
Lawyers at the Philadelphia law firm Dilworth Paxson who represent the plaintiffs said in court documents that it's an "oxymoron to conclude that a school admitting only children with social needs then has no social duty to such children."
Mark Anderson, an associate law professor at the Temple University Beasley School of Law, said that the Hershey cases "involve students who are under 18 and allege that the school failed to protect their safety. Courts have long recognized a common law duty on the part of schools to protect children in their custody. This means that the duty does not arise out of contract."