A case from the New Jersey Supreme Court has some important lessons for youth organizations. The immediate issue involved defamation claims by a fired teacher against an Orthodox Jewish school. The trial court had concluded that resolution of the claims would require inquiry into the religious beliefs of the school and therefore the First Amendment mandated summary judgment in favor of the school. The appellate court split 3-3 on whether the trial court should have allowed discovery before entering judgment, thus effectively affirming the trial court.
The lessons for youth organizations lie in the facts of the case. The school sent a letter to parents that had the following explanation:
In late February, the leadership of the Yeshiva received information that warranted placing Rabbi Hyman on leave. At the same time, the Yeshiva also retained Arnold & Porter, a highly regarded national law firm to conduct an independent investigation. As a result of that process, it was determined that Rabbi Hyman's conduct had been neither acceptable nor consistent with how a rebbe in our Yeshiva should interact with students. In consultation with counsel and halachic advisors, the leadership of the Yeshiva has terminated his employment and has determined that no further action is necessary at this time. We are confident that this course of action is the right one for the school and its students. . . .
I understand that this does not address every question you may have. However, given the sensitive nature of this situation, and the advice we have received from legal and halachic authorities, this is all the information that we can share at this time.
The plaintiff claimed that the letter unfairly accused him of being a pedophile and child abuser. The law firm's report had concluded that "former fifth and sixth grade female students had reported that Hyman 'had intentionally touched them and other girls in his classes, including by massaging girls' shoulders, touching them on clothed parts of their bodies that he should not have touched, placing stickers on or near their chests, and creating classroom games that caused him to touch them.'" It's not clear from the opinion whether anyone disseminated the report beyond the school's administration and Board.
When I read the description of the law firm's findings, the conduct did sound like sexual abuse. However, the actual complaints that the court opinion described involved more benign touching that nevertheless violated the religious tenets of the school. According to the school's filings with the court, Orthodox Jewish observances restrict "physical contact between people of different genders who are not relatives or spouses," and the school handbook stated, "[s]taff members may not touch students of the opposite gender once the students have reached third grade." Violation of that rule would not necessarily involve reportable or criminal child abuse.
The school's win in this case did not insulate it from having to go through the process and deal with no small amount of publicity. The incident offers the following lessons for youth organizations:
- Be certain that your liability insurance covers defamation claims. Even if you have an airtight defense to a lawsuit, you may have to go through the court process. You want the insurance company to bear those costs, not your organization.
- No matter how carefully you phrase your statements, someone will be unhappy. You can avoid the most obvious risk factors an incendiary language, but you will not be able to please everyone. Do the best you can and refer to Lesson No. 1 above.
- No matter the risks, you must be transparent with your parents and other stakeholders. You can't let the gossip grapevine control the narrative. Parents have legitimate questions about whether their children will be safe and employees have legitimate questions about whether their jobs will be safe.
- Don't be surprised if nonpublic statements to stakeholders become public. Once you make a statement, whether written or verbal, you lose control of it. Don't let that stop you from being transparent with stakeholders, but always maintain confidentiality. Don't say anything that you aren't willing to see poste on social media.
- The plaintiff in this case claimed that neither he nor his lawyer had seen the report from the law firm or learned the identities of any of the former students who complained. If you commission an investigation, decide on the grounds from the start. Decide who will get the report, when they will get it, and whether you will rely on anonymous reports. There are advantages and disadvantages to each of these decisions. You should weigh them and decide before starting the investigation.
Dealing with allegations and serious incidents is difficult for a youth organization at the best of times. Sometimes you can't avoid negative fallout, but you can try to be a trustworthy organization that is transparent with people who are entitled to answers.
[L]eaders of Rosenbaum Yeshiva learned from several former students of "allegations of inappropriate conduct" by Hyman, "including allegations of intentional physical contact." [The school fired the teacher and sent an explanatory letter to parents.] Plaintiffs allege that the letter was disseminated beyond its recipients in the school community on social media, and that Hyman was unfairly branded as a pedophile and child abuser on various websites, costing him employment opportunities and imposing financial, social, and emotional harm on him and his family.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.