Six days after reading the story in the Times, Lessig received the news that he’d lost the Eldred case. Crushed, despondent, and perhaps in need of a new obsession, he called Keith Smith and volunteered to argue Hardwicke’s appeal. Hardwicke was thrilled; Smith, conflicted. He had devoted thousands of hours to the case, but now Lessig was going to get the glory of making the argument in the higher courts. Smith was aware that Lessig’s track record as an appellate lawyer was limited to two arguments in the Eldred case, both of them unsuccessful. But Smith was swayed by Lessig’s legal stature and his biography. “I felt Larry could approach the argument from a standpoint that I can’t,” Smith says. “He experienced this.”
For the past two decades, Lessig had kept the story of his abuse a closely guarded secret—especially from his parents. By plunging into the Hardwicke case, Lessig says, he understood that it was likely he would “be forced to confront this with my family; people are going to look at me differently.”
The argument before the New Jersey appellate court took place in November 2003. Its essence was straightforward. To Lessig’s knowledge, there was no prior case in the history of New Jersey in which the courts had ruled that charitable immunity applied to intentional wrongful acts. And the acts at the school in the seventies, he said, were not merely intentional: The sexual abuse that occurred was “pervasive and institutionalized.” If the supreme court granted total immunity in such cases, Lessig concluded, New Jersey could become “a haven for sex abuse by charitable institutions.”
When the argument was over, the school’s litigator, Jay Greenblatt, told Lessig the performance was “one of the best oral arguments I’ve heard in my career.” Four months later, the three-judge panel sided 2-1 with Lessig and Hardwicke, prompting the school to appeal to the state supreme court.
Lessig was in Washington when he learned the news, about to board a train for New York. Ten minutes later, his first victory as a litigator notched in his belt, he was in the bar car, beaming, babbling, buying drinks for everyone.
After hearing so many awful things about the Boychoir School, I drove down to Princeton to hear what its officials had to say in its defense. The school’s current president, Donald Edwards, gave me a tour of the grounds. We stopped at the rooms that once made up the Hanson-Lessig suite. “He lived here? You know more than I do about that,” Edwards said in a tone of mild shock.
Bearded and bespectacled at 63, Edwards feels beleaguered by the case. “This is the only litigation I’ve ever gone through, and it’s the only one I will ever go through,” he said in his genial, soft-spoken way. “It’s an adversarial process, and I’ve built a 40-year career on being nonadversarial.”
Edwards joined the school’s staff as head of fund-raising and publicity in 1999, then was elevated to president in 2002. In the spring of 2000, a few months after Hardwicke surfaced with his allegations, the school sent out a letter informing the parents and alumni for the first time about the reasons behind Hanson’s firing (though it didn’t name him). The school encouraged former students to come forward with information about past incidents of sexual abuse (though it didn’t disclose that it had, in fact, settled several other lawsuits in the eighties and nineties). And it hired an expert for advice on its child-protection policies.
In April 2002, the New York Times and Nightline, fed leads by Hardwicke, broke the story in tandem. Hardwicke then set up a Website that further spread the details. The fallout for the school was harsh. Concert bookings evaporated; recruiting students became an uphill slog.
Edwards’s frustration with all of this isn’t hard to comprehend. The abuse took place long ago; today, the school is safe and ever-vigilant, he says. “The irony is, probably the one person who will never bear any burden if there is a judgment against the school is Donald Hanson,” Edwards notes. “The people who are bearing the burden now are our students, faculty, parents, and trustees, none of whom were around in 1970 and 1971.”
All of that is true, of course. But one of the legal system’s central functions is to allocate responsibility for harms that occurred even decades ago—thus creating incentives for sound behavior in the future.
In any event, it would be easier to sympathize with the school had its fight against Hardwicke not been so vicious—and, at times, so ham-handed. When, for example, the lawsuit was filed, the school’s lawyers submitted an official reply that argued that Hardwicke had no case because he consented to the sex with Hanson—and that by not revealing it sooner, he was more negligent than the school. (To be precise, the term the document used was “fraudulent concealment.”) Both statements were leaped upon by the Times and Nightline.
“That was very unfortunate,” Jay Greenblatt, the school’s litigator, tells me one afternoon in his office in Vineland, New Jersey. Greenblatt was appointed to the case by the school’s insurance company, which also pays his fees. He came aboard after the reply was written. “It was a boilerplate-type pleading,” he limply explains. “I don’t even know if it was reviewed.”
Greenblatt is a past president of the New Jersey State Bar Association. At 68, he’s got a rumbling voice, close-cropped gray hair, and wears a big gold signet ring. He tells me the school would have preferred to settle with Hardwicke, if only to avoid the flood of adverse publicity. But, Greenblatt goes on, “this isn’t just a matter of money. His goal is to close the school. I think that he along with his id wants to do it. He’s looking to punish someone for what unfortunately occurred to him at the hands of a man 35 years ago.”