On January 30, the family of a 17-year-old former Milton Academy student sued the 207-year-old prestigious prep school in Norfolk County Superior Court. James Driscoll and his parents allege Milton mistreated him in connection with a sex scandal that resulted in his and four other boys’ expulsion for receiving oral sex, in a locker room, from a 15-year-old female schoolmate. The lawsuit, in addition to describing a student-body social life of Bacchanalian proportions, could result in legally obligating Massachusetts private schools (whether preparatory, college, or university level) to treat their young charges fairly, even — perhaps especially — when administrators think the school’s reputation competes with the students’ best interests.
According to the 33-page complaint, after hearing rumors that a female student performed oral sex on a group of male students in the boys’ locker room in late January 2005, school officials interviewed the girl three weeks later. Milton administrators then called in the boys and, without even suggesting they contact their parents — let alone a lawyer — demanded the boys’ written confessions, supposedly for school-disciplinary hearings provided for in the school’s student handbook. But within 24 hours, instead of holding hearings Milton expelled the boys and handed over their signed statements — statements that amounted to confessions to statutory rape — to the police.
Because Massachusetts does not have a so-called “Romeo and Juliet” exception to its statutory-rape laws — which would exempt from prosecution consensual sex between youths close in age — the expelled boys faced the possibility of criminal convictions, even jail. On June 1, 2005, they got plea bargains that deferred prosecution or probation, after which their records would be clean.
Throughout the affair, Milton pursued an aggressive public-relations campaign. With trumpets blaring, Head of School Robin Robertson declared in letters to parents and alums that Milton had taken “strong and decisive action” by expelling the boys. In one letter, Robertson indicated (falsely, according to the complaint) that James and the other boys coerced the girl into performing oral sex by creating a “pressurized situation”, merely by outnumbering the girl. And yet Robertson’s letter also tells how, as time went by, revelations surfaced that the January 24 incident was not isolated. On the contrary, in at least two prior instances the girl had engaged in the same behavior with various groups of boys. Nonetheless, the girl was treated differently: she was neither disciplined formally by the school nor charged with a crime.
The legal complaint is typical of these disputes in alleging that the school was negligent, broke Milton’s contract with the family, defamed young James, and inflicted emotional distress on his family. Typical, that is, until you get to Count Three. The “Breach of Covenant of Good Faith and Fair Dealing” claim invokes an old common-law doctrine that holds that a private association has a duty to treat its members with at least a minimal degree of decency, fairness, and good faith. Many lawyers and judges involved in private-school litigation have operated on the assumption that this doctrine probably applies to a private school’s treatment of its students, but the precise issue has not actually been decided by the state’s highest court.