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California’s Move to Eliminate Private Schools

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California Senate Bill 131 is the latest volley in the political campaign against religious and private educational institutions, especially Catholic ones.

SB 131 raises the current civil statute of limitations on damage lawsuits that are brought on the grounds of childhood sexual abuse. Under existing law, such a suit must be brought within 8 years of the child’s 18th birthday or 3 years from when the alleged victim realizes the psychological damage that has resulted from the abuse. The proposed replacement would allow lawsuits for acts occurring as long ago as 40 years. Or, rather, it would allow suits against private or nonprofit schools and employers, including Catholic schools and charities, but not against public schools or employers.

Specifically, SB 131

1.eliminates the statute of limitations for victims who are 25 years old as of Jan. 1, 2014;

2.allows victims who are 26 as of Jan. 1, 2014, to file for damages until they are 48, or within five years from when a qualified professional establishes a connection between a victim’s psychological problems and the abuse; and,

3.gives alleged victims who are 48 or older as of Jan. 1, 2014, a one-year window to sue their abusers.

 

Why are public schools and employers exempt?

The California government site Leginfo explains, “Under existing law, states are generally immune from lawsuits.” Grounded in the idea of state sovereignty, “the Eleventh Amendment initially only protected states from being sued in federal court by citizens of another state.” In 1999, however, the Supreme Court extended state immunity to include “private suits against states in state court as well.” Leginfo continues, “Accordingly, citizens generally cannot sue states, state entities, or state officials in their official capacities.”

Notwithstanding the Eleventh Amendment, however, California chose to open itself to private suits through state legislation that allowed child sex-abuse claims against “local public entities” if the abuse occurred either “on or after January 1, 2009.”

Public employees still enjoy relative immunity after the 2009 deadline, although it is possible for them to be sued as individuals.

Speaking of the new legislation, Ned Doleisi of the California Catholic Conference explained, “To add insult to injury, SB 131 even protects the actual abuser from being sued — the only claims that are revived are against private employers and nonprofit organizations.”

Both houses of the California legislature have a supermajority of Democrats. SB 131 has passed the Senate and the Assembly Judiciary Committee. The House Appropriations Committee is expected to approve it in August.

 

SB 131 is for the children, of course

At a news conference in April, the primary author of the bill, Senator Jim Beall, stated, “SB 131 is about justice for the victims of abuse, period. Victims of child sex abuse have a right to seek justice for the heinous acts that were perpetrated against them.” Critics quickly pointed to the huge flaw in Beall’s argument. Approximately 92 percent of school children are in public schools.

Moreover, child abuse is far more likely to occur in public schools than in private ones for at least two reasons. Parents tend to screen private schools more closely. And private schools must pay their own legal fees and settlements, while public schools use tax money.

Private schools have learned from recent California history. Due to a 2003 revision to the California statute of limitations, Catholic schools had to pay approximately $1.2 billion in awards to settle about 1,000 claims. This does not include their own legal fees. The schools also lost a great deal of respect and support from their communities. As a result the Catholic schools in California have implemented stringent protections against child abuse. For example, they require teachers to go through training courses on how to identify and handle such abuse; public schools do not routinely offer this training.

In a letter of June 6, the Catholic League’s President William A. Donohue addressed the members of the California Assembly,

Today there is no institution in the nation that has less of a problem with the sexual abuse of minors than the Catholic Church. Indeed, in the last six years, the average annual number of credible allegations made against over 40,000 priests is 7.0. So why the need to target the one institution that doesn’t tolerate sexual abuse? (PDF)

Donohue contrasted the Catholic crackdown with how public schools treat abuse. He referenced the sexual-abuse scandal that rocked Miramonte Elementary School in California to its roots. In 2012, the school was closed after nonstop press coverage of the abuse. One hundred and twenty-eight staff members were temporarily reassigned to different schools. Donohue continued,

One of the teachers, Mark Berndt, was arrested in January 2012 and charged with 23 counts of engaging in lewd conduct, over a period of five years, with his third-grade students.… After he was fired by the Los Angeles Unified School District, he appealed. The district did not want to fight him, so they gave him $40,000 to go away.

 

The real purpose of SB 131

SB 131 is not for the children. It is for political advantage.

The first advantage: it would saddle private schools with an unequal financial liability that could bankrupt them or cause their rates to rise beyond the ability of many parents to pay.

Private schools embarrass public ones. They are embarrassments because the education is clearly far superior in most private schools than in public ones. This is evidenced, not merely by superior test results, but by the fact that parents are willing to pay twice over to educate their children well; they pay taxes to support the public system and fees to their own private institutions.

Private schools impoverish public ones. Every day a student is not forced to attend a public school, the public-school system loses the federal and state money that is doled out based on their head count. In business terms, private schools are the competition. Especially in a recession, when the jobs and pensions of public-school teachers are in question, the public system has to eliminate competition.

Furthermore, religious schools, especially Catholic ones, are generally hostile to many of the issues that Democrats generally champion. From abortion to homeschooling, from gay marriage to Obamacare, the Democrats correctly view many if not most religious organizations as ideological opponents. But sidestepping the First Amendment’s guarantee of freedom of religion can be a difficult dance. For politicians, it is far easier to bankrupt their opponents by changing a statute than it is to fight them on constitutional grounds.

The second political advantage: SB 131 is a high-profile distraction from the child abuse occurring within public schools. Under this law, the number of lawsuits that are brought against private schools would almost certainly dwarf those brought against public ones. Especially with sensational reporting, the sexual abuse of children will appear to be a private and Catholic problem to which government courts are the solution. This will make the politicians look compassionate toward children and proactive about abuse.

In fact, SB 131 will deprive children of educational alternatives while protecting pedophiles within the public schools that children are forced to attend. Nevertheless, the bill is a vote winner. This is especially true because the mainstream media is overwhelmingly reporting the measure as a protection against the sexual abuse of children.

The third political advantage: SB 131 panders to one of the strongest — if not the strongest — bases of Democratic political support: unions. It will drive children into public schools, where their attendance would fund California’s powerful teachers’ unions (especially the California Teachers Association) with hundreds of thousands of members and millions of dollars to spend on political campaigns.

 

Conclusion

SB 131 combines several political trends that have become common in recent years: It sidesteps a constitutional right (freedom of religion) by treating the exercise of that right as a matter of statute or other law. It is done “for the children.” It further embeds a double standard in the law that penalizes average people and exempts civil servants for the same behavior. It is an expression of incredible arrogant elitism.

It is likely to pass, although a legal challenge is also likely to occur. But every wind blows someone good news: in this case, lawyers will get richer. As the California Council of Nonprofit Organizations stated in opposition to SB 131,

If the goal of SB 131 was to provide compensation for victims, then the bill would recognize and provide redress to all victims equally. The retroactive provisions of SB 131 exclude claims of victims of public schools and of state and local public agencies. The bill seeks to find deep pocket defendants consisting of private institutions while adopting the political expediency of abandoning victims of public institutions.

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    Wendy McElroy is an author for The Future of Freedom Foundation, a fellow of the Independent Institute, and the author of The Reasonable Woman: A Guide to Intellectual Survival (Prometheus Books, 1998).