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Can the Hershey School discriminate? Judges are considering it

Bob Fernandez
The Philadelphia Inquirer

PHILADELPHIA — Pennsylvania’s richest charity, the 2,000-student Milton Hershey School for poor children, is seeking through sealed court actions to exempt itself from the state’s discrimination laws even as it spends millions of dollars defending itself against federal discrimination lawsuits.

The politically connected institution says it deserves the same discrimination exemptions as neighborhood parochial schools that advance the Catholic faith. The Hershey School, funded by a torrent of stock dividends and created by chocolate titan Milton Hershey as an orphanage, recruits low-income students throughout Pennsylvania and surrounding states.

Religion — such as chapel attendance — is part of the program, but the charity’s mission is to lift low-income children into the middle class.

The Hershey School faces federal lawsuits claiming that school officials forced house parents to attend evangelical church services and expelled depressed students. In 2012, the Hershey School settled with the Justice Department for rejecting admission to a teenager with HIV, agreeing to pay him and the federal government $715,000.

Under seal: The Pennsylvania Human Relations Commission rejected the Hershey School’s petition to place itself beyond the jurisdiction of its anti-discrimination oversight, but Commonwealth Court heard, under seal, an appeal brought by the charity and last month sent it back to the commission for more hearings, still under seal.

It would be a “license to discriminate,” Drexel University law professor David S. Cohen warned. “Imagine if ShopRite were not subject to the (public accommodation) laws. It could refuse service to black people, women, those with disabilities.”

Stephen Gold, a retired civil rights attorney in Philadelphia, said it was “shocking” that the case was being heard under seal in a state appeals court. The charity “gets many benefits from its nonprofit status, and it should abide by the same laws as everyone else,” he said.

The Inquirer and the Washington nonprofit Reporters Committee for Freedom of the Press filed on Dec. 3 with Commonwealth Court to unseal the case documents, saying the case had been “litigated entirely in secret.”

The Inquirer’s application says that “this extreme secrecy has deprived The Inquirer and other members of the press and the public of information about a newsworthy lawsuit that is unquestionably of public interest, and it violates the public’s constitutional and common law rights of access to judicial records and proceedings.”

A three-judge panel heard the case on Sept. 9 in Harrisburg. As the hearing was to begin, the judges asked the public to leave the courtroom. An Inquirer reporter objected, saying the media had a First Amendment right to be there. The judges told the reporter to leave anyway.

Commonwealth Court released an opinion on the case on Nov. 9, sending it back to the Pennsylvania Human Relations Commission for more hearings. The 16-page opinion is the only publicly available document on the case. A docket query pulls up no entries in Commonwealth Court’s public-access terminals. Commonwealth Court Judges Renee Cohn Jubelirer, Ellen Ceisler and Bonnie Brigance Leadbetter comprised the panel.

They said that “given the multiple privacy interests involved, we will maintain the case and record under seal,” adding that the case involved “a student’s readmission to the school after a leave of absence.”

Setting a precedent: Ryan Allen Hancock, a former assistant chief counsel with the Pennsylvania Human Relations Commission, said that if the Hershey School succeeded in exempting itself from commission oversight, it would set a precedent for future Hershey School exemptions.

“They are saying they are not bound by Pennsylvania discrimination laws,” Hancock said.

Hancock said that during his time at the commission, “I had never seen a case filed under seal.” Privacy concerns were dealt with through redaction, he said.

Hershey School spokesperson Lisa Scullin said that “we have always complied with the rule of law. We take great care to comply with all state and federal laws and regulations, including those that address anti-discrimination, such as the Americans With Disabilities Act.”

Renee Martin, the spokesperson for the Pennsylvania Human Relations Commission, said on Monday that “we can’t comment on pending litigation.”

According to the Pennsylvania Human Relations Commission website, the agency enforces discrimination laws in employment, housing, commercial property, education and public accommodations. Also, according to the commission’s website, Pennsylvania law prohibits discrimination based on race, religion, age, sex, family status and physical disability.

2016 reforms: Because of the 2016 reform agreement between the $14 billion charity and the Pennsylvania Office of Attorney General, Attorney General Josh Shapiro approves new board members to the Hershey charitable organization. Agency spokesperson Mark Shade said that the law enforcement agency was not involved in the case. He said that Shapiro’s office favors “heightened accountability and more transparency regarding charities.”

Shapiro has said that the Hershey School, given its billions of dollars in assets, should vastly expand the number of students it serves beyond its one large campus with 175 boarding homes. The charity owns a controlling stake in the Hershey candy firm. The charity has not announced expansion plans even as Hershey Co. stock price has soared. Some believe the charity should open satellite campuses around Pennsylvania.

If successful, the Hershey School’s child-care mission would be exempt from anti-discrimination oversight by the Pennsylvania Human Relations Commission, but charity-controlled commercial enterprises such as the Hershey Co. headquarters, a Reese’s plant, the Giant Center arena for concerts and HersheyPark would remain under the commission’s oversight, attorneys say.

“It is certainly not a winning public argument to ask to be allowed to discriminate, so it’s not surprising that they want this sealed,” Drexel professor Cohen said.

The Hershey School owns more stock and other assets than all but the wealthiest colleges, far more than Drexel but comparable with the University of Pennsylvania. The charity pays its board members about $100,000 a year.

The Inquirer, also with the assistance of the Reporters Committee and Philadelphia attorney Mike Berry of the Ballard Spahr firm, has filed to unseal documents in two federal lawsuits that claim negligent care at the Hershey School, brought by a former male student and the estate of a female student. Both suits claim that the school expelled – or put on leave of absence – students with depression and suicidal thoughts. The school spends $110,000 to $120,000 per student a year.

In those two Harrisburg cases, Chief Judge Christopher Conner agreed to seal documents that described why they were being sealed at all. After the Hershey School’s law firm, Elliott Greenleaf, hired Conner’s son in its Harrisburg office, he stepped down and Judge John E. Jones III now presides over the cases.