School Abuse Case May Proceed, Judge Says

By Jenny Anderson
New York Times
August 30, 2012

http://www.nytimes.com/2012/08/29/nyregion/poly-prep-sexual-abuse-case-may-proceed-judge-rules.html?_r=1

[court document]

A top-tier Brooklyn private school cannot automatically use New York State’s statute of limitations to prevent a case involving sexual abuse allegations against a former football coach from proceeding, a judge ruled Tuesday, because of the possibility that the school may have engaged in a scheme to cover up decades of abuse.

¶ The ruling by the judge, Frederic Block of the Federal District Court in Brooklyn, paves the way for a hearing to establish whether there was a cover-up by the school, Poly Prep, and if it prevented the plaintiffs from bringing a case within the statute of limitations. In New York, survivors of sexual abuse that occurred while they were minors must file a case by the time they are 23.

¶ The judge dismissed all racketeering charges against Poly Prep, but allowed 2 of the 12 plaintiffs to go forward with their racketeering claims against current and former board and administration members. In his 40-page ruling, Judge Block also allowed civil charges including fraud and violations of Title IX, which specifically prohibits sexual abuse, to move forward to a hearing.

¶ The case is being closely watched, as allegations of sexual abuse and the way powerful institutions manage knowledge of those allegations has exploded within the Roman Catholic Church, in the Hasidic community in Brooklyn and in high-profile schools like Horace Mann in the Bronx and Penn State University.

¶ At Poly Prep, 12 plaintiffs, alumni of the school and its summer camp, claim that they were raped and molested by Philip Foglietta, the former football coach. Mr. Foglietta was an iconic leader who started working at the school in 1966 and died in 1998. The first allegation against him by a student came in 1966, the ruling says. Accompanied by his parents, the student told the headmaster that Mr. Foglietta had abused him on multiple occasions. The family was told that an investigation was conducted, that the student’s claims were not credible and that the student would face “severe consequences” if he continued to make such allegations, according to the ruling.

¶ In 1991, Mr. Foglietta retired from Poly Prep. A dinner was held to celebrate his retirement at New York City’s Downtown Athletic Club. When he died in 1998, the lawsuit says, Poly Prep established a memorial fund and solicited donations in his name. The plaintiffs argue that the school treated him as a revered coach, fund-raising on his legacy and celebrating his tenure, in spite of knowledge that he abused young boys for decades.

¶ Judge Block made clear that the plaintiffs still face “several hurdles.” Each plaintiff will have to prove that statements about Mr. Folglietta’s “lily-white reputation were false and made with knowledge of their falsity,” his decision says. Each will have to show that they had relied on the school’s misrepresentations in not bringing a suit earlier, and that once they learned of the school’s alleged deceit, they acted promptly to bring a case.

¶ Kevin T. Mulhearn, a lawyer representing the plaintiffs, said the ruling was a victory. “The court has basically carved out an exception on statute of limitation claims where the party has engaged in affirmative misrepresentations or deceitful conduct,” he said. Edward Flanders, a partner at Pillsbury Winthrop Shaw Pittman L.L.P. working with Mr. Mulhearn, said the “egregious facts” of the case would allow them to clear the hurdles set forth by Judge Block.

¶ Tisha Kresler, a spokeswoman for Poly Prep from Rubenstein Associates, said: “The Court dismissed nearly all of the RICO claims,” she wrote, referring to the Racketeer Influenced and Corrupt Organizations Act. She added that the court had also “ordered an evidentiary hearing, describing the hurdles the plaintiffs must overcome to avoid dismissal of their Title IX and state law claims.” She said that the school still believed the claims would be dismissed, but that it was actively seeking a settlement with the plaintiffs.

¶ Alumni at Horace Mann, which has been grappling with allegations and at least one admission of past sexual abuse, also applauded the ruling.

¶ “This decision levels the playing field between victims and schools by showing that the current statute of limitations isn’t absolute,” said Robert Boynton, communications director for the Horace Mann Action Coalition, a nonprofit organization founded to push Horace Mann to investigate sexual abuse at the school.

¶ The Poly Prep case has taken many twists and turns. In 2004, one alumnus filed a civil suit against the school over abuse. The case was dismissed because the statute of limitations had been exceeded.

¶ In 2009, a larger group of alumni filed a new case, arguing that a cover-up by the school of the abuse prevented the plaintiffs from filing suit in a timely fashion. The vehicle they used to sue was federal racketeering charges, which include mail and wire fraud. The plaintiffs argue that while the school fired Mr. Foglietta for sexual misconduct, it lied to the Poly Prep community about the true nature of his dismissal — and his career there.

¶ Two of the plaintiffs made financial contributions to the school, so they can be considered victims of the school’s alleged scheme to defraud the community through deception about Mr. Foglietta’s legacy, the judge ruled. Those contributions totaled $2,500. But in defending his decision to allow the two RICO charges to move forward, the judge wrote that the scheme alleged is not “just a string of isolated statements.” He continued, “Rather, it is a decades-long attempt to conceal the school’s knowledge of Foglietta’s despicable conduct.”