Yeshiva University Victims Appeal over Heads of Appeals Court Panel

By Paul Berger
Jewish Daily Forward
September 9, 2014

http://forward.com/articles/205381/yeshiva-university-victims-appeal-over-heads-of-ap/?

A group of former students who say they were sexually abused at Yeshiva University High School for Boys have asked a full federal appeals court to reconsider a smaller judicial panel’s ruling that upheld the dismissal of their lawsuit.

The students’ attorney, Kevin Mulhearn, submitted a petition September 8 calling for an en banc, or full court, hearing of the United States Court of Appeals for the 2nd Circuit after a three-judge panel from the same court supported the dismissal of the students’ $680 million lawsuit.

The appeals followed an earlier judge’s rejection of the suit on the grounds that the statute of limitations for trying it had passed.

Calling the three-judge panel’s conduct “manifestly unjust, grossly improper, and… a blatant abuse of judicial power,” Mulhearn argues in his petition that the court “improperly assumed the role of Yeshiva University’s advocate and attorney.”

If the court refuses to rehear his case, Mulhearn has vowed to appeal to the U.S. Supreme Court.

The 34 students sued Y.U. in 2013, claiming that they were abused by Rabbi George Finkelstein, an administrator who rose to become principal of Y.U.’s high school, and Macy Gordon, a Talmud teacher. Both men were employed by Y.U. for about 25 years.

The students say that, rather than investigate the reports of these staff members’ conduct and take appropriate action, Y.U. covered up the allegations of abuse and misrepresented the safety of the school.

The incidents of abuse are alleged to have occurred during the 1970s, ’80s and ’90s.

The students’ case was dismissed by United States District Judge John G. Koeltl in January 2014. Koeltl cited federal and state statutes of limitations, noting that “the statutes of limitations have expired decades ago, and no exceptions apply.”

Students have up to three years from the time they become aware of a school’s deliberate indifference to file a claim under Title IX of the federal civil rights law. To prove deliberate indifference, students must show that before they were abused, a high-ranking official knew that the school employed an abusive staff member and did not act appropriately.

During oral arguments before the three-judge appeals panel, Mulhearn contended that the statute of limitations began to run only after former students learned about Y.U.’s abuse “cover-up” from a December 2012 article in the Forward.

Y.U.’s lawyer, Karen Bitar, argued that the statute of limitations began to run as soon as the students were abused.

The appeals judges reacted with incredulity to Bitar’s argument. United States Circuit Judge Guido Calabresi reminded Y.U.’s lawyer that not even Koeltl believed the statute of limitations began as far back as the time each of the students was abused.

But United States Circuit Judge Reena Raggi cautioned Mulhearn not to become overconfident. Raggi warned that Mulhearn’s main obstacle was to overcome Koeltl’s decision, not Bitar’s legal argument.

The judges upheld Koeltl’s dismissal of the case September 4. Their ruling noted that because each of the students knew that Y.U. continued to employ abusive staff members long after the students were assaulted, that was sufficient to alert them to Y.U.’s “awareness of and indifference to” their abuse.

In his petition calling for an en banc hearing, Mulhearn argues that the appeals court erred by relying on a statute of limitations argument that was rejected by Y.U.’s lawyers. “The Panel’s attempt to sweep this issue (and its own mind-boggling abuse of judicial authority) under the rug… illustrates the gross deficiency and intellectual dishonesty of the Panel’s Title IX analysis and determination,” his petition states.

Y.U. declined to respond to a request for comment.

In a previous statement, issued after the September 4 ruling, a spokesman for Y.U. said that the university welcomed the appeals court ruling.

The spokesman, Matt Yaniv, said the “decision concludes a legal proceeding that has been trying for all involved. Our thoughts remain with anyone who may have been harmed by actions that occurred many years ago and our confidential counseling services remain available to those affected.”

Contact Paul Berger at berger@forward.com or on Twitter