Monday, September 03, 2012

Poly Prep Must Defend Title IX Lawsuit for Sexual Abuse by Coach

In 2009, ten former students of Poly Prep Country Day School, a private high school in Brooklyn, sued the school under Title IX and other laws, claiming damages arising from having been sexually abused by the school's former football coach, Philip Foglietta, between the years 1966 and 1986. The plaintiffs allege that school officials knew of Foglietta's widespread abuse and worked to conceal it. Recently, a federal court in New York decided in the plaintiffs' favor on two preliminary questions arising out of the age of the underlying allegations.  

One of Poly Prep's defenses is that Title IX only applied to programs directly receiving federal funds in the years following the Supreme Court's 1984 decision in Grove City College v. Bell.  Grove City College was later supplanted by a congressional statute restoring institution-wide liability that went into effect in 1988.  As such, Poly Prep argued that the school cannot be liable under Title IX for alleged acts which occurred before 1988, because the federal funding Poly Prep received during this time -- funds to support scholarships and loans as well as construction and rehabilitation projects -- were not direct to the athletic program.  The court rejected this argument, however, finding evidence in the 1988 statute that Congress intended its application to be retroactive, including the Act's use of terms such as "restore" and "clarify."  A Second Circuit case from 1989 held similarly on the question of the 1988 statute's retroactivity, providing precedent for this court to follow.     

Poly Prep's other argument was that the plaintiffs' Title IX claims are barred by the statute of limitations because they are so old.   Title IX itself does not contain a statute of limitations.  Instead, courts apply the statute of limitations that governs similar actions under state law, which in New York is three years.  However, plaintiffs are not penalized for missing the deadline to file suit if the nature of the injury has been "fraudulently concealed."  It is possible that by concealing that they had knowledge of Foglietta's wrongdoing, Poly Prep officials made plaintiffs believe that they had no claim against the school.  To hold plaintiffs' claims as time barred would violate the reasoning of New York state courts' that "[a] defendant/wrongdoer cannot take affirmative steps to prevent a plaintiff from bringing a claim and then assert the statute of limitations as a defense."  The burden will be on the plaintiffs to prove that the elements of fraud occurred, including that they relied on misrepresented or concealed information as the basis for not bring suit.  But for now, the plaintiffs Title IX claims (as well as a state law claims for negligence, which is also subject to the statute of limitations defense) remain a part of the case.

Also of note: in an earlier post about this litigation, we noted that the case raised the question of whether federal tax exempt status counted as a receiving federal funds for purposes of Title IX.  This argument no longer appears to be an issue in the case, having been supplanted by the discovery that Poly Prep received direct federal funds (for student loans, construction projects) during the time period in question.  The court also rejected it in a footnote, noting "Courts have held, however, that such status does not constitute federal financial assistance within the meaning of Title IX. See, e.g., Stewart v. New York Univ., 430 F.Supp. 1305, 1314 (S.D.N.Y.1976)."

Decision: Zimmerman v. Poly Prep Country Day School, 2012 WL 3683393 (E.D.N.Y, Aug. 28, 2012).