By Benjamin Mueller (New York Times)
August 28, 2014
A lawyer for dozens of men who say they were sexually abused as high school students by rabbis at Yeshiva University High School for Boys in Manhattan asked a federal appeals court on Thursday to reinstate a lawsuit claiming that the school had covered up the misconduct for decades.
Contending that a federal judge who had earlier dismissed the case misconstrued the statute of limitations, the lawyer, Kevin T. Mulhearn, argued that the school, in Washington Heights, should be held accountable for hundreds of acts of abuse from the 1970s through the early 1990s because its complicity had only recently come to light. The case hinges, in part, on whether it was the obligation of the victims to pursue hints of a cover-up before school administrators acknowledged that they had known of the crimes.
The suit, filed on behalf of 34 clients, was thrown out in January by a federal judge, John G. Koeltl, who ruled that too many years had elapsed since the alleged abuse had taken place. Mr. Mulhearn countered in his appeal that the clock did not start ticking on their case until Yeshiva’s role in protecting the two rabbis accused of abuse was revealed in a December 2012 article in The Daily Forward.
The arguments provoked often stinging replies from a three-judge panel of the United States Court of Appeals for the Second Circuit, which focused on when the former students could have known that Yeshiva had put them in danger by ignoring claims of abuse by the rabbis. The judges challenged the timelines sketched by both sides; they disputed the notion that the former students could not have pursued legal action before 2012, as well as Yeshiva’s claim that it was the students’ duty to raise complaints of a cover-up immediately after the abuse occurred.
Noting that Yeshiva had allowed the rabbis to remain on the faculty for years after students had reported being abused, Judge Reena Raggi suggested that that sent a clear signal of a cover-up, triggering the start of a three-year window when the former students were eligible to file a lawsuit. “How does that not put your clients on notice that the school was deliberately indifferent?” she asked.
Mr. Mulhearn countered that the cover-up had put the students in an impossible bind, preventing them from discovering Yeshiva’s role in the abuse even as the school continued to conceal its misconduct. The basis for the students’ complaint was that the school’s efforts to conceal earlier allegations had paved the way for his clients to be abused, he said, a fact that they did not discover until the university’s chancellor admitted in 2012 that he had known of the allegations and dealt with them privately.
But the panel reserved much of its pique for Yeshiva’s lawyer, Karen Y. Bitar. Over the judges’ repeated objections, Ms. Bitar argued that the clock started ticking on the students’ case against the school as soon as they were abused. The rabbis’ propensity to abuse students was a poorly kept secret, she said, adding that the former students “sat on their rights for between 20 and 40 years.”
Judge Guido Calabresi called that a “remarkable” claim. In an analogous case, he said, victims of a car accident could not be expected to pursue allegations of possible safety-related misconduct against the car manufacturer immediately after they were hurt.
Chiding Ms. Bitar for inaccurately co-opting the trial judge’s reasoning, Judge Calabresi added: “Judge Koeltl knew what he was doing. I’m asking if you know what you are doing.”
The passage of decades since former students at two other private schools in New York City were abused has not kept them from pursuing legal action. Plaintiffs from Poly Prep in Brooklyn, who were also represented by Mr. Mulhearn, successfully circumvented the statute of limitations in their case based on the argument that the school had concealed decades of sexual abuse of boys by a football coach. At the Horace Mann School in the Bronx, former students reached individual out-of-court settlements with the school.
At the time of his retirement last year, after many decades at Yeshiva University, Chancellor Norman Lamm issued a public apology for the way he had handled the allegations of abuse. “Despite my best intentions then,” he wrote, “I now recognize that I was wrong.”
On Thursday, neither the judges nor either side’s lawyer disputed the accounts of abuse made by former students, a few of whom sat watchfully in the courtroom. In a moment of unusual transparency, Judge Calabresi said that even as the court was weighing competing claims about the statute of limitations, it was also bound to try to right the unmistakable wrongs that took place at Yeshiva.
Describing the rabbis’ behavior as “appalling,” Judge Calabresi said that “any decent court is going to be interested, if it possibly can, in giving redress.”