Poly Prep school attorney argues Title IX moot in sexual abuse case

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An attorney for Poly Prep Day School says the men who claim they were sexually abused by the private school’s longtime football coach fumbled when they asked a judge to amend their lawsuit to include claims that the school violated Title IX by demonstrating deliberate indifference to their allegations.

In papers filed in Brooklyn federal court on Friday, attorney Jeffrey Kohn wrote that the plaintiffs should not be able to make claims against the Dyker Heights school based solely on the school’s tax-exempt status.

Title IX, the 1972 law best known for enforcing equality for women in collegiate sports, prohibits education programs that receive federal aid from discriminating based on gender. Kevin Mulhearn, the lawyer representing nine men who claim they were sexually abused by longtime Poly Prep football coach Phil Foglietta, filed papers last week asking a judge for permission to amend their complaint to invoke Title IX because the law clearly prohibits sexual abuse and sexual harassment. The private school is subject to Title IX even if it has not received direct federal funding, Mulhearn wrote, because it is a tax-exempt institution.

Kohn responded in the filing by saying other courts have barred plaintiffs from making Title IX claims based solely on tax status.

“Plaintiffs will be unable to satisfy the core requirement that Poly Prep has received federal funding,” Kohn wrote.

But the papers do not specifically say whether Poly Prep ever received federal funds.

“I find it interesting that Poly Prep’s attorneys didn’t categorically deny that Poly Prep has received any form of federal assistance during the relevant period,” Mulhearn said. “In fact, our investigation over the last week has revealed that for many years Poly Prep students received thousands of dollars in federal financial aid. We look forward to exploring this issue at greater length.”