10th Circuit Reinstates Harassment Case Against University of Colorado

Yesterday a federal appellate court reinstated Lisa Simpson and Anne Gilmore's sexual harassment lawsuit against the University of Colorado when it overturned a 2005 district court decision that granted summary judgment to CU.

Simpson and Gilmore allege that in 2001, they were assaulted by CU football players and recruits, all of whom were participating in a university-sponsored effort to "show recruits 'a good time.'" Their lawsuit against the university was thrown by the lower court judge who did not think that the plaintiffs' evidence established that CU knew about and was indifferent to the risk of assault posed to the plaintiffs by its recruiting practices.

But the appellate panel unanimously disagreed. It held that the evidence presented could support a finding that the risk of an assault during recruiting visits was obvious. The Women's Sports Foundation submitted 14 articles published in mainstream news outlets prior to the 2001 assaults that addressed the prevalence of sexual misconduct associated with college football recruiting in general. Moreover, in 1997, high school students were assaulted by CU football recruits at an off-campus party. This incident was investigated by the Boulder police and brought to the attention of the Athletic Director, the Chancellor, and the University Counsel. In the wake of this investigation, the Boulder DA asked these university officials to adopt better policies and procedures for supervising recruits. However, there were no changes in CU's recruiting policies or practices that specifically addressed sexual conduct by recruits.

Moreover, the minimal guidance that the university did provide to its football players about sexual harassment had clearly proven to be inadequate. First, there was evidence that head coach Gary Barnett knew about the harassment that kicker Katie Hnida had been subject to at the hands of her teammates in 1999 and 2000 (described in her memoir Still Kicking), as well as the rape of a female trainer by a football player two months before the assaults on Simpson and Gilmore.

In light of all of this evidence, the appellate court concluded that the appropriate CU officials, namely Barnett, knew that the football recruiting program posed a serious risk of sexual assault to female student hosts. Thus, "a jury could infer that the need for more or different training of player-hosts was so obvious, and the inadequacy so likely to result in Title IX violations, that Coach Barnett could reasonably be said to have been deliberately indifferent to that need."

A jury could now potentially get that chance, unless CU sees the writing on the wall and offers a a generous settlement.