Tuesday, October 07, 2008

Arizona State May Be Liable for Rape by Football Player

In April we posted about a pending Title IX case against Arizona State stemming from a rape committed by a football player, Darnel Henderson, against another student. The plaintiff, identified only as J.K., sued ASU, alleging that in light of university officials' actual knowledge of prior instances of sexual harassment committed by Henderson, they acted unlawfully with deliberate indifference in failing to supervise him or take other corrective action that would have prevented his act of rape against her.

Specifically, Henderson had been kicked out the Summer Bridge program (a transition program for incoming freshmen) for committing various acts of sexual harassment and other behavior problems. His behavior was so threatening to female residence hall staff members in Henderson's dorm that one actually resigned her position and another moved out on his account. Even though Henderson was expelled from the summer program, he was allowed to return to ASU as a student that fall and to join the ASU football team thanks to the intervention of the football coach, Dirk Koetter. Moreover, due to Koetter's policy that players live in on-campus housing, Henderson was assigned to the same dorm from which he had been expelled earier that summer. Notwithstanding subsequent instances of of behavior problems, Henderson receievd "no special supervision, monitoring, mentoring, counseling or guidance; a zero-tolerance plan [that had been promised by Koetter] was never implemented." In the spring of his freshman year, Henderson raped plaintiff J.K., who lived in the same dorm. Though criminal charges were not brought, ASU's internal investigation concluded that it was "more likely than not" that Henderson assaulted J.K.

In considering ASU's motion for summary judgment of J.K.'s claim that it violated Title IX, the federal district court rejected ASU's argument that it responded reasonably to Henderson's disruptive, sexually harassing behavior in the summer program. Even though Henderson was kicked out of the summer program, his expulsion was not reported to the Judicial Affairs Board as required, his return to ASU and to the football team was facilitated by the football coach, he was allowed to live in the dorms without supervision, and he was not disciplined by the football coach with a "three strikes" policy, as the coach had promised in securing Henderson's reentry to ASU. This response, said the court, is not clearly unreasonable as a matter of law, and thus J.K.'s case should proceed to trial.

The court also denied the football coach Dirk Koetter's motion for summary judgment, leaving open the possibility that a jury could find him liable to J.K. for his failure to discipline a player with known behavior problems as he had promised.

Decision is: J.K. v. Arizona Board of Regents, 2008 WL 4446712 (D. Ariz. Sept. 30, 2008).