One of the most contentious legal issues in disciplined-student cases under Title IX is what level of detail the plaintiff needs to include in the complaint in order to avoid having the claim dismissed at the outset of litigation, prior to either discovery or trial. Many male students who have sued to overturn expulsion or suspension for sexual assault include a sort of reverse-discrimination argument; i.e., that the institution violated Title IX because it was motivated to punish them because of their sex.
Courts will dismiss any complaint that does not include enough detail to put the defendant on notice of what, exactly, they are being sued for; yet at the same time, because the law permits defendants to file motions to dismiss early in the litigation process, courts also try not to punish a plaintiff for not having the information they haven't yet had the opportunity to discover. In civil rights cases generally, it is challenging for courts to consistently draw this line, and Title IX claims in disciplined-student cases seem to be particularly challenging. Courts tend to agree on the language they use to describe the pleading standard ("minimally plausible inference" " no "conclusory allegations"), but not necessarily on what that standard means in practice.
In a recent district court decision, a federal judge in Colorado dismissed a disciplined-student's Title IX claim after concluding that his allegations of bias did not meet the pleading standard. Specifically, the plaintiff alleged that university officials involved in his disciplinary proceeding were biased against his sex because:
* the Title IX coordinator and the person who investigated his case were both women
* the investigator had a background in victim's advocacy
* an article in the Chronicle of Higher Education once attributed a statement to the investigator that used the word 'perpetrator' --as in, "the process is designed to expel or suspend perpetrators" which the plaintiff claimed was evidence of her bias that everyone accused of assault is guilty.
* the fact that the university was under investigation already by the Department of Education for mishandling sexual assault, which the plaintiff alleged created external pressure to rush to judgment in his case.
* a pattern that respondents in sexual assault cases tend to be male.
None of these allegations created a minimally plausible inference of gender bias, ruled the court. The first three were rejected for what I suggest are non-controversial reasons. Bias can not be inferred from someone's sex or previous work experience. Using the word "perpetrator" alongside "expelled" (which, the court noted, wasn't even a direct quote and could have been the reporter's word rather than the investigator's) in no way suggests that those who have not in fact perpetrated sexual assault should also be expelled.
The court's rejection of the last two allegations, however, illustrates the division among federal courts.This court interpreted the plaintiff's "external pressure to rush to judgment" argument as, at most, creating an inference of bias against those accused of sexual assault, which is different from bias against men. Even though men are more likely to be respondents, the court reasoned, it is not the university's decision to place them in that category, it is students themselves who do so. It is plausible that a university would have been just as motivated to disciplined a student for sexual assault if a female student had been the one accused. Yet, other courts have been willing to except the "external pressure" allegation as well as other allegations that equate bias against those accused of sexual assault with bias against men.
This decision contributes to what appears to be an emerging patchwork of districts and circuits that are more or less favorable to Title IX claims in disciplined-student cases.
Decision: Doe v. University of Colorado-Boulder, 2017 WL 2311209 (D. Colo. May 26, 2017).
Showing posts with label University of Colorado. Show all posts
Showing posts with label University of Colorado. Show all posts
Thursday, June 01, 2017
Wednesday, June 03, 2015
Considering the new SEC policy
The SEC announced a new policy this week that would prevent student-athletes with records of domestic violence and sexual assault from transferring to SEC schools (as athletes). It was a proposal made by Georgia and adopted fairly readily according to reports. Whether one particular incident (like Alabama's acceptance of a football player who was under investigation at Georgia for domestic violence at time of transfer and has allegedly re-offended) or just greater awareness of the issue of sexual assault and domestic violence inspired the new policy has not been made clear.
The exact wording of the policy is as follows: "a transfer student-athlete who has been subject to official university of athletics department disciplinary action at any time during enrollment at any previous collegiate institution (excluding limited discipline applied by a sports team or temporary disciplinary action during an investigation) due to serious misconduct (as defined herein) shall not be eligible for athletically-related financial aid, practice or competition at an SEC member institution."
In my recent research/writing/thinking, I have been looking at why athletics departments have not been affected by the increasing visibility of activism aimed at addressing campus sexual assault. In other words why have they, arguably, been relatively unscathed for not following correct policies and procedures when they learn that student athletes have been accused of sexual violence. Most colleges and universities accused of mishandling sexual assault reports do not truly fear the ultimate--and only--penalty the Office of Civil Rights can levy--loss of federal funds--because it has never happened. There are potential large financial penalties if students file lawsuits rather than or in addition to a complaint with OCR, as happened at University of Connecticut.
The biggest hit at the moment, however, is the one schools take to their reputation. As campus sexual assault becomes more visible because of activism, media coverage, survivor narratives, and investigations schools are receiving considerable negative attention. And schools do not want this.
The desire for reversing negative publicity does not seem to apply at the moment to athletics departments. They seem to be weathering the storm fairly well. Look at Florida State. Look at Colorado, who paid out a multi-million dollar settlement in the mid-00s. Look at Oregon currently under investigation and facing a lawsuit. Have their athletics departments suffered? Have people called for boycotts of games or stopped buying merchandise? No. Have schools reprimanded their athletics departments by imposing internal sanctions or firing administrators who fail to policy and procedure in these matters? Not that I have seen.
Actually, let's go back to Oregon. It provides an example of how the SEC policy, while a good one, would not work in this case because of a culture of secrecy and protection of student athletes. Oregon took as a transfer a player from Providence College who was kicked off that basketball team for alleged participation in a gang rape. But he was not formally punished or investigated by the college. There was nothing on his transcript. Oregon officials maintain that they did not know of his past. He was then kicked off the basketball team, along with two other players, after a student accused them of rape. Said player, Brandon Austin, has transferred to a junior college in Florida. They are aware of the accusations against him.
So the SEC policy, if it existed at this junior college or the conference to which it belongs, would have prevented Austin from transferring there for the purpose of playing basketball. But it would not have prevented the original transfer from Providence to Oregon.
In other words, this policy does not get at the whole problem. It is based on the premise that schools and their athletics departments are doing their jobs in reporting and investigating sexual assault and violence in the correct way. This is not universally true. We cannot know statistics, unfortunately, on this matter. Most of the evidence is anecdotal and we have to assume that the lawsuits that have emerged are a small percentage of actual mishandling based on what we know about underreporting and the harassment and dismissal of those who do initially report.
The SEC's policy does not mean there will be no more offenders accepted as student athletes at SEC schools. Look again at the exception in parentheses: "excluding limited discipline applied by a sports team." This is the type of discipline being doled out to accused student-athletes in an attempt to appease victims. It is a violation of Title IX if the act in question is sexual assault or harassment. It cannot be handled internally. This policy is a start at addressing this issue, but we need more done at the front end of this problem, including stronger punishments against offending athletics departments.
The exact wording of the policy is as follows: "a transfer student-athlete who has been subject to official university of athletics department disciplinary action at any time during enrollment at any previous collegiate institution (excluding limited discipline applied by a sports team or temporary disciplinary action during an investigation) due to serious misconduct (as defined herein) shall not be eligible for athletically-related financial aid, practice or competition at an SEC member institution."
In my recent research/writing/thinking, I have been looking at why athletics departments have not been affected by the increasing visibility of activism aimed at addressing campus sexual assault. In other words why have they, arguably, been relatively unscathed for not following correct policies and procedures when they learn that student athletes have been accused of sexual violence. Most colleges and universities accused of mishandling sexual assault reports do not truly fear the ultimate--and only--penalty the Office of Civil Rights can levy--loss of federal funds--because it has never happened. There are potential large financial penalties if students file lawsuits rather than or in addition to a complaint with OCR, as happened at University of Connecticut.
The biggest hit at the moment, however, is the one schools take to their reputation. As campus sexual assault becomes more visible because of activism, media coverage, survivor narratives, and investigations schools are receiving considerable negative attention. And schools do not want this.
The desire for reversing negative publicity does not seem to apply at the moment to athletics departments. They seem to be weathering the storm fairly well. Look at Florida State. Look at Colorado, who paid out a multi-million dollar settlement in the mid-00s. Look at Oregon currently under investigation and facing a lawsuit. Have their athletics departments suffered? Have people called for boycotts of games or stopped buying merchandise? No. Have schools reprimanded their athletics departments by imposing internal sanctions or firing administrators who fail to policy and procedure in these matters? Not that I have seen.
Actually, let's go back to Oregon. It provides an example of how the SEC policy, while a good one, would not work in this case because of a culture of secrecy and protection of student athletes. Oregon took as a transfer a player from Providence College who was kicked off that basketball team for alleged participation in a gang rape. But he was not formally punished or investigated by the college. There was nothing on his transcript. Oregon officials maintain that they did not know of his past. He was then kicked off the basketball team, along with two other players, after a student accused them of rape. Said player, Brandon Austin, has transferred to a junior college in Florida. They are aware of the accusations against him.
So the SEC policy, if it existed at this junior college or the conference to which it belongs, would have prevented Austin from transferring there for the purpose of playing basketball. But it would not have prevented the original transfer from Providence to Oregon.
In other words, this policy does not get at the whole problem. It is based on the premise that schools and their athletics departments are doing their jobs in reporting and investigating sexual assault and violence in the correct way. This is not universally true. We cannot know statistics, unfortunately, on this matter. Most of the evidence is anecdotal and we have to assume that the lawsuits that have emerged are a small percentage of actual mishandling based on what we know about underreporting and the harassment and dismissal of those who do initially report.
The SEC's policy does not mean there will be no more offenders accepted as student athletes at SEC schools. Look again at the exception in parentheses: "excluding limited discipline applied by a sports team." This is the type of discipline being doled out to accused student-athletes in an attempt to appease victims. It is a violation of Title IX if the act in question is sexual assault or harassment. It cannot be handled internally. This policy is a start at addressing this issue, but we need more done at the front end of this problem, including stronger punishments against offending athletics departments.
Monday, February 23, 2015
More Campus Sexual Assault Litigation Updates
Title IX lawsuits related to campus sexual assault remain in the news:
- University of Colorado-Boulder has settled a lawsuit with a student who claimed the university discriminated against him in violation of Title IX in the process of finding him responsible for the sexual assault of a fellow student in 2013. The university will reportedly pay the student $15,000, and the student, in turn, has promised to withdraw. Per the terms of the settlement, if asked for a reference the University will not disclose anything other than the fact that he was found responsible for two violations of the code of conduct, and that prior to his withdrawal he was in good academic standing. The university's general counsel referred to the settlement as a "business decision" to avoid the high cost of litigation, while the plaintiff's attorney was happy that the settlement preserved her client's anonymity in connection with the "false accusations" of assault.
- A fraternity at Wesleyan University has sued the university challenging its requirement that residential fraternities become coed over the next three years; a policy change in the wake of (and presumably responsive to) accusations of sexual assault that have taken place at fraternity houses. The lawsuit, filed by the local chapter of Delta Kappa Epsilon, one of the two residential fraternities affected by the new policy, claim that it singles out male organizations in violation of Title IX. Reports elsewhere suggest that the reason Wesleyan's only sorority was not affected by the policy is because they do not maintain on-campus houses -- a fact that could make it difficult for the DKE plaintiffs to sustain their argument that Wesleyan's policy is differentiating based on sex.
- A female student has sued the University of New Mexico alleging that the university responded with deliberate indifference to her report that she had been drugged and sexually assaulted by two football players while other players watched and recorded it on video. She claims that the university conducted a lackluster investigation in order to shield the players from disciplinary action, including by ignoring witnesses and failing to consider evidence. The accused students were temporarily suspended from the football team during the off-season, but were reinstated prior to the conclusion of the investigation. Meanwhile, the plaintiff alleges that she was harassed and re-victimized as football players continued to share video of her from the night of the assault. She suffered emotionally as a result, and was unable to attend classes. She eventually lost her academic scholarship, forcing her to withdraw from UNM and enroll at a school with higher tuition. Her lawsuit seeks damages to compensate her for those losses.
- A female graduate student has sued the University of Stony Brook (part of the SUNY system) alleging that the university violated Title IX in the hands-off manner it handled the disciplinary process of the student she accused of assaulting her in his dorm room. University officials conducted an investigation but when it came to the hearing required the plaintiff to present her own case against the accused student after only providing her a week to prepare her case. The accused student was found not responsible for assault because it appeared to the disciplinary committee that the sexual contact between them was consensual.
Wednesday, December 03, 2014
Swarthmore Litigation Resolves as College Vacates Disciplinary Committee's Findings Against Student
Earlier this year, we blogged about a male student's lawsuit against Swarthmore College, alleging bias in the college disciplinary proceeding that found him responsible for sexual assault and lead to his expulsion. Swarthmore had vigorously defended the lawsuit until a surprising turn of events this week, when the college announced that it had vacated the findings against the student, explaining that "additional information became available which both parties believe
raises questions about the impartiality of the college judiciary
committee panel that heard [the plaintiff’s] case, which "raises sufficient questions about the fairness of the hearing to warrant
vacating the panel’s findings and sanctions." The student and Swarthmore then filed a joint motion to dismiss the student's case against the college, which the judge granted.
Though the college has vacating the findings of the proceeding that has occurred, it did not agree to automatically reinstate the student. Yet while the student would have to undergo another hearing before being eligible to return to Swarthmore, such a hearing is not expected to occur as the student has enrolled elsewhere.
The Swarthmore case is one of a number recent cases in which male students disciplined for sexual assault have sued their universities alleging bias and/or procedural violations. (Another such case, this one against the University of Colorado, was reported last week.)
Though the college has vacating the findings of the proceeding that has occurred, it did not agree to automatically reinstate the student. Yet while the student would have to undergo another hearing before being eligible to return to Swarthmore, such a hearing is not expected to occur as the student has enrolled elsewhere.
The Swarthmore case is one of a number recent cases in which male students disciplined for sexual assault have sued their universities alleging bias and/or procedural violations. (Another such case, this one against the University of Colorado, was reported last week.)
Saturday, May 10, 2014
Colorado pays settlement to sexual assault victim
The University of Colorado Boulder will be paying out a $32,500 settlement to a student who was sexually assaulted by another student last year. The victim reported the assault but the perpetrator was allowed to stay on campus for four weeks, received a $75 fine, and an 8-month suspension.
The settlement includes no admittance of guilt or liability by the university. It should be noted, however, that the complaint filed by the victim is still under investigation.
Also, the university is still in the process of hiring a Title IX coordinator--a recommendation from a recent external review.
This is all a little bit troubling given that this is not the first time Colorado has had very public issues with campus sexual assault that was improperly handled. In fact, I would argue that the Lisa Simpson case from 2007 earned the university far more publicity and cost a lot more--$2.5 million.
Given that the ultimate sanction for Title IX violations--loss of federal monies--has yet to be enacted, I have repeatedly said that the negative publicity is itself a deterrent. But Colorado has had plenty of that in addition to paying out millions of dollars and yet it cannot seem to even hire a Title IX administrator and clean up its policies and procedures. Part of the problem could be the attitude of administrators and staff about sexual assault. If it is all represented by the statements of the university's chief legal counsel, there will continue to be trouble. Patrick O'Rourke said that the university needs to make "intelligent and prudent business decisions" to best serve its mission without being involved in litigation.
Perhaps the university community would be better served if the handling of sexual assault was not based on a business model.
The settlement includes no admittance of guilt or liability by the university. It should be noted, however, that the complaint filed by the victim is still under investigation.
Also, the university is still in the process of hiring a Title IX coordinator--a recommendation from a recent external review.
This is all a little bit troubling given that this is not the first time Colorado has had very public issues with campus sexual assault that was improperly handled. In fact, I would argue that the Lisa Simpson case from 2007 earned the university far more publicity and cost a lot more--$2.5 million.
Given that the ultimate sanction for Title IX violations--loss of federal monies--has yet to be enacted, I have repeatedly said that the negative publicity is itself a deterrent. But Colorado has had plenty of that in addition to paying out millions of dollars and yet it cannot seem to even hire a Title IX administrator and clean up its policies and procedures. Part of the problem could be the attitude of administrators and staff about sexual assault. If it is all represented by the statements of the university's chief legal counsel, there will continue to be trouble. Patrick O'Rourke said that the university needs to make "intelligent and prudent business decisions" to best serve its mission without being involved in litigation.
Perhaps the university community would be better served if the handling of sexual assault was not based on a business model.
Sunday, February 02, 2014
Sexual Assault Roundup
There's been lots of news about individual colleges' policies and practices regarding sexual assault. Here is a brief roundup.
In (albeit anecdotal) evidence of colleges taking sexual assault grievances seriously, the University of Michigan expelled a football player for sexual assault.
Amherst College expelled a student as well.
At the University of Connecticut, OCR is confirmed to have opened an investigation in response to complaints of its mishandling of sexual assault. A private lawsuit is also underway.
Swarthmore announced changes to its sexual assault and harassment policies, in response internal investigations prompted by a federal complaint filed last year.
University of North Carolina reports a stronger partnership between its department of public safety and other parts of campus in support of a more effective sexual assault response.
Iowa State students are now required to take an online training on violence prevention, as part of its universities efforts to comply with requirements of Title IX.
The University of Colorado announced the positive results of an external review of its Title IX policies, while setting goals to exceed the minimum requirements of compliance. Separately, the university made news by removing the chair of its department of philosophy, amid allegations of sexual harassment.
In (albeit anecdotal) evidence of colleges taking sexual assault grievances seriously, the University of Michigan expelled a football player for sexual assault.
Amherst College expelled a student as well.
At the University of Connecticut, OCR is confirmed to have opened an investigation in response to complaints of its mishandling of sexual assault. A private lawsuit is also underway.
Swarthmore announced changes to its sexual assault and harassment policies, in response internal investigations prompted by a federal complaint filed last year.
University of North Carolina reports a stronger partnership between its department of public safety and other parts of campus in support of a more effective sexual assault response.
Iowa State students are now required to take an online training on violence prevention, as part of its universities efforts to comply with requirements of Title IX.
The University of Colorado announced the positive results of an external review of its Title IX policies, while setting goals to exceed the minimum requirements of compliance. Separately, the university made news by removing the chair of its department of philosophy, amid allegations of sexual harassment.
Tuesday, July 23, 2013
Updates on OCR's Investigations into Colleges' Responses to Campus Sexual Assault
The Department of Education's Office for Civil Rights has its hands full with sexual assault complaints. It has opened investigations into the complaints filed earlier by students from Dartmouth College, University of Southern California, University of Colorado Boulder, Swarthmore College, Occidental College, and University of North Carolina, Chapel Hill. Here are some updates in each of those cases.
In the Dartmouth case, OCR has initiated on its own an investigation into possible Title IX violations in the college's sexual harassment grievance procedures, its responses to sexual harassment claims, and its designation of a Title IX coordinator. These claims were not included in the students' earlier-filed complaint, which focused on sexual assault reporting problems as alleged Clery Act violations.
At USC, the OCR will investigate claims that the university failed to investigate and discipline students accused of rape. One complainant told OCR that campus police refused to consider an act of rape when a male student penetrated her, but did not ejaculate. Another said that university official told her, by way of explanation for not responding to her allegation of rape, that the university's job was to the educate, not to punish students.
The student who filed a complaint about CU Boulder alleges that the university failed to adequately respond to sexual assault committed on her, even though her assailant was found guilty of nonconsensual intercourse by a university disciplinary committee. The assailant was sanctioned to an 8 month suspension, which was not enforced for four weeks during which time he continued to have contact with her. Meanwhile, the local criminal court had no trouble issuing a restraining order that would prevent the him from returning to campus while she is a student there. She argues that the university should have been willing to provide at least as much protection to ensure her safety and well-being.
The ongoing Title IX investigation about Swarthmore's failure to adequately respond to sexual assault has already prompted the college to update its policies, it was recently reported. Swarthmore responded to the initial filing of the complaint last May by hiring a private company to conduct an independent review of its handling of sexual assault, and its findings form the basis for the college's changes going forward. The college will also hire a Title IX coordinate and a victim's advocate, and will improve training for university staff. These changes could speed up OCR's investigation, and could allow Swarthmore to emerge from the investigation with OCR's effective blessing on current practices and procedures. Swarthmore also faces complaints that they underreported sexual assaults in violations of the Clery Act, and OCR has not yet announced an investigation into these claims.
Like Swarthmore, Occidental College also hired an external reviewer to evaluate its sexual assault policies, even while OCR's investigation is ongoing.
OCR's investigation into complaints that UNC violated Title IX and the Clery Act recently expanded to include a claim that it retaliated against the student who initially filed those complaints by charging her with an honor code violation. The charge, which was ultimately dropped, accused her of creating an intimidating environment for her alleged abuser. UNC is also accused of retaliating against the initial complainant by moving her assailant to a dorm near her residence.
In the Dartmouth case, OCR has initiated on its own an investigation into possible Title IX violations in the college's sexual harassment grievance procedures, its responses to sexual harassment claims, and its designation of a Title IX coordinator. These claims were not included in the students' earlier-filed complaint, which focused on sexual assault reporting problems as alleged Clery Act violations.
At USC, the OCR will investigate claims that the university failed to investigate and discipline students accused of rape. One complainant told OCR that campus police refused to consider an act of rape when a male student penetrated her, but did not ejaculate. Another said that university official told her, by way of explanation for not responding to her allegation of rape, that the university's job was to the educate, not to punish students.
The student who filed a complaint about CU Boulder alleges that the university failed to adequately respond to sexual assault committed on her, even though her assailant was found guilty of nonconsensual intercourse by a university disciplinary committee. The assailant was sanctioned to an 8 month suspension, which was not enforced for four weeks during which time he continued to have contact with her. Meanwhile, the local criminal court had no trouble issuing a restraining order that would prevent the him from returning to campus while she is a student there. She argues that the university should have been willing to provide at least as much protection to ensure her safety and well-being.
The ongoing Title IX investigation about Swarthmore's failure to adequately respond to sexual assault has already prompted the college to update its policies, it was recently reported. Swarthmore responded to the initial filing of the complaint last May by hiring a private company to conduct an independent review of its handling of sexual assault, and its findings form the basis for the college's changes going forward. The college will also hire a Title IX coordinate and a victim's advocate, and will improve training for university staff. These changes could speed up OCR's investigation, and could allow Swarthmore to emerge from the investigation with OCR's effective blessing on current practices and procedures. Swarthmore also faces complaints that they underreported sexual assaults in violations of the Clery Act, and OCR has not yet announced an investigation into these claims.
Like Swarthmore, Occidental College also hired an external reviewer to evaluate its sexual assault policies, even while OCR's investigation is ongoing.
OCR's investigation into complaints that UNC violated Title IX and the Clery Act recently expanded to include a claim that it retaliated against the student who initially filed those complaints by charging her with an honor code violation. The charge, which was ultimately dropped, accused her of creating an intimidating environment for her alleged abuser. UNC is also accused of retaliating against the initial complainant by moving her assailant to a dorm near her residence.
Friday, January 14, 2011
CU football player arrested for sexual assault
Kudos to University of Colorado for not trying to bury this incident, but rather speaking out about the charges against Michael Sipili who was arrested for sexual assault this week.
Sipili is being referred to as a "former football player" because his eligibility expired with the end of the fall season. But he is still enrolled as a student and my guess is that he is still involved in football team activities--at the very least on a social level. In other words, this is semantics. All it means is that he won't be suspended from the football team because, technically, he is no longer a member.
But CU has expressed its disappointment in Sipili, whom they let back on the team after a previous violent incident (he punched someone). Administrators were quick to point out the many steps they have taken to combat a culture of sexual harassment and assault that existed on the campus. These steps, of course, were required as part of the settlement from the 2001 sexual assault of two female student-athletes at a football recruiting party. (Other posts about this case can be found under the University of Colorado tag.) And CU seems to have taken the issue of climate change seriously. I speak as an outsider, of course, and realizing that it would not have been wise for officials at a school where sexual assault by student-athletes has been a problem to NOT say something when there has been another incident (though the circumstances, as noted in the above-linked article are quite different).
I don't have any particularly profound assessment. I think a school can have the best intentions and make concerted efforts to combat hostile climates, but these students have had 18 years of living in and participating in climates/situations with varying levels of hostility and prejudice. It's not easy work to dismantle these things. Some of us try to do it every day in classrooms--and other venues. A one-credit mandatory course is simply not going to create radical shifts in thinking in everyone. This is not to say it should be eliminated, but that we should be realistic about the results. I am pretty happy with the mini epiphanies I get to see among my own students. And I just hold out hope that others will have those moments long after they leave my classroom. It's too bad Mr. Sipili didn't have one before his alleged actions. But whether CU is supposed to shoulder some of the blame for this is not clear at this point.
Sipili is being referred to as a "former football player" because his eligibility expired with the end of the fall season. But he is still enrolled as a student and my guess is that he is still involved in football team activities--at the very least on a social level. In other words, this is semantics. All it means is that he won't be suspended from the football team because, technically, he is no longer a member.
But CU has expressed its disappointment in Sipili, whom they let back on the team after a previous violent incident (he punched someone). Administrators were quick to point out the many steps they have taken to combat a culture of sexual harassment and assault that existed on the campus. These steps, of course, were required as part of the settlement from the 2001 sexual assault of two female student-athletes at a football recruiting party. (Other posts about this case can be found under the University of Colorado tag.) And CU seems to have taken the issue of climate change seriously. I speak as an outsider, of course, and realizing that it would not have been wise for officials at a school where sexual assault by student-athletes has been a problem to NOT say something when there has been another incident (though the circumstances, as noted in the above-linked article are quite different).
I don't have any particularly profound assessment. I think a school can have the best intentions and make concerted efforts to combat hostile climates, but these students have had 18 years of living in and participating in climates/situations with varying levels of hostility and prejudice. It's not easy work to dismantle these things. Some of us try to do it every day in classrooms--and other venues. A one-credit mandatory course is simply not going to create radical shifts in thinking in everyone. This is not to say it should be eliminated, but that we should be realistic about the results. I am pretty happy with the mini epiphanies I get to see among my own students. And I just hold out hope that others will have those moments long after they leave my classroom. It's too bad Mr. Sipili didn't have one before his alleged actions. But whether CU is supposed to shoulder some of the blame for this is not clear at this point.
Monday, August 31, 2009
Colorado making progress
As part of University of Colorado's settlement of a sexual harassment lawsuit with two former students, the university hired lawyer, law professor, and Title IX expert Nancy Hogshead-Makar to review existing gender discrimination and sexual harassment policies and recommend new ones.
Hogshead-Makar released a report a few weeks ago citing considerable progress on the part of the university in many areas of gender discrimination and sexual harassment policy.
A few things left to work on include:
Hogshead-Makar released a report a few weeks ago citing considerable progress on the part of the university in many areas of gender discrimination and sexual harassment policy.
A few things left to work on include:
- more refined policies on student pregnancy and parenting
- implementing the recommendations from the Sexual Assault-Sexual Harassment (SASH) Task Force's Gender Violence Prevention Plan
- more efforts at prevention
- and finally a consolidated policy that elucidates all the university's discrimination and sexual harassment policies and prevention efforts
A copy of the report can be retrieved via the above link.
Thursday, November 13, 2008
Simpson panel provides more details
In a vein similar to that of a post the other day on attorney Walter Paboojian, I wanted to mention briefly a panel discussion of the Lisa Simpson case that highlighted the role of supporters in Title IX cases--especially the cases that become pretty vicious.
University of Massachusetts professor Dr. Todd Crossett, who was an expert witness in the lawsuit against University of Colorado, put together the panel of five individuals who either worked directly on or were affiliated with the case last week in Denver at the annual conference of the North American Society for the Sociology of Sport.
What was especially valuable about the panel was the diversity of participants and the approach: they all told their own stories about their involvement with the case. The Title IX Blog started writing about the Simpson case fairly late in the process (sorry--we didn't exist in 2001 when it all began!). So the panel was helpful in filling in some of back story. Additionally, I heard details I hadn't ever seen reported in the press about the administration's ambivalent (at best) response and all the details about Simpson and some of the others involved that were "leaked" to the media.
And finally, the panel so adeptly illustrated that it takes a group of people to successfully challenge, both in the courts and in society more generally, beliefs about sport--football in particular, violence, masculinity and femininity, race, and sexuality--all of which (and more) were part of the discourse around this case.
Included in the panel were: Baine Kerr, one of Simpson's attorneys (I actually missed his piece but I saw him a couple of years ago at Harvard when the case was ongoing); Scott Adler, a political science professor at CU who served on the Special Committee on Athletics Reform that had begun to address some of the ills in the athletic department before the Lisa Simpson story broke; Catherine Guerrero, a community organizer who is currently working at the Colorado Department of Health and Environment in the Sexual Assault Prevention Program. She was not directly involved in the case but worked within the feminist community as it addressed both the Simpson and Kobe Bryant cases. Kim Hult, another of Simpson's lawyers who did a great job describing her own feelings about and experiences with CU football, former president Betsy Hoffman, and other administrators; and Joanne Belknap, a criminology professor at CU who spoke up in support of Lisa Simpson and basically got a lot of crap for it--I mean, a lot: threats of all sorts and colors.
The discussion clearly had a cathartic effect for most of the panelists as well as providing information most of us--even those who followed the case closely--would never have had access to.
University of Massachusetts professor Dr. Todd Crossett, who was an expert witness in the lawsuit against University of Colorado, put together the panel of five individuals who either worked directly on or were affiliated with the case last week in Denver at the annual conference of the North American Society for the Sociology of Sport.
What was especially valuable about the panel was the diversity of participants and the approach: they all told their own stories about their involvement with the case. The Title IX Blog started writing about the Simpson case fairly late in the process (sorry--we didn't exist in 2001 when it all began!). So the panel was helpful in filling in some of back story. Additionally, I heard details I hadn't ever seen reported in the press about the administration's ambivalent (at best) response and all the details about Simpson and some of the others involved that were "leaked" to the media.
And finally, the panel so adeptly illustrated that it takes a group of people to successfully challenge, both in the courts and in society more generally, beliefs about sport--football in particular, violence, masculinity and femininity, race, and sexuality--all of which (and more) were part of the discourse around this case.
Included in the panel were: Baine Kerr, one of Simpson's attorneys (I actually missed his piece but I saw him a couple of years ago at Harvard when the case was ongoing); Scott Adler, a political science professor at CU who served on the Special Committee on Athletics Reform that had begun to address some of the ills in the athletic department before the Lisa Simpson story broke; Catherine Guerrero, a community organizer who is currently working at the Colorado Department of Health and Environment in the Sexual Assault Prevention Program. She was not directly involved in the case but worked within the feminist community as it addressed both the Simpson and Kobe Bryant cases. Kim Hult, another of Simpson's lawyers who did a great job describing her own feelings about and experiences with CU football, former president Betsy Hoffman, and other administrators; and Joanne Belknap, a criminology professor at CU who spoke up in support of Lisa Simpson and basically got a lot of crap for it--I mean, a lot: threats of all sorts and colors.
The discussion clearly had a cathartic effect for most of the panelists as well as providing information most of us--even those who followed the case closely--would never have had access to.
Tuesday, March 11, 2008
Hogshead-Makar to help CU
As part of its multimillion dollar sexual harassment settlement last fall the University of Colorado agreed to hire a Title IX adviser and they filled that position recently with Title IX expert, author, law professor, and Olympic gold medalist Nancy Hogshead-Makar. Hogshead-Makar is keeping busy these days. She has been involved in former FGCU volleyball coach Jaye Flood's lawsuit. She also just co-edited a book with Andrew Zimbalist, Equal Play: Title IX and Social Change.
I don't suspect that she will give up her Florida commitments--like her position at Florida Coastal School of Law though the news brief was not very clear about the nature or duration of the position. Regardless, it seems she will be making some visits to Colorado as she embarks on this new job.
We here at the Title IX Blog send her many congratulations, best wishes (and maybe a pair of mittens)!
UPDATE: According to the Denver Post, Hogshead-Makar will continue to live in Florida but travel to CU to do her evaluation (which is only focused on sexual harassment; it is not a comprehensive Title IX review). Also, I should have added to her current list of projects the similar work she is doing at University of North Carolina.
The Daily Camera, CU's student newspaper, reports that it is a five-year position and that she will be taking a sabbatical next year.
I don't suspect that she will give up her Florida commitments--like her position at Florida Coastal School of Law though the news brief was not very clear about the nature or duration of the position. Regardless, it seems she will be making some visits to Colorado as she embarks on this new job.
We here at the Title IX Blog send her many congratulations, best wishes (and maybe a pair of mittens)!
UPDATE: According to the Denver Post, Hogshead-Makar will continue to live in Florida but travel to CU to do her evaluation (which is only focused on sexual harassment; it is not a comprehensive Title IX review). Also, I should have added to her current list of projects the similar work she is doing at University of North Carolina.
The Daily Camera, CU's student newspaper, reports that it is a five-year position and that she will be taking a sabbatical next year.
Thursday, January 03, 2008
Top ten of 2007
[This was promised two days ago but, well, it just didn't happen. Please don't hold it against it us. We promise it does not an indication of a pattern in the new year.]
Below are what we saw as the top ten Title IX stories of the year. As Ebuz noted to a reporter from Inside HigherEd not too long ago, it was a good year to be a Title IX plaintiff. You will see this reflected below, but other events were pivotal as well. The list is in no particular order--we could say it's because we here at the Title IX Blog don't like to hierarchize, but really it's impossible to figure out what was the most significant story of the year. There were so many times this year we just found ourselves saying to one another: "No way. Really?" And in a good way.
1. University of Colorado settles sexual harassment case with two former students who accused the university--now with a new president and athletic director--of failing to do enough to remedy the situation with football recruit parties that lead to their sexual assaults. We expect to see a very positive ripple effect from this case in future sexual harassment cases.
2. All things Fresno State. Three cases of discrimination, three wins (we consider settlement a win in this situation). Great record for Title IX--not so good for Fresno State, California taxpayers, and university president John Welty who we predict (because it is the time of year for making predictions) will not make it through 2008 in his current position. We also predict that as exciting as Stacy Johnson-Klein's $19.1 million jury award was--it will not stand up. We expect a reduction in the amount and hope Fresno does not push for a new trial. And though the cases of Lindy Vivas, Diane Milutinovich and Johnson-Klein seem to have reached the denouement, don't expect 2008 to be a good time for Fresno State. An assistant in the athletic department filed a discrimination suit at the end of 2007. We will have to wait and see what Fresno learned this past year as they approach this new charge of discrimination.
3. The anniversary. 2007 marked the 35th anniversary of the legislation and it seemed every media outlet in the country (and beyond) covered it some way. It was all very celebratory and certainly we celebrated too, but much of this coverage failed to critically address the backlash against Title IX. Luckily there were plenty of opportunities this year to correct all the misinformation about the law that came from sports writers, non-sports writers, television commentators, bloggers, and people with all sorts of opinions. But the anniversary also provided a great opportunity for assessment and discourse about the future. We were excited to be a small part of this conversation not only on this blog but at events like the Girls and Women Rock Conference in Cleveland last April.
4. Jennifer Harris v. Rene Portland. The lawsuit got settled; the terms and gathered evidence were sealed, but we heard things here and there and read between the lines and generally were pleased. Then we were even more pleased when Portland resigned shortly after the season ended. Jennifer Harris deserves the utmost respect and many thanks for being the first person to stand up to Portland's racist, sexist, and homophobic behavior.
5. Florida Gulf Coast University. Pat Griffin has dubbed FGCU "Fresno east." Not a nickname you want to have hanging around your athletic department as it tries to become a more serious contender in DI athletics. What FGCU might learn from Fresno is hard to discern right now. The administration does not seem to think it is, in any way, in the wrong in its treatment of female coaches, very few of whom actually remain at the school. But just like their counterparts across the country, these women are fighting back. And they are making homophobia a more salient issue in the discussion of their treatment.
6. UNC's Anson Dorrance is going to stand trial for sexual harassment. This case has been ongoing for years, but in April, assuming no settlement is reached (which is a big assumption given the precedent that seems to have been set in 2007) head soccer coach Dorrance will finally have to answer for his treatment of his players and the sexualized atmosphere he created on the team.
7. Cheerleading. Yep. We wrote about cheerleading a fair amount this year given it is not even an NCAA-approved sport. This did not stop University of Oregon, though, from creating only the second varsity-level competitive cheer program in the country (after Maryland). The addition of a non-sanctioned sport alone would have created some controversy (as it has at UMD) but the decision to add competitive cheer just as Oregon was cutting wrestling (and simultaneously reinstating baseball) created quite a stir. Things may have settled a bit at Oregon but the issue of competitive cheer as sport that counts toward Title IX compliance is not likely to go away soon and, though it may not happen this year, I would not be surprised to see a lawsuit brought by a club sport player whose team did not get elevated to varsity status because cheerleading did.
The other big cheerleading news was at the high school level where most cheer teams are not considered sports but rather constitute support for sports teams. This means, under Title IX, if you provide such support to your boys' teams, you must do so for your girls' teams. This was the issue at hand in New York, when a mother of a female basketball player protested the lack of cheerleaders at the girls' games and their constant presence on the boys' sidelines. And despite our awareness of entrenched gender norms in this society, we were a little surprised at the backlash engendered by the mandate for equal amounts of cheering that seemed to stem largely from a general feeling that girls should not be cheering for other girls.
8. Softball fields. It is not much of an exaggeration to say that we found about a story almost every week about the condition of softball fields. Most came out of high schools, but a few were about college fields as well. Parents, players, concerned citizens have been filing complaints about how the inferior fields are a violation of Title IX. Why softball fields? They are a very tangible measure of compliance. Look at the baseball field; look at the softball field. Are there lights, concession stands, same level of maintenance, outright ownership, suitable dugouts, fences, bleachers, etc. on both fields? It is difficult to defend a softball field that is lacking in any of these things when the field used by the baseball team has them. And that is why so many softball fields across the country this year got some major face lifts.
9. Seasons of change in Michigan. It finally ended. The case against the Michigan High School Athletic Association ended last April when the Supreme Court denied the organization cert. This has meant that the lower court's decision that MHSAA was in violation of Title IX and the Equal Protection Clause in its scheduling of girls' sports out of their traditional seasons has stood. Michigan high schools have had to change their schedules accordingly. The controversy this case created was enormous and the incivility of the discussions was disheartening. We hope that 2008 is the proverbial calm after the storm and that everyone is working more willingly than not toward dealing effectively with the scheduling changes.
10. Boosters. Almost as ubiquitous as the stories about softball fields were the stories about booster club funds. Yes, money raised by booster clubs must be considered in the quest for equitable support of girls' and boys' teams. High schools in Pennsylvania and California are addressing and accounting for booster club funds right now. More stories like this and the other ones we covered this year are likely to emerge in the coming year.
Below are what we saw as the top ten Title IX stories of the year. As Ebuz noted to a reporter from Inside HigherEd not too long ago, it was a good year to be a Title IX plaintiff. You will see this reflected below, but other events were pivotal as well. The list is in no particular order--we could say it's because we here at the Title IX Blog don't like to hierarchize, but really it's impossible to figure out what was the most significant story of the year. There were so many times this year we just found ourselves saying to one another: "No way. Really?" And in a good way.
1. University of Colorado settles sexual harassment case with two former students who accused the university--now with a new president and athletic director--of failing to do enough to remedy the situation with football recruit parties that lead to their sexual assaults. We expect to see a very positive ripple effect from this case in future sexual harassment cases.
2. All things Fresno State. Three cases of discrimination, three wins (we consider settlement a win in this situation). Great record for Title IX--not so good for Fresno State, California taxpayers, and university president John Welty who we predict (because it is the time of year for making predictions) will not make it through 2008 in his current position. We also predict that as exciting as Stacy Johnson-Klein's $19.1 million jury award was--it will not stand up. We expect a reduction in the amount and hope Fresno does not push for a new trial. And though the cases of Lindy Vivas, Diane Milutinovich and Johnson-Klein seem to have reached the denouement, don't expect 2008 to be a good time for Fresno State. An assistant in the athletic department filed a discrimination suit at the end of 2007. We will have to wait and see what Fresno learned this past year as they approach this new charge of discrimination.
3. The anniversary. 2007 marked the 35th anniversary of the legislation and it seemed every media outlet in the country (and beyond) covered it some way. It was all very celebratory and certainly we celebrated too, but much of this coverage failed to critically address the backlash against Title IX. Luckily there were plenty of opportunities this year to correct all the misinformation about the law that came from sports writers, non-sports writers, television commentators, bloggers, and people with all sorts of opinions. But the anniversary also provided a great opportunity for assessment and discourse about the future. We were excited to be a small part of this conversation not only on this blog but at events like the Girls and Women Rock Conference in Cleveland last April.
4. Jennifer Harris v. Rene Portland. The lawsuit got settled; the terms and gathered evidence were sealed, but we heard things here and there and read between the lines and generally were pleased. Then we were even more pleased when Portland resigned shortly after the season ended. Jennifer Harris deserves the utmost respect and many thanks for being the first person to stand up to Portland's racist, sexist, and homophobic behavior.
5. Florida Gulf Coast University. Pat Griffin has dubbed FGCU "Fresno east." Not a nickname you want to have hanging around your athletic department as it tries to become a more serious contender in DI athletics. What FGCU might learn from Fresno is hard to discern right now. The administration does not seem to think it is, in any way, in the wrong in its treatment of female coaches, very few of whom actually remain at the school. But just like their counterparts across the country, these women are fighting back. And they are making homophobia a more salient issue in the discussion of their treatment.
6. UNC's Anson Dorrance is going to stand trial for sexual harassment. This case has been ongoing for years, but in April, assuming no settlement is reached (which is a big assumption given the precedent that seems to have been set in 2007) head soccer coach Dorrance will finally have to answer for his treatment of his players and the sexualized atmosphere he created on the team.
7. Cheerleading. Yep. We wrote about cheerleading a fair amount this year given it is not even an NCAA-approved sport. This did not stop University of Oregon, though, from creating only the second varsity-level competitive cheer program in the country (after Maryland). The addition of a non-sanctioned sport alone would have created some controversy (as it has at UMD) but the decision to add competitive cheer just as Oregon was cutting wrestling (and simultaneously reinstating baseball) created quite a stir. Things may have settled a bit at Oregon but the issue of competitive cheer as sport that counts toward Title IX compliance is not likely to go away soon and, though it may not happen this year, I would not be surprised to see a lawsuit brought by a club sport player whose team did not get elevated to varsity status because cheerleading did.
The other big cheerleading news was at the high school level where most cheer teams are not considered sports but rather constitute support for sports teams. This means, under Title IX, if you provide such support to your boys' teams, you must do so for your girls' teams. This was the issue at hand in New York, when a mother of a female basketball player protested the lack of cheerleaders at the girls' games and their constant presence on the boys' sidelines. And despite our awareness of entrenched gender norms in this society, we were a little surprised at the backlash engendered by the mandate for equal amounts of cheering that seemed to stem largely from a general feeling that girls should not be cheering for other girls.
8. Softball fields. It is not much of an exaggeration to say that we found about a story almost every week about the condition of softball fields. Most came out of high schools, but a few were about college fields as well. Parents, players, concerned citizens have been filing complaints about how the inferior fields are a violation of Title IX. Why softball fields? They are a very tangible measure of compliance. Look at the baseball field; look at the softball field. Are there lights, concession stands, same level of maintenance, outright ownership, suitable dugouts, fences, bleachers, etc. on both fields? It is difficult to defend a softball field that is lacking in any of these things when the field used by the baseball team has them. And that is why so many softball fields across the country this year got some major face lifts.
9. Seasons of change in Michigan. It finally ended. The case against the Michigan High School Athletic Association ended last April when the Supreme Court denied the organization cert. This has meant that the lower court's decision that MHSAA was in violation of Title IX and the Equal Protection Clause in its scheduling of girls' sports out of their traditional seasons has stood. Michigan high schools have had to change their schedules accordingly. The controversy this case created was enormous and the incivility of the discussions was disheartening. We hope that 2008 is the proverbial calm after the storm and that everyone is working more willingly than not toward dealing effectively with the scheduling changes.
10. Boosters. Almost as ubiquitous as the stories about softball fields were the stories about booster club funds. Yes, money raised by booster clubs must be considered in the quest for equitable support of girls' and boys' teams. High schools in Pennsylvania and California are addressing and accounting for booster club funds right now. More stories like this and the other ones we covered this year are likely to emerge in the coming year.
Wednesday, December 05, 2007
Colorado Settles with Lisa Simpson for $2.5 million
The University of Colorado has announced that it will pay sexual harassment plaintiff Lisa Simpson $2.5 million rather than go to trial to defend its failure to supervise the football recruits who sexually assaulted her and another plaintiff, Anne Gilmore. Gilmore will receive $350,000 to drop her claims as well.
In September, the Tenth Circuit Court of Appeals paved the way for either settlement or trial when it reversed a district court ruling that held CU's alleged conduct did not violate Title IX. Later, CU indicated that it would seek reconsideration of the Tenth Circuit decision. Today's settlement, obviously, moots any plans.
Simpson stated that she is "pleased with all the steps the university takes to prevent any of its students from becoming future victims of sexual assault." After paying out nearly $3 million to settle this case, CU should be motivated continue to take steps and not backslide on progress it has made.
In September, the Tenth Circuit Court of Appeals paved the way for either settlement or trial when it reversed a district court ruling that held CU's alleged conduct did not violate Title IX. Later, CU indicated that it would seek reconsideration of the Tenth Circuit decision. Today's settlement, obviously, moots any plans.
Simpson stated that she is "pleased with all the steps the university takes to prevent any of its students from becoming future victims of sexual assault." After paying out nearly $3 million to settle this case, CU should be motivated continue to take steps and not backslide on progress it has made.
Wednesday, October 10, 2007
CU Seeks Reconsideration from 10th Circuit En Banc
As we noted last month, University of Colorado was weighing its options in the wake of the 10th Circuit panel decision that reinstated two female plaintiffs' sexual harassment case against the university. Those options included seeking reconsideration from from the en banc (entire) 10th Circuit, appealing the panel decision to the Supreme Court, or going to trial. Today the Rocky Mountain News is reporting that CU lawyers have filed a petition for reconsideration by the 10th Circuit en banc.
CU is arguing that the panel decision departs from Title IX precedent by expanding university liability for sexual harassment by its students beyond what prior courts have allowed. The plaintiffs will oppose the petition and argue that under existing Supreme Court precedent, CU should be liable for the sexual misconduct of its unsupervised football recruits given the warning signs and the athletic department's policy of showing recruits "a good time."
CU is arguing that the panel decision departs from Title IX precedent by expanding university liability for sexual harassment by its students beyond what prior courts have allowed. The plaintiffs will oppose the petition and argue that under existing Supreme Court precedent, CU should be liable for the sexual misconduct of its unsupervised football recruits given the warning signs and the athletic department's policy of showing recruits "a good time."
Tuesday, September 11, 2007
CU Decision in the News
Last week we blogged about the 10th Circuit decision that paved the way for a jury to decide whether the University of Colorado did enough to protect female students from sexual assault at the hands of football recruits.
The Colorado Daily News is reporting that CU's attorney Larry Pozner has "all but ruled out the possibility of a settlement" and will likely choose a course of action that involves any or all of the following options: seeking a reconsideration of the panel ruling by the entire (en banc) 10th Circuit; appealing to the Supreme Court; and/or going to trial. Pozner does not seem intimidated by the prospect of a trial, calling it the first and only available opportunity for CU to present its version of the facts.
Elsewhere, Inside Higher Ed published an extensive analysis of the decision, including consideration of whether universities will be held to a higher standard of protection as a result. On one side of this question, Larry Pozner characterizes the opinion as a "twisting of Title IX law designed to render a university liable in all kinds of situations it can’t control." He fears "a brave new world that will require universities to monitor student activities and interactions in ways that go far beyond what they have been required to do previously."
Others do not see the sky falling in a world where universities are expected to protect students from sexual assault in the context of school-sponsored activities like football recruiting events. Florida Coastal law professor Nancy Hogshead-Makar says the opinion confirms that schools should have and effectively enforce an anti-harassment policy. "'If colleges have a policy, have done the training in the appropriate way, then they are taking appropriate action,' she said. 'It's not a huge burden.'"
The Colorado Daily News is reporting that CU's attorney Larry Pozner has "all but ruled out the possibility of a settlement" and will likely choose a course of action that involves any or all of the following options: seeking a reconsideration of the panel ruling by the entire (en banc) 10th Circuit; appealing to the Supreme Court; and/or going to trial. Pozner does not seem intimidated by the prospect of a trial, calling it the first and only available opportunity for CU to present its version of the facts.
Elsewhere, Inside Higher Ed published an extensive analysis of the decision, including consideration of whether universities will be held to a higher standard of protection as a result. On one side of this question, Larry Pozner characterizes the opinion as a "twisting of Title IX law designed to render a university liable in all kinds of situations it can’t control." He fears "a brave new world that will require universities to monitor student activities and interactions in ways that go far beyond what they have been required to do previously."
Others do not see the sky falling in a world where universities are expected to protect students from sexual assault in the context of school-sponsored activities like football recruiting events. Florida Coastal law professor Nancy Hogshead-Makar says the opinion confirms that schools should have and effectively enforce an anti-harassment policy. "'If colleges have a policy, have done the training in the appropriate way, then they are taking appropriate action,' she said. 'It's not a huge burden.'"
Friday, September 07, 2007
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.
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.
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