The 10th Circuit Court of Appeals has reinstated a lawsuit against the University of Colorado brought by women who allege that they were raped at a party there, in early December, 2001, recounting in detail the damning evidence against CU and explaining that:
The alleged sexual assaults were not simply misconduct that happened to occur at CU among its students. Plaintiff’s allege that the assault arose out of an official school program, the recruitment of high school athletes. Indeed, they allege that the assaults were a natural, perhaps inevitable consequence of an officially sanctioned but unsupervised effort to show recruits a “good time.”
The trial court had dismissed the case by holding “that no rational person could find (1) that CU had actual notice of sexual harassment of CU students by football players and recruits before Plaintiffs’ assaults, or (2) that CU was deliberately indifferent to such harassment.”
The 10th Circuit Court of Appeals countered this with a recounting of a long history of damning misconduct by CU’s football program and head coach Barnett in particular that helped contribute to the circumstances that the women’s suit is based upon. It turns out the the evidence offered by the women shows that CU had a great deal of actual notice of sexual harassment of CU students by football players and recruits before December 2001, and that there is strong evidence that CU and head coach Barnett in particular, were indifferent to such harassment.
In distinguishing cases of student to student harassment that the trial court had relied upon, the 10th Circuit stated:
We find it significant that in those cases there was no element of encouragement of misconduct by the school district. To be sure, in those cases the school district could encourage that the very operation of the school would be accompanyed by sexual harassment, but that is simply because, unfortunately, some flawed humans will engage in misconduct when in the company of others. Here, however, the gist of the complaint is that CU sanctioned, supported, even funded a program (showing recruits a “good time”) that, without proper control, would encourage young men to engage in opprobrius acts.
In finding that an official school policy existed the 10th Circuit noted that:
In the 1990s, CU paired each visiting recruit with an “Ambassador,” usually female, who escorted the recruit around campus throughout the visit. CU also matched recruits with players selected by the coaching staff, including the head coach. Robert Chichester, an attorney in the CU counsel’s office and later associate athletic director, said that the player-hosts, who were usually underclassmen, were chosen because they knew how to “party” and “how to show recruits a good time,” and would “do a good job of entertaining [them].”
An Obvious Risk
Also particularly important was a long history of rapes, sexual harassment and out of control football recruiting involving football players in general, and CU’s football program in particular.
The Court then asked if the evidence could support a finding that “the risk of an assault during recruiting visits was obvious.”
It noted that a rational jury could find that, on the basis of “14 articles in various mainstream news publications between 1983 and 2001” (located by amicus curie The Women’s Sports Foundation), articles in the Chronicle of Higher Education on the subject, a statement in the 2001 handbook for football players citing a study noting the prevailance of date rape by football players, a 1989 Sports Illustrated article quoted the head coach talking about the problem of sexual assault by CU football players, and two 1990 criminal rape charges brought against CU football players.
The court noted an alleged sexual assault of a high school girl at a similar CU football recruiting party in 1997 which was brought to the attention of CU administrators by police in 1998 in which the District Attorney’s office urged CU in writing to adopt new policies and told CU that it was “on notice.” In response, a CU official testified in a deposition that he refused to institute new policies specific to the football program despite this warning.
An assistant coach was told that the recruiting program was still out of control, for example using marijuana to recruit players, in 1999.
The administration was also made aware of sexual harassment directed against female player Katharine Hnida in 1999 or 2000.
Two months before the incident that gave risk to the suit, a female athletic department employee was raped by a CU football player, after which she told the head coach who discouraged her from filing charged and told her that he would support the player, and that he would not punish the player.
Also that year, the head coach “hired as an assistant football coach a former football player who had been accused of assaulting a woman a few years earlier and had been banned from the CU campus.”
After the Fact
CU’s response to the incident that is the basis of the lawsuit after it happened didn’t help its case that it was not deliberately indifferent, or worse, either.
The head coach also acknowledge that “after the assaults he continued to support admission for one of the recruits despite being told that evidence of his involvement in the assaults was ‘overwhelming.'”
There was also evidence that the athletic department attempted to obstruct the police investigation and retaliate against a female student who was a witness and reported what happened to police.
The Next Step
The 10th Circuit’s opinion reads almost like a prosecutor’s closing statement (as it should, because in reviewing a motion for summary judgment, evidence must be viewed in the light most favorable to the Plaintiff).
The facts set forth in the opinion alone are enough to deeply shame CU, and gives immense credibility to the women’s allegations.
The University will now likely be under intense pressure to settle, rather than roll the dice on the chance that it will obtain a jury that will argue that the university’s long history of misconduct (little of which is disputed in this case) isn’t enough to pin it with liability this time around.
Even if CU’s attorneys tell the elected CU Regents that they could possibly win this case at trial, it isn’t at all clear that this is a trial that the CU Regents have the stomach to fight.