Simpson response, Exhibit 1; Gilmore Response, Exhibit 2 ( IIC Report). She notes further that CU's dissemination of private information and CU's "media tactics" contributed to her distress. Further, the plaintiffs note that CU's football handbook never has instructed player hosts regarding alcohol or sex in recruiting. For example, the nature and scope of any duty of the commission to make a statement, or the commission's authorization to make statements on behalf of the University, is not detailed in the record. Absent such proof, the plaintiffs cannot establish the causal connection required under the third element. Casetext, Inc. and Casetext are not a law firm and do not provide legal advice. First, in 1999, an assistant CU football coach pled guilty to third degree assault against his wife. It also called for the university to hire more staff for the victims assistance center and employ a Title IX monitor for five years to address the schools sexual harassment, assault and gender-discrimination problems. In the context of the record in this case, a risk defined more broadly would fall outside of the narrowly circumscribed purview of liability under Title IX. She alleges that she was sexually assaulted by numerous recruits and football players, and observed that another female student was being sexually assaulted by at least one football player in the same room. However, I conclude that, viewing the facts in the record in the light most favorable to the plaintiffs, no rational trier of fact could conclude that the plaintiffs have established the first and second elements listed above. This case places the burden on universities and colleges to monitor student activities on and off campus and implement new policies and procedures to affirmatively address known misconduct. The 1997 incident involved identified players and recruits, and the other incidents involved identified players. The harassment of Hnida did not provide notice of the broad risk alleged by the plaintiffs, nor did it provide the kind of clear notice of a risk required by Title IX. Finally, it is important to note that Title IX liability is limited to sexual harassment that deprives a CU student of access to educational benefits or opportunities. The plaintiffs cite several events that preceded their alleged assaults which, they argue, are sufficient to demonstrate that University officials were on notice of the risk that football players and football recruits would sexually assault female University students as part of the recruiting program, including the risk that those assaults would be aided by excessive alcohol use by players, recruits, and female students.
In 2005, the district court granted summary judgment for CU finding that the plaintiffs could not establish the elements of a Title IX claim. LaShonda D. v. Monroe County Bd. By relying on the civil rights cases alleging municipal liability, the courts would hold a university liable for misconduct of its students as long as the university had actual knowledge of prior misconduct and it failed to adequately address the conduct. 5Citing City of Canton v. Harris, 489 U.S. 378, 390 (1989). At the time, both Ms. Simpson and Ms. Gilmore were CU students. The party and the alleged assaults took place on December 7, 2001. Relevantly, the record does not contain evidence that, prior to December 7, 2001, Barnett or other relevant University officials knew of physical or sexual harassment or sexual assault involving Katherine Hnida. The two cases were consolidated in 2004. Early the next morning, Simpsons roommate took her to a community hospital, where she reported the sexual assaults to hospital staff. A football player involved in the incident was charged with violations of the University Code of Conduct, and the player was suspended for one semester. The football program, which had been laundering money through the CU Foundation, possibly in violation of NCAA rules, was forced to open all its books. Ms. Gilmore's statements on these pages do not support her contention that she has suffered from a "scorched earth campaign against her. In other words, the risk at issue must be well-defined and focused to support a claim of Title IX liability. Title IX damages liability can be based only on such an official decision. . Despite police photos showing her bruised and injured body, and despite reports from other women raped that night, CU coaches and university apologists maintained that the sex was consensual, apparently even when it occurred while Simpson was unconscious. Id. The plaintiffs argue that the University's failure to adopt zero tolerance policies for student athletes after the 1997 incident indicates deliberate indifference to the risk at issue. Simpson First Amended Complaint, 73; Gilmore First Amended Complaint, 70. In January, 1998, CU Chancellor Richard Byyny learned that Boulder police were investigating the alleged December 6, 1997, sexual assaults. Thus, to the extent the 1997 assault and the meeting with the DA's office are relevant to Barnett having notice of a risk to female CU students, Barnett is charged with knowledge of these predicate events. 1, Denver, Colorado, 186 F.3d 1238 (10th Cir. Considered as a whole, however, all of the relevant information known to the CU officials did not constitute adequate notice, under Title IX, that female CU students, including the plaintiffs, faced a risk that CU football players and recruits would sexually assault female University students as part of the recruiting program, including the risk that those assaults would be aided or exacerbated by excessive alcohol use by players, recruits, and female students. The plaintiffs argue that, in addition to damages, they also are entitled to injunctive relief under Title IX. In a decision that could have a far-reaching impact on universities and colleges, the Tenth Circuit Court of Appeals, in Lisa Simpson; Anne Gilmore v. University of Colorado Boulder, Nos. Palermo v. First Nat'l Bank Trust Co., 894 F.2d at 366-67; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). We might permanently block any user who abuses these conditions. Thats what makes me so grateful to see people embracing these young women and believing them.. Simpsons roommate also reported the events to CUs Vice Chancellor for Student Affairs and the director of the universitys Office of Victims Assistance the day after the events took place. Much of the plaintiffs' argument concerning the University's alleged deliberate indifference concerns the University's failure to implement rules and exercise supervision concerning the recruiting program. While Ms. Simpson was being assaulted, Ms. Gilmore was being sexually assaulted in the same room by player # 2, another football player, and a third man who was either a player or a recruit. The plaintiffs' standing to seek injunctive relief is dependent on whether they are likely to suffer future injury from the type of sex discrimination alleged in their complaints. In this case, the plaintiffs claim that the sexual assaults they suffered at an event orchestrated by the football recruiting program deprived them of access to educational benefits or opportunities. Each incident involved some sort of sexual harassment or, in 1997 and 2001, sexual assault that was known to CU officials. One of the women at the apartment, who was a tutor for CUs football team, mentioned that a few of her friends from the team would be stopping by. Barnett met with the student and discussed the incident with her. Summary judgment may be granted if the court concludes that no "rational trier of fact" could find for the nonmoving party based on the showing made in the motion and response. It is difficult, however, logically to expand this incident involving a particular player to notice that most or all football players and most or all recruits involved in the CU football recruiting program presented a risk of sexual assault against all female students who might come into contact with these players and recruits. 1) 1997 assault On December 6, 1997, a group of teenage high school girls attended a party held by football players and recruits. (c) provides that the court may grant summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." They warned the University officials that this practice must stop. The Court held in Davis that the same standard applies to claims involving student-on-student harassment. The parties refer to the Commission as the IIC. The IIC examined these issues in an effort to develop wise and appropriate University policy. 1999). In addition, this incident did not involve harassment that can be addressed under Title IX because the alleged victim was not a CU student. The purpose of a summary judgment motion is to assess whether trial is necessary. White v. York Int'l Corp., 45 F.3d 357, 360 (10th Cir. I stayed with it for so long because I knew that I was trying to make the school better, safer. Rice, Cooper Clough, PC, Denver, CO, Larry S. Pozner, Hoffman, Reilly, Pozner Williamson, L.L.P., Denver, CO, Stephen S. Dunham, Morrison Foerster, LLP, Denver, CO, for University of Colorado at Boulder. General Data Protection Regulation (GDPR), Littler Restructuring Assessment Solution, Global Workplace Transformation Initiative. However, should the district court rely on the same standard and find CU deliberately indifferent to sexual assaults, that finding would hold universities to a higher legal standard. The more a risk becomes generalized, the more that risk is likely to fall outside of the narrowly circumscribed scope of Title IX liability. Thus, the motion stands submitted on the papers. Lisa Simpson was a very early, incredibly brave and incredibly persistent pioneer who opened the way for what we now call the #MeToo movement, he said. Byyny sent an e-mail to then Athletic Director Richard Tharp saying "we should clearly spell out our rules, responsibilities, and expectations" concerning recruits. 3Gebser v. Lago Vista Indep.
In fact, the court found evidence that he knew the efforts by CU were not effective in establishing a football team culture that would prevent sexual assaults and that there was evidence that Barnett himself was undermining those efforts. Were ready for your tomorrow because were built for it. The plaintiffs allege that a variety of incidents that occurred prior to December 7, 2001, indicated that the practices of the CU Athletic Department and football program had created a known risk of sexual harassment, sexual assaults, and sexual discrimination against female students and other women by football players and recruits. p. 128. Dr. Hnida does not specify in his affidavit the type of sexual harassment that was addressed in these contacts with Barnett and Tharp. Id. Ultimately, approximately 16-20 football players and recruits, many of whom were intoxicated, arrived at Simpsons apartment. IIC Report, p. 13. Additionally, the IIC Report contains numerous criticisms of the University's and the football program's failure to adequately supervise various endeavors, including the recruiting program. On July 1, 1999, the University adopted a university-wide Policy on Sexual Harassment. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Concrete Works, Inc. v. City County of Denver, 36 F.3d 1513, 1517 (10th Cir. It is undisputed that the University of Colorado receives federal financial assistance, and is, thus, a funding recipient. Absent sufficient evidence that the University was on notice of this risk, the plaintiffs cannot prove their Title IX claim against the University. at 646-47. of Educ., 526 U.S. 629, 641 (1999). Id. Id. Additionally, universities would be required to take appropriate action (i.e. The record does not indicate whether or not the parking lot attendant was a CU student. Ms. Gilmore says she was too intoxicated to voluntarily and consensually participate in the sexual contact. "2 The Tenth Circuit reviewed two Supreme Court cases addressing Title IX damages suits for sexual harassment. In February, 1998, Byyny, Tharp, University legal counsel Bob Chichester, and other University officials met with the Boulder County District Attorney, and other officials of the District Attorney's office. Id. The Bryant plaintiffs alleged that the racially hostile acts of some students, specifically described in their complaint, deprived them of access to educational benefits or opportunities. or had direct involvement" in the use of sex, alcohol, and drugs to entertain recruits. Dessert and celebrity hot spot bringing $99 sundaes and $150 burgers to Lone Tree, Cherry Creek High School softball coach arrested in child sex crime investigation following Virginia girl's suicide, The disputed rocks that led to Sexy Pizza's closure in Capitol Hill may have to move as well, Ask Amy: Tragic events lead to a quest for normalcy, Mother of veteran killed by Elbert County deputies sues, claims son was suffering from PTSD and seeking help, Ask Amy: Mom and daughter want to move on, Altitude TV asks Comcast to match terms of AT&T Sportsnet Rocky Mountain, Ivana Trump mourned at Manhattan funeral by Donald Trump and kids, Yosemite: National Park Service employee charged with secretly filming law enforcement officer as she showered, Video: Shark spotted flying out of water off of NYC, Photographer killed in apparent murder-suicide was open on social media about divorce struggles, Hundreds of affordable homes could replace Calif. shopping center. Baine Kerr, who represented Simpson in the groundbreaking Title IX case, still is in awe of his remarkable young client, who allowed her name to be released in the face of the inevitable harassment. Second, and more important, Barnett was told of the 1997 incident and the 1998 meeting with the District Attorney's office. It is not a great leap to make such an assumption, but the existence of the assumption is a further indication that this incident did not, per se, provide notice of the broader risk alleged by the plaintiffs, nor did it provide the kind of clear notice of a specific risk required by Title IX. The harassment of Katherine Hnida involved player on player harassment by football players in an athletic milieu that is essentially sui generis.
Again, the University is liable in damages under Title IX only when its deliberate indifference effectively caused the discrimination. Viewing the facts in the record in the light most favorable to the plaintiffs, I conclude that the head coach of the CU football team, Gary Barnett, generally had control over the rules established for the football program, and control over the enforcement of those rules within the football program. The IIC Report contains numerous criticisms of the policies adopted by the University and the football program. I needed a lot of support and a lot of therapy to get through it. . The Title IX cases cited by the parties that involve student-on-student sexual harassment all involve harassment undertaken by a particular individual known to the defendant school or school district. They allegedly planned to provide the recruits with an opportunity to have sex with intoxicated female CU students. Ms. Simpson filed a complaint in 2002 and Ms. Gilmore filed her complaint in 2003. FED. Id. Id. . Michael W. Schreiner, University of Colorado, Boulder, CA, Kay J. Gilmore response, Exhibit 13 (Under Seal). The funding recipient must have substantial control over both the harasser and the context in which the known harassment occurs. I had to prove that I was a victim, she said. 2000). 167-72 (under seal). For those who may not remember, heres the bottom line: Simpson prevailed. This recruit told an assistant coach only that he was exposed to marijuana during his visit. Gilmore response, p. 6; Simpson response, p. 7. However, these events cannot reasonably be construed as putting CU on notice of a risk that CU football players and recruits would sexually assault female University students as part of the recruiting program, including the risk that those assaults would be aided or exacerbated by excessive alcohol use by players, recruits, and female students. However, the Katherine Hnida harassment, as reported to Barnett, did not provide a clear indication that female CU students faced a risk that football players and recruits would sexually assault female University students. The record contains no indication that there were any reported sexual assaults at a CU football recruiting party in December 7, 2001, other than the assaults described by Ms. Simpson and Ms. Gilmore in this case. According to Simpson, a former high school honor student, her academics severely declined after the experience. Id. Soon, life for 40 million people who depend on the Colorado River will change. This matter is before me on the defendant University of Colorado's Motion for Summary Judgment [# 219], filed May 5, 2004. 4) 1999 Recruit In 1999, a recruit called Barnett to reject a scholarship offer because of improprieties he experienced during his recruiting visit to CU. at 1246 (citing Davis, 526 U.S. at 1672). The University argues also that the plaintiffs have not presented evidence that the harassment they suffered occurred under an educational activity of the University, or that the harassment had the systemic effect of depriving the plaintiffs of access to educational benefits or opportunities. The evidence that Barnett and other relevant officials had such knowledge is spotty. There is no dispute that the sexual assaults described by the plaintiffs constitute severe and objectively offensive sexual harassment. Had the plaintiffs demonstrated that the University was on notice of a risk of sexual assault by football players and football recruits, then the plaintiffs must demonstrate that the University was deliberately indifferent to this known risk and, thus, caused the plaintiff's to be sexually assaulted. She still remembers the feeling of betrayal when she saidCU leaked her personal diary, sealed by the court. I conclude that the unique context in Which Ms. Hnida was sexually harassed, and the belated disclosure by Dr. Hnida of the physical and sexual assault of Hnida by football players, effectively extenuates, if not eliminates altogether, the efficacy of any notice to CU that female students were at risk of sexual assault by players and recruits involved in the recruiting program. 3) Assaults by Players and Coaches The plaintiffs enumerate three incidents that, they contend, provided additional notice of the risk presented to female students by football players and recruits. School Dist., 220 F.3d 380, 384 (quoting Farmer v. Brennan, 511 U.S. 825, 844 (1994)). Again, the Katherine Hnida harassment reasonably can be seen as providing notice that some football players would engage in sexual harassment of a female football player who, coincidentally, also was a fellow student. About 30 minutes later, some of the players and recruits decided to leave the apartment. The Boulder County District Attorney investigated the matter but did not file sexual assault charges based on this incident. When everything happened to me and I reported it, I immediately was called the alleged victim, she said. The plaintiffs point also to the Independent Investigative Commission's conclusion that Athletic Director Tharp adopted a "plausible deniability" policy "with respect to allegations of partying by recruits and hosts."