Weighing The Reach of a Title IX Ruling

Inside Higher Education
September 10, 2007

How closely must a university monitor the conduct of its students and the culture of its athletic program? How, exactly, do you show that an institution was aware of apparent risks of sexual harassment or assault?

These are some of the questions being raised anew after a federal appeals court late last week reinstated a lawsuit in which two former female students accused the University of Colorado at Boulder of violating a federal law barring sex discrimination by not taking action to prevent their alleged rape by football players and recruits.

Title IX of the Education Amendments of 1972 requires that students seeking to hold an institution liable for failing to prevent sexual assault or for allowing a sexually hostile climate to develop must demonstrate that the university knew in some way of a risk and failed to act. Courts have interpreted differently whether an institution must have had notice of a specific risk — past complaints about an individual or threats made by the person — or simply notice of a general risk, such as complaints about a group or team, or knowledge that a certain situation could cause problems.

In the Colorado case, the women say they were raped in 2001 at an off-campus party for football players and recruits. Because the university was aware that recruits were paired with female “ambassadors,” students who were instructed to show the visitors “a good time,” Colorado was responsible for the alleged sexual assaults by fostering an environment that is hostile toward women, the former students argue.

Their case rests primarily on the assertion that by the time of the alleged assaults, there was sufficient information suggesting that the risks of sexual assault occurring were high if recruiting activities were inadequately supervised by campus officials.

Colorado knew of reports — not specific to the university — about the potential of sexual assaults on campus. The Buffalo football program’s player-host program had also been subject to scrutiny after charges of sexual assault at a party for recruits surfaced 10 years ago. Not only did Colorado fail to heed warnings that it should develop policies for monitoring recruits and provide sexual-assault prevention training for football players, the women say, it responded in ways that “were more likely to encourage than eliminate such misconduct,” according to information provided by them to the court.

Colorado released a written statement saying that it “does not have a policy that would place any of its female students at risk of assault; in fact, it has stringent policies prohibiting sexual harassment and sexual assault.” The university responded by eliminating the player-host program by the 2004-5 recruiting season and providing more oversight of the athletics department. The system’s president, Betsy Hoffman, and its athletics director, Dick Tharp, resigned in the process.

Two years ago, a district court judge granted Colorado’s request to dismiss the women’s case on summary judgment, saying the plaintiffs had not met the requirement to prove that the university had shown “deliberate indifference” to the prospect of sexual assault. But in the ruling last week, a three-judge panel of the U.S. Court of Appeals for the 10th Circuit disagreed, arguing that the district court had been given enough evidence to show that the university knew or should have known about previous complaints of sexual harassment by football players and had acted indifferently.

The evidence presented to the district court on Colorado’s motion for summary judgment is sufficient to support findings (1) that CU had an official policy of showing high-school football recruits a ‘good time’ on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a ‘good time,’ and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of “deliberate indifference,” according to the court’s ruling.

The appellate court makes an important distinction that because Colorado’s head football coach, Gary Barnett, had general knowledge of past problems and complaints surrounding the player-host program, then the university was also aware of the information. Barnett’s rank in the university’s hierarchy was “comparable to that of a police chief in a municipal government,” the court says. It also notes that Barnett 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 campus.

[To read the entire story, go to: http://insidehighered.com/news/2007/09/10/colorado ]