Sept. 7, 2007

Appeals Court Reinstates Colorado Sex Assault Case

A federal appeals court on Thursday reinstated a lawsuit in which two former female students accused the University of Colorado at Boulder of violating federal laws barring sex discrimination by doing too little to prevent their alleged rape by a group of football players and recruits.

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The decision by the U.S. Court of Appeals for the 10th Circuit overturns a lower court judge’s 2005 decision to dismiss the claim filed by the two women under Title IX of the Education Amendments of 1972 and could force the university to defend itself at trial (though the university could appeal the ruling). The court’s decision also dredges up a hugely embarrassing period in the university’s history, as the former students’ charges helped spark a football scandal that contributed to the resignation of the Colorado system’s former president, Elizabeth Hoffman.

The women asserted that they had been raped in 2001 at an off-campus party for football players and recruits, and that the university was responsible for the sexual assaults by allowing an environment to develop in which female “ambassadors” were routinely asked to show football recruits a good time. The plaintiffs alleged that other, previous incidents involving Colorado football players had shown that the arrangements, when inadequately supervised, created an identifiable risk of sexual assault that the university ignored.

A district court judge granted Colorado’s request for dismissal on summary judgment in 2005, 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 its forceful ruling Thursday, a three-judge panel of the 10th Circuit appeals court concluded otherwise, saying 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.

“In our view, the evidence presented to the district court on CU’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.”

A broad array of women’s groups, legal advocacy organizations and a group of academics who study gender violence and sports had filed friend of the court briefs urging the appeals panel to overturn the lower court decision.

Baine Kerr, a lawyer for one of the plaintiffs, told the Associated Press that “there is absolutely nothing [in the ruling] that the university can take comfort in. It’s a great endorsement of the facts as we have seen them and the legal principals that we have argued.”

The university 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.”

— Doug Lederman

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