Settlement in Sexual Assault Case

December 6, 2007

Six years after a group of University of Colorado at Boulder football players and recruits allegedly raped two female students at an off-campus party, and three months after a federal appeals court ordered the university to stand trial on charges that its officials had failed to do enough to prevent the alleged assault, Colorado officials announced Wednesday that the institution would pay $2.85 million to settle the former students' lawsuit.

Under the agreements, which will pay $2.5 million to one former student, Lisa Simpson, and $350,000 to the other, Anne Gilmore, in exchange for settling all claims against it, the university will also appoint an official to advise the Boulder chancellor on preventing sexual harassment and misconduct, and add another part-time counselor to its Office of Victim's Assistance. The university did not admit any wrongdoing as part of the legal accord.

At a news conference Wednesday (captured on video by a local television station), the university's president, the former U.S. senator Hank Brown, said that it was time for Colorado to put behind it an incident that "in many ways has dominated the university's public affairs for the last several years." Brown was both contrite and confident during his comments to the press and the public, expressing "profound regret that this incident occurred" and at the pain it had caused the alleged victims and the university, but asserting forcefully that Colorado was a very different place, with an entirely different approach to campus safety, than it had been just those few years ago.

Among the changes, Brown said: The university's leaders are different -- 11 of its top 12 positions have new occupants; its athletics program, seen as something of a renegade throughout the 1990s, has been dramatically restructured and its recruiting policies overhauled; and its policies on sexual assault and discrimination have been significantly toughened, in an attempt to "make the university a model" for other institutions, Brown said.

"We have taken this problem seriously and taken every single measure we can think of that can be a reasonable help in protecting our students," he said. That does not mean "that we're never going to have anything difficult or unpleasant happen on our campuses," Brown said. "The real challenge is to do what we can to make sure, one, that they don't happen, and two, to behave in a responsible way afterwards [if incidents do occur] to help the young people through this process."

The alleged gang rape at a party for visiting football recruits in 2001, and the ensuing investigations into and lawsuits stemming from the incident, had a devastating impact on the university, playing a major role in ending the Colorado careers of the university system's president, Elizabeth Hoffman, Boulder chancellor Richard Byyny, and the university's athletics director (Richard Tharp) and football coach, Gary Barnett.

Even as they altered their policies in response to the alleged incident, Colorado officials had vigorously defended themselves against lawsuits by the alleged victims that sought to hold the institution accountable, under Title IX of the Education Amendments of 1972, for failing to do enough to prevent the athletes' misbehavior and to respond to it after the fact.

A federal judge seemingly had ended the case by dismissing the women's claims in 2005, but the U.S. Court of Appeals for the 10th Circuit reinstated the lawsuit in September, 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 to the threat posed to other students. The ruling infuriated Colorado and other university officials, with a lawyer for the Colorado system, Larry Pozner, saying it set a "new and impossible standard.”

“It’s a twisting of Title IX law designed to render a university liable in all kinds of situations it can’t control," Pozner said at the time. "What this will lead to if this standard holds up is 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.” Colorado officials suggested they would appeal.

University officials continue to believe the case was wrongly decided by the 10th Circuit; Brown said Wednesday that there was "no question the appellate court's decision rewrote the law and changed the guidelines" (an assessment advocates for Title IX and women's rights lawyers, like the National Women's Law Center, dispute).

But in the weeks since then, university officials and the plaintiffs met with a mediator about a possible settlement, Brown said Wednesday. Having already spent $3 million on legal fees, $1 million out of its own self-insurance pool and $2 million paid by an outside insurer, the university faced "years and years of litigation" in the trial and inevitable appeals, the president said, and its insurer urged the university to settle.

In response to a reporter's suggestion Wednesday that critics might think the university had "caved" and let "somebody hold you up for $2.5 million" based on unproven allegations, Brown, who seemed thoroughly in command, quipped, "You're forgetting about the other $350,000."

Then he turned serious: "Sometimes allegations are not inaccurate," he said. But more importantly, he suggested, it was just plain time for the university to stop letting a distressing incident dominate its public image, noting with regret that Nobel prizes awarded to two Colorado professors between 2001 and 2005 had generated far less attention than this incident and its long aftermath.

"My sense is that there was real value to the university moving forward, that additional litigation and legal uncertainty were not in the best interest of the university," Brown said. "I wouldn't contend to you this wasn't a difficult decision, painful in some ways. But at least my sense was that it was in the interests of the university to put it behind us in this way."

Simpson, one of the plaintiffs, said in a statement that she was "pleased with all steps the university takes to prevent any of its students from becoming future victims of sexual assault, and I encourage other institutions of higher education throughout the nation to take similar steps.”

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