Anson Dorrance is one of the country’s most powerful and successful college coaches. And after a federal appeals court’s ruling  Monday, the women’s soccer coach is also poised to stand trial on charges that he harassed and sexually discriminated against a former player. And his employer, the University of North Carolina at Chapel Hill, and one of its former officials must defend themselves against accusations that they failed to put a stop to his behavior.
The decision by the full (and fractured) U.S. Court of Appeals for the Fourth Circuit comes in a nearly decade-old lawsuit brought in 1998 by two former women’s soccer players at North Carolina. One of them, Debbie Keller, settled with Dorrance and the university in 2004 for $70,000.
But the other player, Melissa Jennings, has continued to pursue her claims that Dorrance created a hostile environment that amounted to sexual harassment and denied her a right to an education under Title IX of the Education Amendments of 1972 and the Constitution’s equal protection clause, and that North Carolina and its officials permitted the hostile environment to occur. Although a federal district court (in 2004) and a divided three-judge panel  of the Fourth Circuit (last June) sided with Dorrance and North Carolina in dismissing Jennings’s claims, her lawyers pushed for a rehearing before the full Fourth Circuit court (en banc, as it is called) last fall.
In its ruling Monday, the divided Fourth Circuit court (over the objections contained in a stinging dissent by two judges that accused the majority of misinterpreting the law) agreed to give Jennings her day in court, saying she had “proffered sufficient facts for a jury to find that Dorrance’s degrading and humiliating conduct was sufficiently severe or pervasive to create a sexually hostile environment.”
The majority opinion,  which was written by Judge M. Blane Michael (the lone dissenter when the three-judge panel backed UNC last year) and joined by seven of the court’s 12 other judges (two dissented, and two disqualified themselves because of conflicts), said that Dorrance regularly “bombarded players with crude questions and comments about their sexual activities and made comments about players’ bodies that portrayed them as sexual objects. In addition, Dorrance expressed (once within earshot of Jennings) his sexual fantasies about certain players, and he made, in plain view, inappropriate advances to another.”
The opinion describes Dorrance’s reported comments to and behavior with his players in great detail, and is so filled with curse words and sexually explicit comments that it might make a demure reader blush. (At the summary judgment stage of a lawsuit, which this one is at, the court is obliged to assume as fact the information presented by the accuser. Dorrance and the university dispute many of those claims.)
While most of the behavior was not directed at Jennings herself, the court concluded, “Jennings has met the burden here with evidence showing that Dorrance’s severe and pervasive sexual harassment concretely and negatively affected her ability to participate in the soccer program. She testified that the hostile atmosphere created by Dorrance made her feel humiliated, anxious, and uncomfortable; these effects, in turn, had a negative impact on her participation and performance in soccer and on her academic performance.” (Jennings was dropped from the team in 1998, and she left North Carolina upon filing the lawsuit against Dorrance later that year.)
This behavior, the majority asserts, was especially troubling because Dorrance – who is not only the coach of the wildly successful North Carolina women’s team, which has won 19 of the last 26 National Collegiate Athletic Association championships in the sport, but also coached the U.S. national team for nearly a decade – was an enormously powerful figure to his players. “He professed to them that he wanted to be a father figure. In reality, Dorrance abused his power as coach to ask his players questions a father would not ask; he pried into and talked openly about his players’ sex lives in a way that was disrespectful and degrading. The disparity in power between Dorrance and his players trapped players into responding to his questions and enduring the environment," the majority opinion states.
The court also concludes that the university should have to defend itself before a jury on charges that it did not act to stop sexual discrimination and harassment as it is required to under Title IX, the federal law that bars sex discrimination at educational institutions. In 1996, the majority opinion says, Jennings complained to the university’s then-general counsel, Susan Ehringhaus, to complain about his sexual banter, among other issues. Ehringhaus encouraged Jennings to work her problems out directly with Dorrance -- again, according to the facts as presented by Jennings -- and took no action.
“These facts,” the majority wrote, “are sufficient to establish that Jennings gave Ehringhaus, and by extension UNC, actual notice of the hostile environment created by Dorrance. This notice and the university’s failure to take any action to remedy the situation would allow a rational jury to find deliberate indifference to ongoing discrimination.” The court similarly concludes that both Dorrance and Ehringhaus should stand trial on Jennings’s sexual harassment claims under the 14th Amendment’s equal protection clause, although it dismisses her claims against other university officials. (Ehringhaus no longer works at the university; she now handles legal issues for the Association of American Medical Colleges.)
Just as the original ruling by the three-judge panel of the Fourth Circuit contained a strongly worded dissenting opinion, so too does Monday's decision by the full Fourth Circuit. Judge Paul V. Niemeyer's dissent essentially accuses the majority of selectively interpreting the facts that Jennings presented and of misreading and misinterpreting prior court rulings and even Title IX itself.
Among other things, he minimizes the severity of Dorrance's comments and argues that she did not specifically accuse Dorrance of sexual harassment until after he cut her from the team, citing her poor performance on the field and in the classroom.
"Relying indiscriminately on the catalogue of statements made by Coach Dorrance and various members of UNC’s soccer team, made both before and after Jennings attended UNC, the majority concludes that they created a severe and pervasive sexually hostile environment that denied Jennings access to the opportunities and benefits of the soccer program," Niemeyer wrote, joined by Judge Karen J. Williams.
"The majority’s approach lacks any precision about the meaning of [Dorrance's] comments, their connection with Jennings, their timing (some occurred before Jennings came to UNC), and their effect on Jennings and the soccer program. A disciplined analysis of the facts and their effect on Jennings can lead only to the conclusion that the sexual banter, while extensive and inappropriate, did not deny Jennings any educational opportunity."
A lawyer for Jennings, Daniel Konicek, said he was pleased that his client "will get her day in court," adding that he "can't wait to get Anson Dorrance on the witness stand."
In a prepared statement in response to a request for comment from Dorrance and other university officials, North Carolina said that its representatives were "not able to discuss the details of the case." But the university's statement took pains to note that the Fourth Circuit's ruling Monday "gives the plaintiff the full benefit of the facts in the summary judgment record.... In other words, the court assumes that the facts are as the plaintiff alleges. The university will have the opportunity to dispute those facts at trial -- and fully intends to do so."