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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.
The ruling could force the university to defend itself at trial. Colorado might appeal. There is, arguably, precedent for the appellate court’s decision. In two recent cases at the University of North Carolina at Chapel Hill and the University of Georgia in which former athletes allege that their universities denied them a right to an education under Title IX by allowing a hostile climate to persist, federal appeals courts overturned lower courts' rulings that the plaintiffs had submitted insufficient evidence to show “deliberate indifference” on the part of the institutions.
Also referenced by legal experts and the appellate court in its Colorado decision is Gebser v. Lago Vista Independent School District, a K-12 case involving a student alleging sexual harassment by a teacher. The Supreme Court held that a student's claim for damages based on sexual harassment by a teacher could arise under Title IX, but only if "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond,” and the inadequate response “amount[s] to deliberate indifference to discrimination.”
In that case, the court rejected the plaintiff's claim that the authority given to the teacher by the school district facilitated the harassment, and that the district could be liable based on what is called "constructive notice" -- that the district “ ‘should have known’ about harassment but failed to uncover and eliminate it.”
Larry Pozner, a lawyer for the University of Colorado system, said the appellate court in his case is taking the argument that colleges should be held accountable for their students' actions to an extreme.
"This is a new and impossible standard," Pozner said. "It’s a twisting of Title IX law designed to render a university liable in all kinds of situations it can’t control. 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.”
Pozner said it's "absurd" that Colorado's anti-harassment policies can be used against the institution as proof that the university had knowledge of a general problem but didn't act. He said Barnett required athletes to read handbooks at team meetings about harassment.
"What else can a coach do?" Pozner said. "You can't follow around 28,000 students daily. And this is a case that deals not only with an unregulated, off-campus party, but with non-students."
Sarah Warbelow, program manager for legal advocacy for the American Association of University Women, said that although the party in question happened to be off campus, it was part of the campus-funded program for attracting recruits. Colorado, she said, had two conflicting policies: one written in the handbook and the other -- more persuasive, she says -- in which female students were asked to provide "a good time."
Warbelow disagrees with Pozner that the latest court ruling is setting a new standard for colleges. Rather, she argues, it is correcting the lower court's "error" in maintaining that Colorado didn't have warning about problems with harassment and sexual assault.
Added Rayla Allison, a professor of sports marketing at the University of Minnesota who represents athletes and college coaches in Title IX lawsuits: "I don't think this decision turns everything on its head -- it’s a continuation of accountability as it relates to off-campus activity. [The recruit program] was arranged. It was virtually a sponsored activity, and the court is rightly recognizing that."
Both Allison and Warbelow said the court's finding should serve as notice to colleges that they need to monitor all sponsored activities.
Nancy Hogshead-Makar, a former Olympic swimmer and assistant professor of law at Florida Coastal School of Law, said the standard is significant not just because it overturns the lower court's finding that Colorado didn't have actual knowledge that harassment or assault could occur, but also because it says, in essence, that a college can be held liable in a first instance if it fails to implement a training program for its staff and students.
"If colleges have a policy, have done the training in the appropriate way, then they are taking appropriate action," she said. "It's not a huge burden. It's another reason why presidents need to exert control of their athletic programs."
Brett A. Sokolow, president of the National Center for Higher Education Risk Management and a special counsel to several colleges, said this court is saying that the liability standard based on "deliberate indifference" in the face of actual notice is only applicable when the discrimination does not result from official policy of the institution. When it does, he said, the standard for liability is broader. Second, where a history of problematic conduct is condoned or tolerated, the failure to provide training to correct the behavior can subject a university to liability as deliberate indifference.
“CU's assertions that this holding subjects it to unfair accountability for the off-campus actions of students and recruits may overstate the case," he said in an e-mail. "The holding does not stand for the principle that universities will face Title IX liability for all off-campus incidents of sexual misconduct. But, where the courts find that there is university control over the harassers and the context of the harassment, such as in the course of officially sanctioned recruiting visits, the legal standard will not allow a university to wash its hands of responsibility for the actions of the players and recruits whose definition of a 'good time' needs to be rewritten.”
Still, Sheldon E. Steinbach, a lawyer in the higher education practice at the Washington firm Dow Lohnes, said he was surprised by the court's decision, in part because other cases have shown that institutions aren't always held accountable for the actions of their students. He said the events leading up to the alleged 2001 sexual assault at Colorado were "strung together over four or five years and involved different individuals," which he said doesn't constitute a continuing pattern of behavior that would necessarily cause Colorado to act.
When looking at an institution's response, an important factor is turnover, says Ann Franke, president of Wise Results, a firm that advises colleges on legal risks. "One can say the university was put on notice in 1997, but what does that actually mean?" she said. "How many people are there now that were there then?" New presidents and coaches often say they are arriving with a clean slate, Franke added.
And while the court's decision makes it clear that colleges have expanded training obligations, Franke said universities often find it difficult to conduct such training.
"The takeaway lesson for athletic departments is that people in power have responsibilities broader than having winning seasons," she said. "They need to be alert to cues in the environment that something's wrong."
