FILED United States Court of Appeals Tenth Circuit
PUBLISH September 6, 2007 Elisabeth A. Shumaker UNITED STATES CO URT O F APPEALS Clerk of Court
TENTH CIRCUIT
LISA SIM PSON ; AN NE G ILM OR E,
Plaintiffs - Appellants, v. No. 06-1184 No. 07-1182 U N IV ERSITY O F C OLO RA D O B OU LD ER , through its B oard; THE R EG EN TS O F TH E U N IV ER SITY OF C OLO RA D O ,
Defendants - Appellees,
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AM ERICA N C IVIL LIBERTIES UNION; AM ERICAN CIVIL LIBER TIES U N IO N FO U N D ATION O F COLO RA D O , IN C.; A SIA N AM ERICA N LEG AL D EFENSE & EDUCATION FUND; CALIFORNIA W OM EN’S LAW CENTER; CONNECTICUT W OM EN’S ED U CA TIO N A N D LEG A L FUND; LA W Y ER S’ C OM M ITTEE FO R CIVIL RIGHTS UNDER LAW ; LEG A L M O M EN TU M ; M EX ICAN A M ER ICAN LEG A L D EFEN SE AND EDUCATIO NAL FUND, IN C.; NATIONAL ASIAN PACIFIC AM ERICAN W OM EN’S FORUM ; N A TIO N A L A SSO CIA TIO N FOR TH E A DV A NC EM EN T O F C OLO RED PEO PLE; N A A CP LEGAL D EFEN SE A N D ED U CA TIO N AL FU N D , IN C.; N A TIO N A L PA RTN ER SH IP FO R WO M EN AND FAM ILIES; NORTHW EST W OM EN’S LAW CENTER; SA RG EN T SC HR IV ER NA TIONAL CENTER ON POVERTY LAW ; SO U TH W E ST WO M EN ’S LA W C EN TER ; WO M EN ’S LA W PROJECT; W OM EN’S SPORTS FO U N D ATIO N ; A M ER IC AN ASSOCIATION OF UNIVER SITY W O M EN ; A A U W ED U CA TIO NAL FO U N D ATIO N ; N A TIO N A L C OA LITIO N A G AIN ST V IO LENT A TH LETES; SEC UR ITY O N C AM PU S, IN C.; JA Y CO A K LEY, Ph.D.; A NGELA HATTERY, Ph.D.; M ARY G. M CDONALD, Ph.D.; M IC HAEL A. M ESSNER, Ph.D.; D O N SA BO , Ph.D .; A LLEN SACK, Ph.D.; EAR L SM ITH, Ph.D.; ELLEN STAURO W SKY , Ph.D.; STEPHEN W ALK, Ph.D.,
Amicus Curiae.
A PPE AL FR OM T HE UNITED STATES DISTRICT COURT FOR T HE DISTRICT OF COLORADO (D.C. NO . 02-cv-2390-REB -CBS)
Blaine P. Kerr, Hutchinson Black and Cook, LLC, Boulder Colorado (K imberly M . Hult, Christopher W . Ford, Hutchinson Black and Cook, LLC; Honorable Patricia M . W ald, W ashington, DC; Pamela S. Karlan, Stanford Law School, Stanford, CA; Jocelyn Samuels, Dina R. Lassow, Neena K. Chaudhry, Ellen Eardly, of counsel, W ashington, DC, with her on the briefs, for the Plaintiff - Appellant Simpson; and Seth J. Benezra, John A Culver, Benezra & Culver, LLC,
-2- Lakewood, CO, and Peggy R. Jessel, Peggy Jessel, LLC, Boulder, CO, with her on the briefs, for Plaintiff - Appellant Gilmore).
Patrick T. O’Rourke, Office of University Counsel, Denver, Colorado, (David P. Temple, Office of University Counsel; Daniel M . Reilly, Larry S. Pozner, Sean Connolly, Reilly, Pozner & Connelly LLP, Denver, Colorado, with him on the briefs), for the D efendants - Appellees.
Jonathan J. Frankel, Thomas P. Olson, Katherine A. Gillespie, Sarah K. Hurwitz, Anjana M alhotra, W ilmer Cutler Pickering Hale and Dorr LLP, W ashington, DC, filed an amicus curiae brief on behalf of Women’s Sports Foundation, American Association of University W omen, AAUW Educational Foundation, National Coalition Against Violent Athletes, Security on Campus, and Professors W ho Study Gender, Violence and Sports, in support of Plaintiffs - Appellants.
Lenora M . Lapidus, A merican C ivil Liberties Union Foundation, New York, NY , filed an amicus curiae brief on behalf of American Civil Liberties Union, American Civil Liberties Union Foundation of Colorado, Asian American Legal Defense and Education Fund, California W omen’s Law Center, Connecticut W omen’s Education and Legal Fund, Lawyers’ Committee for Civil Rights Under Law, Legal M omentum, M exican American Legal Defense and Educational Fund, Inc., National Asian Pacific American Women’s Forum, National Association for the Advancement of Colored People, NAACP Legal Defense and Educational Fund, Inc., National Partnership for W omen and Families, Northwest W omen’s Law Center, Sargent Shriver National Center on Poverty Law, Southw est W omen’s Law Center, and W omen’s Law Project, in support of Plaintiffs - Appellants.
Before HA RTZ, M cKA Y, and GORSUCH, Circuit Judges.
HA RTZ, Circuit Judge.
Lisa Simpson and Anne Gilmore (Plaintiffs) claim that they were sexually
assaulted on the night of December 7, 2001, by football players and recruits of the
University of Colorado at Boulder (CU). They brought this action against CU
-3- under Title IX of the Education Amendments of 1972. See 20 U.S.C.
§§ 1681–1688. The district court granted summary judgment for CU, see Simpson
v. Univ. of Colo., 372 F. Supp. 2d 1229, 1246 (D. Colo. 2005), and later denied
motions to alter or amend the judgment and to reopen discovery. Plaintiffs
appealed these rulings in our case number 06-1184. Later the district court
denied a second motion for relief from judgment. Plaintiffs appealed that ruling
in our case number 07-1182. We grant Plaintiffs’ motion to consolidate the two
appeals. Two amicus curiae briefs have been submitted by organizations in
support of Plaintiffs’ position. 1 W e have jurisdiction under 28 U.S.C. § 1291. 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
1 The first amicus brief was submitted on behalf of the American Civil Liberties Union, American Civil Liberties Union Foundation of Colorado, Inc., Asian American Legal Defense and Education Fund, California W omen’s Law Center, Connecticut W omen’s Education and Legal Fund, Lawyers’ Committee for Civil Rights Under Law , Legal M omentum, M exican American Legal Defense and Educational Fund, Inc., National Asian Pacific American W omen’s Forum, National Association for the Advancement of Colored People, NAACP Legal Defense and Educational Fund, Inc., National Partnership for W omen and Families, Northwest W omen’s Law Center, Sargent Shriver National Center on Poverty Law, Southwest W omen’s Law Center, and W omen’s Law Project. The second amicus brief was submitted on behalf of the W omen’s Sports Foundation, American Association of University W omen, AAUW Educational Foundation, National Coalition Against Violent Athletes, Security on Campus, Inc., and certain professors who study gender, violence and sports.
-4- 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. W e
therefore hold that C U w as not entitled to summary judgment. Because we
reverse and remand for further proceedings, we need not address the merits of the
postjudgment motions.
I. B ACKGR OU N D
W e will briefly state the gist of Plaintiffs’ claims before addressing the
procedural posture of the case and the governing law. Then we will discuss the
evidence in significantly greater detail. W e view the evidence presented to the
district court in the light most favorable to the parties opposing summary
judgment— namely, Plaintiffs. See Escue v. N. Okla. Coll., 450 F.3d 1146, 1152
(10th Cir. 2006). 2
A. Plaintiffs’ Allegations
Plaintiffs were sexually assaulted in M s. Simpson’s apartment by CU
football players and high-school students on a recruiting visit. The CU football
team recruited talented high-school players each fall by bringing them to campus.
Part of the sales effort was to show recruits “a good time.” To this end, recruits
2 W e rely solely on materials before the district court at summary judgment. This includes materials in volumes I, II, III, V I and VII of the appendix, as well as portions of volumes IV and VIII. M aterials in volumes V , IX, X, XI, and XII of the appendix were submitted after the district court entered summary judgment.
-5- were paired with female “Ambassadors,” who showed them around campus, and
player-hosts, who were responsible for the recruits’ entertainment. At least some
of the recruits who came to M s. Simpson’s apartment had been promised an
opportunity to have sex.
By the time of the alleged assaults of Plaintiffs, there were a variety of
sources of information suggesting the risks that sexual assault would occur if
recruiting was inadequately supervised. These included reports not specific to
CU regarding the serious risk of sexual assaults by student-athletes. There was
also information specific to C U. In 1997 a high-school girl was assaulted by CU
recruits at a party hosted by a CU football player. The local district attorney
initiated a meeting with top CU officials, telling them that CU needed to develop
policies for supervising recruits and implement sexual-assault-prevention training
for football players. Yet CU did little to change its policies or training following
that meeting. In particular, player-hosts were not instructed on the limits of
appropriate entertainment.
M oreover, events within the football program did not suggest that training
relating to recruiting visits was unnecessary. Not only was the coaching staff
informed of sexual harassment and assault by players, but it responded in ways
that were more likely to encourage than eliminate such misconduct.
-6- B. Court Proceedings
On December 9, 2002, M s. Simpson filed a complaint in Colorado state
court; on December 23 CU removed the action to the United States D istrict Court
for the District of Colorado. M s. Gilmore filed her complaint in federal district
court on December 8, 2003. The two cases were consolidated on January 30,
2004. In their complaints Plaintiffs sought relief under Title IX, 20 U.S.C.
§ 1681(a), claiming that CU knew of the risk of sexual harassment of female CU
students in connection with the CU football recruiting program and that it failed
to take any action to prevent further harassment before their assaults.
On M ay 5, 2004, CU filed a summary-judgment motion contending that
Plaintiffs could not establish the elements of a Title IX claim. In granting CU’s
motion on M arch 31, 2005, the district court ruled that no rational person could
find (1) that CU had actual notice of sexual harassment of CU students by football
players and recruits before Plaintiffs’ assaults or (2) that CU was deliberately
indifferent to such harassment. Simpson, 372 F. Supp. 2d at 1235. The court also
observed that a fact-finder could not find causation because of the lack of
evidence of notice and deliberate indifference. See id. at 1245. On M ay 23,
2006, the court denied motions to alter or amend the judgment and to reopen
discovery. On A pril 24, 2007, after Plaintiffs had already appealed these rulings,
it denied an additional motion by Plaintiffs for relief from judgment.
-7- II. D ISC USSIO N
A. G overning Law
“W e review the district court’s grant of summary judgment de novo.
Summary judgment is appropriate only where ‘there is no genuine issue as to any
material fact and the moving party is entitled to a judgment as a matter of law.’”
Escue, 450 F.3d at 1152 (citation and ellipsis omitted) (quoting Fed. R. Civ. P.
56(c)).
Title IX provides in pertinent part: “N o person in the United States shall,
on the basis of sex, be excluded from participation in, be denied the benefits of,
or be subjected to discrimination under any education program or activity
receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The United States
Supreme Court has held that Title IX authorizes private suits for damages in
certain circumstances. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60,
76 (1992); see also Cannon v. Univ. of Chi., 441 U.S. 677, 717 (1979). Two
Supreme Court cases have addressed the contours of Title IX damages suits for
sexual harassment. In Gebser v. Lago Vista Independent School District,
524 U.S. 274 (1998), the complaint alleged sexual harassment of a student by a
teacher. In Davis ex rel. LaShonda D . v. M onroe County Board of Education,
526 U.S. 629 (1999), the complaint alleged student-on-student harassment.
Both parties in the case before us have treated Plaintiffs’ claims as claims
of student-on-student harassment subject to the specific requirements of Davis.
-8- In our view, however, Plaintiffs’ claims have critical elements that make the
student-on-student-harassment framework an imperfect one for analysis of their
claims. The alleged sexual assaults were not simply misconduct that happened to
occur at CU among its students. Plaintiffs allege that the assaults arose out of an
official school program, the recruitment of high-school athletes. Indeed, they
allege that the assaults were the natural, perhaps inevitable, consequence of an
officially sanctioned but unsupervised effort to show recruits a “good time.”
Although we find this situation distinguishable from those addressed in Gebser
and Davis, we can determine the requirements for a Title IX claim in this context
only after seeking guidance in these two decisions.
In Gebser the Supreme Court held that a student’s claim for money
damages based on sexual harassment by a teacher could arise under Title IX, but
only if (1) “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 (2) the inadequate response “amount[s] to
deliberate indifference to discrimination.” 524 U.S. at 290. The Court rejected
two alternative bases of liability advanced by the plaintiffs. First, it rejected a
respondeat-superior claim predicated on the notion that the authority conveyed to
the teacher by the school district facilitated the harassment. See id. at 282.
Second, it rejected the notion that the district could be liable based on
-9- constructive notice— that is, that the district “‘should have known’ about
harassment but failed to uncover and eliminate it.” Id.
Gebser’s requirements for a Title IX claim were premised on two
propositions. First, Title IX was enacted under Congress’s spending power,
which allows it to “provide for the . . . general W elfare of the United States,”
U.S. Const. art. I, § 8, cl. 1, and to attach conditions on the funds it provides,
see Gebser, 524 U .S. at 286–87. Consistent with this power, Title IX
“condition[s] an offer of federal funding on a promise by the recipient not to
discriminate, in what amounts essentially to a contract between the Government
and the recipient of funds.” Id. at 286. Because of Title IX’s contractual nature,
the Court decided that a funding recipient could be “liable in monetary damages
for noncompliance with the condition,” id. at 287, only if it “has notice that it will
be liable for a monetary award,” id. (brackets and internal quotation marks
omitted). In other words, a funding recipient must have notice of its
noncompliance w ith Title IX before it can be held liable for money damages.
Second, the provisions of Title IX indicate that a funding recipient should
be liable only for its own actions, and not for the independent actions of an
employee or a student. The Court observed that the administrative-enforcement
scheme for Title IX permitted the imposition of financial penalties only after
funding recipients received actual notice of discrimination within their programs
and were given an opportunity to institute corrective measures; they would be
-10- subject to sanctions only for their failure to respond rather than for an employee’s
independent acts. Id. at 287–89. “W here a statute’s express enforcement scheme
hinges its most severe sanction on notice and unsuccessful efforts to obtain
compliance,” said the Court, “w e cannot attribute to Congress the intention to
have implied an enforcement scheme that allows imposition of greater liability
without comparable conditions.” Id. at 290. The claim in Gebser thus did not
survive because the plaintiffs had conceded that the school district did not have
actual knowledge of harassment. Id. at 291.
Gebser also rejected the plaintiffs’ contention that liability could be based
on the school district’s “failure to promulgate and publicize an effective policy
and grievance procedure for sexual harassment claims.” Id. It explained that the
school district’s alleged violation of federal regulations requiring such procedures
did not establish the requisite actual notice or deliberate indifference, and “the
failure to promulgate a grievance procedure does not itself constitute
‘discrimination’ under Title IX.” Id. at 292.
Relevant to the claims before us are two remarks by the Court that suggest
that the Gebser standards do not apply to some Title IX harassment claims and
indicate what the standards should be for those claims. First, the Court noted a
limitation when setting forth the requirements of actual knowledge and an
inadequate response. It restricted these requirements to “cases like this one that
do not involve official policy of the [school district].” Id. at 290. Second, it
-11- suggested that courts can find guidance in civil-rights cases alleging municipal
liability under 42 U.S.C. § 1983. Explaining why liability would arise only when
the school’s inadequate response amounted to deliberate indifference to
discrimination, the Court wrote:
The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees’ independent actions. Comparable considerations led to our adoption of a deliberate indifference standard for claims under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation of federal rights was the cause of the violation. See Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397 (1997); Canton v. Harris, 489 U.S. 378, 388–392 (1989).
Gebser, 524 U.S. at 290–91. W e will return to these two remarks after a brief
discussion of Davis.
Davis held that the plaintiffs had stated a claim for damages under Title IX
when they alleged that a fifth-grade student had been subjected to five months of
physical and verbal harassment by a classmate and that school officials informed
of the harassment had failed to take any action to investigate or stop it. See
526 U.S. at 633–35, 653–54. The Court addressed two distinct components of the
claim. One was the nature and extent of the injury to the student. The Court held
that a student’s harassment by a peer constitutes “discrimination” under Title IX
-12- if it “is so severe, pervasive, and objectively offensive, and . . . so undermines
and detracts from the victim[’s] educational experience, that the victim-student[]
[is] effectively denied equal access to an institution’s resources and
opportunities.” Id. at 651. The district court did not rule that Plaintiffs had failed
to establish this component of their cause of action, and it is not at issue on
appeal.
The second component addressed in Davis is the role and responsibility of
the funding recipient. Although acknowledging that a school receiving federal
funds cannot be liable unless it has notice that its conduct could subject it to a
damages claim, the Court said that “this limitation on private damages actions is
not a bar to liability where a funding recipient intentionally violates the statute.”
Id. at 642. It noted that in Gebser it had rejected a negligence standard for
liability— namely, a standard that would have imposed liability on a school
district for “failure to react to teacher-student harassment of which it . . . should
have known”— but instead had “concluded that the district could be liable for
damages only where the district itself intentionally acted in clear violation of
Title IX by remaining deliberately indifferent to acts of teacher-student
harassment of which it had actual knowledge.” Id. In further expounding the
standard for liability the Court said:
The statute’s plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient
-13- does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment. That is, the deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.
Id. at 644–45 (brackets and internal quotation marks omitted). “These factors,” it
continued,
combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to “expose” its students to harassment or “cause” them to undergo it “under” the recipient’s programs.
Id. at 645.
The second component of Plaintiffs’ claims— the role and responsibility of
CU— is the focus of this appeal. W e do not believe, however, that the
formulation of this component in Gebser and Davis translates perfectly to the
context of this case. W e find it significant that in those cases there was no
element of encouragement of the misconduct by the school district. To be sure, in
those cases the school district could anticipate that the very operation of a school
would be accompanied by sexual harassment, but that is simply because,
unfortunately, some flawed humans will engage in such misconduct when they are
in the company of others. Here, however, the gist of the complaint is that CU
sanctioned, supported, even funded, a program (showing recruits a “good time”)
that, without proper control, would encourage young men to engage in
-14- opprobrious acts. W e do not think that the notice standards established for
sexual-harassment claims in Gebser and Davis necessarily apply in this
circumstance.
Gebser suggested as much in the remarks we referenced above. The Court
said that the requirements it imposed applied to “cases like this one that do not
involve official policy of the [school district].” 524 U.S. at 290. The Court did
not elaborate on what it meant by “involve official policy,” but the essence of the
point is suggested by its reliance in the following paragraph on the doctrine
regarding the imposition of liability on municipalities under 42 U.S.C. § 1983 for
civil-rights violations. The Court supported the deliberate-indifference
requirement for Title IX liability by observing that “[c]omparable considerations
led to our adoption of a deliberate indifference standard for claims under § 1983
alleging that a municipality’s actions in failing to prevent a deprivation of federal
rights was the cause of the violation.” Id. at 291. W hat is “comparable” is the
requirement for both § 1983 municipal liability and Title IX funding-recipient
liability that the institution itself, rather than its employees (or students), be the
wrongdoer. Under Title IX the school district “could be liable for damages only
where the district itself intentionally acted in clear violation of Title IX.” Davis,
526 U.S. at 642. The funding recipient should be liable only “for its own official
decision,” not “its employees’ independent actions.” Gebser, 524 U.S. at 291.
Likewise, under § 1983 a municipality is not liable under respondeat superior
-15- doctrine but only for its own civil-rights violations. “[I]t is when execution of a
government’s policy or custom, whether made by its lawmakers or by those
whose edicts or acts may fairly be said to represent official policy, inflicts the
injury that the government as an entity is responsible under § 1983.” M onell v.
Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694 (1978).
In the context of Gebser or Davis, the school district could not be said to
have intentionally subjected students to harassment unless it knew of the
harassment and deliberately decided not to take remedial action. But the § 1983
municipal-liability cases reveal how the standard changes w hen the claim
“involve[s] official policy,” Gebser, 524 U.S. at 290, although the underlying
principle— liability only for intentional acts by the institution itself— remains the
same.
One of the cases cited by Gebser as support for the deliberate-indifference
requirement, see id. at 291, is City of Canton v. Harris, 489 U.S. 378 (1989). In
that case the Court held that a municipality may be liable under § 1983 for an
officer’s constitutional violation if the violation was the result of inadequate
police training and the municipality’s failure to train the officer amounted to
deliberate indifference to the rights of those “with whom police come into
contact.” Id. at 388. Although recognizing that a municipality is liable under
§ 1983 for a constitutional violation by one of its officers only if the officer’s
action is caused by a municipal policy or custom, see id. at 385, the C ourt
-16- declared that the policy itself need not be unconstitutional, id. at 387. Rather,
failure to conduct an adequate training program for implementation of an
otherwise valid policy may represent a municipal policy on which liability can
rest. See id. at 389–90. To be sure, typically a municipality would not
intentionally have a training program that was clearly inadequate, but the Court
explained:
[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.
Id. at 390. W e conclude that a funding recipient can be said to have
“intentionally acted in clear violation of Title IX,” Davis, 526 U.S. at 642, when
the violation is caused by official policy, which may be a policy of deliberate
indifference to providing adequate training or guidance that is obviously
necessary for implementation of a specific program or policy of the recipient.
Implementation of an official policy can certainly be a circumstance in which the
recipient exercises significant “control over the harasser and the environment in
which the harassment occurs.” Id. at 644.
In applying this standard we take note of Canton’s discussion of what is
meant by an “obvious” need for training. It recognized that a need could be
“obvious” for reasons other than knowledge of previous incidents within the
municipality:
-17- For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force can be said to be “so obvious,” that failure to do so could properly be characterized as “deliberate indifference” to constitutional rights.
Canton, 489 U.S. at 390 n.10 (citation omitted). The Court elaborated on this
point in Board of County Commissioners of Bryan County, Oklahoma v. Brown,
520 U.S. 397 (1997), which held that a sheriff’s isolated failure to perform
adequate screening of a potential deputy did not establish deliberate indifference
to a risk that the deputy would use excessive force, id. at 415–16. But it
reaffirmed Canton’s holding that deliberate-indifference claims could be
established by a failure to train for certain obvious risks: “In Canton, we did not
foreclose the possibility that evidence of a single violation of federal rights,
accompanied by a showing that a m unicipality has failed to train its employees to
handle recurring situations presenting an obvious potential for such a violation,
could trigger municipal liability.” Id. at 409; see Allen v. M uskogee, Okla., 119
F.3d 837, 843, 845 (10th Cir. 1997) (when city trained officers “to leave cover
and approach armed, suicidal, emotionally disturbed persons and . . . try to disarm
them,” plaintiff’s claim fell within “the narrow range of circumstances . . . under
which a single violation of federal rights may be a highly predictable consequence
of failure to train officers to handle recurring situations with an obvious potential
-18- for such a violation” (internal quotation marks omitted)); see also Brown v. Gray,
227 F.3d 1278, 1290 (10th Cir. 2000).
B. Evidence at Summary Judgment
W e now review the evidence presented in the summary-judgment filings in
the light most favorable to Plaintiffs to determine whether it can satisfy the above
standard. See Escue, 450 F.3d at 1152. At summary judgment,
the relevant inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. . . . [S]ummary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Bingaman v. Kan. City Power & Light Co., 1 F.3d 976, 980–81 (10th Cir. 1993)
(ellipsis omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52,
248 (1986)) .
The CU football program is one of the premier programs in the country.
From 1989–2005 the team had the twelfth-best record among all teams in
Division I-A of the National Collegiate Athletic Association (NCAA). It won the
national championship in 1990, finished first in the Big 8 Conference three times
between 1989 and 1995, and was the Big 12 Conference champion in 2001.
As the report of a CU independent investigative commission (IIC Report)
observed, 3 CU’s success on the field has been partly the result of an effective
3 The independent investigative commission was created by resolution of the Board of Regents, which directed it to investigate the use of sex and alcohol (continued...)
-19- recruiting program that attracts the attention of the country’s elite high-school
football prospects. The NCAA, which closely regulates many aspects of the
recruiting process, allows schools like CU to bring up to 62 high-school-aged
prospects to campus each fall during football season. In the 1990s CU paired
each visiting recruit with an “Ambassador,” usually female, who escorted the
recruit around campus throughout the visit. CU also matched recruits with
players selected by the coaching staff, including the head coach. Robert
Chichester, an attorney in the CU counsel’s office and later associate athletic
director, said that the player-hosts, who were usually underclassmen, were chosen
because they knew how to “party” and how “to show recruits a good time,” and
would “do a good job of entertaining [them].” Aplt. App. Vol. VI at 397 (Dep. of
Robert Chichester). One host put it:
[T]he whole goal is to have . . . the top recruits come from all over the nation to come to your school, . . . because that’s your— the future of the team. . . . [T]he position that we’re placed in is that we’re supposed to . . . take these recruits out, . . . show them a good
3 (...continued) in CU football recruiting and provide a report to the Board. In the district court Plaintiffs claimed that the IIC Report was admissible as nonhearsay under Fed. R. Evid. 801(d)(2) or under a hearsay exception, Fed. R. Evid. 803(8). Simpson, 372 F. Supp. 2d at 1233. For purposes of summary judgment the district court assumed that one of these arguments was correct. Id. On appeal CU makes the blanket assertion, with no supporting citations or argument, that “[t]he IIC report is inadmissible hearsay.” Aplee. Br. at 57. W e deem its argument waived on appeal and decline to address it. See Ambus v. Granite Bd. of Educ., 975 F.2d 1555, 1558 n.1 (10th Cir. 1992), modified on other grounds on reh’g, 995 F.2d 992 (10th Cir. 1993).
-20- time, go out to dinner with them, . . . just have them interact with other athletes and just students in general.
Aplt. App. Vol. VII at 1343.
Plaintiffs were assaulted during a recruiting visit in December 2001. CU
won the Big 12 Conference championship on December 1. High-school recruits
visited campus a few days later. According to one recruit who was present at the
assaults, on the night of Thursday, December 6, some of his fellow recruits had
sex w ith female students in a room at a local hotel. He had stayed in his own
room, but the next day he was assured by players that he could expect similar
treatm ent that night and every w eekend if he came to CU.
CU football players talked to a female CU student, who was a tutor for the
athletic department, about getting together with her and other female students on
Friday, December 7. At least one of the players understood that the purpose was
to provide recruits another chance to have sex. The tutor, along with
M s. Gilmore, M s. Simpson and others, had planned to spend the evening at
M s. Simpson’s apartment. The tutor asked M s. Simpson if four football players
could come over later, and M s. Simpson agreed. Between 11:30 and 11:45 p.m.
about 20 football players and recruits arrived. Although some apparently left
shortly after arriving, others remained. One player who was leaving was told by
the tutor that he should stay because “it was about to go down,” which he
-21- understood to mean that the women would begin showing recruits a “good time.”
Aplt. App. Vol. VI at 459 (internal quotation marks omitted).
W ithin an hour or so M s. Simpson, who was intoxicated, went to her
bedroom to sleep. She awoke later to find tw o naked men removing her clothes.
The door w as locked. She was then sexually assaulted, both orally and vaginally,
by recruits and players surrounding her bed. In the same room at the same time,
two players and a third man, who was either a player or a recruit, were sexually
engaged with M s. Gilmore, who was too intoxicated to consent. M s. Simpson and
M s. Gilmore were not the only females allegedly assaulted that night; three other
women were sexually harassed by players in the apartment and a fourth had
nonconsensual sex with two players after leaving the apartment. M s. Simpson
later w ithdrew from CU , and M s. Gilmore eventually left Colorado for a year.
The central question in this case is w hether the risk of such an assault
during recruiting visits was obvious. In our view , the evidence could support
such a finding.
The association of sexual misconduct with college football programs had
been a matter of w idespread reporting and concern for many years. The W omen’s
Sports Foundation, amicus curiae in this appeal, has pointed to at least 14 articles
addressing the topic in various mainstream news publications between 1983 and
Plaintiffs’ assaults. There were also a number of articles in the Chronicle of
Higher Education, including at least one expressly noting the risk of sexual
-22- misconduct in connection with recruiting. Academic research in the early 1990s
concluded that male student athletes w ere more prone to commit sexual assault
than other male students. CU’s 2001 handbook for football players contains the
following paragraph:
A recent three-year study conducted by the National Institute of M ental Health found that athletes participated in one-third of the 862 sexual attacks on college campuses. Another study conducted at Towson State University’s Center for the Study and Prevention of Campus V iolence found that athletes are 5.5 times more likely to commit date rape.
Aplt. App. Vol. II at 627.
CU itself was a specific focus of concern. A 1989 Sports Illustrated article
on unlawful conduct by CU football players reported a number of cases of sexual
assault by the players. One passage stated that the head football coach at the
time, Bill M cCartney,
sometimes doesn’t seem to grasp the seriousness of the situation either. . . . [H]e told [a television reporter], “Rape by definition is a violent act; an act whereby there’s real physical violence involved, and so I don’t think that’s w hat we’re talking about here.” Said Boulder district attorney Alex Hunter, “It’s obvious to me that one more spot in that date-rape seminar should be reserved for the football coach.”
Rick Reilly, What Price Glory? Sports Illustrated, Feb. 27, 1989, at 32. In 1990
two CU football players were charged with rape and sexual assault arising from
separate incidents.
-23- The CU recruiting program w as implicated in such misconduct in 1997,
when Rick Neuheisel was head coach. As the IIC Report detailed, on December 6
a group of high-school girls attended a party at an off-campus hotel hosted by a
CU football player for two visiting recruits. One of the girls alleged that she had
been sexually assaulted by recruits at the party. Although the victim was not a
CU student protected by Title IX, that circumstance is irrelevant to evaluation of
the risk to CU women.
In January 1998 CU Chancellor Richard Byyny learned that Boulder police
were investigating the incident. He emailed Athletic Director Richard Tharp:
I worry about the oversight we have of the recruits while they are in our charge. Allegedly the recruits were all drinking beer in their rooms. I realize we don’t have control over immature potential students. How ever, we should clearly spell out our rules, responsibilities, and expectations.
Aplt. App. Vol. II at 320 (IIC Report) (internal quotation marks omitted).
After the incident came to the attention of Boulder County District
Attorney Alex Hunter, he requested a meeting with CU officials. On February 18,
1998, Hunter and Assistant District Attorneys Peter Hofstrom and M ary Keenan
met with Byyny, Tharp, and Chichester, who was w orking in CU’s counsel’s
office. Byyny understood that the purpose of the meeting was to provide the
DA’s office with an opportunity to “ask [CU] to continue to try and help educate
[its] students, make sure that [the] students and [the] coaches were well informed
about University policies and expectations in order to work to prevent these . . .
-24- kinds of events from occurring.” A plt. App. Vol. VI at 404 (Dep. of Richard
Byyny).
At the meeting Keenan, who later became DA, said that she was concerned
about women being made available to recruits for sex. She explained that a girl
in the position of the high-school victim, who was drunk at the time, would have
sex with football recruits, “whether consensual or nonconsensual.” Id. at 426
(Notes of M ary Jo W hite). She asserted that the 1997 assault wasn’t “isolated”
and indicated a “real problem” from which people at CU were “turn[ing their]
heads.” Id. at 410 (Notes of Robert Chichester). According to Keenan, she
recommended that CU adopt a policy of zero tolerance for alcohol and sex in the
recruiting program, develop written policies and procedures for supervising
recruits, and offer football players annual training by the DA on sexual assault.
She told Tharp “that [he] need[ed] to take measures to prevent this because if it
happens again, [the DA’s office is] going to deal with it very seriously.” Id. at
420 (Dep. of M ary Keenan). CU was now, as she put it at the time, “on notice.”
Id.
Hunter also emphasized the changes that he thought needed to be made in
the CU football recruiting program. The most important was that the player-hosts
needed to be instructed on what was and was not appropriate conduct.
Furthermore, the head coach needed to be tougher with athletes, and the coaching
-25- staff needed to explain clearly what conduct was appropriate for player-hosts and
others.
The parties dispute the vigor of CU’s response after the meeting. CU
claims that it made significant policy revisions, but Plaintiffs have questioned
whether these revisions were actually aimed at remedying or correcting the
problem . CU’s primary response was not admitting the two recruits involved in
the assault and suspending the player for a semester. In addition, in April 1998
Chancellor Byyny instructed Athletic Director Tharp to develop new policies on
student-athlete behavior, including a zero-tolerance rule on activities threatening
the health or safety of student-athletes and others. Tharp responded that new
policies w ould be drafted, but he expressed concern that new policies— apparently
including the zero-tolerance policy— would impose a higher standard upon
student-athletes than other students. As Tharp acknowledged in his deposition,
none of the eventual recruiting or policy changes— the most substantive of which
was apparently a ban on alcohol or tobacco for recruits— addressed either sexual
contact between recruits and females or the responsibilities of player-hosts (other
than a general statement that student-athletes should comply with Colorado law).
Furthermore, although CU adopted a revised sexual-harassment policy in 1998, it
applied equally to everyone on campus. It included nothing specific to recruiting
or athletics, and although Tharp had been involved in drafting the policy in 1995
and 1996, he admitted that he played no role in its development after December
-26- 1997, when the assault occurred. As for the recommendations by prosecutors
Hunter and Keenan, “no changes . . . were apparent” to Chichester following the
meeting. Id. at 397.
New head coach Gary Barnett arrived at CU in 1999. Deposition testimony
of three players suggests that player-hosts still received little or no direction on
appropriate behavior or responsibilities. One player testified that he had been
told that his responsibilities as a player-host were to “[s]how [the recruits]
around,” and that “[t]hey really don’t go into detail [regarding] your
responsibilit[ies].” Id. at 448. Barnett, who had learned from Chichester about
the 1997 assault and subsequent meeting with the DA, began distributing a
football handbook that included one page (of 88) addressing “Date Rape and
Social Policy,” Aplt. App. Vol. II at 627. The page warned players “not [to] put
[themselves] in a position to lose everything [they] ha[d] worked hard for by
comm itting a sexually aggressive act.” Id. It cautioned that “NO means NO;
even if you think she means yes”; “[a] girl never owes you sex”; and “[n]ever
initiate intercourse if the woman is intoxicated or passed out.” Id. There is
evidence that coaches or senior players reviewed at least some of the information
in the handbook with players during training camp. The handbook does not,
however, address the risk of sexual assault or harassment in the recruiting
program, and does not provide guidance to player-hosts on appropriate behavior
by themselves and recruits. The only pages to address recruiting provided basic
-27- instructions on the use of a $30 stipend provided by CU to hosts for entertainment
of recruits.
W hatever Barnett did, it apparently did not straighten out the recruiting
program. One recruit— who was later persuaded to come to CU and was one of
the players present the night of Plaintiffs’ assaults— stated that he was offered
marijuana and alcohol and taken to a strip club during his 1999 recruiting visit.
Afterwards he told Barnett that he did not want to accept CU’s offer because of
what he had seen on campus, although he refused Barnett’s request to go into
detail. W hen an assistant coach later followed up with him, he told the coach
about the marijuana use, but did not mention the strippers.
M oreover, there were other signs that guidance of players regarding sexual
harassment (including assault) had proved inadequate. In either 1999 or 2000,
Dr. David Hnida, the father of Katharine Hnida, a female player on the CU
football team, repeatedly told Barnett and Athletic Director Tharp “about multiple
instances of sexual harassment of [his] daughter by CU football players, which
the coaching staff had allowed to continue.” Id. at 463 (A ff. of David Hnida).
W hen M s. Hnida made additional complaints about harassment, Barnett and Tharp
retaliated against her by preventing her from staying on the football team and
interfered with her playing elsewhere.
M ore importantly, in late September 2001, about two months before
Plaintiffs’ assaults, a female student employed in the athletic department, Trainer
-28- A, was raped by a CU football player. Trainer A met with Barnett shortly after
the rape. Barnett twice asked her if she planned to press charges, and she told
him that she wasn’t sure. He then told her that if she did, her “life would
change,” Aplt. App. Vol. VI at 467 (Aff. of Trainer A), and that if the player had
a different version of what happened, “he would support the player,” id. at 468.
She alleged that when she asked Barnett what he would do about the player, he
responded that “he was the player’s coach and not his father and that he would
not punish him.” Id. at 467. Trainer A ultimately decided not to press charges
because of her conversation with Barnett. Barnett testified that the player was
ordered to do some extra running, but he could not recall the specifics. Also, the
player wrote a letter of apology.
In addition to the evidence that Barnett knew that efforts by CU were not
effective in establishing a football-team culture that would prevent sexual
assaults, there was also evidence that those efforts were being undermined by
Barnett himself. W e have already noted the evidence of his hostility to those
alleging sexual harassment (David and Katharine Hnida) or sexual assault
(Trainer A). And in 2001 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 CU campus.
CU contends that evidence of its conduct after the assaults on Plaintiffs is
irrelevant. But the reaction by Barnett and other officials to Plaintiffs’
-29- allegations indicates an attitude that would be inconsistent with their having made
any sincere effort in the past to instruct players not to engage in or promote
sexual harassment or assault. After M s. Simpson reported her assault to police,
CU revoked spring-semester scholarships for four football players w ho were
allegedly involved but did not deny eligibility to those players for the January
2002 Fiesta Bowl, where CU had a chance to win the national championship.
Although CU did not admit that year two recruits who were implicated in the
assaults, Coach Barnett acknowledges that after the assaults he continued to
support admission for one of the recruits despite being told that evidence of his
involvement in the assaults was “overwhelming.” Id. at 475. There is also
evidence that the C U police officer who served as C oach Barnett’s personal escort
at football games obstructed the investigation into Plaintiffs’ assaults by meeting
with football players before the investigating officers could. An assistant coach
told players to copy a videotape before giving it to police officers who had
requested it as part of their investigation into the assaults. And a female student-
athlete had her scholarship terminated and was “excluded by athletic department
staff, without explanation, from athletic facilities and benefits” after she told
police what she saw at M s. Simpson’s apartment on December 7. Aplt. App. Vol.
II at 701 (Aff. of student).
Barnett and Tharp also continued to resist recruiting reforms. Barnett told
Chichester that he thought that female students may have arranged for the events
-30- of December 7, effectively setting up the recruits. He claimed that at schools all
over the country recruits were shown “a good time,” met young women, and went
to parties, and if such activities weren’t allowed at CU, it would be a
“competitive disadvantage” for the football team. Aplt. App. Vol. VI at 395.
As for Tharp, in April 2002 Chancellor Byyny directed him to institute a
number of recruiting changes, including requiring only “well-trained
upperclassmen” to serve as recruiting hosts. Aplt. App. Vol. II at 324 (IIC
Report) (internal quotation marks omitted). Although Tharp made som e changes,
he resisted the order to limit hosts to upperclassmen. The record does not appear
to indicate whether or when such a requirement was instituted, although CU
eliminated the player-host program entirely by the 2004–2005 recruiting season.
In sum, the evidence before the district court would support findings that
by the time of the assaults on Plaintiffs, (1) Coach Barnett, whose rank in the CU
hierarchy was comparable to that of a police chief in a municipal government, had
general knowledge of the serious risk of sexual harassment and assault during
college-football recruiting efforts; (2) Barnett knew that such assaults had indeed
occurred during CU recruiting visits; (3) Barnett nevertheless maintained an
unsupervised player-host program to show high-school recruits “a good time”;
and (4) Barnett knew, both because of incidents reported to him and because of
his own unsupportive attitude, that there had been no change in atmosphere since
1997 (when the prior assault occurred) that would make such misconduct less
-31- likely in 2001. A jury could infer that “the need for more or different training [of
player-hosts was] so obvious, and the inadequacy so likely to result in [Title IX
violations], that [Coach Barnett could] reasonably be said to have been
deliberately indifferent to the need.” Canton, 489 U.S. at 390.
In light of the summary-judgment standard, and taking into account all
favorable inferences for Plaintiffs, see Escue, 450 F.3d at 1152, we conclude that
they submitted sufficient evidence for “a reasonable jury [to] return a verdict for
[them],” Bingaman, 1 F.3d at 981 (internal quotation marks omitted). Summary
judgment was therefore inappropriate.
III. C ON CLU SIO N
W e REVERSE the grant of summary judgment to CU and REM AND for
further proceedings consistent w ith this opinion.
-32-