Simpson v. University of Colorado Boulder
| Decision Date | 06 September 2007 |
| Docket Number | No. 07-1182.,No. 06-1184.,06-1184.,07-1182. |
| Citation | 500 F.3d 1170 |
| Parties | Lisa SIMPSON; Anne Gilmore, Plaintiffs-Appellants, v. UNIVERSITY OF COLORADO BOULDER, through its Board; The Regents of the University of Colorado, Defendants-Appellees, American Civil Liberties Union; American Civil Liberties Union Foundation of Colorado, Inc.; Asian American Legal Defense & Education Fund; California Women's Law Center; Connecticut Women's Education and Legal Fund; Lawyers' Committee for Civil Rights Under Law; Legal Momentum; Mexican 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 Women and Families; Northwest Women's Law Center; Sargent Schriver National Center on Poverty Law; Southwest Women's Law Center; Women's Law Project; Women's Sports Foundation; American Association of University Women; AAUW Educational Foundation; National Coalition Against Violent Athletes; Security on Campus, Inc.; Jay Coakley, Ph.D.; Angela Hattery, Ph. D.; Mary G. McDonald, Ph.D.; Michael A. Messner, Ph.D.; Don Sabo, Ph.D.; Allen Sack, Ph.D.; Earl Smith, Ph.D.; Ellen Staurowsky, Ph.D.; Stephen Walk, Ph.D., Amicus Curiae. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Blaine P. Kerr, Hutchinson Black and Cook, LLC, Boulder Colorado (Kimberly M. Hult, Christopher W. Ford, Hutchinson Black and Cook, LLC; Honorable Patricia M. Wald, Washington, DC; Pamela S. Karlan, Stanford Law School, Stanford, CA; Jocelyn Samuels, Dina R. Lassow, Neena K. Chaudhry, Ellen Eardly, of counsel, Washington, DC, with her on the briefs, for the Plaintiff-Appellant Simpson; and Seth J. Benezra, John A Culver, Benezra & Culver, LLC, 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 Connelly, Reilly, Pozner & Connelly LLP, Denver, Colorado, with him on the briefs), for the Defendants-Appellees.
Jonathan J. Frankel, Thomas P. Olson, Katherine A. Gillespie, Sarah K. Hurwitz, Anjana Malhotra, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, DC, filed an amicus curiae brief on behalf of Women's Sports Foundation, American Association of University Women, AAUW Educational Foundation, National Coalition Against Violent Athletes, Security on Campus, and Professors Who Study Gender, Violence and Sports, in support of Plaintiffs-Appellants.
Lenora M. Lapidus, American Civil 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 Women's Law Center, Connecticut Women's Education and Legal Fund, Lawyers' Committee for Civil Rights Under Law, Legal Momentum, Mexican 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 Women and Families, Northwest Women's Law Center, Sargent Shriver National Center on Poverty Law, Southwest Women's Law Center, and Women's Law Project, in support of Plaintiffs-Appellants.
Before HARTZ, McKAY, and GORSUCH, Circuit Judges.
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 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 We 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 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. We therefore hold that CU was not entitled to summary judgment. Because we reverse and remand for further proceedings, we need not address the merits of the postjudgment motions.
We 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. We 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
Plaintiffs were sexually assaulted in Ms. 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 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 Ms. 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 CU. 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.
Moreover, 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.
On December 9, 2002, Ms. Simpson filed a complaint in Colorado state court; on December 23 CU removed the action to the United States District Court for the District of Colorado. Ms. 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 May 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 March 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 May 23, 2006, the court denied motions to alter or amend the judgment and to reopen discovery. On April 24, 2007, after Plaintiffs had already appealed these rulings, it denied an additional motion by Plaintiffs for relief from judgment.
Escue, 450 F.3d at 1152 () (quoting Fed.R.Civ.P. 56(c)).
Title IX provides in pertinent part: "No 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, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992); see also Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S.Ct. 1946, 60 L.Ed.2d 560 (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, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998), the...
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