Appeals Court Spells Out Standards To Prevent Sex Abuse in Sports
October 28, 2007Two University of Colorado-Boulder women deserve their day in court, a federal appeals court has ruled. Lisa Simpson and Anne Gilmore charged that football recruiting programs sanctioned by the university led to their being raped. A district court in Boulder had dismissed the case without a trial, saying the women could not prove that the university had known of the abuses and was indifferent to them. But last month, the 10th Circuit Court of Appeals found evidence to the contrary and ordered that the case go to trial. “The two women claim the university was well aware that the football program was condoning the use of sex as a recruiting device for football recruits and that it did nothing to stop it. And the rapes were an outgrowth of that,” said Jocelyn Samuels of the National Women’s Law Center. Title IX, the landmark 1972 law barring discrimination in educational institutions receiving federal funds, has been difficult to apply to cases where one student abuses another. This case is different, however. The appeals courtcited evidence that the university athletic department sanctioned recruiting programs that had been proven to lead to sexual abuses and that it never developed guidelines and training for student athletes to prevent such abuse. In addition to clearing the way for the lawsuit to proceed, the court’s ruling in itself is valuable. “This will be very helpful in giving girls and young women protection from harassment on school campuses,” Samuels said. By describing evidence of abuse and itemizing ways the university continued to ignore it, the court in essence spells out for all schools how they will be held accountable under Title IX prohibitions of sex discrimination in education. The football recruiting program used female students as “ambassadors” to escort visiting high school athletes. Coaches matched recruits with UC player-hosts said to know “how to party.” The alleged abuses in this case occurred late on December 7, 2001, a week after CU won the Big 12 conference championship. CU football players talked to a female CU tutor with the athletic department about getting together with her and other female students that night. The tutor got Lisa Simpson’s agreement for four football players to come over. Instead, “about 20 football players and recruits arrived,” the court noted. Within an hour, Simpson, who was intoxicated, went to her bedroom to sleep but, according to the court, “awoke later to find two naked men removing her clothes. The door was locked. She was then sexually assaulted, both orally and vaginally, by recruits and players surrounding her bed.” The same thing happened to Anne Gilmore, who also was intoxicated. The appeals court cited evidence showing that “the risk of such an assault during recruiting visits was obvious.” It also noted that CU, specifically, had known about sexual assault by its athletics. Sports Illustrated had written about it. The CU athletic recruiting program was implicated in misconduct in 1997, and the Boulder police began investigations in 1998. Despite this knowledge, the court found that the university did little to change its policies. As a result of the police investigation, the Boulder district attorney’s office had urged the university to adopt a zero tolerance for alcohol and sex in the recruiting program and to offer football players annual training by the DA on sexual assault. The DA’s office called for guidelines that would talk bluntly about appropriate conduct for player-hosts and others. Instead, brochures on sexual harassment policies were issued for the campus with no specific attention to recruiting or athletic problems. In addition, the department appeared to retaliate against female athletes who made harassment complaints. For example, when a female student-athlete told cops what she saw at Simpson’s apartment on December 7, she “had her scholarship terminated and was ‘excluded by athletic department staff, without explanation, from athletic facilities and benefits.’” The court quoted evidence that head coach Gary Barnett “had general knowledge of the serious risk of sexual harassment and assault during college-football recruiting efforts” and knew “that such assaults had indeed occurred during CU recruiting visits.” Barnett, who was later fired by CU, was also said to have known that kicker Katie Hnida had been subject to harassment by her teammates in 1999 and 2000. (Hnida wrote about her experience in her 2006 memoir, Still Kicking. ) Rather than change policies, the court said, Barnett argued that CU would be at a “competitive disadvantage” if it could not continue to show recruits “a good time,” meeting young women and going to parties. And he continued the unsupervised player-host program, which was designed to do just that.