Simpson v. University of Colorado Boulder
2007 WL 2553402, 500 F.3d 1170, 2007 U.S. App. LEXIS 21478 (2007)
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Rule of Law:
A federally-funded educational institution can be liable for damages under Title IX if sexual harassment is caused by its own official policy. Such a policy can be established by a failure to train or supervise participants in a school program when the need for such action is so obvious, and the inadequacy so likely to result in sexual harassment, that the institution's failure amounts to deliberate indifference.
Facts:
- The University of Colorado (CU) had an official football recruiting program where player-hosts were selected to show high-school recruits a 'good time' and entertain them.
- In 1997, a high-school girl was sexually assaulted by CU recruits at a party hosted by a CU football player during a recruiting visit.
- Following the 1997 assault, the local District Attorney met with top CU officials, warned them of a 'real problem' with sexual misconduct in the recruiting program, and recommended they implement policies for supervising recruits and provide sexual assault prevention training.
- CU made few substantive changes to its recruiting program after the meeting; player-hosts were not instructed on the limits of appropriate entertainment, and the football handbook lacked specific guidance on preventing sexual assault during recruiting.
- In the months leading up to December 2001, the head football coach, Gary Barnett, was informed of other instances of sexual harassment and assault by players but responded in ways unsupportive of the victims.
- On December 7, 2001, Lisa Simpson and Anne Gilmore were sexually assaulted in Simpson's apartment by CU football players and recruits who had arrived as part of an organized recruiting event.
- Some of the recruits present at the assaults had been assured by players that they would have an opportunity to have sex with female students.
- The plaintiffs' assaults occurred after an athletic department tutor arranged for football players and recruits to come to Simpson's apartment, where one player was told 'it was about to go down,' meaning the women would show recruits a 'good time.'
Procedural Posture:
- Lisa Simpson filed a complaint against the University of Colorado (CU) in Colorado state court.
- CU removed the action to the United States District Court for the District of Colorado.
- Anne Gilmore filed a separate complaint against CU in the same federal district court, and the two cases were consolidated.
- CU filed a motion for summary judgment, contending the plaintiffs could not establish the elements of a Title IX claim.
- The district court granted CU's motion for summary judgment, ruling that no reasonable person could find that CU had actual notice of the risk or was deliberately indifferent.
- The plaintiffs (appellants) appealed the grant of summary judgment to the U.S. Court of Appeals for the Tenth Circuit.
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Issue:
Does a university act with deliberate indifference under Title IX when it maintains an official policy of showing football recruits a 'good time' and fails to adequately train or supervise player-hosts, despite an obvious risk that this policy would lead to sexual assault?
Opinions:
Majority - Hartz, Circuit Judge
Yes, a university can be held liable under Title IX for deliberate indifference if it fails to address the obvious risks of sexual assault created by its own official program. The court distinguished this case from prior Supreme Court precedents on student-on-student harassment, which require actual notice of specific, ongoing harassment. Here, the plaintiffs' claims arose from an official school program—the recruitment of athletes—where the university exercised substantial control over the environment and the participants. The court analogized to municipal liability under 42 U.S.C. § 1983, specifically the 'failure to train' doctrine from City of Canton v. Harris. Under this framework, liability can attach if the need for more or different training is 'so obvious' and the inadequacy 'so likely to result' in a rights violation that the failure constitutes deliberate indifference. Given CU's prior incident in 1997, the District Attorney's explicit warnings, and the general knowledge of risks associated with athlete recruiting, a reasonable jury could find that the need to train and supervise player-hosts was obvious and that CU's failure to do so amounted to deliberate indifference, causing the plaintiffs' assaults.
Analysis:
This decision significantly broadens the scope of potential Title IX liability for educational institutions. It establishes that liability is not limited to reactive failures to address known harassment, but can also arise proactively from a failure to adequately design and supervise official school programs. By importing the 'failure to train' theory from § 1983 jurisprudence, the court created a new path for plaintiffs to hold schools accountable for policies or customs that create an obvious and foreseeable risk of sexual misconduct. This precedent requires universities to be more vigilant about the potential for harassment within their official programs, such as athletic recruiting, and to implement necessary safeguards and training, rather than waiting for an incident to occur before acting.
