Higher Ed Law Prof Blog

Gang-rape case reinstated by 10th Federal Circuit Court

Simpson v. University of Colorado Boulder
2007 WL 2553402
10th Cir., September 6, 2007

*1 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.FN1 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.

I. BACKGROUND
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).FN2

A. Plaintiffs' Allegations
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.

*2 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.

Study Abroad for Disabled Students?

International Educator's September issue asks, "You are an enthusiastic student of the writer James Joyce, eager to study at Trinity College in his beloved Dublin.... But you use a wheelchair: Is your dream realistic?" The article posits other disability issues and asks the same question with regard to a variety of other international destinations. The author's answer: "Yes, yes and yes." She goes on to assert, "One of the most encouraging trends in recent years is the increasing number of students with disabilities who have been able to take advantage of study abroad opportunties." Interested in investigating the details of this trend? Then see University of Minnesota's Access Abroad website.

My Big Fat College Education?

The Chronicle of Higher Education reports this week that, according to the Centers for Disease Control, 17.4 percent of American 12-19 year olds are overweight. One of ten college students are in this cramped crowd, says the Chronicle. These students aren't happy about being this way, contends a blog.BigFatBlog.ComMy own classroom experience includes provision of reasonable accommodations, aka a bigger chairs, to obese students. I feel for these fatties, being in somewhat the same boat (with water washing over the gunwales) myself, as I said in a recent newspaper column:

All My Fat Friends Are to Blame
By
Jim Castagnera
I’ve always been a poster child for Catholic Guilt. After 12 years of Catholic education, back in the days when real nuns in real habits handed out real corporal punishment, I’m the man in Paul Simon’s song lyric: “First to admit it, last one to know.” Add in those many dinner-table admonitions from mom and grand-mom: “Eat those Mrs. Paul’s fish sticks.” “But I can’t get them past my nose.” “Never mind that. (smack on the back of my head) There are children starving in China who’d be glad to get them.”
All in all, it’s little wonder that, like most Americans, I was carrying around a spare tire… and feeling guilty about it.
All that ended the other day, however, when I read this headline: “Friendships a heavy issue: Researchers find obesity can spread in social circles.” Suddenly a great weight was lifted from my shoulders, if not from my waistline. The article reported on a new study which “suggests obesity can spread like an infectious disease and that your odds of becoming obese are much greater if your friends and family put on weight.”
Wahoo, I yelped, leaping an inch and a half off the ground. I’m not spineless, lazy, gluttonous or piggish. I’m ill.
The more I pondered the point, the further back in my life history did I conclude I had contracted my disease. Bozo Boyle, way back in grade school, was my first “big” buddy. Then there was Joe from Shenandoah (PA), with whom I cultivated a friendly rivalry on the Catholic High School debating-team competition circuit. The only thing bigger than Joe’s mouth was his stomach. My college roommate, Lou, was the largest of them all. The deeper into a semester we got, the larger Lou grew. In the Coast Guard, the thunder-thighs belonged to a photographer’s mate named Denny.
Wow, I blurted inadvertently. All my best friends down the decades were fatties. Obviously I had been infected… but good!
I ran to the front of my Havertown home and retrieved the newspaper article from the recycle bag. I read furiously. Was there a cure or is the infection fatal? “The findings could open a new avenue for treating this worldwide epidemic,” said the second to last paragraph. “The researchers said it might be helpful to treat obese people in groups instead of just the individual.” Great idea, I shouted.
Pulling the address book from beside the kitchen phone, I flipped through the pages frantically. Feverishly, I formulated the list of my four fattest friends. Speed-dialing them, I left urgent voicemail messages. “Meet me at the Starbuck’s on West Chester Pike at Eagle Road,” I practically bellowed into the phone. Then I rushed to the garage and got into my car. No, by heavens, I muttered aloud… I’ll walk it.
Arriving first, I bravely ignored the pastries and the chalkboard advertising the day’s latte special and ordered the Kenya roast… black. I got a look from the young lady behind the counter which said, nobody orders a black coffee. Flopping down in one of the establishment’s upholstered chairs I sipped at my Grande black. So this is what coffee tastes like, I mumbled. A couple of nearby heads turned. Was I losing control of my inner monolog?
As I waited for any of my friends who might have heard and were heeding my call, panic set in. I began remembering all those movies about addicts and alcoholics going cold turkey. Sweat formed on my forehead, but maybe that was because of the black coffee. My mind filled with visions of junkies, curled in the fetal position, screaming in misery.
The risks are too great, my mind screamed (inwardly, thank goodness). I got up and raced to the counter… dropping the Grande black in the trash receptacle on the way. Scanning the big board hastily, I demanded, “Give me a Blueberries and Cream Frappuccino and a blueberry muffin.” Returning to my chair, I sucked down half the Frapp, then chomped the sugary cap off my muffin in one grande chomp.
About that time, the first of my friends arrived. That looks good, he said, is it this week’s special? I nodded, mouth too full to talk. Think that’s what I’ll have, he said.
“Geb me amuther,” I mumble-shouted, spurting crumbs onto the table, as he headed toward the counter. Without turning, he gave me the old thumbs up.
By the time everyone had arrived, I was doing my third Frapp, and feeling wonderful, if a bit full.
“Here’s to good friends,” I toasted.
We all touched cups.
“This was a great idea, Jimmy,” somebody said.
Yeh, I thought to myself, if this is being ill, I for one don’t want to get better.

Interesting in Keeping Abreast of Student Financial Aid Issues?

Try bookmarking this website.FinAid

When Will All These Classroom Killings Stop?

A piece I wrote several months ago concerning a classroom shooting incident in Pennsylvania seems to be just a pertinent today:

When Will These Classroom Killings Stop?
By
Jim Castagnera
On Monday a crazy gunman opened fire in a Virginia Tech residence hall and a little later in a classroom across campus, killing some 30 people in what is being labeled “the deadliest shooting rampage in U.S. history.” The gunman subsequently was killed, bringing the death toll to 31. As I wrote this column, no one knew the murder’s motive.
Virginia Tech’s president was quoted by the Associated Press as saying, “Today the university was struck with a tragedy that we consider of monumental proportions. The university is shocked and indeed horrified."
In 21st century America we have almost come to accept these horrible mass murders as natural disasters. This community has been hit by a hurricane. That one has been torn up by a tornado. Oh, and that one over there has been blasted by a madman with a gun. The Tech student body no doubt will be afforded free access to “grief counselors.”
We used to say, "Everybody talks about the weather, but no one does anything about it." Should we now say, "Everybody talks about gun violence, but no one does anything about it?" Living here in suburban Philadelphia, I watched as the City of Brotherly Love averaged one homicide per day in 2006. Philly passed the 100-homicide mark during the first quarter of ’07, suggesting it well may be on its way to breaking last year’s record. Here, too, students are, often as not, counted among the innocent victims of gun violence gone out of control.
Yeh, I know… guns don't kill people, people kill people. But these killers are better armed than ever before. When I was a Franklin and Marshall College student a lifetime ago, I witnessed plenty of fights, often of the town v. gown variety. A group of fraternity punks, such as myself, might get a bit rowdy in a local tavern. The blue-collar crowd at the opposite end of the bar might take umbrage. The upshot might then be a quick exchange of fisticuffs. On a rare occasion a knife or a broken bottle could come into play.
My point is: almost nobody carried a gun.
By contrast today, if you are confronted by a belligerent bar fly, run for your car.
Odds are better than even the guy is packing.
No need to look for trouble in a local bar, however. Virginia Tech is not the only school where guns have gotten into classrooms. Just last year a local high school student entered one of our county’s Catholic high schools, discharged his father’s AK-47, then shot himself. We could only be grateful that the troubled youth didn’t first kill his classmates, making Delaware County the scene of a new Columbine massacre.
The Canadian college professor, Marshall McLuhan - best known during my college days for saying "The medium is the message" - asserted that Americans live in "Bonanzaland," i.e., the Wild West of the 1880s. Well, folks, that time is long past. Our K-12 schools have rightly adopted zero-tolerance policies toward weapons in their halls and classrooms. Colleges, too, have clamped down on violence --- even the fisticuffs of my era.
Obviously, this isn’t enough.
Neither are grief counselors enough.
The Second Amendment to the U.S. Constitution may give us all the right to bear arms… though some judges and scholars have questioned the Supreme Court’s reading of that bit of the Bill of Rights. Regardless of what rights we want to read into the Second Amendment, I say our daughters and sons have a higher right: to enjoy and benefit from their educations without looking over their shoulders and wondering whether today is the day their classroom is riddled with bullets.
I don’t have the answer, folks. I just know in my guts that, until we dispense with the grief counselors and the platitudes, and get mad as hell about travesties like this latest massacre at Virginia Tech, the killing is just going to continue.

Police questioning a "person of interest"

Police announced they are questioning a so-called "person of interest" with regard to the yesterday's double shooting at Delaware State University.CNN

French Higher Ed Law Opens Door to Privatization

Passed last month, the new law will allow French universities increased autonomy in managing their budgets and assets. Presidents will have greater powers, too. A veto over faculty appointments, as well as hiring contingent faculty, will be among those new powers. World Socialist Web Site

A Controversy Brews over Teaching in a Virtual Environment

The Chronicle of Higher Education this week presents the pros and cons of becoming an "Avatar" in a virtual world as an instructional device.Chronicle of Higher EducationHere are some thoughts I had not long ago in my weekly newspaper column concerning legal issues that might arise in a virtual society.

When Real Laws Meet Virtual People
By
James Ottavio Castagnera
(Jim Castagnera, a Philadelphia lawyer and writer, is the Associate Provost/Associate Counsel at Rider University, Princeton/Lawrenceville, USA)
In his 1997 novel, “Idoru,” sci-fi writer William Gibson postulates a pending marriage between a real-life rock star and a virtual vamp. The bride is an “idol-singer” or Idoru. Although Idoru are computer-generated fantasies, “Some of them are enormously popular.”
The kids with whom the Idoru are “enormously popular” inhabit a virtual world that is more real to them than their own homes and families. In an early chapter, “They met in a jungle clearing. Kelsey had done the vegetation: big bright Rousseau leaves, cartoon orchids flecked with her idea of tropical colors…. Zona, the only one telepresent who’d ever seen anything like a real jungle, had done the audio, providing birdcalls, invisible but realistically dopplering bugs, and the odd vegetational rustle artfully suggesting not snakes but some shy furry thing, soft-pawed and curious.”
Less than a decade later, Gibson’s vision is here. In case you --- like me --- are not one of the 900,000 already enrolled, “Second Life” is a virtual world in which you can buy property and build a home, indulge yourself in a pseudo-career and… even conduct real business. [http://secondlife.com/]
Yes, in Second Life’s Linden City you can really sell stuff. Something close to half a million bucks exchanges hands every day in Linden, according to a recent Yahoo report on the Internet phenomenon. Concludes Yahoo, “The IRS is interested and Congressional economists are looking into how to tax digital assets accrued” in virtual worlds.
Is virtual taxation without virtual representation tyranny? Search me. Frankly, I’m more interested in issues such as blackmail. If Linden City citizen A threatens to expose some peccadillo of citizen B, where does jurisdiction over the crime lie? Let’s make citizen A a Brit and citizen B an American. Sure, both John Bull and Uncle Sam have an interest in the dirty deed. But where did the crime occur? In England, where the perp lives? What if he joined the website and made the blackmail threat while airborne over --- oh, I don’t know --- Uganda? And what if victim B joined the “game” and got the threat while airborne over Australia in an Air China aircraft?
Forget the geography. The crime occurred in Linden City, which falls under the jurisdiction of the state of Second Life. I guess that’s not quite the state of Grace. But for the religious the analogy is apparent.
For the record, our law enforcement apparatchiks can’t even cope with the Nigerian scams. A case on point: an international student recently decided to sublet a room or two in her condo, her family having returned to China. She advertised on the worldwide web. An offer came in via email from Africa. The offer was followed by four $500 American Express checks, an amount equal to a month’s rent plus the security deposit. The student deposited the doe. Next thing she knows, her new tenant is asking for half of the money back to buy a plane ticket. The student sends the money, not waiting for the four checks to clear. When the American Express checks prove to be counterfeit, she’s out a grand she can ill-afford to lose. Who can help her? Answer: nobody!
You see the problem, right? Mystics and new age twits talk of Gaia, an ecological theory that the living matter of planet Earth is a single organism. Who knows? What we do know is that the Internet --- the worldwide web, more or less --- is greater than the sum of its billions of parts. The Internet, one might fairly argue, is an entity which has passed beyond the control of any nation, any corporation, any set of statutes, even any international organization.
Anarchists and libertarians may applaud this state of global affairs. Those of us who have devoted our lives to the rule of law may justifiably feel differently.
Following World War II, we created the United Nations to bring all nations under one legal umbrella. We developed a canon of international codes, everything from crimes against humanity to international intellectual-property regimes.
Perhaps what is needed now is a virtual counterpart to the U.N. I wonder if Bill Gibson would agree?

The once and future dean

To quote the Chronicle of Higher Ed, "The University of California at Irvine is hiring Erwin Chemerinsky as its law dean after all."In Abrupt Reversal, Erwin Chemerinsky to Become Law Dean at UC-Irvine

A thought for a Sunday afternoon:

Higher education is the last refuge of the genuinely eccentric.

Is that changing?

I certainly saw a change in the profession of lawyering during the decade I practiced with a major Philadelphia firm. The old timers included a novelist Arthur R.G. Solmssen and the owner of "Invisible Fense" Invisible Fenseand Irish Whisley Cakes. By the time I left private practice about a dozen years ago, the name of the game was billable hours and the bottom line.

Is that the direction higher ed is going? See, e.g., Norman Finkelstein