Simpson v. Univ. of CO-Boulder

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,

-----------------------------------------

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,

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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

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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.

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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.

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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.

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 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.

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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.

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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

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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

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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

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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

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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

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 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

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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

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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

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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:

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 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

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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...)

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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).

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 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

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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

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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.

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 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 . . .

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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

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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

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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

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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

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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’

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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

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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

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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.

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