P. 60(b)(3). 2000) (internal quotation and citation omitted). near:5 gun, "gun" occurs to either to In resolving the plaintiffs' Motion to Alter or Amend, I have considered carefully each of these filings, including the exhibits submitted by the parties,. But Mr. McConnellogue, the university spokesman, said on Wednesday that the 10th Circuit's opinion "hastened" discussions of a settlement among leaders of a campus eager to move on. The second supplement [#865 (sealed) & #916 (redacted)], was filed October 6, 2005 (Second Supplement). letters. As of June 15, 2022, comments on DenverPost.com are powered by Viafoura, and you may need to log in again to begin commenting. This lack of supervision, the court went on, was the result of "deliberate indifference.". right of "armed robbery. 1980). Here, the judges said, red flags about alleged misconduct by some CU players and recruits had been raised for years. A college that already has deliberately ignored known harassment or assault on campus may be liable under Title IX. 1998). Heres how to get more nuanced and relevant

Former University of Colorado student Lisa Simpson testifies before the Senate Judiciary Committee regarding rape-victim identity and rights at the state Capitol in Denver on Jan. 28, 2004. However, none of the evidence indicates that, prior to December 7, 2001, coaching staff was aware of any credible information that Trainer B had been sexually harassed or assaulted on November 23, 2001. With Roe Overturned, What Comes Next for Abortion Rights? R. CIV. Weve implemented substantial reforms in inter-collegiate athletics and student safety. Lisa Simpson will receive $2.5 million and a second woman will receive $350,000 under the agreement signed last night by CU president Hank Brown. search results: Unidirectional search, left to right: in After Magistrate Judge Shaffer entered his July 1, 2005, order requiring CU to produce certain evidence, the plaintiffs filed their motion to stay determination of their Motion to Alter or Amend pending production of this evidence. Brown said that for CU, the decision boiled down to realizing it would be very helpful to simply get on with our lives.. Bill of Costs [#741], filed May 27, 2005. I concluded that this incident, by itself, cannot be seen as putting CU on notice of a risk that football players and recruits would sexually assault female University students as part of the football recruiting program. The plaintiffs argue that my Summary Judgment Order contains clear error regarding evidence of actual knowledge and deliberate indifference to a risk relevant to the plaintiffs' Title IX claim. Further, after a careful review of the evidence that CU withheld, I conclude that this evidence does not establish a Title IX claim where one previously had not been established. They have a legal obligation to ensure the safety of their students. We have new people in 11 of our top 12 leadership positions, and we've enacted a series of reforms in our intercollegiate athletic programs and in our student services.". Ex-college athlete (well, runner). Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. Summary Judgment Order, p. 18. 14 - 15. In their lawsuit, the two women claimed university and athletics officials knew female students were at risk of sexual harassment or assault by football players or recruits but did nothing to correct it. Evidence that ranking CU Police officers were aware of this assault does not establish notice for the purpose of the plaintiffs' Title IX claim. 1999). "What it means is that all universities are now charged with monitoring student activities, on and off campus, official and unofficial, to a degree that we have not seen before.". Klein v. Grynberg, 44 F.3d 1497, 1507 (10th Cir.

After the plaintiffs' Motion to Alter or Amend was filed, the defendant produced some additional evidence after motions to compel the production of certain evidence were granted. Assuming this evidence properly may be considered as new evidence, I conclude that it does not create any dispute about a fact material to the plaintiffs' Title IX claim. She also describes an incident in which she was sexually assaulted by a CU football player sometime prior to December 7, 2001. Taking these facts as true, I concluded that the February, 1998, meeting was not, per se, sufficient to provide notice of the relevant risk to CU. Try my website too. But university officials had no justification for their indifference, the court noted: In 1997, a high-school girl said she had been assaulted by football recruits at a party held by a Colorado player. Attached to the plaintiffs' Motion to Alter or Amend is a second affidavit of Dr. Hnida, executed on April 11, 2005, eleven days after my Summary Judgment Order was issued. Third, they seek amendment of the judgment to prevent a manifestly unjust award of costs. Relief from judgment may be granted under Rule 60(b)(3) when a party demonstrates with clear and convincing evidence that the opposing party took actions with "an intent to deceive or defraud the court by means of a deliberately planned and carefully executed scheme." This matter is before me on the following motions: 1) Plaintiffs' Motion to Alter or Amend Judgment or for Relief from Judgment [#687 (redacted) & #688 (sealed)], filed April 14, 2005, (Motion to Alter or Amend); 2) Defendant's Motion for Review of Bill of Costs Award [#743], filed June 6, 2005; and 3) Plaintiffs' Motion to Stay Determination of the Plaintiffs' Motion to Amend or Alter Judgment or for Relief From Judgment Until After Defendant's Compliance with the July 1, 2005 Memorandum Order Regarding Plaintiffs' Joint Motion for Sanctions and Plaintiffs' Joint Motion to Compel [#760], filed July 6, 2005. My discretion to excuse or reduce an award of costs against a non-prevailing party is limited in two ways. In their supplements to their Motion to Alter or Amend, the plaintiffs also cite evidence produced in response to Magistrate Judge Shaffer's July 1 and September 21, 2005, orders. R. CIV. ", (bike or scooter) w/3 (injury or The same player later was involved in the harassment of the plaintiffs in December, 2001. There is evidence that rumors about Trainer B's sexual activities with football players were circulating in the athletic department in November, 2001, and that Willard was aware of these rumors. R. CIV. I have reviewed the parties' arguments concerning the propriety of the costs awarded by the clerk, the clerk's calculations related to the award of costs, and the relevant law. First, Rule 54(d) creates a presumption that costs will be awarded to the prevailing party. In addition, I have considered the history of this litigation, which is well known to me. Portions of the parties' arguments, and much of the evidence, was filed under seal in an effort to protect the identities and the privacy of certain witnesses. "Not only was 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," the opinion stated. Colorados sexual assault problem was well-known, having been fodder for sports publications for the past two decades. The plaintiffs' basis for seeking relief under Rule 60(b)(3) is discussed further in their supplement [#870] to their joint reply to defendant's response to the court's July 1, 2005, show cause order, which was filed on October 6, 2005. The Motion to Alter or Amend concerns my March 31, 2005, order [#669] granting the defendants' motion for summary judgment (Summary Judgment Order). Again, Rule 60(b)(3) permits a party to obtain relief from judgment based on the misconduct of an adverse party. Learn on the go with our new app. Love podcasts or audiobooks? 1992) (internal quotation and citation omitted). Most notably, this evidence does not indicate that relevant CU officials were on notice of a risk relevant to the plaintiffs' Title IX claim. In 2005 a federal judge in Denver dismissed the lawsuit, finding that the women did not have a claim under Title IX.

Id. President Brown was involved in negotiations and was apprised of the negotiations, the spokesman said. That is, they were not assaulted at a football game or a recruiting party, and they were not assaulted by a recruit. "(T)he denial of costs is in the nature of a penalty." But in another sense, the rulings raise new issues. The plaintiffs argue that knowledge of the October, 2001, assault "by the CU Police was knowledge by those with requisite control because CU Police had the authority to stop misconduct in football and recruiting." Consistent with FED. In their Motion to Alter or Amend, the plaintiffs ask that I vacate the Summary Judgment Order, and deny the defendant's motion for summary judgment. Co., 225 F.3d 1179, 1186, n.5 (10th Cir. I disagree. The plaintiffs seek amendment of the judgment or relief from judgment under FED. What to Do When Faced With Voter Intimidation, Sexual harassment can qualify as discrimination under Title IX if it is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit, To be held responsible, the college or university must have authority over the harasser and over the environment in which the harassment takes place, According to the Supreme Court, a school becomes legally responsible when the school's response to harassment "is clearly unreasonable in light of the known circumstances, The Supreme Court has ruled that a college or university receiving federal funding may have to pay damages to the victim of student-on student sexual harassment or assault if the victim can show that the college acted with "deliberate indifference to known acts of harassment in its programs or activities, In 2007 a federal appeals court ruled against the University of Georgia for recruiting, admitting, and neglecting to supervise a student athlete who later raped a fellow student. Each plaintiff argued that the university violated Title IX, in part, because its policies and actions demonstrated a deliberate indifference to her right to be free from sexual harassment (which, here, took the form of a sexual assault). In her affidavit, Trainer C says she was a student trainer associated with the CU football program during the relevant time. The plaintiffs claim that their inability to obtain this information in a timely fashion hobbled their ability to respond fully to CU's motion for summary judgment. Motion to Alter or Amend, p. 9. "The life of every university would change under this new legal standard," Mr. Pozner said. There is no doubt that some of the harassment, abuse, and assaults reflected in the record are shameful at best, and criminal at worst. In the Kansas rowers cases, the courts distinguished the facts from those in Simpson. Bud Brooks Trucking Inc. v. Bill Hodges Trucking Co. Committee for First Amendment v. Campbell, Adams v. Reliance Standard Life Insurance Company, Aldrich Enterprises Inc. v. United States. It represents one end of the spectrum. But, she said, the settlement should be seen as "a wake-up call" for other universities. Assuming this affidavit properly may be considered as new evidence in support of the Motion to Alter or Amend, I conclude that this evidence does not demonstrate the existence of a disputed issue of material fact relevant to the plaintiffs' Title IX claim. Id. They also indicate that rumors about Trainer B's sexual activities with CU football players may have circulated among players, trainers, and some of the coaching staff in the Fall of 2001. This evidence does not support the plaintiffs' Motion to Alter or Amend. This witness reports that toward the end of 2001, rumors began to circulate in the CU athletic center that something bad happened to Trainer B involving football players and sex. Brown said that CU faced the prospect of the case dragging on for years and costs soaring as a result. If OCR finds against the school, it may facilitate a session to reach a resolution and may monitor the schools compliance with its commitments under the agreement. In the second instance, the courts determined that, unlike Colorado in Simpson, KU had no concrete reason to believe placing female student-athletes in the same dorm as football players would result in sexual assault. 1995); see also Aerotech, Inc. v. Estes, 110 F.3d 1523, 1526 - 27 (10th Cir. Adams v. Reliance Standard Life Ins. In theory, OCR can strip a school of its federal funding, although no school has ever lost its federal funding as a result of ignoring sexual harassment. Assuming Dr. Hnida reported physical sexual harassment of Katharine Hnida to relevant CU officials prior to December 7, 2001, such a report would not create notice of the relevant risk when such notice did not exist without this specific report from Dr. Hnida. Evidence that rumors were circulating about Trainer B's sexual activities is not sufficient to demonstrate that relevant CU officials were on notice of the Title IX risk defined in my Summary Judgment Order. The University of Colorado said today that a settlement has been reached in a Title IX lawsuit that was filed after allegations of rape at a party attended by CU football players. Simpsons lawyer, Baine Kerr, said the Nov. 9 ruling cleared the way for a federal jury to hear allegations that CU ignored repeated warnings that some of its football players and recruits engaged in sexual assaults, including rape. I think it is an atmosphere entirely different than six years ago.. Trainer B later re-joined the program. On Sept. 6, a three-judge panel of the U.S. 10th Circuit Court of Appeals reinstated Simpsons lawsuit, saying that the key question was whether the risk of such an assault during recruiting visits was obvious. Three months later, Mr. Tharp quit. "This case was always about trying to effect change," Ms. Hult said. Do you know every school has a TitleIX Coordinator who enforces gender equity? 1990) (citations omitted). Urge the college administration to respond appropriately so it can avoid the "deliberate indifference" that could render the school liable under Title IX. Id., p. 18. Some of the CU football players identified by Trainer B as having participated in her harassment and sexual assault on November 23, 2001, also are alleged to have participated in the harassment and sexual assault of the plaintiffs two weeks later, on December 7, 2001. That the Defendant's Motion for Review of Bill of Costs Award [#743], filed June 6, 2005, is DENIED; and. Aldrich Entr., Inc. v. U.S., 938 F.2d 1134, 1143 (10th Cir. The courts rejected the Kansas rowers attempts to impose Simpson liability on KU (though it upheld most of their remaining claims). There is little, if any, dispute about the content of the discussion had at the February, 1998, meeting. 43, 59, 62. University administrators knew the athlete had harassed women at other colleges and had been removed from those schools, A federal appeals court ruled in 2007 that the University of Colorado at Boulder (CU) could be sued under Title IX for rapes that took place in the context of its football recruiting program. ." So its failure to confront the problem showed a deliberate indifference that was not present in the KU cases. CU president Hank Brown, left and chancellor Bud Peterson announced the university's settlement with Lisa Simpson and another woman on Dec. 5, 2007. A lawyer for the university, Larry Pozner, said at the time of the 10th Circuit's ruling that it held universities to an impossible standard for supervising their students. 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., Howard Pankratz: 303-954-1939 or hpankratz@denverpost.com. Notably, the evidence submitted with the plaintiffs' March 11, 2005, supplemental response does not provide any factual basis to conclude that a relevant CU official knew that Trainer B had been sexually harassed and assaulted on November 23, 2001, by CU football players and recruits. At the meeting, Keenan expressed concern about women being made available to recruits for sex. Simpson response [#282], filed June 30, 2004, Exhibit 11. Considering all of these circumstances, withdrawing the judgment and reopening discovery based on CU's discovery misconduct is not warranted. The Simpson plaintiffs alleged that CU recruits sexually assaulted them at a party during the recruits official visits. Please check back later. Kansas history did not appear close to that level. Motion to Alter or Amend, p. 1. Absent evidence that Willard was aware of the November 23, 2001, incident involving Trainer B, the assumption that Willard reported all to Barnett does not support the conclusion that Barnett was aware of the November 23, 2001, incident. Second, the plaintiffs argue that amendment is necessary to correct clear error in my March 31, 2005, order. Bud Brooks Trucking, Inc. v. Bill Hodges Trucing Co., 909 F.2d 1437, 1440 (10th Cir. In my March 31, 2005, order, I outlined reports of sexual harassment of Katharine Hnida, the only female player on the CU football team in 2000. In my Summary Judgment Order, I adopted the conclusion that Barnett was notified of the content of this discussion when he became CU's head coach. ", Ms. Simpson and Ms. Gilmore filed separate lawsuits in 2002 and 2003, respectively, under Title IX of the Education Amendments of 1972, a federal law that governs sex discrimination and gender equity in education. Dr. Hnida reported that he had contacted Barnett and Tharp about "multiple instances of sexual harassment of his daughter by CU football players, which the coaching staff had allowed to continue." We might permanently block any user who abuses these conditions. In its motion for review of the bill of costs award, the defendant seeks an award of additional costs totaling $92,399.98. Motion to Alter or Amend, Exhibit I, p. 2. Copyright 2007 by The Chronicle of Higher Education, Education for Pregnant and Parenting Students. Under FED. We invite you to use our commenting platform to engage in insightful conversations about issues in our community. The university's athletic director at the time, Richard Tharp, and the football coach, Mr. Barnett, had created a culture that fostered inappropriate and potentially criminal behavior by athletes and recruits, according to the News's account of the grand-jury report. Insist that the administration respond to victims' needs and take action to protect students. Three months later, in May 2004, an investigative panel convened by the university's Board of Regents blasted university officials for failing to monitor the recruiting process or exercise enough oversight over the athletics program as a whole. ORDER CONCERNING PLAINTIFFS' MOTION TO ALTER OR AMEND JUDGMENT. If you need help or are having issues with your commenting account, please email us at memberservices@denverpost.com. Both were students at the university at the time of the alleged rapes. Rule 59(e) motions "should be granted only to correct manifest errors of law or to present newly discovered evidence." In this context, the plaintiffs are entitled to relief from judgment under Rule 59(e) or 60(b)(2) only if they show either a manifest error of law, or that properly submitted newly discovered evidence demonstrates the existence of a genuine issue of material fact. Workers, 69 F.3d 456, 458 - 59 (10th Cir. R. CIV. Although I considered this evidence prior to issuing my Summary Judgment Order, I did not specifically reference this evidence in my Summary Judgment Order. Castaldo v. Stone, 191 F. Supp. Yapp v. Excel Corp., 186 F.3d 1222, 1231 (10th Cir. While there was no evidence that athletics officials had knowingly approved of using sex and alcohol to lure recruits, the panel did find that administrators and coaches did not explain recruiting rules and appropriate standards of behavior to the players in charge of acting as hosts to the high-school recruits. Dr. Hnida did not specify in his affidavit "the type of sexual harassment that was addressed in these contacts with Barnett and Tharp." A good policy should include student input, be available and understandable to students, be fair to victims and the accused, and provide crisis intervention assistance and prevention programs, OCR, which is the federal agency responsible for enforcing Title IX, has issued a Sexual Harassment Guidance covering harassment of students by school employees, other students, and third parties. In contrast to his original affidavit, Dr. Hnida says in his April 11, 2005, affidavit that he met with Barnett and Tharp in 2000 and reported that Hnida had been threatened, groped, and subjected to obscene and derogatory names. It is important to understand the evidence that the plaintiffs claim is newly discovered, or which I may have failed to consider before entering summary judgment in favor of the defendants. Last month, two federal district courts in Kansas dismissed similar claims in lawsuits by two former University of Kansas female rowers who allege they were been sexually assaulted by KU football players in their on-campus apartments. Barely three months after that, in early March 2005, the university's president, Elizabeth Hoffman, announced she would resign, amid criticism for failing to fire the football coach and in the wake of widespread outrage over a professor's comparison of the victims of the September 11 terrorist attacks to a Nazi leader (The Chronicle, March 18, 2005).And then, in December 2005, after reaching a financial settlement of $3 million with the university, Mr. Barnett, the football coach, stepped down. This encompassed situations where the schools failed to train personnel regarding obvious risks or recurring violations. The plaintiffs note that on March 11, 2005, they deposed a new witness who is familiar with the October, 2001, sexual assault. Town Hall: The Future of Abortion in Montana, Supreme Court Ruling Flouts Tribal Sovereignty. By contrast, in Simpson, the coaching staff knew of several documented incidents during its recruiting process. "But ultimately what I think is most relevant for other universities is to recognize that the law means what it says. The court also refused CUs request that the entire appellate court decide the issue. Nonetheless, as the issue is largely fact-dependent, these cases help define the contours of an argument that future Title IX plaintiffs may pursue. This argument is based on the affidavit of Earl "Doc" Kreis, who was employed as Assistant Athletic Director and Head Speed and Strength Coach at CU from 1993 to 2003. Stay informed! Having considered the relevant law and the history of this litigation, I conclude that there is no apparent reason to penalize CU by reducing the costs awarded to CU, as taxed by the Clerk of the Court on May 27, 2005. Eleven of our 12 administrative leadership positions are occupied by new people. As discussed above, the plaintiffs claim that the information produced in response to Magistrate Judge Shaffer's orders demonstrates that relevant CU officials had knowledge of the relevant risk prior to December 7, 2001. Marisas List: Monthly Comedy Roundup May 2022, What is in my cosmetic products?- A Black Womans Dilemma. Based on the law discussed in my Summary Judgment Order, I conclude that I defined the relevant Title IX risk consistent with applicable law. Third, the plaintiffs argue that my findings regarding CU's knowledge of the harassment of Katharine Hnida are contradicted by the evidence. Other states have similar laws, including the Florida Education Equity Act, the Rhode Island Civil Rights Act of 1990, the Maine Human Rights Act, the Minnesota Human Rights Act, and the Washington Law Against Discrimination. 5-6. Finally, the plaintiffs seek amendment of my order based on the defendant, University of Colorado's (CU's), misconduct in discovery proceedings in this case. Having reviewed Magistrate Judge Shaffer's orders, the evidence produced in response to those orders, and the parties' arguments concerning the propriety of relief under Rule 60(b)(3), I conclude that such relief is not merited in this case. The first supplement [#805 (redacted) & #806 (sealed)], was filed August 9, 2005 (First Supplement). To date, he said, the school has paid about $3 million in external legal fees. As noted above, the plaintiffs argue in their Motion to Alter or Amend that the award of costs against the plaintiffs should be vacated as manifestly unjust. In examining this question, I viewed the evidence in the record in the light most favorable to the plaintiffs, as I must. The clerk awarded costs of $24,682.69 to the defendant. American Civil Liberties Union Womens Rights Project, Title IXGender Equity in Education, http://www.aclu.org/titleix. That the Plaintiffs' Motion to Stay Determination of the Plaintiffs' Motion to Amend or Alter Judgment or for Relief From Judgment Until After Defendant's Compliance with the July 1, 2005 Memorandum Order Regarding Plaintiffs' Joint Motion for Sanctions and Plaintiffs' Joint Motion to Compel [#760], filed July 6, 2005, is DENIED as moot. First Supplement, Exhibit B. Kreis reports that Willard was Barnett's eyes and ears in the training room, and that if Willard heard about issues relating to CU football players, Willard promptly reported those issues to Barnett. Second, a district court must state a valid reason for not awarding costs to the prevailing party. accident), Expand root word by any number of This conclusion and the factual scenario outlined in the plaintiffs' supplement [#870], however, do not establish by clear and convincing evidence that CU acted with an intent to deceive or defraud the court by means of a deliberately planned and carefully executed scheme. In the 10th Circuit's ruling, a panel of three judges unanimously concluded that the university "had an official policy of showing high-school football recruits a 'good time' on their visits to the CU campus," and that the alleged assaults were caused by the university's lack of supervision over the players who served as hosts. Brown said agreeing to the settlement was a difficult decision, painful in some ways, but in the best interest of the university..

I take seriously Magistrate Judge Shaffer's statement that he is troubled by the lack of candor exhibited by the University and its counsel in the context of certain discovery issues. 1991). March 31, 2005, order, p. 17. After reading reports of the assaults involving the plaintiffs on December 7, 2001, Dr. Hnida said he informed Chancellor Byyny that Katharine Hnida had been physically, sexually, and verbally assaulted by members of the CU football team. McConnellogue said Brown was personally involved in the negotiations.

Also attached to the plaintiffs' March 11, 2005, supplemental response is the affidavit of a student who says she worked as an assistant trainer in the CU football program in the Fall of 2001. In a sense, these rulings clarify Simpson liability. If costs are to be denied, "there must be some apparent reason to penalize the prevailing party. In February 2004, Gary Barnett, the football coach, was suspended with pay after making disparaging comments about Katie Hnida, a former placekicker for the Buffaloes who had complained of being raped in 1999 by a Colorado player. Much of this evidence is tied to Trainer B. Robert E. Blackburn United States District Judge. On June 27, 2005, the plaintiffs filed a response [#749] to the Motion for Review of Bill of Costs Award, and the defendant filed a reply [#765], filed July 13, 2005. On September 21, 2005, Magistrate Judge Shaffer ordered CU to produce, inter alia, police interviews of witnesses referred to as Trainer B and Trainer C. Courtroom minutes [#837], filed September 21, 2005. Relief from judgment may be granted based on the misconduct of an adverse party.

Cantrell v. Int'l Brotherhood of Elec. I address the plaintiffs' challenge to the award of costs in the context of the Defendant's Motion for Review of Bill of Costs Award. Second, the plaintiffs argue that even if the relevant risk is defined properly in the Summary Judgment Order, it was clear error to conclude that the February 18, 1998, meeting between CU officials and officials of the Boulder County District Attorney's office did not provide notice of the relevant risk for the purpose of Title IX. I deferred resolution of the Motion to Alter or Amend pending the production and analysis of the additional evidence that Magistrate Judge Shaffer ordered produced. In my Summary Judgment Order, I concluded that the plaintiffs had not demonstrated the existence of a disputed issue of material fact concerning two elements of their Title IX claim. She says also that she did not report the incident to police until January or February, 2004. Notably, the newly submitted evidence includes a statement by Trainer B in which she says she did not tell anyone about the November 23, 2001, incident for at least two months after it occurred, and the person she then told was a friend, not a CU official. FED. In the September ruling reinstating the lawsuit, the three-judge panel noted that in 1989, Sports Illustrated magazine contained an article about a number of sexual assaults by CU players; in 1990, two CU football players were charged with sexual assault arising from separate incidents; in 1997, a high school girl alleged that she had been sexually assaulted by a recruit at a party; and in 1998, then Boulder District Attorney Alex Hunter and Assistant District Attorney Mary Keenan the current DA met with CU officials to express concerns about a pattern of sexual misconduct. These documents include records of CU's Office of Sexual Harassment and police interviews of certain witnesses. Dr. Hnida's April 11, 2005, is simply a refinement of his previous affidavit, apparently tailored to address the analysis stated in my Summary Judgment Order.