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No suit settlement on CU's radar

Laywer: Appellate ruling in rape case new legal standard

Kevin Vaughan, Rocky Mountain News

Published September 8, 2007 at midnight

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The University of Colorado could appeal a potentially precedent-setting ruling in a long- running gender discrimination lawsuit, or it could take its chances with a jury.

Or it could do something else: Try to negotiate a settlement with two women who alleged that they were sexually assaulted at an off-campus party in December 2001 that was attended by football players and recruits.

Attorneys for both women said Friday they are open to talking about a settlement.

"We've been happy to talk to CU about resolving this, before and during the litigation," said Baine Kerr, attorney for one of the women, Lisa Simpson. "We continue to be open to any discussions along those lines."

Peggy Jessel, who represents the other woman, said she also is ready to sit down and talk.

But an attorney for CU was cool to the idea.

"Our side of the case has never been heard," said attorney Larry Pozner. "People would be making a big mistake to think this opinion finds facts or draws conclusions.

"Our day in court has never arrived."

Pozner was asked if that meant that a settlement was unlikely.

"Oh yeah," he said. "I'm saying that the university did not believe and does not believe that the university is liable."

The lawsuit grew out of a now-infamous December 2001 party attended by football players and recruits. Three women later alleged they were sexually assaulted either at or after the party and filed suit, contending the attacks were the result of an environment fostered in CU's athletic department.

They made the claims under the federal gender-equity law known as Title IX.

The allegations plunged CU into scandal, spawned multiple investigations and eventually led to the ouster of President Elizabeth Hoffman, Boulder campus chancellor Dr. Richard Byyny, Athletic Director Dick Tharp and football coach Gary Barnett.

New CU President Hank Brown oversaw the implementation of a host of new policies aimed at addressing questions raised during the scandal.

One of the women eventually dropped her suit, and the other two were combined into a single case.

In 2005, U.S. District Judge Robert Blackburn dismissed the lawsuit, ruling that the women had not shown that university officials knew about the dangers posed by football players and recruits and failed to act.

On Thursday, the U.S. Court of Appeals for the 10th Circuit reversed the decision. The appeals court found that the university had an official policy of showing football recruits a "good time" and that it showed a "deliberate indifference" to the dangers faced by women as a result.

On Friday, Pozner pointed out that the appeals court was required to view the evidence in the light most favorable to the women.

"The university does not have a policy that would place any of its female students at risk of assault," he said. "It has the opposite. It has stringent policies that prohibit sexual harassment and sexual assault."

And, he said, the ruling greatly exp\ands Title IX.

"We are looking at a new legal standard, never previously applied," he said. "We are in uncharted legal waters that I think will cause grave problems for every university in the United States.

"Universities are being asked to monitor conduct of students and non-students at levels they've never been asked to before."

Jessel and Kerr both said, however, that the ruling does not make a university responsible for all the actions of students and potential students but rather for the consequences of its policies and practices.

"It's a very strong opinion," Jessel said, "and sends a clear message that recruiting activities must be responsible, and supervised."

The case has been a costly one, both to CU's image and financially.

The university has spent an estimated $2.7 million to date fighting the suit, not counting staff time. That money came from an insurance policy the university carries for major risks.

From the decision

An appeals court reviewing a lawsuit filed against the University of Colorado delivered an opinion focused on former head football coach Gary Barnett. The three-judge panel said, at the time of the recruiting party at the heart of the lawsuit, Barnett:

• Had general knowledge of the serious risk of sexual harassment and assault during college football recruiting efforts.

• Knew such assaults had occurred during CU recruiting visits.

• Nevertheless maintained an unsupervised player-host program to show high school recruits "a good time."

• Knew, both because of incidents reported to him and because of his own unsupportive attitude, that there had been no change in the atmosphere since 1997, when another assault had been reported.

Source: U.S. 10th Circuit Court of Appeals

The judges

• Harris Hartz, a graduate of Harvard Law School, nominated by President Bush in September 2001. Hartz wrote the unanimous opinion.

• Monroe McKay, a graduate of the University of Chicago Law School, nominated by President Carter in November 1977.

• Neil Gorsuch, a graduate of Harvard Law School, nominated by President Bush in May 2006.

Where are they now?

Four top officials at the University of Colorado during the scandal surrounding football recruiting are all in different positions:

• Former president Elizabeth Hoffman: Now serving as executive vice president and provost at Iowa State University.

• Former Boulder campus chancellor Richard Byyny: Holds a faculty position in the university's school of medicine.

• Former athletic director Dick Tharp: Living in Boulder, he is no longer involved in college athletics.

• Former football coach Gary Barnett: Out of coaching and living in Arizona.

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