Reflections on Penn State: A Brief Look Back, to Colorado

As we read one editorial after another expressing outrage at Penn State's failure to respond to complaints regarding Sandusky, and try to wrap our minds around the consequences of this "scandal," we should step back and remember that U.S. universities have a long history of failing victims of sexual assault. That was the general point of an editorial I wrote for The Guardian yesterday. I thought I'd follow that editorial up with some more focused "unpacking" of the issues that this story raises.

My first impulse regarding the Penn State story is to look back at that long-problematic football program - The University of Colorado, Boulder - and the legal precedents it created via its "deliberate indifference" to the behavior of its players.

The University of Colorado football program has spent the past two decades up to its neck in trouble - so many women have accused its football players of rape that it became hard not to think of the program as the living embodiment of a "rape culture."

In 2007, the university settled a complaint filed by two students who were raped by football players. The students had been encouraged to invite four players over one evening. 20 players and recruits turned up - they raped both women, and a third later that evening. Other women also reported being harassed at the same party.

The students chose not to file a complaint within the university. Instead, they filed a federal lawsuit against the campus. (Given how poorly such complaints are handled, one can hardly blame them.)

The complaint argued that the players had been told to expect sex; that the football program knew that sending the players to their apartment might put those women at risk. They accused the university of deliberate indifference to the environment of harassment and sexual abuse they created through their football program.

That case was initially dismissed because the students did not use the university's procedures for filing Title IX complaints. The students appealed the district court's decision. The court of appeals reinstated the case.

In its decision reinstating the lawsuit, the court found that there was evidence that the football program had a policy of showing recruits a 'good time,' that the sexual assaults happened because the campus failed to supervise its players and the recruits they were entertaining, and that it was reasonable to expect that such misconduct would result from these conditions - in failing to supervise its players, the administration showed "deliberate indifference" to the problem. For that reason, the women could press their case. The National Council of Higher Education Risk Management describes the results economically:

By the time of the assaults on Ms. Simpson, Ms. Gilmore, and others, the CU football coach had general knowledge of the serious risk of sexual assault during college football recruiting efforts and that the need for more or different training of players and hosts was so obvious that the failure to respond was clearly “deliberate indifference” to the need. The court found:

1. The head football coach had general knowledge of the serious risk of sexual harassment and assault during college football recruiting visits;

2. The coach knew that sexual assaults had occurred during prior recruiting visits;

3. Even with this knowledge, the coach continued to maintain an unsupervised player‐host recruiting program designed to show recruits “a good time”; and

4. The head football coach was aware of prior incidents of sexual assault both because of incidents reported to him as well as the fact that he refused to work toward changing the culture regarding recruiting visits. 

Thanks to these bravery of these two students - who made their case not only about the individuals who raped them, but the institution which basically facilitated the assaults - we have this legal standard of "deliberate indifference" by which a campus can be held responsible for its passivity.

Next: The Problem of the Compliant