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February 16, 2004

Possible Legal Precedent In CU Case

FROM BOULDER COME allegations that University of Colorado football player-hosts used alcohol and sex (and rape) in 2001 as part of the hospitality for high school recruits is only the latest of similar misdeeds from many colleges. However, as the debacle unfolds, there is a potential precedent-setting legal element to the affair that could have an impact on schools nationwide.

The breakthrough elements in the case are three lawsuits filed as Title IX gender-discrimination offenses. These are not “simple” state rape accusations, rather they are federal charges of sexual harassment, discrimination and assaults. Many in legal circles is that if these rulings go against CU, then the liability for schools throughout the country would be increased.

In order to be found guilty (or negligent), it must be proven that CU failed to remedy a situation that they previously knew to exist. This case involved supposedly excessive and repeated recruit hospitality. The legal term for this previous awareness is "actual notice" or "actual knowledge."

The lynchpins of these federal Title IX lawsuits are that CU officials basically ignored a complaint in 1997 of sexual assault during a football recruiting weekend. The lawsuits allege that the disregard of the alleged 1997 transgressions led to the alleged 2001 debauchery.

If CU loses these cases, then a troubling Title IX precedent will have occurred. Tom Hutton, an attorney for the National School Boards Association, says, "If we go to the point where the overall environment is alleged to be actual notice, ... that would be different from the pattern we're used to, which is that there's an individual (perpetrator) of harassment that the school needs to be aware of."

The crux of the CU lawsuits is that the university is being accused of not reining in the conduct of players and recruits at off- campus parties. This is a more profound charge than individual perpetrators.

Many Baby Boomers can remember the blissfully (and purposely) unaware Sergeant Schultz on TV’s Hogan Heroes. The Sergeant was a guard at a WW2 POW camp in this bizarre comedy. Schultz was on the take, and he constantly looked the other way while Hogan and his merry pranksters had the run of the camp. Schultz’s recurring disclaimer—issued in a thick German accent—was “I see nothink! I know nothink!”

Sergeant Schultz was able to pull it off. But a similar “I know nothink” defense will not likely work for the University of Colorado. They should have known.

(excerpted from an article in the Denver Post of 2-16-04, with added commentary by College Athletics Clips)