Court Sides with Plaintiff in Claims Against ASU and Its Athletic Director

Dec 19, 2008

A federal judge has denied a pair of motions for summary judgment submitted by Arizona State University and its Head Football Coach Dirk Koetter in a case in which the defendants were sued by a sexual assault victim for violating Title IX.
In so ruling, the court found that the ASU Defendants have not provided sufficient evidence to either negate an essential element of plaintiff J.K.’s claims or show that J.K. does not have sufficient evidence to carry her ultimate burden of persuasion at trial.”
The court provided the following background in advance of its ruling: “In the spring of 2003, Defendant Darnel Henderson was awarded a full football scholarship to attend ASU. Henderson enrolled at ASU on June 18, 2003 as a student in ASU’s Summer Bridge program, which helps high school students transition to college. ASU’s Department of Residential Life operates the dormitories on campus; Residential Life employs Summer Conference Assistants who are responsible for, among other things, monitoring the behavior of conference participants, including students in the Summer Bridge program.
“Between June 18 and July 17, 2003, Henderson engaged in repeated acts of misconduct, including inter alia bouncing a basketball in his dormitory at all hours of the night, pouring bleach on another student’s clothing, physically intimidating and making threatening remarks to female staff members, making inappropriate sexual remarks to females, grabbing and inappropriately touching females, and exposing his genitalia to female staff members. A number of females, including Residential Life employees and SCAs, who worked and/or lived in the dormitory in which Henderson resided, were afraid that Henderson might sexually or physically assault them. One female staff member resigned her position as a result of Henderson’s conduct, and at least one other female staff member moved out of the dorm for the same reason.
“After hearing about incidents involving Henderson, Steve Rippon, ASU’s Executive Director of Academic Success and Director of the Summer Bridge program, spoke with Henderson about his behavior, at which time Henderson told Rippon that he wanted women to fear him and he wanted to ‘show them their place.’ Rippon told Henderson that he would be expelled if he was involved in any more incidents. Henderson subsequently poured bleach on another student’s clothing; Rippon then expelled Henderson from the Summer Bridge program on July 17, 2003. Henderson returned to Oakland, California. That same day, Jean Boyd, an Assistant Athletic Director at ASU’s Department of Intercollegiate Athletics (ICA), who served as liaison between ICA and the Summer Bridge program, sent an email to the football coaching staff, including Defendant Koetter, informing them of Henderson’s removal. Henderson was one of only two students, and the only football player, to have ever been kicked out of the Summer Bridge program. Both Rippon and Koetter were authorized to report Henderson to Judicial Affairs for his misconduct during the Summer Bridge program; they did not report Henderson.
“After his expulsion, the head of ASU Residential Life, Dr. Georgiana Montoya, requested and received all documentation regarding Henderson’s misconduct and sexual harassment during the Summer Bridge Program. In addition, before returning to ASU in August 2003, Henderson spoke with Coach Koetter on the phone and in-person about his behavior and whether he would be able to return to ASU and play on the football team. Henderson stated that Koetter first told him that he might not be able to come back to ASU, and then later told him that he had worked things out so that Henderson could return to ASU and join the football team. Henderson’s eligibility to participate in the football program and receive his athletic scholarship was pending before the NCAA Clearinghouse during this time. Before Henderson returned to ASU, Jean Boyd reported that Henderson was ‘the highest risk individual in the group [of freshman football players] both socially and academically.’
“Henderson returned to ASU in August 2003 as a student and was allowed to join the ASU football team. Henderson was placed in the same on-campus dormitory from which he had recently been expelled. At oral argument, counsel for Defendant Koetter stated that Coach Koetter’s policy was to have all freshman football players live in close proximity in the on-campus dormitories; no exception was made for Darnel Henderson. Koetter and other coaches informed Henderson that the football program would have zero tolerance for the kind of behavior that got Henderson kicked out of the Summer Bridge program; it was up to Coach Koetter as to what sort of conduct would get Henderson kicked off the football team. Indeed, Henderson was supposed to have been able to rejoin the football team subject to a ‘three strikes’ or ‘zero tolerance’ plan, designed by Koetter, and recognized as necessary by the football program.
“During the fall of 2003, Henderson received noise complaints, was disruptive in his mathematics course and was required to serve Commitment Time for violations within the football program, such as tardiness. Despite his Summer Bridge misconduct, Henderson received no special supervision, monitoring, mentoring, counseling, or guidance; a zero tolerance plan was never implemented. On March 3, 2004, Henderson was written up by ASU officers for drug infractions; Residential Life placed Henderson on a one-year probation.
“In the early hours of March 12, 2004, Henderson allegedly raped Plaintiff J.K. Henderson and J.K. lived in the same dormitory; they had never met before that night. Later that morning, J.K. told her roommate, who had not spent the night in the room, about the sexual assault; J.K.’s roommate reported the rape to their Resident Assistant. The RA notified his supervisors in Residential Life, who then notified ASU’s Department of Public Safety; DPS dispatched an officer to the scene to begin a criminal investigation into the alleged rape. Residential Life also notified Dr. Deborah Sullivan, head of ASU Student Life and Judicial Affairs; Dr. Sullivan also began an investigation into the incident. Judicial Affairs is the ASU Department that enforces the Student Code of Conduct.
“On April 2, 2004, Dr. Sullivan issued Henderson a written notice of charges, indicating that there was probable cause to believe that Henderson had violated the Student Code of Conduct. Although Residential Life had the authority to ban Henderson from ASU dormitories immediately after the report of rape, Henderson was not asked to move out of his dormitory until April 2, 2004; he was also suspended from the football program at that time. Defendant Koetter subsequently arranged for Henderson to move in and live with other football players.
“On May 10, 2004, after concluding that Henderson had more likely than not sexually assaulted J.K. in violation of the Student Code of Conduct, Dr. Sullivan expelled Henderson from ASU. Until that time, Henderson had been allowed to remain at ASU to complete his spring 2004 semester. In addition, DPS’s formal investigation concluded that Henderson had non-consensual sexual intercourse with J.K. and that there was probable cause for a criminal prosecution. In May 25, 2004, Assistant Athletic Director Boyd wrote an email to Coach Koetter stating that he believed that ICA and the football program had failed to act in response to the ‘character’ that Henderson had displayed during the Summer Bridge program.”
The plaintiff sued on March 10, 2006 in the Maricopa County Superior Court, alleging that the ASU Defendants violated Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., as a result of their conduct preceding and following her on-campus, student-on-student sexual assault in March 2004. Plaintiff also alleges that Defendant Koetter violated her substantive due process rights under the Fourteenth Amendment.
The ASU Defendants countered that they are not liable under Title IX because they were not deliberately indifferent to Plaintiff’s sexual assault, and Defendant Koetter contends that he may not be held liable under 42 U.S.C. § 1983 because he is entitled to qualified immunity.
The defendants subsequently moved for summary judgment, spawning the instant opinion.
With regard to Koetter’s motion, the court found that “qualified immunity will not shield Coach Koetter if he is found to have affirmatively placed J.K. in danger by acting with deliberate indifference to a known or obvious danger posed by Henderson. The Court finds that there are genuine issues of material fact for a jury to decide as to whether Koetter affirmatively placed J.K. in danger that she otherwise would not have faced had Koetter not, among other things, allegedly facilitated Henderson’s unrestricted return to ASU after Henderson had been kicked out of the 2003 Summer Bridge Program. The question of whether the injury alleged was a ‘fairly direct’ result of Koetter’s alleged conduct is likewise a question for the jury. In addition, viewing the facts in the light most favorable to J.K., the Court finds that there is sufficient evidence to establish that Koetter may have acted with deliberate indifference to a known or obvious danger. Whether Koetter’s actions were instead objectively reasonable is a question for the jury.”
Turning to the motion for summary judgment brought by the defendants Arizona Board of Regents and Arizona State University, the Court noted that “the proper inquiry under Title IX is whether ASU’s response to Henderson’s alleged sexual harassment in general, i.e., to other students as well as J.K., was ‘clearly unreasonable’ in light of known circumstances.
“… (T)he question of whether an institution acted with deliberate indifference under a particular set of circumstances is a question normally left to the jury. 298 F.Supp.2d at 1036 (citing, e.g., Oviatt By and Through Waugh v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992) (‘Whether a local government entity has displayed a policy of deliberate indifference is generally a question for the jury.’); Davis v. Mason County, 927 F.2d 1473, 1482 (9th Cir. 1991); Alexander v. City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 1994); Blair v. City of Pomona, 206 F.3d 938, 2000 WL 290246, (9th Cir. 2000); Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir. 2001); and Perrin v. Gentner, 177 F.Supp.2d 1115, 1124 (D.Nev. 2001)).
“In light of the totality of the circumstances, and considering the facts in the light most favorable to the Plaintiff, the Court can not hold as a matter of law that ASU’s response to Henderson’s known misconduct during the Summer Bridge program, as well as J.K.’s allegation that Henderson raped her, were not ‘clearly unreasonable.’ Although Steve Rippon expelled Henderson from the Summer Bridge program because of Henderson’s misconduct, Plaintiff may nonetheless be able to prove that the ASU Defendants ‘subjected’ her to harassment when ASU not only allowed Henderson to return, but Coach Koetter affirmatively facilitated his return, and Henderson was placed back in the on-campus dormitories with no restrictions or specialized monitoring. In addition, Plaintiff may be able to prove that ASU’s response to her alleged rape was ‘clearly unreasonable’ in light of, among other things, the fact that ASU allowed Henderson to remain in the same dormitory for three weeks after ASU police were notified that Henderson had raped J.K., a female student in Henderson’s dormitory.”
J.K., a single woman v. Arizona Board of Regents, et al.,; D.Az.; No. CV 06-916-PHX-MHM, 2008 U.S. Dist. LEXIS 83855; 9/29/08
Attorneys of Record: (for plaintiff) Ariela Migdal, LEAD ATTORNEY, ACLU, New York, NY; Baine P Kerr, Kimberly M Hult, LEAD ATTORNEYS, Hutchinson Black & Cook LLC, Boulder, CO; Emily J Martin, Lenora M Lapidus, LEAD ATTORNEYS, ACLU Womens Rights Project, New York, NY; Tod F Schleier, LEAD ATTORNEY, Bradley Hugh Schleier, Schleier Law Offices PC, Phoenix, AZ. (for defendants) Michael King Goodwin, LEAD ATTORNEY, Office of the Attorney General, Liability Management Section, Phoenix, AZ; William August Richards, Office of the Attorney General, Capital Litigation Section, Phoenix, AZ. (American Civil Union Foundation, Amicus) Daniel Joseph Pochoda, ACLU, Phoenix, AZ; Emily J Martin, Lenora M Lapidus, ACLU Women’s Rights Project, New York, NY.


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