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Plaintiff v. Defendant
STATEMENT OF ISSUES:
ARGUMENTS OF THE PLAINTIFFS:
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RATIONALE:Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007)LISA SIMPSON; ANNE GILMORE, Plaintiffs – Appellants, v. UNIVERSITY OF COLORADO BOULDER, through its Board; THE REGENTS OF THE UNIVERSITY OF COLORADO, Defendants – Appellees, AMERICAN CIVIL LIBERTIES UNION; AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF COLORADO, INC.; ASIAN AMERICAN LEGAL DEFENSE & EDUCATION FUND; CALIFORNIA WOMEN’S LAW CENTER; CONNECTICUT WOMEN’S EDUCATION AND LEGAL FUND; LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW; LEGAL MOMENTUM; MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, INC.; NATIONAL ASIAN PACIFIC AMERICAN WOMEN’S FORUM; NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.; NATIONAL PARTNERSHIP FOR WOMEN AND FAMILIES; NORTHWEST WOMEN’S LAW CENTER; SARGENT SCHRIVER NATIONAL CENTER ON POVERTY LAW; SOUTHWEST WOMEN’S LAW CENTER; WOMEN’S LAW PROJECT; WOMEN’S SPORTS FOUNDATION; AMERICAN ASSOCIATION OF UNIVERSITY WOMEN; AAUW EDUCATIONAL FOUNDATION; NATIONAL COALITION AGAINST VIOLENT ATHLETES; SECURITY ON CAMPUS, INC.; JAY COAKLEY, Ph.D.; ANGELA HATTERY, Ph.D.; MARY G. MCDONALD, Ph.D.; MICHAEL A. MESSNER, Ph.D.; DON SABO, Ph.D.; ALLEN SACK, Ph.D.; EARL SMITH, Ph.D.; ELLEN STAUROWSKY, Ph.D.; STEPHEN WALK, Ph.D., Amicus Curiae.No. 06-1184, No. 07-1182UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT500 F.3d 1170; 2007 U.S. App. LEXIS 21478September 6, 2007, FiledPRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. NO. 02-cv-2390-REB-CBS).Simpson v. Univ. of Colo., 372 F. Supp. 2d 1229, 2005 U.S. Dist. LEXIS 5633 (D. Colo., 2005)CASE SUMMARYPROCEDURAL POSTURE: Plaintiffs, alleged victims of sexual assault by football players and recruits of defendant, the University of Colorado at Boulder (CU), sued CU under Title IX of the Education Amendments of 1972, 20 U.S.C.S. § 1681 et seq. The United States District Court for the District of Colorado granted summary judgment for CU, and later denied motions to alter or amend the judgment and to reopen discovery. The victims appealed.OVERVIEW: The central question was whether the risk of sexual assault during recruiting visits at CU was obvious. The appellate court found that the evidence that the association of sexual misconduct with college football programs had been a matter of widespread reporting and concern for many years, and that in addition to the evidence that CU’s football coach knew that efforts by CU were not effective in establishing a football-team culture that would prevent sexual assaults, those efforts were being undermined by the coach himself, the evidence was sufficient to support findings: (1) that CU had an official policy of showing high-school football recruits a “good time” on their visits to the CU campus; (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts chosen to show the football recruits a “good time;” and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference. Therefore, CU was not entitled to summary judgment on the victims’ claims of sexual assault under Title IX of the Education Amendments of 1972, 20 U.S.C.S. § 1681 et seq.OUTCOME: The grant of summary judgment to CU was reversed and the case was remanded for further proceedings.OPINION [*1172] HARTZ, Circuit Judge.Lisa Simpson and Anne Gilmore (Plaintiffs) claim that they were sexually assaulted on the night of [**3] December 7, 2001, by football players and recruits of the University of Colorado at Boulder (CU). They brought this action against CU under Title IX of the Education Amendments of 1972. See 20 U.S.C. §§ 1681-1688. The district court granted summary judgment for CU, see Simpson v. Univ. of Colo., 372 F. Supp. 2d 1229, 1246 (D. Colo. 2005), and later denied motions to alter or amend the judgment and to reopen discovery. Plaintiffs appealed these rulings in our case number 06-1184. Later the district court denied a second motion for relief from judgment. Plaintiffs appealed that ruling in our case number 07-1182. We grant Plaintiffs’ motion to consolidate the two appeals. Two amicus curiae briefs have been submitted by organizations in support of Plaintiffs’ position. 1 We have jurisdiction [*1173] under 28 U.S.C. § 1291. In our view, the evidence presented to the district court on CU’s motion for summary judgment is sufficient to support findings (1) that CU had an official policy of showing high-school football recruits a “good time” on their visits to the CU campus, (2) that the alleged sexual assaults were caused by CU’s failure to provide adequate supervision and guidance to player-hosts [**4] chosen to show the football recruits a “good time,” and (3) that the likelihood of such misconduct was so obvious that CU’s failure was the result of deliberate indifference. We therefore hold that CU was not entitled to summary judgment. Because we reverse and remand for further proceedings, we need not address the merits of the postjudgment motions.- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -1 The first amicus brief was submitted on behalf of the American Civil Liberties Union, American Civil Liberties Union Foundation of Colorado, Inc., Asian American Legal Defense and Education Fund, California Women’s Law Center, Connecticut Women’s Education and Legal Fund, Lawyers’ Committee for Civil Rights Under Law, Legal Momentum, Mexican American Legal Defense and Educational Fund, Inc., National Asian Pacific American Women’s Forum, National Association for the Advancement of Colored People, NAACP Legal Defense and Educational Fund, Inc., National Partnership for Women and Families, Northwest Women’s Law Center, Sargent Shriver National Center on Poverty Law, Southwest Women’s Law Center, and Women’s Law Project. The second amicus brief was submitted on behalf of the Women’s Sports Foundation, American Association of University Women, [**5] AAUW Educational Foundation, National Coalition Against Violent Athletes, Security on Campus, Inc., and certain professors who study gender, violence and sports.- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -I. BACKGROUNDWe will briefly state the gist of Plaintiffs’ claims before addressing the procedural posture of the case and the governing law. Then we will discuss the evidence in significantly greater detail. HN1Go to this Headnote in the case.We view the evidence presented to the district court in the light most favorable to the parties opposing summary judgment–namely, Plaintiffs. See Escue v. N. Okla. Coll., 450 F.3d 1146, 1152 (10th Cir. 2006). 2- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -2 We rely solely on materials before the district court at summary judgment. This includes materials in volumes I, II, III, VI and VII of the appendix, as well as portions of volumes IV and VIII. Materials in volumes V, IX, X, XI, and XII of the appendix were submitted after the district court entered summary judgment.- – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – -A. Plaintiffs’ AllegationsPlaintiffs were sexually assaulted in Ms. Simpson’s apartment by CU football players and high-school students on a recruiting visit. The CU football team recruited talented high-school players each fall by bringing them to campus. Part of the sales effort was to show recruits [**6] “a good time.” To this end, recruits were paired with female “Ambassadors,” who showed them around campus, and player-hosts, who were responsible for the recruits’ entertainment. At least some of the recruits who came to Ms. Simpson’s apartment had been promised an opportunity to have sex.By the time of the alleged assaults of Plaintiffs, there were a variety of sources of information suggesting the risks that sexual assault would occur if recruiting was inadequately supervised. These included reports not specific to CU regarding the serious risk of sexual assaults by student-athletes. There was also information specific to CU. In 1997 a high-school girl was assaulted by CU recruits at a party hosted by a CU football player. The local district attorney initiated a meeting with top CU officials, telling them that CU needed to develop policies for supervising recruits and implement sexual-assault-prevention training for football players. Yet CU did little to change its policies or training following that meeting. In particular, player-hosts were not instructed on the limits of appropriate entertainment.Moreover, events within the football program did not suggest that training relating [**7] to recruiting visits was unnecessary. Not only was the coaching staff informed of sexual harassment and assault by players, but it responded in ways that were more [*1174] likely to encourage than eliminate such misconduct.B. Court ProceedingsOn December 9, 2002, Ms. Simpson filed a complaint in Colorado state court; on December 23 CU removed the action to the United States District Court for the District of Colorado. Ms. Gilmore filed her complaint in federal district court on December 8, 2003. The two cases were consolidated on January 30, 2004. In their complaints Plaintiffs sought relief under Title IX, 20 U.S.C. § 1681(a), claiming that CU knew of the risk of sexual harassment of female CU students in connection with the CU football recruiting program and that it failed to take any action to prevent further harassment, before their assaults.On May 5, 2004, CU filed a summary-judgment motion contending that Plaintiffs could not establish the elements of a Title IX claim. In granting CU’s motion on March 31, 2005, the district court ruled that no rational person could find (1) that CU had actual notice of sexual harassment of CU students by football players and recruits before Plaintiffs’ [**8] assaults or (2) that CU was deliberately indifferent to such harassment. Simpson, 372 F. Supp. 2d at 1235. The court also observed that a fact-finder could not find causation because of the lack of evidence of notice and deliberate indifference. See id. at 1245. On May 23, 2006, the court denied motions to alter or amend the judgment and to reopen discovery. On April 24, 2007, after Plaintiffs had already appealed these rulings, it denied an additional motion by Plaintiffs for relief from judgment.II. DISCUSSIONA. Governing LawHN2Go to this Headnote in the case.”We review the district court’s grant of summary judgment de novo. Summary judgment is appropriate only where ‘there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law.'” Escue, 450 F.3d at 1152 (citation and ellipsis omitted) (quoting Fed. R. Civ. P. 56(c)).HN3Go to this Headnote in the case.Title IX provides in pertinent part: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). The United States Supreme Court has held that Title IX [**9] authorizes private suits for damages in certain circumstances. See Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 76, 112 S. Ct. 1028, 117 L. Ed. 2d 208 (1992); see also Cannon v. Univ. of Chi., 441 U.S. 677, 717, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979). Two Supreme Court cases have addressed the contours of Title IX damages suits for sexual harassment. In Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998), the complaint alleged sexual harassment of a student by a teacher. In Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629, 119 S. Ct. 1661, 143 L. Ed. 2d 839 (1999), the complaint alleged student-on-student harassment.Both parties in the case before us have treated Plaintiffs’ claims as claims of student-on-student harassment subject to the specific requirements of Davis. In our view, however, Plaintiffs’ claims have critical elements that make the student-on-student-harassment framework an imperfect one for analysis of their claims. The alleged sexual assaults were not simply misconduct that happened to occur at CU among its students. Plaintiffs allege that the assaults arose out of an official school program, the recruitment of high-school athletes. Indeed, they allege that the assaults [*1175] were the natural, perhaps inevitable, consequence [**10] of an officially sanctioned but unsupervised effort to show recruits a “good time.” Although we find this situation distinguishable from those addressed in Gebser and Davis, we can determine the requirements for a Title IX claim in this context only after seeking guidance in these two decisions.In Gebser HN4Go to this Headnote in the case.the Supreme Court held that a student’s claim for money damages based on sexual harassment by a teacher could arise under Title IX, but only if (1) “an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the [funding] recipient’s behalf has actual knowledge of discrimination in the recipient’s programs and fails adequately to respond,” and (2) the inadequate response “amount[s] to deliberate indifference to discrimination.” 524 U.S. at 290. The Court rejected two alternative bases of liability advanced by the plaintiffs. First, it rejected a respondeat-superior claim predicated on the notion that the authority conveyed to the teacher by the school district facilitated the harassment. See id. at 282. Second, it rejected the notion that the district could be liable based on constructive notice–that is, that the district [**11] “‘should have known’ about harassment but failed to uncover and eliminate it.” Id.Gebser’s requirements for a Title IX claim were premised on two propositions. First, HN5Go to this Headnote in the case.Title IX was enacted under Congress’s spending power, which allows it to “provide for the . . . general Welfare of the United States,” U.S. Const. art. 1, § 8, cl. 1, and to attach conditions on the funds it provides, see Gebser, 524 U.S. at 286-87. Consistent with this power, Title IX “condition[s] an offer of federal funding on a promise by the recipient not to discriminate, in what amounts essentially to a contract between the Government and the recipient of funds.” Id. at 286. Because of Title IX’s contractual nature, the Court decided that a funding recipient could be “liable in monetary damages for noncompliance with the condition,” id. at 287, only if it “has notice that it will be liable for a monetary award,” id. (brackets and internal quotation marks omitted). In other words, a funding recipient must have notice of its noncompliance with Title IX before it can be held liable for money damages.Second, HN6Go to this Headnote in the case.the provisions of Title IX indicate that a funding recipient should be liable only for its own actions, and not [**12] for the independent actions of an employee or a student. The Court observed that the administrative-enforcement scheme for Title IX permitted the imposition of financial penalties only after funding recipients received actual notice of discrimination within their programs and were given an opportunity to institute corrective measures; they would be subject to sanctions only for their failure to respond rather than for an employee’s independent acts. Id. at 287-89. “Where a statute’s express enforcement scheme hinges its most severe sanction on notice and unsuccessful efforts to obtain compliance,” said the Court, “we cannot attribute to Congress the intention to have implied an enforcement scheme that allows imposition of greater liability without comparable conditions.” Id. at 290. The claim in Gebser thus did not survive because the plaintiffs had conceded that the school district did not have actual knowledge of harassment. Id. at 291.Gebser also rejected the plaintiffs’ contention that liability could be based on the school district’s “failure to promulgate and publicize an effective policy and grievance procedure for sexual harassment claims.” [*1176] Id. It explained that the school [**13] district’s alleged violation of federal regulations requiring such procedures did not establish the requisite actual notice or deliberate indifference, and “the failure to promulgate a grievance procedure does not itself constitute ‘discrimination’ under Title IX.” Id. at 292.Relevant to the claims before us are two remarks by the Court that suggest that the Gebser standards do not apply to some Title IX harassment claims and indicate what the standards should be for those claims. First, the Court noted a limitation when setting forth the requirements of actual knowledge and an inadequate response. It restricted these requirements to “cases like this one that do not involve official policy of the [school district].” Id. at 290. Second, it suggested that courts can find guidance in civil-rights cases alleging municipal liability under 42 U.S.C. § 1983. Explaining why liability would arise only when the school’s inadequate response amounted to deliberate indifference to discrimination, the Court wrote:The administrative enforcement scheme presupposes that an official who is advised of a Title IX violation refuses to take action to bring the recipient into compliance. The premise, in [**14] other words, is an official decision by the recipient not to remedy the violation. That framework finds a rough parallel in the standard of deliberate indifference. Under a lower standard, there would be a risk that the recipient would be liable in damages not for its own official decision but instead for its employees’ independent actions. Comparable considerations led to our adoption of a deliberate indifference standard for claims under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation of federal rights was the cause of the violation. See Board of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997); Canton v. Harris, 489 U.S. 378, 388-392, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).Gebser, 524 U.S. at 290-91. We will return to these two remarks after a brief discussion of Davis.HN7Go to this Headnote in the case.Davis held that the plaintiffs had stated a claim for damages under Title IX when they alleged that a fifth-grade student had been subjected to five months of physical and verbal harassment by a classmate and that school officials informed of the harassment had failed to take any action to investigate or stop it. See 526 U.S. at 633-35, 653-54. The Court addressed two distinct components of the claim. One was [**15] the nature and extent of the injury to the student. The Court held that a student’s harassment by a peer constitutes “discrimination” under Title IX if it “is so severe, pervasive, and objectively offensive, and . . . so undermines and detracts from the victim[‘s] educational experience, that the victim-student [is] effectively denied equal access to an institution’s resources and opportunities.” Id. at 651. The district court did not rule that Plaintiffs had failed to establish this component of their cause of action, and it is not at issue on appeal.The second component addressed in Davis is the role and responsibility of the funding recipient. HN8Go to this Headnote in the case.Although acknowledging that a school receiving federal funds cannot be liable unless it has notice that its conduct could subject it to a damages claim, the Court said that “this limitation on private damages actions is not a bar to liability where a funding recipient intentionally violates the statute.” Id. at 642. It noted that in Gebser it had rejected a negligence standard for liability–namely, a standard that would have imposed liability on a school district for “failure to react to teacher-student harassment of which it . . . should [**16] [*1177] have known”–but instead had “concluded that the district could be liable for damages only where the district itself intentionally acted in clear violation of Title IX by remaining deliberately indifferent to acts of teacher-student harassment of which it had actual knowledge.” Id. In further expounding the standard for liability the Court said:The statute’s plain language confines the scope of prohibited conduct based on the recipient’s degree of control over the harasser and the environment in which the harassment occurs. If a funding recipient does not engage in harassment directly, it may not be liable for damages unless its deliberate indifference subjects its students to harassment. That is, the deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it.Id. at 644-45 (brackets and internal quotation marks omitted). “These factors,” it continued,combine to limit a recipient’s damages liability to circumstances wherein the recipient exercises substantial control over both the harasser and the context in which the known harassment occurs. Only then can the recipient be said to “expose” its students to harassment or “cause” [**17] them to undergo it “under” the recipient’s programs.Id. at 645.The second component of Plaintiffs’ claims–the role and responsibility of CU–is the focus of this appeal. We do not believe, however, that the formulation of this component in Gebser and Davis translates perfectly to the context of this case. We find it significant that in those cases there was no element of encouragement of the misconduct by the school district. To be sure, in those cases the school district could anticipate that the very operation of a school would be accompanied by sexual harassment, but that is simply because, unfortunately, some flawed humans will engage in such misconduct when they are in the company of others. Here, however, the gist of the complaint is that CU sanctioned, supported, even funded, a program (showing recruits a “good time”) that, without proper control, would encourage young men to engage in opprobrious acts. We do not think that the notice standards established for sexual-harassment claims in Gebser and Davis necessarily apply in this circumstance.Gebser suggested as much in the remarks we referenced above. The Court said that the requirements it imposed applied to “cases like this [**18] one that do not involve official policy of the [school district].” 524 U.S. at 290. The Court did not elaborate on what it meant by “involve official policy,” but the essence of the point is suggested by its reliance in the following paragraph on the doctrine regarding the imposition of liability on municipalities under 42 U.S.C. § 1983 for civil-rights violations. The Court supported the deliberate-indifference requirement for Title IX liability by observing that “[c]omparable considerations led to our adoption of a deliberate indifference standard for claims under § 1983 alleging that a municipality’s actions in failing to prevent a deprivation of federal rights was the cause of the violation.” Id. at 291. What is “comparable” is HN9Go to this Headnote in the case.the requirement for both § 1983 municipal liability and Title IX funding-recipient liability that the institution itself, rather than its employees (or students), be the wrongdoer. Under Title IX the school district “could be liable for damages only where the district itself intentionally acted in clear violation of Title IX.” Davis, 526 U.S. at 642. The funding recipient should be liable only “for its own official decision,” not “its employees’ [*1178] independent [**19] actions.” Gebser, 524 U.S. at 291. Likewise, under § 1983 a municipality is not liable under respondeat superior doctrine but only for its own civil-rights violations. “[I]t is when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).In the context of Gebser or Davis, the school district could not be said to have intentionally subjected students to harassment unless it knew of the harassment and deliberately decided not to take remedial action. But the § 1983 municipal-liability cases reveal how the standard changes when the claim “involve[s] official policy,” Gebser, 524 U.S. at 290, although the underlying principle–liability only for intentional acts by the institution itself–remains the same.One of the cases cited by Gebser as support for the deliberate-indifference requirement, see id. at 291, is City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989). In that case HN10Go to this Headnote in the case.the Court held that a municipality may be liable under § 1983 for an officer’s [**20] constitutional violation if the violation was the result of inadequate police training and the municipality’s failure to train the officer amounted to deliberate indifference to the rights of those “with whom police come into contact.” Id. at 388. Although recognizing that a municipality is liable under § 1983 for a constitutional violation by one of its officers only if the officer’s action is caused by a municipal policy or custom, see id. at 385, the Court declared that the policy itself need not be unconstitutional, id. at 387. Rather, failure to conduct an adequate training program for implementation of an otherwise valid policy may represent a municipal policy on which liability can rest. See id. at 389-90. To be sure, typically a municipality would not intentionally have a training program that was clearly inadequate, but the Court explained:[I]t may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.Id. at 390. [**21] HN11Go to this Headnote in the case.We conclude that a funding recipient can be said to have “intentionally acted in clear violation of Title IX,” Davis, 526 U.S. at 642, when the violation is caused by official policy, which may be a policy of deliberate indifference to providing adequate training or guidance that is obviously necessary for implementation of a specific program or policy of the recipient. Implementation of an official policy can certainly be a circumstance in which the recipient exercises significant “control over the harasser and the environment in which the harassment occurs.” Id. at 644.In applying this standard we take note of Canton’s discussion of what is meant by an “obvious” need for training. It recognized that a need could be “obvious” for reasons other than knowledge of previous incidents within the municipality:For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force can be [*1179] said to be “so obvious,” that failure to do so could properly [**22] be characterized as “deliberate indifference” to constitutional rights.Canton, 489 U.S. at 390 n.10 (citation omitted). The Court elaborated on this point in Board of County Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 117 S. Ct. 1382, 137 L. Ed. 2d 626 (1997), which held that a sheriff’s isolated failure to perform adequate screening of a potential deputy did not establish deliberate indifference to a risk that the deputy would use excessive force, id. at 415-16. But it reaffirmed Canton’s holding that deliberate-indifference claims could be established by a failure to train for certain obvious risks: “In Canton, we did not foreclose the possibility that evidence of a single violation of federal rights, accompanied by a showing that a municipality has failed to train its employees to handle recurring situations presenting an obvious potential for such a violation, could trigger municipal liability.” Id. at 409; see Allen v. Muskogee, Okla., 119 F.3d 837, 843, 845 (10th Cir. 1997) (when city trained officers “to leave cover and approach armed, suicidal, emotionally disturbed persons and . . . try to disarm them,” plaintiff’s claim fell within “the narrow range of circumstances . . . under which a single [**23] violation of federal rights may be a highly predictable consequence of failure to train officers to handle recurring situations with an obvious potential for such a violation” (internal quotation marks omitted)); see also Brown v. Gray, 227 F.3d 1278, 1290 (10th Cir. 2000).B. Evidence at Summary JudgmentWe now review the evidence presented in the summary-judgment filings in the light most favorable to Plaintiffs to determine whether it can satisfy the above standard. See Escue, 450 F.3d at 1152. HN12Go to this Headnote in the case.At summary judgment,the relevant inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. . . . [S]ummary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”Bingaman v. Kan. City Power & Light Co., 1 F.3d 976, 980-81 (10th Cir. 1993) (ellipsis omitted) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).The CU football program is one of the premier programs in the country. From 1989-2005 the team had the twelfth-best record among all teams in Division I-A of the National Collegiate Athletic [**24] Association (NCAA). It won the national championship in 1990, finished first in the Big 8 Conference three times between 1989 and 1995, and was the Big 12 Conference champion in 2001.As the report of a CU independent investigative commission (IIC Report) observed, 3 CU’s success on the field has been [*1180] partly the result of an effective recruiting program that attracts the attention of the country’s elite high-school football prospects. The NCAA, which closely regulates many aspects of the recruiting process, allows schools like CU to bring up to 62 high-school-aged prospects to campus each fall during football season. In the 1990s CU paired each visiting recruit with an “Ambassador,” usually female, who escorted the recruit around campus throughout the visit. CU also matched recruits with players selected by the coaching staff, including the head coach. Robert Chichester, an attorney in the CU counsel’s office and later associate athletic director, said that the player-hosts, who were usually underclassmen, were chosen because they knew how to “party” and how “to show recruits a good time,” and would “do a good job of entertaining [them].” Aplt. App. Vol. VI at 397 (Dep. of Robert Chichester). [**25] One host put it:[T]he whole goal is to have . . . the top recruits come from all over the nation to come to your school, . . . because that’s your–the future of the team. . . . [T]he position that we’re placed in is that we’re supposed to . . . take these recruits out, . . . show them a good time, go out to dinner with them, . . . just have them interact with other athletes and just students in general.Aplt. App. Vol. VII at 1343.- – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – -3 The independent investigative commission was created by resolution of the Board of Regents, which directed it to investigate the use of sex and alcohol in CU football recruiting and provide a report to the Board. In the district court Plaintiffs claimed that the IIC Report was admissible as nonhearsay under Fed. R. Evid. 801(d)(2) or under a hearsay exception, Fed. R. Evid. 803(8). Simpson, 372 F. Supp. 2d at 1233. For purposes of summary judgment the district court assumed that one of these arguments was correct. Id. On appeal CU makes the blanket assertion, with no supporting citations or argument, that “[t]he IIC report is inadmissible hearsay.” Aplee. Br. at 57. We deem its argument waived on appeal and decline to address it. See Ambus v
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