A 4th District Court judge this week cleared the way for two former female athletes’ lawsuit against Boise State University to proceed to trial.
The women, who were on the school’s track team during 2011-12, sued the university in 2014, alleging that they were sexually assaulted and harassed by a male teammate and that the university failed to immediately act because he was a star athlete.
One of the plaintiffs “raised evidence that her report of the rape was largely ignored and she was left unsupported and forced to fearfully co-exist with (male athlete) on a daily basis,” Judge Steven Hippler wrote in his decision.
In May, attorneys representing Boise State filed a motion for summary judgment, seeking to have the judge decide the case without going to trial.
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Hippler issued a 36-page ruling on the motion Tuesday afternoon denying the motion.
“We are very gratified by the judge’s decision and we look forward to presenting our case to a jury on Jan. 5, 2016,” nationally known attorney Gloria Allred said in a written statement to the Statesman on Thursday.
The Statesman generally does not name alleged victims of sexual assault. The star athlete accused of rape and other sexual misconduct is not named in the lawsuit against Boise State. He has not been charged with any sex crimes in Idaho, according to online court records.
Contained within Hippler’s ruling are details about the conclusions of two reports produced by university officials who investigated the allegations. One report focused on coach interviews, the other on student-athlete interviews.
The report based on interviews with coaches found:
• All the track coaches acknowledged that (male athlete) was a “skirt chaser,” “ladies man” or that he “hits on women.”
• Complaints by three female student-athletes were not forwarded to the university officials for investigation or record keeping. Coaches failed to report the incident relating to a fourth female athlete.
• A male athlete had sexually assaulted two female athletes.
• Four women on the track team were victims of sex-based discrimination.
• When complaints, allegations or common knowledge brought sex-based discrimination to the coaching staff, the matter was handled internally and more often than not favored males.
• Coach J.W. Hardy was not notifying the athletic administration of the complaints or taking necessary actions to remedy the effects of sex-based discrimination.
The report based on interviews with athletes had these conclusions and recommendations:
• Three women were sexually assaulted by two male athletes after consuming alcohol.
• A male athlete sexually harassed one female athlete and threatened another with physical violence.
• A male athlete contacted one female athlete and tried to silence her reporting.
• Three male athletes should be referred to the Office of Student Rights and Responsibility for sanctioning intended to prevent future occurrences of discriminating behavior and to assist with personal decision making.
According to court documents, at least one of the track coaches thought the star male athlete should be kicked off the team — and told Hardy that.
After an incident in which the athlete allegedly became angry and had to be restrained by two men from hitting a female athlete, then-assistant coach Kelley Watson told Boise State investigators that she wanted Hardy to suspend him, but the head coach thought it could be handled by talking to him.
Prior to that incident, Watson “repeatedly” told Hardy that a female athlete who alleged she was raped felt threatened by him.
The star athlete accused of rape and harassment was eventually kicked off the team and out of the university, and Boise State did not renew Hardy’s contract.
Watson and at least two other former Boise State assistants are now coaches for the women’s track team at San Jose State University, according to Washington Square, the alumni magazine for SJSU.
Former Boise State Athletic Director Gene Bleymaier was hired to be San Jose State’s athletic director in 2012. Bleymaier was fired by Boise State in 2011 after an NCAA investigation.
Did Boise State have ‘actual knowledge’?
BSU is accused in the lawsuit of violating a federal law created to protect against discrimination in education: Title IX of the Education Amendments of 1972. Universities that receive federal funds have an obligation under Title IX to take steps to prevent sexual harassment and stop it when it occurs.
In his decision, Hippler cited 9th Circuit rulings that peer sexual harassment complaints must meet four elements for Title IX actions:
• The school must exercise substantial control over both the harassed and the context in which the known harassment occurs.
• The plaintiff must suffer sexual harassment that is so severe, pervasive and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.
• The school must have actual knowledge of harassment.
• The school’s deliberate indifference subjects its students to harassment.
Boise State’s primary challenge was on whether the university had “actual knowledge” of the harassment, Hippler wrote.
The defense attorneys argued that Hardy did not have authority to institute corrective measures — such as expelling a student-athlete from the university — so if he did know about the rape allegation, it wouldn’t constitute “actual knowledge” by the university.
Hardy denies that the female athlete told him that she was raped by a team member, court documents show. She said he told her that he couldn’t help her because she had consumed alcohol, and he did not offer any referral to support services or information about pursuing charges.
Hippler said the plaintiffs presented evidence that Hardy had wide-reaching remedial powers, including the ability to discipline athletes, suspend them from the team and address harassment.
“A jury may find that these powers would be sufficient to end or control the harassment, depending on the degree of harassment the jury believes occurred,” Hippler wrote. “Consequently, it cannot be held as a matter of law that Coach Hardy was not an appropriate person to impute actual knowledge of the harassment to BSU.”
The defense downplayed alleged sexual comments, leering and spanking of female athletes at practice as a “type of schoolyard conduct,” Hippler wrote. BSU also contended that the alleged rape of one female athlete and the groping of another’s genitalia did not meet the “severe and pervasive” criteria.
The judge disagreed.
“The majority of courts have found that a single act of sexual violence can be sufficient to state a claim under Title IX,” Hippler said in his decision.
Even though the alleged rape occurred off campus, “her allegations indicate the discriminatory effect of the rape occurred on campus at BSU’s hands. She raised evidence that her report of the rape was largely ignored and she was left unsupported and forced to fearfully co-exist with (male athlete) on a daily basis.”