Civil rights plaintiffs have won another victory in a case involving the coddling of college athletes as a judge ruled that a rape victim can sue former Arizona State University football coach Dirk Koetter for putting her in danger she would otherwise not have faced.

Koetter was the Sun Devils coach when a female student identified only as J.K. was raped by one of his players, Darnel Henderson, in March 2004. She sued both ASU and Koetter, alleging he “used his authority as a state official to create an opportunity for Henderson to assault Plaintiff that would not have otherwise existed.”

Henderson had been expelled in July 2003 from the school's Summer Bridge program for sexually harassing and intimidating women in his dormitory. He was allowed to return to campus the following month to begin his freshman year and join the football team.

Koetter moved for summary judgment on the basis of qualified immunity, but U.S. District Judge Mary H. Murguia decided recently that the case should go to trial.

“The evidence in the record indicates that J.K. may be able to establish that in light of Henderson’s egregious misconduct, Coach Koetter nonetheless facilitated Henderson’s return to ASU and ensured his ability to join the ASU football team,” she said in her decision.

Among other things, she noted, Koetter initially told Henderson he would be subject to a “three strikes” or “zero tolerance” plan, but “never put such a plan into effect.”

“Instead, he merely spoke to Henderson and told him that he needed to learn from his mistakes, and thought that Henderson had already 'paid a price' for his misconduct by being kicked out of the Summer Bridge program three weeks before it concluded,” Murguia said.

In another case of big-time athlete-coddling, the 10th U.S. Circuit Court of Appeals ruled last year that the University of Colorado could be held liable for the behavior of football players and recruits who allegedly raped two women at an off-campus party. Simpson v. University of Colorado, 500 F.3d 1170. The school subsequently settled the women's Title IX civil rights claims for $2.85 million.

A settlement may now be ASU's best hope of minimizing its liability –- particularly as Henderson had told the director of the Summer Bridge program that he wanted women to fear him and wanted to “show them their place.”

Koetter, now offensive coordinator for the NFL's Jacksonville Jaguars, had a policy of placing football players in on-campus dorms and Henderson was placed in the same dorm from which he had just been expelled. J.K. had not met Henderson before the night he raped her in the dorm, where she was also a resident.

In 2006, an Arizona state court judge dismissed a wrongful-death case against ASU and Koetter arising from an off-campus murder committed by former Sun Devils running back Loren Wade, finding the school did not have a duty to protect the public from Wade's “known violent tendencies.”

J.K.'s case is more specific since, as Murguia noted, “The female ASU students living in Henderson’s dormitory are not analogous to the public at large ... Clearly, women living in Henderson’s dormitory had been sexually harassed during the Summer Bridge program, and thus women in the dormitories that Henderson lived in once he returned to ASU also faced the possibility of being sexually harassed by Henderson.”

Koetter has filed an interlocutory appeal of Murguia's ruling, but federal trial court judges rarely certify such appeals. “Defendant Koetter’s interlocutory appeal is frivolous and a transparent attempt to delay the trial of this matter,” J.K. argues in a court brief.

Murguia also denied ASU's motion for summary judgment, finding J.K. may 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.

By Matthew Heller
11/4/08