Gopher football players' gender discrimination lawsuit against the University of Minnesota can go forward

Nine former Gophers football players accused of sexual assault in 2016 can proceed with their gender discrimination lawsuit against the University of Minnesota, the Eighth U.S. Circuit Court of Appeals ruled Tuesday.

The court cited the lawsuit's claim of "internal pressure on university officials to charge male football players with sexual misconduct" along with the lawsuit's allegation that the U's investigator "believed football players had covered-up sexual misconduct complaints" in a separate 2015 assault claim so the university was motivated to "punish as many players as possible in response to" the claims by the 2016 victim, a cheerleader identified as Jane Doe.

The lawsuit filed in 2018 by nine former players now returns to U.S. District Court for a possible trial after U.S. District Judge Donovan Frank dismissed it in 2019, citing "no factual support for their allegations of disparate treatment."

The players, identified as John Does, seek unspecified damages for willful and malicious discrimination. The men claim they suffered severe emotional distress and financial damage as a result of being falsely cast as sex offenders.

The allegations and the graphic investigative report on the incident rocked the football program. Hennepin County Attorney Mike Freeman reviewed the case at the time but did not charge anyone.

Initially, the university accused 10 Gophers football players of sexual misconduct after its own investigation. Five students were eventually expelled or suspended for violating the student conduct code, while the others were cleared on appeal. The players have claimed the woman initiated the sexual encounters involving the players and an underage recruit.

David Madgett, the attorney for the players, said the men were "unfairly judged" based on accusations. "It's years later but let's not forget, it destroyed many of these kids' lives," he said. "People have lost opportunities."

A university spokesman said, "The university is aware of today's ruling and is reviewing it in full but, as a general practice, we do not comment on active litigation." In previous court motions, university lawyers denied gender or race played a role.

The 18-page Court of Appeals ruling was written by Judge James Loken and signed by Judges Lavenski Smith and Raymond Gruender.

In the decision, Loken wrote about an e-mail sent at the close of the investigation into the 2015 allegation of sexual misconduct by football players. Equal Opportunity and Affirmative Action Director Kimberly Hewitt e-mailed athletic director Norwood Teague warning of a "concerning pattern" of misconduct among football players and warned that they posed a risk of future sexual assault or harassment.

"It is reasonable to infer that the investigator" of the 2016 allegations "was aware of and agreed with these sentiments," Loken wrote. "These allegations support the inference that the University, and specifically its investigators, discriminated against the Does on the basis of sex."

Hewitt, Kaler and Teague are no longer at the university.

Loken noted that the players claim a 2014 investigation into the university by the U.S. Office of Civil Rights also factored into the discrimination. The federal office investigated the university for Title IX allegations of depriving women of equal funding and allowing a male gymnastics coach to sexually harass a gymnast.

The university settled the claim by paying a female gymnast $250,000, the ruling said.

"It is 'entirely plausible' that the specter of another federal investigation of potential Title IX violations could motivate the university to discriminate against male athletes accused of sexual misconduct to demonstrate ongoing compliance with Title IX," the court said.

The victim alleged that as many as a dozen football players at an off-campus party repeatedly raped her or watched and cheered as others did. After its own investigation, the U found 10 Gophers football players responsible for sexual misconduct.

The players, all of whom were Black, claimed race played a role, but that claim was not reinstated.

Rochelle Olson • 612-673-1747