MacKenzie Brown v. State of Arizona ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MACKENZIE BROWN, a single No. 20-15568
woman,
Plaintiff-Appellant, D.C. No.
2:17-cv-03536-
v. GMS
STATE OF ARIZONA; ARIZONA
BOARD OF REGENTS, DBA OPINION
University of Arizona, a
constitutionally created body
corporate,
Defendants-Appellees,
and
RICHARD A. RODRIQUEZ; RITA
RODRIQUEZ,
Defendants,
v.
LIDA DEGROOTE,
Third-party-plaintiff.
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
2 BROWN V. STATE OF ARIZONA
Argued and Submitted En Banc March 21, 2023
Pasadena, California
Filed September 25, 2023
Before: Mary H. Murguia, Chief Judge, and William A.
Fletcher, Johnnie B. Rawlinson, Milan D. Smith, Jr.,
Jacqueline H. Nguyen, John B. Owens, Michelle T.
Friedland, Ryan D. Nelson, Kenneth K. Lee, Lucy H. Koh
and Jennifer Sung, Circuit Judges.
Opinion by Judge W. Fletcher;
Concurrence by Judge Friedland;
Dissent by Judge Rawlinson;
Dissent by Judge R. Nelson;
Dissent by Judge Lee
SUMMARY*
Title IX
The en banc court reversed the district court’s summary
judgment in favor of the University of Arizona and
remanded in an action brought under Title IX by Mackenzie
Brown.
Orlando Bradford, who was attending the University on
a football scholarship, repeatedly and violently assaulted
Brown, his fellow student, in an off-campus house where
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BROWN V. STATE OF ARIZONA 3
Bradford was living with other university football players.
At the time of the assault, university officials knew that
Bradford had repeatedly and violently assaulted two other
female undergraduates the previous year. Brown sued the
University under Title IX, contending that the University’s
actions and omissions in response to Bradford’s violent
assaults on the other female students deprived her of the full
benefits of her education and that an appropriate response
would have prevented Bradford’s assaults on her.
The en banc court held that to obtain damages under Title
IX for student-on-student harassment, a plaintiff must show
(1) that the educational institution had substantial control
over both the harasser and the context in which the known
harassment occurs; (2) that the harassment was so severe,
pervasive, and objectively offensive that it denied its victims
the equal access to education that Title IX is designed to
protect; (3) that a school official with authority to address
the alleged discrimination and to institute corrective
measures has actual knowledge of the discrimination; (4)
that the school acted with deliberate indifference to the
harassment; and (5) that the school’s deliberate indifference
must, at a minimum, cause students to undergo harassment,
or make them liable or vulnerable to it. At issue were the
first, third, and fourth requirements.
As to the first requirement, the en banc court held that it
was clear that the University had substantial disciplinary
control over Bradford, the harasser. The en banc court held
that the University also had substantial control over the
context in which the harassment occurred, even though it
occurred off campus, because location is only one factor in
determining the control over context. Considering all the
circumstances of this case and viewing the facts in the light
most favorable to Brown, the en banc court held that Brown
4 BROWN V. STATE OF ARIZONA
presented sufficient evidence to allow a reasonable
factfinder to conclude that the University had substantial
control over the context in which Bradford assaulted Brown.
The University had control over the off-campus housing in
which Bradford was living. In addition, the University’s
Student Code of Conduct applied to student conduct both on-
campus and off-campus, and Bradford was subject to
increased supervision through Player Rules specific to
football players.
The en banc court held that there also was a sufficient
showing as to the third requirement, actual knowledge, and
the fourth requirement, deliberate indifference. The en banc
court held that evidence in the record would support a
conclusion by a reasonable factfinder that University
officials had actual knowledge or notice of Bradford’s
violent assaults, and that Erika Barnes, the University’s Title
IX liaison within the Athletics Department, was an official
who had authority to address Bradford’s assaults and to
institute corrective measures. A reasonable factfinder also
could conclude that Barnes’s response amounted to
deliberate indifference.
Concurring, Judge Friedland wrote that she concurred in
the majority’s opinion in its entirety. She wrote separately
to address a waiver argument raised in dissent. Judge
Friedland wrote that, in proceedings before the three-judge
panel, Brown disavowed the argument that the University
exercised control over Bradford’s off-campus apartment, but
a majority of the three-judge panel addressed that theory on
its merits anyway. Because the majority’s holding on that
theory was incorrect, and because Brown raised the issue in
supplemental briefing to the en banc court, it was proper for
the en banc court to address the issue.
BROWN V. STATE OF ARIZONA 5
Dissenting, Judge Rawlinson, joined by Judge Lee,
wrote that the facts showed that the University had control
over Bradford, the harasser, but not over the context in which
the harassment occurred.
Dissenting, Judge R. Nelson, joined by Judges
Rawlinson and Lee, wrote that, before the district court and
before the three-judge panel, Brown expressly disclaimed
the position that the University controlled the context of the
abuse in Bradford’s off-campus house, arguing instead that
the control-over-context requirement was met because the
University controlled Bradford’s previous abuse of two
other female students. Therefore, the majority improperly
rested its holding on this theory. Judge R. Nelson wrote that
the majority got the merits wrong as well, because the
evidence showed that the University did not control the
context of Bradford’s abuse of Brown.
Dissenting, Judge Lee, joined by Judge Rawlinson,
wrote that courts have drifted from the text of Title IX, and
a criminal act by a student in an off-campus house does not
implicate an “education program or activity” under Title IX.
6 BROWN V. STATE OF ARIZONA
COUNSEL
Alexandra Z. Brodsky (argued), Adele P. Kimmel, and
Mollie Berkowitz, Public Justice PC, Washington, D.C.;
Isabel M. Humphrey, Hunter Humphrey & Yavitz PLC,
Phoenix, Arizona; Jim Davy, All Rise Trial & Appellate,
Philadelphia, Pennsylvania; for Plaintiff-Appellant.
Stephanie S. Elliott (argued), Assistant Attorney General;
Mark Brnovich, Arizona Attorney General; Office of the
Arizona Attorney General, Phoenix, Arizona; Claudia A.
Collings, Assistant Attorney General, Office of the Arizona
Attorney General, Tucson, Arizona; for Defendants-
Appellees.
Jason Lee (argued) and Kristen Clarke, Assistant Attorneys
General; Nicolas Y. Riley, Attorney; United States
Department of Justice, Civil Rights Division/ Appellate
Section, Washington, D.C.; Lisa Brown, General Counsel;
Vanessa Santos and Mary Rohmiller, Attorneys, United
States Department of Education, Office of the General
Counsel, Washington, D.C.; for Amicus Curiae United
States Department of Education.
John C. Clune, Daniel D. Williams, Colleen M. Koch, and
Matthew A. Simonsen, Hutchinson Black and Cook LLC,
Boulder, Colorado; Shiwali Patel, Hunter Iannucci, Sunu
Chandy, and Emily Martin, National Women’s Law Center,
Washington, D.C.; for Amici Curiae National Women's Law
Center and 31 Additional Organizations.
Gemma Donofrio, Relman Colfax PLLC, Washington, D.C,
for Amici Curiae Professor Paul Bender, et al.
BROWN V. STATE OF ARIZONA 7
OPINION
W. FLETCHER, Circuit Judge:
Orlando Bradford, attending the University of Arizona
on a football scholarship, repeatedly and violently assaulted
his girlfriend and fellow student Mackenzie Brown over the
course of several months in the summer and early fall of
2016. Bradford’s last assaults were extremely violent. They
took place on two successive nights in September, during
Bradford’s sophomore year, in an off-campus house where
Bradford was living with other university football players.
Bradford and the other football players were allowed to live
off-campus only because the coaches of the university
football team had given them permission to do so. That
permission was conditioned on good behavior.
At the time of Bradford’s assaults on Brown, university
officials knew that Bradford had repeatedly and violently
assaulted two other female undergraduates during his
freshman year. Despite this knowledge, those officials did
not take steps to ensure that Bradford would not be a danger
to Brown and other students. Undisputed evidence in the
record shows that if Bradford’s coaches had been told of his
assaults on the two other students, Bradford would have been
kicked off the football team, would have lost his athletic
scholarship, and likely would have been expelled from the
University by the end of his freshman year, months before
his assaults on Brown.
Brown sued the University under Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681–1688,
contending that the University’s actions and omissions in
response to Bradford’s violent assaults on two other female
students deprived her of the full benefits of her education and
8 BROWN V. STATE OF ARIZONA
that an appropriate response would have prevented
Bradford’s assaults on her. For simplicity, this opinion
refers to all defendants collectively as the “University.”
The district court granted summary judgment to the
University, holding as a matter of law that the University did
not exercise control over the “context” in which Bradford’s
abuse of Brown occurred. A divided three-judge panel
affirmed in a published opinion. Brown v. Arizona, 23 F.4th
1173 (9th Cir. 2022), vacated by 56 F.4th 1169 (9th Cir.
2022). We granted rehearing en banc. Brown, 56 F. 4th at
1169–70.
We hold that Brown presented sufficient evidence to
allow a reasonable factfinder to conclude that a responsible
university official exercised sufficient control over the
“context” in which Bradford attacked Brown to support
liability under Title IX. Davis ex rel. LaShonda D. v.
Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999). We
further hold that she presented sufficient evidence to allow a
reasonable factfinder to conclude that the University had
“actual knowledge” of facts that required an appropriate
response, and that a university official’s failure to escalate
reports of Bradford’s actions was a “clearly unreasonable”
response demonstrating the University’s “deliberate
indifference.” Id. at 642–43, 648–49; see also Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).
I. Factual Background
In reviewing the district court’s grant of summary
judgment for the University, we view disputed evidence in
the light most favorable to Brown, the non-moving party.
See Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104
(9th Cir. 2020) (citing Tauscher v. Phx. Bd. of Realtors, Inc.,
BROWN V. STATE OF ARIZONA 9
931 F.3d 959, 962 (9th Cir. 2019)). The evidence in the
record is largely undisputed.
Orlando Bradford enrolled as a freshman at the
University of Arizona in the fall of 2015. He played on the
football team and attended the University on an athletic
scholarship. As will be described in greater detail below,
during his time at the University, Bradford violently
assaulted three women: Student A, Lida DeGroote, and
plaintiff Mackenzie Brown. During his freshman year, he
assaulted Student A multiple times and DeGroote over 100
times. In the summer after his freshman year and in the fall
of his sophomore year, he assaulted Brown between four and
ten times.
University officials learned of Bradford’s violent
assaults on Student A and DeGroote during Bradford’s
freshman year. As a result of Bradford’s assaults on Student
A, the University issued a “no contact” order in April of his
freshman year, forbidding him from contacting Student A
either on or off campus. University officials never told the
University Athletic Director or Bradford’s football coaches
of his assaults on Student A or DeGroote.
Bradford’s coaches gave him permission to live off
campus for his sophomore year. On two successive nights
that fall, in the off-campus house where he was living,
Bradford dragged Brown by her hair, locked her in his room,
and scratched, hit, kicked, and choked her. It is undisputed
that if university officials had told Bradford’s coaches of his
violent assaults on Student A and DeGroote, Bradford would
have lost his football scholarship, been kicked off the
football team, and likely been expelled from the University
by the end of his freshman year.
10 BROWN V. STATE OF ARIZONA
A. Student A and Lida DeGroote
Student A was a member of the university softball team.
She and Bradford met as high school students during an
athletic recruiting trip to the University in January 2015.
The University first learned about Bradford’s violence
against Student A in the fall of 2015, at the start of their
freshman year. On September 21, 2015, from the window
of another building, four students saw Bradford and Student
A physically fighting in a dormitory study room. The
students knocked on the Resident Adviser’s (“RA”) door and
told him what they had seen. The RA went to the other
building to investigate. The RA talked with Bradford alone
while Student A waited outside in the hallway. Bradford
told the RA that the two of them were “just joking” and that
Student A “was just mad at [him] regarding a situation that
happened earlier.”
The RA contacted the on-call University Community
Director who instructed the RA not to call the police. The
RA told university administrators that “this may have started
off as a very serious physical and verbal altercation between
. . . Bradford and . . . Student A.” The Community Director
later spoke to Bradford and Student A together. He never
talked to Student A alone. The Community Director wrote
in a report that Bradford and Student A told him that they
were “just joking” and “agreed that they w[ould] not engage
in this type of behavior in the future.” An incident report
was filed in “Advocate,” the University’s case management
system.
In late 2015, Student A’s parents learned of her abusive
relationship with Bradford. A university police report
recounted that Student A’s parents had told her head softball
coach about Bradford’s violence against her after they had
BROWN V. STATE OF ARIZONA 11
broken up in November 2015. The coach recounted in a
deposition that Student A’s mother had called him in January
2016 and had told him that she and Student A’s father were
concerned about their daughter’s relationship with Bradford
and that they were relieved that they had broken up. The
coach maintained in his deposition that he was unaware of
any specific abuse and that Student A’s mother did not tell
him in her January call what had disturbed them about
Student A’s relationship with Bradford.
In January 2016, after his conversation with Student A’s
mother, the softball coach called Erika Barnes, the
University’s Title IX liaison within the Athletics
Department. Barnes’s formal title was Senior Associate
Athletics Director, Senior Woman Administrator, and
Deputy Title IX Coordinator for Athletics. Barnes recounted
in her deposition that the coach informed her that “Student
A and her boyfriend broke up,” that it was “not a good
situation,” and that Student A was “really upset.” Barnes
told the coach that she wanted Student A to meet with a
school psychologist. She informed the psychologist that she
wanted Student A to meet with her.
Neither Barnes nor the softball coach contacted the
University Athletic Director or anyone on the football
coaching staff.
Sometime after January, Bradford and Student A began
to see each other again. On March 22, 2016, Student A
arrived at a study hall with a black eye and finger marks on
the side of her neck. Two of her teammates went to talk to
the head softball coach. They told him that in the fall of
2015, Bradford had pushed Student A up against a wall, put
his hands around her neck, and choked her. The teammates
also told him that Student A now had a black eye and finger
12 BROWN V. STATE OF ARIZONA
marks on her neck. One of them recounted that the coach
told them that he knew about the situation with Student A
and Bradford, and about efforts to keep the two apart.
When Student A arrived at softball practice that day, an
assistant softball coach saw the black eye and overheard
conversations among the players saying that Student A’s
boyfriend may have been responsible. He asked Student A
what had happened. She replied that she had been hit by a
door. The assistant softball coach called Barnes later that
day.
On March 23, the next day, the head softball coach told
Student A’s two teammates that they should meet with
Barnes and tell her everything they had told him. The two
teammates met with Barnes that afternoon. Barnes took
detailed notes of the conversation. The teammates told
Barnes that Student A had told them that in the fall Bradford
had pushed her up against the wall and choked her. They
also described Student A’s current black eye and the finger
marks on her neck. They told Barnes that Bradford had
“threatened” Student A that if she reported the abuse, he
would send compromising pictures of her “to her mother,
grandmother, and everyone.”
The softball teammates also told Barnes that they had
heard that Bradford was hitting another girlfriend, Lida
DeGroote, and that DeGroote often had bruises and marks
all over her body. According to the notes taken by Barnes,
the teammates reported hearing that Bradford had sent to
unspecified persons a video “of Lida & O.B. [Orlando
Bradford] having sex,” and that DeGroote’s friends say that
“he hits her often.” They reported hearing that in front of
others Bradford had kicked and thrown DeGroote’s dog into
another room. The teammates told Barnes that Bradford’s
BROWN V. STATE OF ARIZONA 13
university roommate and best friend from high school in
Louisiana had warned them that Bradford “had a violent
past,” that Bradford was “not afraid to hurt someone,” and
that “[people] need to be careful.”
On March 24, Barnes called Student A into her office
and asked her about her black eye. Student A reported that
she was clumsy and had run into a door. Barnes then
accompanied Student A to another building to meet with
Susan Wilson, a Senior Title IX Investigator employed by
the University, to “hear about [her] options” if she ever
decided to file a complaint against Bradford. Barnes sat in
on the meeting with Wilson. Barnes testified in her
deposition that she had told Wilson about Student A’s black
eye and Student A’s story that she had been hit by a door.
Wilson testified in her deposition that she did not see a black
eye and did not ask Student A about a black eye. Barnes and
Wilson both testified that Student A told Wilson that
Bradford had choked her. Neither Barnes nor Wilson asked
follow-up questions about the choking.
When Barnes returned to her office after the meeting
with Wilson and Student A, she photocopied the notes she
had taken during her interview with Student A’s two softball
teammates the previous day. She sent the notes to Wilson
and Dean of Students Kendal Washington White.
Neither Barnes nor Wilson in the University’s Title IX
office, nor anyone in the Dean of Students office, contacted
the University Athletic Director or anyone on the football
coaching staff about Bradford’s assaults on Student A and
DeGroote.
In her meeting with Barnes and Wilson, Student A had
told them that Bradford might be living with a student named
“Lida.” Barnes and Wilson thought that Student A might
14 BROWN V. STATE OF ARIZONA
have been referring to Lida DeGroote because, as Wilson
stated in her deposition, “Lida’s an unusual name.” Barnes
had already been in contact with DeGroote and her mother
about various things, including credits for an internship.
Wilson knew that Chrissy Lieberman, Associate Dean of
Students, was “actively meeting and working with Lida
DeGroote” concerning academic matters. Wilson went to
Lieberman’s office and told her that a student by the name
of Lida had been mentioned by another student and that
DeGroote might be in a “concerning relationship.”
Lieberman met with DeGroote on March 25, the next
day, but the focus of the meeting was an academic matter.
Lieberman tried indirectly to get DeGroote to talk about any
other problems she might be having, but she did not ask
DeGroote directly about her relationship with Bradford.
DeGroote did not volunteer any information.
On Saturday night, April 9, Bradford went to Student A’s
dormitory room. He was intoxicated. For nearly two hours,
he banged on Student A’s door yelling at her to let him in.
Student A refused to open the door and repeatedly told
Bradford to leave. Bradford finally left at about 1:30 a.m.
On April 10, the next morning, Student A’s softball
coach called Barnes to tell her about the incident in the
dormitory. Barnes contacted Student A and asked if she
wanted to call the police. When Student A replied that she
did, Barnes called the University Police Department. Later
that day, a university police officer met in Barnes’s office
with Student A and Barnes. Student A told them about the
door-banging incident and about Bradford’s previous
assaults. Student A said that on at least three occasions
Bradford had choked her to the point that she could not
BROWN V. STATE OF ARIZONA 15
breathe. Student A told them that she wanted to obtain a
protective order.
Later that same day, Barnes called Greg Byrne, the
University Athletic Director. Barnes testified in her
deposition that she told Byrne only about the door-banging
incident. Barnes did not tell Byrne about Student A’s black
eye, the finger marks on her neck, or the three choking
incidents. Nor did Barnes tell Byrne about the reports that
Bradford had been assaulting DeGroote.
Byrne told Barnes that he would contact the head
football coach, Richard Rodriguez. Because Rodriguez was
traveling that day, Byrne spoke to Bradford’s position coach
instead. The position coach and Byrne met with Bradford.
They discussed the door-banging incident and gave Bradford
“a lecture on underage drinking.” The position coach later
talked to head coach Rodriguez about the door-banging
incident. The position coach testified in his deposition that
Bradford received three days of what he characterized as
“physical punishment” for violating the team’s underage
drinking rules.
On April 11, 2016, on behalf of Student A, Wilson issued
a no-contact order to Bradford. In relevant part, the order
provided: “You are prohibited from having any contact with
Student A . . . . This directive applies to both on and off
campus contact.” Dean of Students White was informed that
a no-contact order would be sent to Bradford. Bradford was
reassigned to another dormitory for the remainder of his
freshman year.
The football team’s Player Rules required freshmen to
live in a university dormitory. DeGroote testified in her
deposition that even though Bradford was supposed to have
been living in Student A’s dormitory, in fact he had been
16 BROWN V. STATE OF ARIZONA
staying at DeGroote’s house on “most nights” from January
to April. Instead of moving to his assigned room in the new
dormitory in April, Bradford moved into a teammate’s off-
campus house for the remainder of his freshman year.
On May 10, 2016, Lida DeGroote’s mother spoke on the
telephone with Associate Dean Lieberman about
DeGroote’s academic matters. As noted above, Lieberman
had previously been alerted by Wilson that DeGroote was in
a “concerning relationship.” During the conversation,
DeGroote’s mother brought up the issue of DeGroote’s
safety. DeGroote’s mother did not mention Bradford by
name. She testified in her deposition that she told
Lieberman: “Now we have another issue with her safety. I
believe you saw the bruises on her when she was in there.”
The reference was to bruises that Lieberman should have
been able to observe during a meeting with DeGroote a
month before. Lieberman did not respond. DeGroote’s
mother testified it was “just crickets,” an “uncomfortable”
silence.
B. Mackenzie Brown
Bradford started dating Mackenzie Brown in February
2016 while they were both freshmen. He started to
physically abuse Brown during the summer of 2016 while
she was at the University for summer session. By that
summer, Bradford had moved into a different off-campus
house that he shared with other members of the football
team.
Bradford needed permission from his coaches to move
to an off-campus house after his freshman year. Head
football coach Rodriguez testified in his deposition that
football players other than freshmen were governed by
Player Rule 15. The Rule provided: “Living off-campus is
BROWN V. STATE OF ARIZONA 17
subject to approval by head coach and position coach.”
Rodriguez testified that he could require players to move
back on campus if they behaved inappropriately. He
testified: “I . . . kind of hung that over them, like, ‘Listen, if
you are not being responsible in your appointments or
whatever, then we can tell you to, you know, move back on
campus.’”
Brown testified in her deposition that Bradford
physically abused her between four and ten times during
their relationship. She testified that Bradford “would get
upset about little things.” On one occasion during the
summer, Brown was in Phoenix where her father lived.
Bradford texted Brown, but Brown did not see the text right
away. Bradford did not believe her when she replied later
that she had not seen the text. “He told me I needed to leave
where I was in Phoenix, even though he wasn’t [t]here. And
I was like: No I’m not leaving. I’m in Phoenix. You’re in
Tucson.” In August 2016, Bradford gave Brown a black eye:
“He was upset about something, and I wasn’t saying
anything back. . . . And he said: You don’t care. And he
tried to like slap my hand off of my face, or something, or
slap my face. And he hit my eye and then I had a black eye.”
On another occasion, while they were at a Goodyear Tire
store, Brown was scrolling through her contacts on her
phone. Bradford saw the name “Josh” and asked her, “Oh,
who is that?” Brown told Bradford that Josh was her work
supervisor. “That made him upset. And then he like grabbed
my arm and dug his nails into my arm. I have a scar.”
Bradford sent threatening texts to Brown. After Brown
refused to leave where she was in Phoenix, he texted her,
“You’re disrespecting me. I’m going to show you what
happens to people who disrespect me.” On another
occasion, when Brown refused to use a phone application to
18 BROWN V. STATE OF ARIZONA
share her location with him, Bradford texted her: “You’re
going to make me break your fucking face.”
Bradford’s abuse escalated in the fall. On September 12,
2016, Bradford purported to believe that Brown had
scratched his car. Bradford and Brown were at Bradford’s
off-campus house where he lived with other football players.
Brown tried to go home, but Bradford would not let her
leave. She testified in her deposition:
[H]e like was trying to pull me in and I didn’t
want to go, so I was like trying to stop myself
like plant my feet, and he pulled me into the
house. And then open the door, and then he
pushed me on the floor. . . . And then he was
yelling. And then he slapped me and I hit my
head on the cupboard[.] . . . [A]nd then he
started like dragging me by my hair to the
stairs. . . . And then like he was choking me
. . . on the staircase. . . . Then he said, . . . Say
goodbye to your mom. You’re never going
to talk to her again. . . . [T]hen he took me
upstairs . . . and he like locked the door and
took off his shirt. And he said: You’re about
to make me real mad. And . . . he was like
hitting me up side my head and pushing me
on the ground and hitting on my arms and my
legs.
Bradford later took Brown to Safeway to get Tylenol.
Brown asked to go home, but Bradford refused. Brown
spent the night at Bradford’s house. Bradford took her home
the next morning.
BROWN V. STATE OF ARIZONA 19
Brown was at Bradford’s house again the next day.
Bradford went to Wendy’s with some friends. Brown told
him she did not want anything, but Bradford brought her
back a “Frosty.” Brown said she did not want it, so Bradford
put it in the freezer. Another football player who lived in the
house told Brown that it was “messed up” that she would not
eat the Frosty, so Brown responded, “Okay, I’ll take a bite.”
Bradford became angry, saying, “You listen to other people
now instead of me.”
Brown said she was going to call an Uber and go home.
Bradford refused to allow her to go upstairs to get her things.
Brown went out to the sidewalk and called an Uber.
Bradford came outside, tried to take her phone, and grabbed
her by the stomach to try to pull her into the house. He then
convinced her to get into his car. “[T]hen he kind of like
smacked me in my face and then like grabbed my hair, and
then my nose started bleeding.” Brown went back inside to
clean up the blood. Bradford followed Brown inside and
began looking through Brown’s phone. He found Brown’s
brother’s name with a phone number from a different area
code than the rest of Brown’s family’s phone numbers.
Bradford refused to believe that it was her brother’s number.
She testified in her deposition: “And so then he got upset,
and that’s like when he started hitting me again.” Sometime
later, Bradford finally fell asleep.
Brown stayed awake most of the night, waiting until she
could call her mother. After Bradford dropped Brown off at
her house in the morning on his way to football practice,
Brown called her mother. Her mother called the police and
University Athletic Director Byrne.
20 BROWN V. STATE OF ARIZONA
Brown went to her family doctor on September 16. She
presented with:
psychological trauma, burst blood vessels in
the eye, bruising on the lower part of the
neck, likely concussion, intractable acute
post-traumatic headache, neck pain from
direct trauma (kicking and hitting) as well as
from strangulation, upper back pain, left rib
pain with breathing and movement, left upper
abdominal pain, abdominal contusions, . . .
head tenderness from hitting a cabinet and
being punched in the head during the attack,
scratches on her forehead, upper arm
contusions, circular contusions circling the
base of her neck, and contusions with
tenderness over her left rib area.
Bradford was arrested on September 14. He received an
interim suspension notification from the University that
same day “due to [his] behavior that has been determined to
present a substantial risk to members of the university
community.” When DeGroote’s mother learned that
Bradford was in police custody, she left an anonymous tip
with the Tucson Police Department that Bradford had been
abusing DeGroote. Bradford was expelled from the
University on October 14. He was criminally charged based
on his assaults on Brown and DeGroote, and he pleaded
guilty to two counts of felony aggravated assault and
domestic violence. In November 2017, Bradford was
sentenced to five years in prison.
BROWN V. STATE OF ARIZONA 21
II. Procedural History
DeGroote and Brown each sued the University under
Title IX in the federal District Court for the District of
Arizona. Their cases were assigned to different judges.
The district judge in DeGroote’s case denied DeGroote’s
and the University’s cross-motions for summary judgment.
DeGroote v. Ariz. Bd. of Regents, No. CV-18-00310-PHX-
SRB, 2020 WL 10357074, at *12 (D. Ariz. Feb. 7, 2020).
The judge held that DeGroote had presented sufficient
evidence to allow a reasonable factfinder to conclude that the
University: (1) had actual knowledge of Bradford’s abuse of
DeGroote; (2) exercised substantial control over the
“context” of Bradford’s abuse of DeGroote, including abuse
that took place off-campus; and (3) had shown “deliberate
indifference” to Bradford’s abuse. Id. The parties settled
before trial.
The district judge in Brown’s case granted summary
judgment to the University. The judge held that Brown’s
claim failed because none of the abuse, including the assaults
on September 12 and 13, was in a “context” over which the
University had substantial control. The judge concluded:
Plaintiff does not allege that any of her abuse
occurred on campus or in any other setting
under Defendants’ control. While it is
undeniable that Defendants exercised
substantial control over Bradford, Plaintiff
has not offered any evidence that Defendants
exercised control over the context in which
her abuse occurred. Defendants therefore
22 BROWN V. STATE OF ARIZONA
cannot be liable for Plaintiff’s harassment
under Title IX.
Brown v. Arizona, No. CV-17-03536-PHX-GMS, 2020 WL
1170838, at *3 (D. Ariz. Mar. 11, 2020) (emphasis added).
The judge did not reach any other issue.
Brown timely appealed. Brown argued in her briefs to
the three-judge panel of our court that because the University
had substantial control over the context of Bradford’s known
harassment of Student A and DeGroote, it necessarily had
control over the context of Bradford’s September 12 and 13
assaults on Brown in his off-campus house. Before our en
banc court, Brown made a narrower argument. She
contended that under the circumstances of this case in which
the University had extensive authority over Bradford,
including control over whether he could live off campus, the
University had “substantial control” over the “context” in
which he assaulted Brown.
We are free to address this narrower argument. First,
“we have the authority and discretion to decide questions
first raised in a petition for rehearing en banc.” United States
v. Hernandez-Estrada, 749 F.3d 1154, 1159 (9th Cir. 2014)
(en banc). Brown raised the question of whether the
University had control over the off-campus contexts where
the assaults occurred in her petition for review en banc, and
the University addressed the question in its response to the
petition. The party presentation principle that our colleague
Judge Nelson identifies in his dissent does not govern at the
en banc stage here, where the parties “themselves have
‘frame[d] the issue for decision.’” Lee v. Fisher, 70 F.4th
1129, 1154 (9th Cir. 2023) (en banc) (quoting United States
v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)); see also
Hernandez-Estrada, 749 F.3d at 1159.
BROWN V. STATE OF ARIZONA 23
Second, while Brown has made a narrower argument,
she has not raised a new claim. See United States v.
Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (“As
the Supreme Court has made clear, it is claims that are
deemed waived or forfeited, not arguments.”). Rather,
Brown raised an “alternative argument to support what has
been [her] consistent claim from the beginning: that” the
University violated Title IX by failing to prevent Bradford’s
abuse of her. Id. United States v. Sineneng-Smith, 140 S.
Ct. at 1580–82, is not to the contrary. The defendant in
Sineneng-Smith initially claimed that her conduct was not
proscribed by the criminal statute; in the alternative, she
claimed that the statute was vague and did not provide fair
notice that her conduct was criminal. Id. at 1580. She raised
those same issues on appeal. Id. The three-judge panel then
ordered further briefing from three non-party organizations
on an issue that had never been raised by Sineneng-Smith.
Id. at 1580–81. Unlike in Sineneng-Smith, our en banc panel
has neither turned over the appeal to non-parties, nor
“radical[ly] transform[ed]” the case by raising a new issue.
Id. at 1581–82.
III. Standard of Review
We review the district court’s grant of summary
judgment de novo. Karasek v. Regents of Univ. of Cal., 956
F.3d 1093, 1104 (9th Cir. 2020). We determine, viewing the
evidence in the light most favorable to the nonmoving party,
whether there are any genuine issues of material fact and
whether the University is entitled to judgment as a matter of
law. Id.; Fed. R. Civ. P. 56(c). “When determining whether
a genuine issue of material fact exists, we ‘must draw all
justifiable inferences in favor of the nonmoving party.’”
Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1189 (9th
Cir. 2021) (quoting Suzuki Motor Corp. v. Consumers Union
24 BROWN V. STATE OF ARIZONA
of U.S., Inc., 330 F.3d 1110, 1132 (9th Cir. 2003)). “An
issue of material fact is genuine if there is sufficient evidence
for a reasonable jury to return a verdict for the non-moving
party.” Karasek, 956 F.3d at 1104 (citation omitted).
IV. Discussion
Subject to exceptions not relevant here, Title IX
provides: “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). Gebser v. Lago Vista
Independent School District, 524 U.S. 274 (1998), and Davis
ex rel. LaShonda D. v. Monroe County Board of Education,
526 U.S. 629 (1999), set out the guideposts for liability
under Title IX. To obtain damages under Title IX for
student-on-student harassment, a plaintiff must show (1) that
the educational institution had “substantial control over both
the harasser and the context in which the known harassment
occurs,” Davis, 526 U.S. at 645; (2) that the harassment was
so “severe, pervasive, and objectively offensive that it denies
its victims the equal access to education that Title IX is
designed to protect,” id. at 652; (3) that a school official with
“authority to address the alleged discrimination and to
institute corrective measures . . . has actual knowledge of
[the] discrimination,” Gebser, 524 U.S. at 290; (4) that the
school acted with “deliberate indifference” to the
harassment, Davis, 526 U.S. at 633; and (5) that the school’s
“[d]eliberate indifference ‘must, at a minimum, cause
students to undergo harassment, or make them liable or
vulnerable to it,’” Grabowski v. Arizona Board of Regents,
69 F.4th 1110, 1120 (9th Cir. 2023) (quoting Davis, 526 U.S.
at 645).
BROWN V. STATE OF ARIZONA 25
Because we review the district court’s grant of summary
judgment de novo and because we can “affirm on any ground
supported by the record,” including a ground upon which the
district court did not rely, see Olson v. Morris, 188 F.3d
1083, 1085 (9th Cir. 1999), the University asks us to hold
that Brown has failed to satisfy the first, third, and fourth
requirements—“substantial control” over the “context” of
the harassment, “actual knowledge,” and “deliberate
indifference.” We discuss these three requirements in turn.
A. “Substantial Control” over the “Context”
The Supreme Court held in Davis that a damages remedy
is not available under Title IX unless the defendant had
“substantial control” over both the harasser and the
“context” in which the harassment occurred. 526 U.S. at
645. The plaintiff in Davis had been sexually harassed by
another student at school. Id. at 633–35. The Court held that
the school could be liable for failing to respond to complaints
by the plaintiff and other students about the conduct of the
harasser. Id. at 646–47, 649. The Court limited a school’s
liability for student-on-student sexual harassment, however,
to circumstances where the school “exercises substantial
control over both the harasser and the context in which the
known harassment occurs.” Id. at 645. Justice O’Connor
wrote for the Court:
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. . . . [B]ecause the
harassment must occur “under” “the
operations of” a funding recipient, the
26 BROWN V. STATE OF ARIZONA
harassment must take place in a context
subject to the school district’s control.
Id. at 644–45 (quotation marks in original) (emphasis added)
(citations omitted).
The Court in Davis did not define “context,” but its
meaning may be inferred from several passages in its
opinion. First, the Court explained that where the
harassment occurs “during school hours and on school
grounds,” the misconduct takes place “under” an “operation”
of the school. Id. at 646. Second, the Court cited with
approval a Seventh Circuit case in which the court had
“[found] liability where [the] school fail[ed] to respond
properly to ‘student-on-student sexual harassment that takes
place while the students are involved in school activities or
otherwise under the supervision of school employees.’” Id.(quoting Doe v. Univ. of Ill., 138 F.3d 653, 661 (7th Cir.
1998)) (emphasis added). Finally, the Court articulated its
holding on the “control” element: “We thus conclude that
recipients of federal funding may be liable for ‘subject[ing]’
their students to discrimination where the recipient is
deliberately indifferent to known acts of student-on-student
sexual harassment and the harasser is under the school’s
disciplinary authority.” Id. at 646–47 (alteration in original)
(emphasis added).
These passages make clear that while the physical
location of the harassment can be an important indicator of
the school’s control over the “context” of the alleged
harassment, a key consideration is whether the school has
some form of disciplinary authority over the harasser in the
setting in which the harassment takes place. See id. at 644
(“Deliberate indifference makes sense as a theory of direct
liability under Title IX only where the funding recipient has
BROWN V. STATE OF ARIZONA 27
some control over the alleged harassment. A recipient
cannot be directly liable for its indifference where it lacks
the authority to take remedial action.” (emphasis added)).
That setting could be a school playground. But, depending
on the circumstances, it could equally well be an off-campus
field trip, an off-campus research project in a laboratory not
owned by the school, or an off-campus residence. If the
harassment occurs in such a setting—that is, in a “context”
over which the institution has substantial control—the
institution may be held liable for deliberate indifference
under Title IX even though the harassment takes place off
the physical property of the institution.
In the case before us, it is clear that the University had
substantial disciplinary control over Bradford, the harasser.
The disputed question is whether it had substantial control
over the context in which the harassment occurred.
Fortunately, we do not write on a clean slate. Engaging in
fact-specific inquiries, a number of courts have concluded
that liability attaches under Title IX when harassment occurs
off campus, so long as the educational institution has
sufficient control over both the “harasser” and the “context”
in which the harassment takes place.
In Simpson v. University of Colorado Boulder, 500 F.3d
1170 (10th Cir. 2007) (Hartz, McKay & Gorsuch, JJ.), two
female undergraduates were sexually assaulted in an off-
campus apartment by members of the university football
team and by high school students who were being recruited
for the team. Id. at 1172–73. The court recognized that the
sexual assaults took place in a “context” over which the
university had “substantial control,” even though they took
28 BROWN V. STATE OF ARIZONA
place in the off-campus apartment of one of the plaintiffs.
Id. at 1173, 1177–78, 1785. The court wrote:
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 “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 [the plaintiff’s]
apartment had been promised an opportunity
to have sex.
Id. at 1173.
Reversing the district court’s grant of summary
judgment to the university, the Tenth Circuit held that
plaintiffs had presented evidence sufficient to support a jury
verdict under Title IX. Id. at 1185. The Tenth Circuit,
describing the reach of Title IX, wrote that
“[i]mplementation 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 1178 (quoting Davis, 526 U.S.
at 644). Viewing the evidence in the light most favorable to
plaintiffs, the court held that the university had a policy of
showing recruits “a good time”; that the sexual assaults in
the off-campus apartment were caused by the university’s
“failure to provide adequate supervision and guidance to
player-hosts chosen to show the football recruits a ‘good
time’”; and that “the likelihood of such misconduct was so
obvious” that the university’s failure “was the result of
BROWN V. STATE OF ARIZONA 29
deliberate indifference.” Id. at 1173. In short, the Simpson
court made clear that a university can exercise substantial
control over an off-campus context when it facilitates the
presence of both the perpetrators and victims of sexual
violence at the site, chooses to minimize its own oversight
of their activities, and thus increases the risk of assault.
In Feminist Majority Foundation v. Hurley, 911 F.3d
674 (4th Cir. 2018), a student organization, Feminists
United, had spoken out against a student senate vote to
authorize male-only fraternities at University of Mary
Washington (“UMW”). Id. at 680. UMW students debated
the issue through anonymous posts on Yik Yak, a social
media platform that allowed users to communicate with each
other within a 1.5-mile radius, such that the “harassing and
threatening messages originated on or within the immediate
vicinity of the UMW campus.” Id. at 680 n.1, 687. Between
November 2014 and the summer of 2015, UMW students
posted hundreds of harassing messages on the Yik Yak
platform, many threatening “physical and sexual violence”
against members of Feminists United. Id. at 680, 682, 684.
The Fourth Circuit held that UMW had substantial
control over the context of the harassment conducted over
Yik Yak, as “the harassing and threatening messages
originated on or within the immediate vicinity of the UMW
campus.” Id. at 687 (emphasis added). Even though the
offending posts on Yik Yak were anonymous, plaintiffs
contended that UMW exercised control over the context of
the harassment because it had some ability to identify the
harassers. “If the University had pinpointed the harassers, it
could then have circumscribed their use of UMW’s
network.” Id. at 688. The court discussed the range of other
remedial measures that the University had at its disposal: (1)
“[T]he University could have disabled access to Yik Yak
30 BROWN V. STATE OF ARIZONA
campuswide”; (2) “UMW administrators could have more
clearly communicated to the student body that the University
would not tolerate sexually harassing behavior”; (3) “[t]he
University also could have conducted mandatory assemblies
to explain and discourage cyber bullying and sex
discrimination”; and (4) the University “could have provided
anti-sexual harassment training to the entire student body
and faculty.” Id. at 688. In other words, the Feminist
Majority court held that a university has substantial control
over an off-campus context when it has the ability to take
actions that would likely prevent harassment in the
immediate vicinity of the campus.
In Weckhorst v. Kansas State University, 241 F. Supp.
3d 1154 (D. Kan. 2017), aff’d sub nom. Farmer v. Kansas
State University, 918 F.3d 1094 (10th Cir. 2019), the
plaintiff was a female student at Kansas State University
(“KSU”). Id. at 1159. She alleged in her complaint that she
attended an off-campus fraternity event where she became
intoxicated. Id. at 1159. J.F., a fellow student at KSU and a
designated driver for his fraternity, took the plaintiff into his
truck and raped her in front of about fifteen KSU students.
Id. J.F. then drove her back to his off-campus fraternity
house and assaulted her on the way. Id. When they arrived
at the fraternity house, he raped her again, left her alone,
naked and passed out, and another KSU student and member
of the fraternity, J.G., raped her two more times. Id.The University refused to discipline J.F. and J.G. on the
ground that the rapes had taken place off campus. Id. at
1160. The plaintiff suffered from symptoms of post-
traumatic stress disorder, stopped going to class, and
ultimately lost her scholarship. Id. at 1163–64. She sued
under Title IX, alleging deliberate indifference by KSU. Id.
at 1164.
BROWN V. STATE OF ARIZONA 31
The district court held that the University had sufficient
control over the off-campus contexts to warrant Title IX
liability. Id. at 1168. In support, the court cited a number of
factual allegations in the complaint: (1) KSU fraternities
were open only to KSU students and are described on the
University’s website as “Kansas State University
Organizations”; (2) the director of the fraternity at issue was
a university instructor; (3) the University promoted its
fraternities to prospective students and parents; (4) the
University had five employees specifically charged with
supporting and advising fraternities and sororities; (5) the
University had the authority to regulate fraternities,
including promulgating rules for parties; and (6) the Dean of
Student Life approved the suspension of the fraternity for its
use of alcohol at the party where the plaintiff was raped. Id.
at 1167. In sum, the oversight of the relevant organization
by a school staff member, regulatory authority by the school,
and strong affiliation of the fraternity with the school were
sufficient, when considered together, to establish control
over the off-campus contexts where the plaintiff was raped.
In Roe ex rel. Callahan v. Gustine Unified School
District, 678 F. Supp. 2d 1008 (E.D. Cal. 2009), the court
held that a school had substantial control over the context
where upper-class teammates sexually assaulted and
harassed the plaintiff at an off-campus summer football
camp. Id. at 1011, 1025. The court so held because (1) the
camp was sponsored and promoted by the high school and
the district’s coaches; (2) the players were supervised at the
camp by district employees; and (3) the camp was governed
by a district Administrative Directive that outlined
supervision ratios and disciplinary procedures. Id. at 1025.
In determining that the school had substantial control over
the off-campus context, the district court considered the
32 BROWN V. STATE OF ARIZONA
school’s connection to the location where the harassment
took place as well as the school’s disciplinary authority over
both the setting and the individuals involved.
In the case before us, the district court held as a matter
of law that the University did not have substantial control
over the context in which Bradford’s September 12 and 13
assaults on Brown occurred because the assaults took place
off campus.
Depending on the circumstances of the case, the location
of harassment can be important in a student-on-student Title
IX case. But location is only one factor in determining the
control over context. Considering all the circumstances of
this case and viewing the facts in the light most favorable to
Brown, we hold that Brown presented sufficient evidence to
allow a reasonable factfinder to conclude the University had
“substantial control” over the “context” in which Bradford
assaulted Brown on September 12 and 13.
There is undisputed evidence that the University had
control over the off-campus housing in which Bradford was
living while attending the University. After he finished his
freshman year, Bradford moved into another off-campus
house with other members of the football team. The
University and football program allowed Bradford and his
teammates to live off campus only with the permission of
their coaches. Head coach Rodriguez testified in his
deposition that under Player Rule 15, permission to live off
campus was conditioned on good behavior and could be
revoked. The very existence of this off-campus players’
residence was therefore subject to the coaches’ control.
Even behavior as innocuous as being late to appointments or
receiving bad grades could result in players’ being forced to
move back on campus.
BROWN V. STATE OF ARIZONA 33
The University’s Student Code of Conduct applies to
student conduct “both on-campus and off-campus” because
off-campus misconduct can affect student health, safety, and
security as much as on-campus misconduct can. The Code
“seeks to hold students and organizations accountable for
misconduct and to prevent it from happening again in the
future.” The University issued a no-contact order to
Bradford on behalf of Student A that expressly applied both
to on-campus and off-campus spaces. As the dissenters
recognize, an element of “school sanction, sponsorship, or
connection to a school function is required” for a school to
control an off-campus context. Here, the University’s rules
and “sanction” authority created such a connection.
This discipline-related factor was critical in both Roe and
Weckhorst. See 678 F. Supp. 2d at 1025; 241 F. Supp. 3d at
1167. In those cases, the schools imposed heightened
supervisory control and specific rules over the football camp
and university fraternities, respectively. Id. Also, in
Feminist Majority, the Fourth Circuit identified all the
disciplinary and remedial tools that UMW could have
mobilized to mitigate or prevent the on- and off-campus
harassment. 911 F.3d at 688.
In addition to the Code of Conduct applicable to all
students, Bradford was subject to increased supervision
through Player Rules specific to football players. Cf. Roe,
678 F. Supp. 2d at 1025; Weckhorst, 241 F. Supp. 3d at 1167.
The Player Rules required all freshmen team members to
live in university dormitories. Bradford flouted the rules
during his freshman year. Even though Bradford had an
assigned dormitory room, DeGroote testified that he stayed
at her off-campus house “most nights” from January to
“around” April 2016, when she “kicked him out.” When
Bradford was no longer allowed to live in the same
34 BROWN V. STATE OF ARIZONA
dormitory as Student A in mid-April because of the no-
contact order, Bradford moved off campus entirely, into a
house shared with another football player. Had university
officials or football staff members chosen to investigate,
they could have enforced the Player Rules, requiring
Bradford to live in university dormitories during the entirety
of his freshman year. This heightened level of control and
disciplinary power strengthened the connection between
Bradford’s off-campus housing and the University’s football
program.
Rodriguez testified that the football team had a zero-
tolerance policy for violence against women. He testified
that a player’s violence against women would lead to
immediate dismissal from the team. Rodriguez testified that
the “first time” he heard about Bradford “doing anything
physically violent to his girlfriend” was the day he kicked
him off the team. Rodriguez said that if he had known
earlier, he “certainly” “would have kicked him off earlier.”
According to Rodriguez’s undisputed testimony, had he
been informed of Bradford’s assaults on Student A and
DeGroote during Bradford’s freshman year, Bradford would
have been kicked off the team, and accordingly would have
lost his football scholarship. Even if he had engaged in
lesser misconduct, he would never have been permitted to
live off campus while a member of the team. As in Simpson,
the University failed to impose its supervisory power and
disciplinary authority over an off-campus context, despite
having notice of the high risk of misconduct. See 500 F.3d
at 1173. A reasonable factfinder could infer from
Rodriguez’s testimony that, had Rodriguez known of
Bradford’s assaults on Student A and DeGroote, Bradford’s
September 12 and 13 assaults on Brown at his off-campus
house would never have occurred.
BROWN V. STATE OF ARIZONA 35
Brown submitted an expert report to the district court.
Among other things, the expert wrote that the University had
control over where Bradford lived. “Student-athletes,
especially those at large Division I ‘Power 5’ conference
schools, . . . are told where they can live, where and when
they will be places—including practices, games, housing,
meals, and study time. They are given clear expectations for
behavior when not in school or at practice[.]”
Viewing this evidence in the light most favorable to
Brown, a reasonable factfinder could conclude that the
University had “substantial control” over the “context” in
which Bradford violently assaulted Brown on September 12
and 13.
B. “Actual Knowledge” and “Deliberate Indifference”
The district court addressed only the requirement that
Brown show that the University had substantial control over
the “context” in which her abuse occurred. It did not address
either the “actual knowledge” or “deliberate indifference”
requirements to establish a Title IX claim based on student-
on-student sexual harassment. We could remand to allow
the district court to address these two requirements in the
first instance. However, in the interest of judicial efficiency,
we address them now. See Harris Rutsky & Co. Ins. Servs.
v. Bell & Clements Ltd., 328 F.3d 1122, 1136 (9th Cir.
2003); Dole Food Co. v. Watts, 303 F.3d 1104, 1117–18 (9th
Cir. 2002) (“Because the record is sufficiently developed
and the issue has been presented and argued to us, we agree
that it is appropriate for us to decide the question.”).
1. “Actual Knowledge”
The Supreme Court held in Gebser that a damages
remedy under Title IX is not available “unless an official
36 BROWN V. STATE OF ARIZONA
who at a minimum has authority to address the alleged
discrimination and to institute corrective measures . . . has
actual knowledge of discrimination . . . and fails adequately
to respond.” 524 U.S. at 290 (emphasis added). Neither
respondeat superior nor constructive knowledge is
sufficient. Id. at 285; see also Davis, 526 U.S. at 642.
We agree with the Fourth Circuit that “actual
knowledge,” as used by the Court in Gebser, means either
actual knowledge or actual notice. See Doe v. Fairfax Cnty.
Sch. Bd., 1 F.4th 257, 266–68 (4th Cir. 2021). The Court in
Gebser wrote that an official must be “advised of a Title IX
violation.” 524 U.S. at 290 (emphasis added). The Fourth
Circuit construed this passage to mean that “a school has
actual notice or knowledge when it is informed or notified of
the alleged harassment—most likely via a report.” Doe, 1
F.4th at 266. Further, the Court in Gebser denied liability on
the ground that the information reaching the principal of the
school was “plainly insufficient to alert the principal to the
possibility that [the teacher] was involved in a sexual
relationship with [the student plaintiff].” 524 U.S. at 291(emphasis added). In Davis, decided a year after Gebser, the
Court indicated that its definition of “knowledge” included
“notice,” holding that the plaintiff could establish liability by
showing that the school board had failed to respond to “five
months [of] complaints of [the alleged harasser’s] in-school
misconduct.” 526 U.S. at 649 (emphasis added); see also
Doe v. Galster, 768 F.3d 611, 614 (7th Cir. 2014) (“To have
actual knowledge of an incident, school officials must have
witnessed it or received a report of it.” (emphasis added)).
In its brief to us, the University seeks to minimize the
knowledge of, or notice given to, responsible university
officials. The University writes, “[Brown] has pointed to no
authority or evidence that allows such a leap—that notice
BROWN V. STATE OF ARIZONA 37
about a single incident where Student A was not harmed was
notice that all women were substantially at risk of Bradford’s
violence or harassment.” (Emphasis added). The University
substantially understates the matter. Responsible university
officials had actual knowledge and notice of far more than
“a single incident” in which Student A “was not harmed.”
As recounted above, in the fall of 2015, an RA
investigated and reported a physical fight between Bradford
and Student A, but university administrators declined to
inform the police or take further action. Once Student A’s
softball coach learned from her parents about Braford’s
abuse in early 2016, the coach called Erika Barnes, the
Senior Associate Athletics Director, Senior Woman
Administrator, and Deputy Title IX Coordinator for
Athletics. Barnes learned about the parents’ concerns with
the relationship, and accordingly sent Student A to meet with
a school psychologist.
On March 23, 2016, two of Student A’s softball
teammates told Barnes that Student A was Bradford’s
girlfriend; that Student A had told them that in the fall
Bradford had pushed her up against a wall and had choked
her; and that Student A currently had a black eye and
fingermarks on her neck. They told Barnes that Bradford
had also assaulted another girlfriend, DeGroote; that
Bradford often hit DeGroote and that she often had bruises
and marks all over her body; that Bradford had sent to
unspecified persons a video of DeGroote having sex with
him; and that Bradford had kicked and thrown DeGroote’s
dog into another room. The teammates also told Barnes that
Bradford’s university roommate and best friend from high
school had warned them that Bradford “had a violent past”;
that Bradford was not afraid “to hurt someone”; and that
“[people] need to be careful.”
38 BROWN V. STATE OF ARIZONA
On March 24, Barnes and Susan Wilson, Senior Title IX
Investigator, interviewed Student A. During the interview,
Student A told Barnes and Wilson that Bradford had choked
her. She also told them that Bradford might be living with
another student, “Lida.”
Wilson then informed the Associate Dean of Students,
Chrissy Lieberman, that she had heard thirdhand “that there
was potential that Lida was in a concerning relationship.”
Wilson asked Lieberman to check in with Lida about the
relationship. Lieberman never did so.
On April 10, Barnes and a university police officer
interviewed Student A. Student A told Barnes and the police
officer that Bradford had choked her on three occasions to
the point where she could not breathe. She also told the
police officer that she wanted a protective order against
Bradford. Wilson then issued one.
Later on April 10, after Bradford had banged on Student
A’s dormitory room door the previous night, Barnes called
Byrne, the University’s Athletic Director, to report the door-
banging incident. Barnes told Byrne that Bradford had been
intoxicated and that he had banged on Student A’s door for
nearly two hours. In response to Barnes’s call, Byrne
notified Bradford’s position coach on the football team.
Rodriguez, the head coach of the football team, was out of
town but was notified later. As a result of Barnes’s report to
Byrne, Bradford was subjected to “a lecture on underage
drinking” and three days of “physical punishment.” While
Barnes’s report to Byrne was radically incomplete (as we
discuss in the next section), this chain of events shows that
Barnes had the “authority to address” Bradford’s behavior
and “to institute corrective measures.” See Gebser, 524 U.S.
at 290.
BROWN V. STATE OF ARIZONA 39
We therefore hold that evidence in the record would
support a conclusion by a reasonable factfinder that
University officials had actual knowledge or notice of
Bradford’s violent assaults, and that Barnes was “an official
who . . . ha[d] authority to address [Bradford’s violent
assaults on Student A and DeGroote] and to institute
corrective measures.” Id.
2. “Deliberate Indifference”
The Supreme Court held in Davis that an educational
institution is liable under Title IX only if it is “deliberately
indifferent” to student-on-student harassment. 526 U.S. at646–47. The Court wrote that an educational institution
covered by Title IX can be “deemed ‘deliberately
indifferent’ to acts of student-on-student harassment only
where the [institution’s] response to the harassment . . . is
clearly unreasonable in light of the known circumstances.”
Id. at 648.
“Clearly unreasonable” responses take many forms. See,
e.g., Doe v. Sch. Dist. No. 1, Denver, Colo., 970 F.3d 1300,
1304 (10th Cir. 2020) (holding that a school administration’s
failure to investigate numerous complaints of harassment
and taking “little if any[]” action to prevent the harassment
was unreasonable). Several decisions by our sister circuits
are particularly on point.
In Simpson, the Tenth Circuit case involving CU football
recruits, the University had failed to address numerous
instances of sexual assault and harassment in the years prior
to the rapes at issue. 500 F.3d at 1181–83. The University
had known that two recruits had assaulted a high-school girl
at an off-campus hotel party hosted by a CU football player
in 1997. Id. at 1181. After a meeting with the District
Attorney’s office “to work to prevent these . . . kinds of
40 BROWN V. STATE OF ARIZONA
events from occurring,” “none of the eventual recruiting or
policy changes—the most substantive of which was
apparently a ban on alcohol or tobacco for recruits—
addressed either sexual contact between recruits and females
or the responsibilities of player-hosts.” Id. at 1182. The
abusive culture persisted. The father of a female player on
the predominantly male team reported to the head coach and
the athletic director “about multiple instances of sexual
harassment of [his] daughter by CU football players, which
the coaching staff had allowed to continue.” Id. at 1183.
When the player made additional complaints, the head coach
and the athletic director “retaliated against her by preventing
her from staying on the football team and interfered with her
playing elsewhere.” Id. Then, in September 2001, a football
player raped a female student employed by the athletic
department, and the head coach discouraged her from
pressing charges. Id.The Tenth Circuit observed that in light of the
university’s knowledge of the foregoing, the “central
question” was whether there was an “obvious” risk that a
future Title IX violation would occur. Id. at 1180–81. The
court held that the evidence before the district court could
support finding that (1) the head coach “had general
knowledge of the serious risk of sexual harassment and
assault during college-football recruiting efforts; (2) [he]
knew that such assaults had indeed occurred during . . .
recruiting visits; (3) [he] nevertheless maintained an
unsupervised player-host program to show high-school
recruits a ‘good time’; and (4) [he] knew, both because of
incidents reported to him and because of his own
unsupportive attitude, that there had been no change in
atmosphere” since the earlier assault. The court held that
“[a] jury could infer that ‘the need for more or different
BROWN V. STATE OF ARIZONA 41
training of player-hosts was so obvious, and the inadequacy
so likely to result in Title IX violations, that the head coach
could reasonably be said to have been deliberately
indifferent to the need.’” Id. at 1184–85 (quoting City of
Canton v. Harris, 489 U.S. 378, 390 (1989)) (cleaned up).
In Vance v. Spencer County Public School District, 231
F.3d 253 (6th Cir. 2000), the Sixth Circuit found that a
school was deliberately indifferent to ongoing physical and
sexual harassment. Id. at 262. The principal was informed
that the plaintiff experienced harassment, and the plaintiff’s
mother filed a detailed complaint with the Title IX
coordinator. Id. at 262–63. The school did not investigate
or discipline anyone. Id. at 262. School officials merely
“talked” to the students harassing the plaintiff, which only
increased the harassment. Id.In Williams v. Board of Regents of University System of
Georgia, 477 F.3d 1282 (11th Cir. 2007), the Eleventh
Circuit held that the plaintiff adequately alleged deliberate
indifference by the University of Georgia to state a Title IX
claim. Id. at 1296–97. A basketball player, Tony Cole, had
invited the plaintiff over to his dormitory. Id. at 1288. After
they engaged in consensual sex, Cole encouraged his
teammate and two football players to sexually assault the
plaintiff. Id. The head coach, athletic director, and
university president knew that Cole had previously been
expelled from another school for sexually assaulting two
women and had been dismissed from a team at another
school for disciplinary problems, including sexually
harassing a woman. Id. at 1289–90. Despite this knowledge,
they still recruited and admitted Cole through a special
admissions process, providing him a full scholarship. Id. at
1290. The school also “failed to inform student-athletes
about the applicable sexual harassment policy,” id. at 1297,
42 BROWN V. STATE OF ARIZONA
after “UGA officials received suggestions from student-
athletes that coaches needed to inform the student-athletes
about” it, id. at 1290.
In Hall v. Millersville University, 22 F.4th 397 (3d Cir.
2022), parents sued Millersville University under Title IX
after their daughter was murdered in her dorm room by her
non-student boyfriend. Id. at 399. Four months before the
murder, in October 2014, a resident assistant had provided
an incident report to the university’s Deputy Title IX
Coordinator and its Area Coordinator after she heard and
then intervened in a fight between the victim and her
boyfriend. See id. at 400–01. The Title IX officials never
sent the report to the university’s Title IX Coordinator, as
required by university policy. Id. at 401–02. The university
also did not reach out to the victim after the October incident.
Id. at 411. Nor did it respond after her roommate’s mother
called the school to report that the victim had been assaulted
and had a black eye. Id. at 401. The court held that these
facts established that a reasonable juror could find that the
university was deliberately indifferent. Id. at 411.
As noted above, Barnes chose to report to Athletic
Director Byrne only that Bradford had yelled and banged on
Student A’s dormitory room door for almost two hours. That
Bradford had done this was already public knowledge.
Barnes chose not to report to Byrne Bradford’s actions that
were not public knowledge. She chose not to report
Bradford’s repeated violent assaults on Student A and
DeGroote; not to report that Bradford had threatened to send
compromising pictures to Student A’s family members if she
reported his violence; not to report that Bradford had sent to
unspecified persons a video of DeGroote having sex with
him; and not to report that Bradford’s university roommate
BROWN V. STATE OF ARIZONA 43
and best friend from high school had warned Student A’s
teammates that Bradford was a violent person.
Other officials had information about Bradford’s
violence towards Student A and DeGroote and chose not to
report or investigate. In fall 2015, the University
Community Director instructed an RA not to call the police
after he learned of a physical fight between Bradford and
Student A. Additionally, as discussed above, Senior Title IX
Investigator Susan Wilson requested that Associate Dean of
Students Chrissy Lieberman follow up about DeGroote’s
potentially concerning relationship. Lieberman met with
DeGroote but did not check in about the relationship.
As in Hall, Title IX officials failed to report critical facts
about Bradford’s actions. See 22 F.4th at 401–02. Further,
as in Simpson, the University had knowledge of prior
harassment and assaults, such that there was an “obvious”
risk that without intervention, a future Title IX violation
would occur. 500 F.3d at 1180–81.
Given Barnes’s report to Athletic Director Byrne, a
reasonable factfinder could conclude that Barnes’s
responsibilities included reporting to Byrne, or to other
responsible parties in the Athletic Department, student-on-
student harassment by university athletes. A reasonable
factfinder also could conclude that Barnes’s reporting only
Bradford’s yelling and banging on Student A’s dormitory
room door while failing to report his much more serious
behavior was “clearly unreasonable in light of the known
circumstances.” Davis, 526 U.S. at 648. That is, a
reasonable factfinder could conclude that Barnes’s response
amounted to “deliberate indifference.” Id.44 BROWN V. STATE OF ARIZONA
Conclusion
We hold that a reasonable factfinder, viewing the
evidence in the light most favorable to Brown and drawing
all justifiable inferences in her favor, could conclude that the
University had “substantial control” over the “context” in
which Bradford violently assaulted Brown; that Barnes, an
official with “authority to address” student-on-student
harassment and “to institute corrective measures,” had
“actual knowledge” of Bradford’s violence against Student
A and DeGroote; and that Barnes’s response was “clearly
unreasonable in light of the known circumstances,”
demonstrating the University’s “deliberate indifference” to
the danger Bradford posed to other female students at the
University.
We reverse and remand for further proceedings
consistent with this opinion.
REVERSED and REMANDED.
FRIEDLAND, Circuit Judge, concurring:
I concur in Judge Fletcher’s thoughtful opinion in its
entirety. I write separately to address the waiver argument
raised by Judge Nelson and Judge Rawlinson in their
respective dissents.
In proceedings before the three-judge panel, Brown did,
in my view, disavow the argument that the University
exercised control over Bradford’s off-campus apartment.
But a majority of the three-judge panel addressed that theory
on its merits anyway, devoting more than twice as much
space to it than to the argument that Brown herself advanced.
Brown v. Arizona, 23 F.4th 1173, 1181-83 (9th Cir. 2022).
BROWN V. STATE OF ARIZONA 45
Had the three-judge panel merely disposed of the control-
over-off-campus-apartment theory on waiver or forfeiture
grounds—which it could have done in an unpublished
memorandum disposition—there likely would not have been
a rehearing en banc. And if there still had been a rehearing
en banc, I likely would have thought it inappropriate for the
en banc panel to resolve this case based on a theory that
Brown herself disclaimed. When we publish opinions
addressing arguments on their merits, however, it is crucial
that we get the law right―and I agree with Judge Fletcher
that the majority opinion for the three-judge panel got the
law wrong.
The University’s control over the context of Bradford’s
abuse of Brown was the basis for the en banc call in this case.
After a majority of the active judges on our court voted to
rehear this case en banc, Brown sought to file a supplemental
brief addressing that issue, noting that the vacated opinion
“reached an issue of significant public importance that was
not the subject of adversarial party briefing.” The en banc
panel granted Brown’s motion, and both parties filed
supplemental briefs addressing the University’s control over
the context in which Bradford abused Brown. When an
opinion by a three-judge panel resolves a legal claim and
“the case is called en banc on grounds that would correct the
opinion but which were not raised before the original panel,
the en banc panel [is] certainly . . . permitted, if not
encouraged, to decide the case on the correct, unraised
grounds.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1186
n.8 (9th Cir. 2001) (en banc), overruled on other grounds by
Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020) (en banc);
see also United States v. Hernandez-Estrada, 749 F.3d 1154,
1159-60 (9th Cir. 2014) (en banc) (addressing an issue raised
46 BROWN V. STATE OF ARIZONA
in a concurrence by a member of a three-judge panel and
further developed in en banc briefing).
Because Brown has now “unquestionably raised” her
argument that the University exercised substantial control
over the context in which she was abused, I believe it is
proper for the en banc panel to address that issue. Socop-
Gonzalez, 272 F.3d at 1186 n.8. On remand, however, the
University should be permitted to reopen discovery, if there
is discovery that the University would have conducted had
Brown advanced this theory from the outset.
RAWLINSON, Circuit Judge, with whom LEE, Circuit
Judge, joins, dissenting:
I will be the first to say that what happened to Ms. Brown
at the hands of serial offender Orlando Bradford, a football
player at the University of Arizona, was a horrific experience
that no one should have to endure. But the question before
us is not whether we abhor the abominable conduct to which
Ms. Brown was subjected. The question before us is whether
Ms. Brown can recover damages from the University of
Arizona under Title IX. Because the circumstances of this
case do not fall within the parameters of Title IX as enacted
and as interpreted by the United States Supreme Court, I
respectfully dissent.
As context is a pivotal part of this case, it might be
helpful to recall the context surrounding the enactment of
Title IX. Title IX initially emerged as a mechanism for
ensuring that female athletes were provided equal
opportunity for participating in athletic programs and other
activities conducted under the auspices of educational
institutions receiving federal funds. See 20 U.S.C.A.
BROWN V. STATE OF ARIZONA 47
§ 1681(a) (“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
assistance . . .”) (emphasis added); see also Breaking Down
Barriers, A Legal Guide To Title IX and Athletic
Opportunities, National Women’s Law Center (2007), p.3
(“Title IX of the Education Amendments of 1972 is the
primary federal law barring sex discrimination in all facets
of education, including sports programs. Title IX requires
that members of both sexes have equal opportunities to
participate in sports and receive the benefits of competitive
athletics. It also requires that athletic scholarships be
allocated equitably and that men and women be treated fairly
in all aspects of sports programming.”)
This emphasis on a tether to the programs and activities
of educational institutions to support a Title IX claim is
echoed in the seminal Supreme Court cases addressing Title
IX. In Gebser v. Lago Vista Independent School District,
524 U.S. 274, 285 (1998), the Supreme Court “conclude[d]
that it would frustrate the purposes of Title IX to permit a
damages recovery . . . based on principles of respondeat
superior or constructive notice.” Stated differently, without
a tether to a program or activity of an educational institution,
no remedy is available under Title IX. See id.This theme was reiterated and refined in Davis v. Monroe
Cty. Bd. of Educ., 526 U.S. 629 (1999), involving a
“prolonged pattern of sexual harassment” against a fifth-
grade student who was victimized by one of her classmates.
Id. at 633. In its analysis, the Supreme Court reiterated its
holding in Gebser that “a recipient of federal funds may be
liable in damages under Title IX only for its own
misconduct.” Id. at 640. The Supreme Court emphasized
48 BROWN V. STATE OF ARIZONA
that the “recipient itself” must engage in the acts prohibited
by Title IX and that those acts must be “under [the
recipient’s] programs or activities.” Id. at 640-41 (emphasis
added) (cleaned up).
The Supreme Court refined the analysis applicable to
Title IX claims by explicating how to determine whether the
prohibited acts occurred “under [the recipient’s] programs or
activities.” Id. The Supreme Court clarified that Title IX’s
“plain language confines the scope of prohibited conduct
based on the recipient’s degree of control over the harasser
and [over] the environment in which the harassment occurs.”
Id. at 644 (emphasis added). The Supreme Court explained
further that for the harassment to occur “under the operations
of a funding recipient, the harassment must take place in a
context subject to the school district’s control.” Id. at 645(citations and internal quotation marks omitted). The
Supreme Court encapsulated its holding by limiting “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.” Id.(emphasis added).
Applying this holding to the facts before it, the Supreme
Court noted that the sexual harassment “occurr[ed] during
school hours and on school grounds,” quintessentially
“under an operation of the funding recipient.” Id. at 646(citation and internal quotation marks omitted). The
Supreme Court considered these specific circumstances,
with the school “retain[ing] substantial control over the
context in which the harassment occurr[ed] . . . during
school hours and on school grounds” and “exercis[ing]
significant control over the harasser.” Id. The Davis case
reinforced the requirement of a tether to the programs and
BROWN V. STATE OF ARIZONA 49
activities of an educational institution to impose liability for
damages under Title IX. See id.With this framework firmly in mind, I proceed to the
facts and issues presented in this appeal which do not fit
within the straightforward analysis articulated in Davis.
I. Background
There is no real dispute about the underlying facts of this
case in terms of the inexcusable physical abuse heaped upon
Ms. Brown and other female students at the University of
Arizona. The majority recites the facts in painstaking detail,
see Majority Opinion, pp. 8-20, but these recited facts
establish only that the University had control over the
harasser. Glaringly absent from the majority’s recitation of
the facts is any factual underpinning establishing both
control elements set forth in Davis: “significant control over
the harasser” and “substantial control over the context in
which the harassment occurr[ed].” Davis, 562 U.S. at 646.
Lacking that underpinning, the majority has not and cannot
identify a program or activity of the University of Arizona
that was involved in the alleged Title IX infraction.
It is undisputed that the physical abuse inflicted upon
Ms. Brown occurred in Bradford’s off-campus house. There
is no indication in the record that the house is affiliated with
the University of Arizona in any respect. The University did
not lease the house for Bradford and did not pay the owner
of the house for Bradford to live there. Coach Rodriguez,
the then-head football coach testified in his deposition that
under the rules governing football players “[l]iving off-
campus is subject to approval by [the] head coach and
position coach. Off-campus subject to moving back on
campus.” When asked to explain what the rule meant, Coach
Rodriguez clarified that in the second year of college players
50 BROWN V. STATE OF ARIZONA
could move off-campus “as long as they were doing okay
academically and, you know, not being irresponsible as far
as making their appointments and practices and meetings
and everything else on time, they could move off-campus.”
Coach Rodriguez continued that if a player moved off-
campus and “were late to class all the time or missing or
being late for different things or missing appointments, . . .
we could move them back on campus.” However, Coach
Rodriguez could not recall a single instance “where a student
was living off-campus and [the coach] moved him back on
campus.”1
II. Discussion
A. Control Over The Harasser (Bradford)
As a student athlete, Bradford was subject to discipline
from the University of Arizona as a student and from the
football coaches as a football player. There were specific
rules governing the conduct of football players. Indeed,
Coach Rodriguez testified in his deposition that he had a zero
tolerance policy for domestic violence, and that he dismissed
Bradford from the team as soon as he learned about his
physical abuse of Ms. Brown.
As discussed, Bradford could only move off-campus
with permission from his coaches. And he could be required
to move back on campus if he were not “doing okay
academically” and “not being responsible as far as making
1
The Majority Opinion characterizes Coach Rodriguez’s testimony as
conditioning permission to live off-campus on “good behavior.”
Majority Opinion, p. 32. However, Coach Rodriguez never mentioned
“good behavior” in his testimony. He only discussed acting responsibly
in terms of academics and being on time for practices, meetings, and
appointments.
BROWN V. STATE OF ARIZONA 51
[his] appointments and practices and meetings and
everything else on time.”
From these facts, I readily agree that the University of
Arizona “exercise[d] significant control over the harasser.”
Davis, 526 U.S. at 646.
B. Control Over The Context In Which The
Harassment Occurred
On this issue, I fundamentally disagree with the
majority’s analysis and conclusion. I start from the premise
set forth in Davis that for damages liability to be available
under Title IX, the harassment must be tethered to the
programs and activities of the educational institution, in this
case the University of Arizona. See id. at 640-41. To
determine whether the harassment is sufficiently tethered to
the programs and activities of an educational institution, not
only must the institution “exercise significant control over
the harasser,” id. at 646, but also “retain substantial control
over the context in which the harassment occurred.” Id.(emphasis added). These are two separate inquiries. As
discussed, the record definitively supports the conclusion
that the University of Arizona “exercise[d] significant
control over” Bradford, the harasser. Id. However, the same
is not true for the separate inquiry of whether the University
“retain[ed] substantial control over the context in which the
harassment occurred,” id., (emphasis added), an off-campus
house that was not connected to the University in any way.
As acknowledged by the majority, before the district
court and the three-judge panel Ms. Brown never argued that
the University of Arizona “retained substantial control” over
the off-campus house. Id. Rather, she predicated the
University’s liability on allowing Bradford to remain a
student and football player at the University after receiving
52 BROWN V. STATE OF ARIZONA
reports that Bradford had been physically abusive to other
female students at the University. Majority Opinion, p. 22.
Ms. Brown, in fact, expressly disclaimed any argument
based on the University’s control over the context in which
the harassment occurred. Rather, she argued that “[t] he
question is whether the University had sufficient control
over the context in which [Brown] alleges that [the
University] failed to act, not whether [the University] had
sufficient control over the context in which she was later
attacked.” (emphasis in the original). In contrast, at oral
argument before the en banc panel, counsel for Ms. Brown
took the cue from the dissenting opinion of the three-judge
panel to advance the theory that the University had control
over the context in which Ms. Brown’s harassment occurred,
a theory that is embodied in the en banc majority opinion.
To support its conclusion that the University “retain[ed]
substantial control over the [off-campus] context in which
the harassment occurred,” Davis, 526 U.S. at 646 (emphasis
added), the majority references the following facts:
1. Bradford was subject to Player Rules
specific to football players, including a
rule requiring players to obtain
permission before moving off-campus.
2. Bradford was subject to the
University’s Student Code of Conduct
that applied to all students and
organizations, seeking to hold them
“accountable for misconduct and to
prevent it from happening again in the
future.”
BROWN V. STATE OF ARIZONA 53
3. Coach Rodriguez expressed a zero-
tolerance policy for violence against
women.
Majority Opinion, pp. 32-34.
The majority professes that “[this] heightened level of
control and disciplinary power strengthened the connection
between Bradford’s off-campus housing and the
University’s football program.” Id., p. 34. Not so. The
described “heightened level of control and disciplinary
power” applied only to Bradford and not to the off-campus
house.
More specifically, the problem with reliance on these
facts is that they are all indicia of control over Bradford, the
harasser, rather than indicia of control over the off-campus
context in which the assault occurred. This failing is
highlighted by the majority’s discussion of the expert report
concluding that “the University had control over where
Bradford lived.” Id., p. 35. But control over whether
Bradford, the harasser, could live off-campus does not
equate to control over the off-campus context in which the
harassment occurred, the separate inquiry required under
Davis.
The majority asserts that “[t]here is undisputed evidence
that the University had control over the off-campus housing
in which Bradford was living while attending the
University.” Id., p. 32. Nothing could be further from the
truth. In fact, there is absolutely no evidence in the record
that the University had control over the off-campus house
where the assault occurred. There is no evidence in the
record that the house was designated student housing. There
is no evidence in the record that the owner of the house had
54 BROWN V. STATE OF ARIZONA
a contract with the University to house students. There is no
evidence in the record that anyone from the University
directed Bradford to live in that particular house. There is
no evidence in the record that the University leased the house
for Bradford. There is no evidence in the record that the
University paid for Bradford to live in the house. There is
no evidence in the record that the University in any way
supervised or endorsed the activities in the house.
Adoption of the majority’s approach would sever the
pivotal tether to programs and activities of the educational
institution that is at the core of Title IX. See 20 U.S.C.A.
§ 1681(a) (prohibiting “discrimination under any education
program or activity”) (emphasis added). Under the
majority’s view, so long as the educational institution had
control over the harasser, the institution’s liability would
automatically follow, regardless of whether a “program or
activity” of the institution was involved. With permission
from the author, I paraphrase the two examples discussed in
the panel opinion because they vividly demonstrate the
overreach of the majority’s conclusion:
Example Number One: A fellow student and
football player at the University of Arizona
lives at home with his parents while attending
the University and playing on the football
team. That player would be subject to the
same University Student Code of Conduct
and Player Rules referenced by the majority.
Under the majority’s analysis, the University
would be deemed to have control over the
parent’s residence, and an assault occurring
in that home would be considered committed
BROWN V. STATE OF ARIZONA 55
“under an[] education program or activity” of
the University.
Example Number Two: A fifth-grader (same
age as the harasser in Davis) is subject to a
student code of conduct that prohibits
harassment of other students. At a birthday
party at her home over the weekend, the
student engages in behavior that violates the
code of conduct, and subjects her to
discipline by the school. Under the majority’s
analysis, because of its ability to discipline
the student for violation of the code of
conduct, the school controlled the context of
the birthday party held at the student’s
home.2
The majority’s collapsing of the two prongs is exposed
in its articulation that “a key consideration is whether the
school has some form of disciplinary authority over the
harasser in the setting in which the harassment takes place.”
Majority Opinion, p.26. But this analysis is a sharp and
troubling departure from the two-pronged analysis
articulated in Davis, and the cases cited by the majority do
not support this overreach. Actually, a discussion of the
facts of those cases serves to distinguish them.
The case with the most analogous facts is Simpson v.
University of Colorado Boulder, 500 F.3d 1170 (10th Cir.
2007). In that case, two female University students were
sexually assaulted in one of the female student’s off-campus
2
Tellingly, the majority offers no response to these clear demonstrations
of the effects of collapsing the two prongs articulated in Davis to focus
solely on control over the harasser.
56 BROWN V. STATE OF ARIZONA
apartment. See id. at 1172-73. The female students were
assaulted by members of the University’s football team and
by high school students being recruited to play football at the
University. See id. at 1173. The record reflected that the
University “paired each visiting recruit with an
‘Ambassador,’ usually female, who escorted the recruit
around campus throughout the visit.” Id. at 1180. The
University also matched the high school recruits with
University football players “selected by the coaching staff,
including the head coach.” Id. According to an attorney in
the University’s counsel office, who later became associate
athletic director, “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.” Id. (citation, alteration, and
internal quotation marks omitted). As alleged by the
plaintiffs, and confirmed by the University’s counsel, these
recruiting activities were “officially sanctioned” by the
University. Id. at 1175. Under these facts, a conclusion that
the University had substantial control over the context of the
off-campus sexual assault is completely consistent with
Davis and vastly at odds with the facts of our case, when the
only involvement of the University of Arizona was
permitting Bradford to live off-campus.
The majority represents that Simpson “made clear that a
university can exercise substantial control over an off-
campus context when it facilitates the presence of both the
perpetrators and victims of sexual violence at the site,
chooses to minimize its own oversight of their activities, and
thus increases the risk of assault.” Majority Opinion, p. 29.
However, as with most other broad statements, the devil is
in the details. The court in Simpson found liability under
Title IX only after first observing that the sexual assault took
BROWN V. STATE OF ARIZONA 57
place within the context of a program or activity of the
University. See Simpson, 500 F.3d at 1175 (observing that
the recruiting visits during which the sexual assaults
occurred were “officially sanctioned” by the University.)
“The assault[] arose out of an official school program,” the
recruiting of high school football students. Id. at 1174. This
conclusion provided the required tether to a program or
activity of the University. In contrast, this record contains
absolutely no evidence that Brown was assaulted during any
“officially sanctioned” event or that “[t]he assault[] arose out
of an official [University of Arizona] program. Id. at 1174-
75. In sum, the holding in Simpson is premised on facts that
simply do not exist in this case.
Similarly, in Feminist Majority Foundation v. Hurley,
911 F.3d 674 (4th Cir. 2018), there was a clear tether to
university involvement and on-campus activities. In this
case, Feminists United, a student organization at the
University of Mary Washington, and several of its members
objected to a vote by the student senate “to authorize male-
only fraternities at [the University].” Id. at 680 (emphasis
added). Plaintiff Paige McKinsey was especially disturbed
by the prospect that approval of male fraternities on-campus
would “increase[] the number of on-campus sexual
assaults.” Id.Soon after the on-campus town hall meeting, University
students began debating the issue on Yik Yak, a social media
application that allowed users within a limited geographic
range to create and view messages posted anonymously. See
id. The application was available to students on the
University campus and several students posted strong and
offensive “criticism of Feminist United and its members for
their opposition to on-campus fraternities.” Id. (footnote
reference omitted).
58 BROWN V. STATE OF ARIZONA
Later in the month that the town hall meeting occurred,
several members of Feminists United met with the
University’s Title IX coordinator to address “their concerns
about the University’s past failures in responding to student
sexual assault complaints.” Id. As the Feminists United
members walked home from their meeting with the Title IX
coordinator, other students drove by, screaming “F___ the
feminists!” Id. (citation omitted).
Two days after the meeting with the Title IX coordinator,
the University’s men’s rugby team was videotaped
performing a graphic and highly offensive chant “that
glorified violence against women, including rape and
necrophilia.” Id. & n.2.
After concluding that the University was not responding
“to the rugby team’s chant and other discriminatory acts
suffered by female students on campus,” Ms. McKinsey
“published an opinion piece in [the University’s] student
newspaper. Id. at 681 (emphasis added). The opinion piece
discussed the rugby team’s chant and “recent harassing and
threatening” postings on Yik Yak “aimed at Feminists
United members.” Id. There was an immediate backlash to
the article, leading “to an escalation of verbal assaults and
cyber-attacks on members of Feminists United.” Id.
(citation omitted). These attacks included “various
comments of a derogatory, sexist and threatening nature . . .
posted to the [University] newspaper’s website.” Id.
(citation and internal quotation marks omitted).
Less than a month after Ms. McKinsey’s opinion piece
was published, members of the University’s rugby team
accosted Ms. McKinsey in the University’s dining hall. See
id. That same day, Ms. McKinsey informed the University’s
BROWN V. STATE OF ARIZONA 59
Title IX coordinator that she “felt unsafe on the
[University’s] campus.” Id.
The Fourth Circuit discussed the Yik Yak postings in
some detail. On March 19, 2015, following expressions of
outrage on Facebook in response to the rugby team’s chant,
the President of the University suspended all rugby activities
indefinitely and required all rugby players “to participate in
anti-sexual assault and violence training.” Id. at 682. The
President’s decision unleashed a torrent of graphic abuse on
Yik Yak “directed at members of Feminists United, blaming
them for the rugby team’s suspension.” Id. The messages
named Ms. McKinsey and two other members of Feminists
United specifically, and threatened physical violence, sexual
violence and death. See id.
Approximately one week after the rugby team’s
suspension, Ms. McKinsey was scheduled to speak at a
meeting of the University’s Young Democrats Club. After
an anonymous Yik Yak user shared Ms. McKinsey’s
scheduled appearance “and outlined a plan to accost her” at
the meeting of the Young Democrats Club, Ms. McKinsey
contacted the University’s police and reported “that she felt
unsafe attending the Young Democrats meeting.” Id. The
campus police considered the threat serious enough to assign
an officer to the meeting. See id.
The day after the meeting of the Young Democrats Club,
Plaintiff Julia Michels, also a member of Feminists United,
sent an email to the University President, the University
Vice-President, and the University Title IX Coordinator. See
id. The email described “nearly 200 examples of students
using Yik Yak to post either vitriolic hate or threats” against
the plaintiffs. Id. (citation omitted). The email reiterated
60 BROWN V. STATE OF ARIZONA
that the plaintiffs “feared for their safety on the [University]
campus.” Id. (citation omitted).
The day following Ms. Michels’ email, members of
Feminists United met with University administrators and
requested that the University: 1) have the Yik Yak
application disabled on campus; 2) bar access to Yik Yak on
the University’s wireless network; 3) be more transparent in
communicating with students; 4) announce to the student
body that Feminists United was not responsible for the
suspension of rugby activities; and 5) hold an assembly to
discuss “rape culture, harassment, [and] cyber bullying.” Id.
at 682-83 (cleaned up). One Feminists United member
emailed the University President that she felt “so unsafe at
[the University] that she could not concentrate on her
classwork.” Id. at 683.
After a lack of action from the University administration,
the plaintiffs filed a Title IX complaint with the Department
of Education Office of Civil Rights, which they later
withdrew to file an action in federal district court. See id. at
683-84. The district court dismissed the plaintiffs’
complaint on the basis that the University “had little — if
any — control over the context in which the Feminists
United members were harassed, because nearly all of that
harassment occurred through Yik Yak.” Id. at 687.
On appeal, the Fourth Circuit disagreed with the district
court’s conclusion, stating from the outset that the
University “had substantial control over the context of the
harassment because it actually transpired on campus.” Id.
The Fourth Circuit noted that “due to Yik Yak’s location-
based feature, the harassing and threatening messages
originated on or within the immediate vicinity of the
[University] campus.” Id. The Fourth Circuit also observed
BROWN V. STATE OF ARIZONA 61
that some of the offending messages “were posted using the
University’s wireless network, and the harassers necessarily
created those [messages] on campus.” Id. Most importantly,
the Fourth Circuit concluded that “the harassment concerned
events occurring on campus and specifically targeted
[University] students.” Id., quoting Davis, 526 U.S. at 646(“Where the misconduct occurs during school hours and on
school grounds, the educational institution retains
substantial control over the context in which the harassment
occurs.”) (alterations omitted).
The events occurring on campus that prompted and
epitomized the harassment included: 1) the student vote to
authorize male-only fraternities; 2) the on-campus town hall
meeting at which Feminists United members “questioned the
wisdom of having such fraternities at [the University]”; 3)
the vulgar chant performed by the University’s rugby team;
4) members of the rugby team accosting Ms. McKinsey in
the dining hall; and 5) the posting of derogatory comments
to the University’s newspaper. See Feminist Majority, 911
F.3d at 680-81.
In sum, the fact that pivotal events occurred on campus
and that programs and activities of the University were at the
heart of the harassment completely distinguishes Feminist
Majority from the case before us. The rationale of the Fourth
Circuit does not support the majority’s conclusion that the
University of Arizona had significant control over the off-
campus harassment of Ms. Brown.
The majority recasts the holding of Feminist Majority by
ignoring all of the harassment that took place on the
university campus and the demonstrated control the
university had over the off-campus conduct. Rather, the
majority rephrases the Feminist Majority holding by
62 BROWN V. STATE OF ARIZONA
declaring: “In other words, the Feminist Majority court held
that a university has substantial control over an off-campus
context when it has the ability to take actions that would
likely prevent harassment in the immediate vicinity of the
campus.” Majority Opinion, p. 31. Not exactly. The precise
statement made in Feminist Majority was this:
At bottom, in assessing whether [the
university] . . . had sufficient control over the
harassers and the context of the harassment
we cannot conclude that [the university]
could turn a blind eye to the sexual
harassment that pervaded and disrupted its
campus solely because the offending conduct
took place through cyberspace.
911 F.3d at 688-89 (citation omitted) (emphases added).
Noticeably absent from the majority’s paraphrasing is
any similar reference to an on-campus connection to the
harassing behavior. See id. Again, the holding in Feminist
Majority does not support the majority’s conclusion that the
University of Arizona controlled the context of the off-
campus harassment in this case.
In Weckhorst v. Kansas State University, the Title IX
plaintiff was sexually assaulted at a University fraternity
house. See 241 F. Supp. 3d 1154, 1157 (D. Kan. 2017). As
the district court determined, the fraternity house was
indisputably “a program or activity” of the University under
Title IX. 20 U.S.C. § 1681(a). The University fraternities
served as “student housing organizations that are open only
to [University] students.” Weckhorst, 241 F. Supp. 3d at
1158. The University described fraternities as “Kansas State
University Organizations” on its website. Id. The
BROWN V. STATE OF ARIZONA 63
fraternities were overseen by the University, and
importantly, the Director of the fraternity that was the situs
of the sexual assault was an instructor at the University. See
id. at 1159. The majority simply ignores these crucial factual
distinctions in its analysis. See Majority Opinion, pp. 30-31.
Finally, Roe ex. rel. Callahan v. Gustine Unified School
District, 678 F. Supp. 2d 1008 (E.D. Cal. 2009), involved
the harassment of Plaintiff during his participation in a high
school football camp at Liberty High School. See id. at
1011. Plaintiff was an incoming student at Gustine High
School, and the football camp was “jointly coordinated by
Gustine and Liberty High Schools.” Id. In denying the
motion for summary judgment filed by the Gustine Unified
School District, the court referenced the joint sponsorship of
the program, the supervisory role of teachers and coaches
from Gustine High School, and the players’ transportation to
the camp in Gustine School District buses under the
supervision of Gustine coaches. See id. at 1025. The court
also observed that “[t]he football camp was governed by a
[School District] Administrative Directive.” Id. These
circumstances were sufficient “to satisfy th[e] threshold
inquiry” of substantial control over the context in which the
harassment of Plaintiff occurred. Id. Once more, no similar
facts exist in this case. Indeed, the majority merely recites
the facts of Roe without even attempting to explain how
these starkly divergent facts support the majority’s attempt
to attribute the off-campus harassment in this case to the
University of Arizona without any tether to a program or
activity of the University. See Majority Opinion, pp. 31-32.
III. Conclusion
The facts of this case are disturbing. A football player at
the University of Arizona physically assaulted Ms. Brown
64 BROWN V. STATE OF ARIZONA
and other female students at the University. However,
because this case was brought under Title IX, the
requirements of that statute must be met to provide relief to
Ms. Brown. One of those requirements is that the University
have “substantial control over the context in which the
harassment occurr[ed].” Davis, 526 U.S. at 646. The
physical assault of Ms. Brown took place in an off-campus
house and unlike the fraternity house in Weckhorst, the
University of Arizona had no connection to or involvement
with the house. Unlike in Feminist Majority, the harassment
did not occur on campus. Unlike in Simpson, the assault did
not occur off-campus during a University-sanctioned
activity. Unlike in Roe, the assault did not occur during a
football camp sponsored by the school. Stated differently,
the facts of this case lack any tether to a program or activity
of the University, as contemplated by Title IX. The sole fact
that the football coach granted Bradford permission to live
off campus does not constitute “substantial control” over the
context of the harassment as was present in the cases relied
on by the majority. In the absence of this required tether to
a program or activity of the University of Arizona, I must
respectfully dissent.
R. NELSON, Circuit Judge, with whom RAWLINSON and
LEE, Circuit Judges, join, dissenting:
Two control requirements must be satisfied for a school
receiving federal funding to be liable under Title IX for
student-on-student harassment: the school must exercise
“substantial control over both the harasser and the context in
which the known harassment occurs.” Davis ex rel.
LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629,
645 (1999). Today, the majority holds that the University of
BROWN V. STATE OF ARIZONA 65
Arizona controlled the context of Orlando Bradford’s abuse
of Mackenzie Brown in Bradford’s off-campus house. Maj.
Op. 35.
The trouble is, Brown expressly disclaimed that position
below and before the three-judge panel on appeal, arguing
instead that the control-over-context requirement was met
because the University controlled Bradford’s previous abuse
of two other female university students. The majority
asserts, misleadingly, that Brown merely raised a “narrower
argument” before our en banc court. Id. at 22. What the
majority fails to acknowledge or address is that this
argument was not only not raised, but affirmatively
abandoned. By embracing an argument that Brown
affirmatively disavowed, the majority encourages future
plaintiffs to hide the ball on their arguments for strategic
litigation advantage. Indeed, the University is now forced to
proceed to trial on a legal theory that was not the subject of
discovery or pursued below. That is not good judicial
process.
But the majority gets the merits wrong as well. I largely
agree with Judge Rawlinson’s dissent. I also share many of
Judge Lee’s concerns about how Title IX jurisprudence has
strayed from the text and meaning of the statute. But the
majority is incorrect even under existing precedent. The
majority’s holding rests on the determination that a school
has control over the context of harassment as long as the
school has disciplinary authority over the harasser in the
setting in which the harassment takes place. Id. at 27. No
other court has gone as far as the majority does. Schools,
like the University here, generally exercise wide-reaching
disciplinary authority over their students without geographic
limitation. In other words, when a school has disciplinary
authority over the harasser it will nearly always have
66 BROWN V. STATE OF ARIZONA
disciplinary authority in the setting of the harassment. As a
result, the control-over-harasser requirement now swallows
the control-over-context requirement, at least in our circuit.
A single disciplinary-control requirement is all that
remains—unmoored from Title IX’s targeted directive of
prohibiting discrimination in education programs and
activities, irreconcilable with the Supreme Court’s
instruction in Davis that a school must have control over
both the harasser and the context of the harassment, and
without meaningful limits on a school’s liability for student-
on-student abuse claims. We can’t ignore Davis and we
can’t overrule the Supreme Court implicitly either.
I would stick to deciding the questions presented by the
parties. And even if it were proper to decide whether the
University had control over the context of the abuse Brown
suffered, like Judge Rawlinson, I would preserve the
Supreme Court’s distinction between control over the
harasser and control over the context of the harassment. In
this case, the evidence shows that the University did not
control the context of Bradford’s abuse of Brown. I
respectfully dissent.
I
Bradford was a scholarship athlete on the University
football team. He was subject to team rules and disciplinary
policies. For part of his freshman year, Bradford lived off
campus in violation of the team rule requiring freshmen to
live on campus. The summer after his freshman year,
Bradford moved to a different private, off-campus house.
Others lived in the house as well, including a nonstudent.
Near that time, Bradford started dating Brown, also a
University student. Brown regularly spent time at
Bradford’s house and often stayed overnight. While they
BROWN V. STATE OF ARIZONA 67
were dating, Bradford physically abused Brown. The
assaults that form the primary basis for Brown’s Title IX
claim happened on two successive days during the fall of
2016, though Brown testified that Bradford physically
abused her four to ten times in total. These assaults occurred
at Bradford’s off-campus residence. He pushed her to the
floor, hit her, dragged her by the hair, choked her, and
threatened her. Bradford was arrested for these assaults and
pleaded guilty to two counts of felony aggravated assault and
domestic violence. He was sentenced to five years in prison.
Bradford was suspended from the football team and the
University on the day of his arrest and later expelled.
II
Brown claims that the University is liable under Title IX
for these assaults. In Davis, the Supreme Court recognized
a Title IX claim for student-on-student harassment only
when a school acts with deliberate indifference to known
acts of harassment in its programs or activities. 526 U.S. at
633. The Court set forth several requirements for such a
claim to succeed, including that the school must exercise
“substantial control over both the harasser and the context in
which the known harassment occurs.” Id. at 645; see also
Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1105
(9th Cir. 2020) (separating Davis’s requirements into five
elements).
In the district court and her appeal to this court, Brown
argued that “the focus of the ‘substantial control’
requirement must always be on the context of the harassment
that the university is being accused of failing to correct—or
of inviting due to its official policies.” Brown maintained
that the University was liable for her abuse because it failed
to address Bradford’s prior abuse of two other female
68 BROWN V. STATE OF ARIZONA
students: Student A and Lida DeGroote. Brown explained
that “[u]nlike many Title IX plaintiffs, [she] does not fault
the University for its response to her own attack,” instead,
her attack “is alleged to be an effect of the University’s
previous Title IX violation, not an event that itself triggered
the University’s Title IX obligations.” Thus, she argued, the
“important question as to the University’s control . . . is
whether the University had control over the context of those
attacks,” that is, Bradford’s abuse of Student A and
DeGroote. In other words, “[t]he question is whether the
University had sufficient control over the context in which
[Brown] alleges that it failed to act, not whether it had
sufficient control over the context in which she was later
attacked.”
Her reply brief reiterated this position. She contended
that the control-over-context requirement “applies to the
harassment that the University is alleged to have known
about and ignored (primarily the harassment of Student A),
not to the harassment that [Brown] is alleged to have later
suffered as a consequence.” Indeed, she argued:
The University’s confusion regarding th[e]
[control-over-context] element of the claim
stems from its persistent misidentification of
the Title IX violation alleged by [Brown].
The act for which [Brown] seeks to hold the
University responsible is not Bradford’s
September 2016 attack in the off-campus
house rented by the football players, but
rather the University’s deliberate indifference to
Bradford’s reported on-campus attacks and
harassment (primarily of Student A). (The
University has never challenged its control over
BROWN V. STATE OF ARIZONA 69
the dormitories.) [Brown’s] claim is not, in
other words, that federally-funded schools
should be guarantors of the off-campus safety
of their students, but rather simply that they
should be held responsible if they act with
deliberate indifference toward known acts of
on-campus dating violence and harassment.
All three members of the original panel, including the
dissenting judge, rejected the only argument that Brown
made: that the control-over-context requirement could be
satisfied by the University’s control over the separate
context of Bradford’s abuse of Student A and DeGroote.
Brown v. Arizona, 23 F.4th 1173, 1179–81 (9th Cir. 2022);
id. at 1193 (W. Fletcher, J., dissenting) (“Brown argues that
because the University had control over the context of
Bradford’s known harassment of Student A and DeGroote,
the University’s failure to take action violates Title IX
without respect to whether the University had control over
Bradford’s off-campus housing. . . . I would not go so
far . . . .”). The panel agreed that, to satisfy the control-over-
context element, Brown had to show that the University
controlled the context of her own abuse. Id. at 1180, 1193.
The majority determined that “Brown does not argue that the
University controlled the off-campus environment in which
she was assaulted.” Id. at 1180. But despite Brown’s
disavowal of that argument, the panel dissenter sua sponte
concluded that the University had control over the context of
Bradford’s abuse of Brown in his off-campus house. Id. at
1195.
Brown took up the panel dissent’s argument for the first
time before our en banc court. Indeed, she had to seek the
court’s leave to file a supplemental brief addressing her new
70 BROWN V. STATE OF ARIZONA
argument because, as Brown explained, “[t]he vacated panel
opinion in this case reached an issue . . . that was not the
subject of adversarial party briefing.” Today, the majority
adopts Brown’s new position, inspired by the original panel
dissent, and holds that the University controlled the context
of Bradford’s abuse of Brown. Maj. Op. 35.
To her credit, Judge Friedland recognizes in her
concurrence that Brown affirmatively disavowed the
argument the majority adopts. Conc. Op. 44. The majority
tries to evade Brown’s original disavowal of this argument
by concluding that Brown simply “made a narrower
argument” before our en banc court. Maj. Op. at 22. This
seriously mischaracterizes the story.
Brown, represented by counsel throughout these
proceedings, had every opportunity to argue that the
University controlled the context of her abuse. But Brown
argued before the district court that the University’s control
over Bradford’s previous abuse of Student A and DeGroote
satisfied the control-over-context requirement. The district
court rejected this argument, leaving no doubt that it granted
summary judgment because “[w]hile it is undeniable that
[the University] exercised substantial control over Bradford,
[Brown] has not offered any evidence that [the University]
exercised control over the context in which her abuse
occurred.” Brown knew that her claim failed in the district
court because the University lacked control over the context
of her abuse, and she could have challenged that conclusion
on appeal if she chose.
She chose not to. On appeal, Brown doubled down on
her argument, repeatedly and emphatically maintaining that
her claim was directed at the University’s deliberate
indifference toward Bradford’s previous abuse. She argued
BROWN V. STATE OF ARIZONA 71
that “[t]he question is whether the University had sufficient
control over the context in which [Brown] alleges that it
failed to act, not whether it had sufficient control over the
context in which she was later attacked.” She characterized
the University’s arguments directed at her own abuse as the
source of the University’s “confusion” and its “persistent
misidentification” of her Title IX claim. The control-over-
context requirement, she argued, “applies to the harassment
that the University is alleged to have known about and
ignored (primarily the harassment of Student A), not to the
harassment that [Brown] is alleged to have later suffered as
a consequence.” Make no mistake, Brown affirmatively
disclaimed the majority’s position.1
This is waiver, in the true sense of the word. “The terms
waiver and forfeiture—though often used interchangeably
by jurists and litigants—are not synonymous.” Hamer v.
Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 n.1
(2017). Our own caselaw is rife with misuse of the terms—
we have often stated that an argument, issue, or claim is
“waived” when we really mean “forfeited.” Waiver is the
“intentional relinquishment or abandonment of a known
right.” Id. (citation omitted). Forfeiture is the “failure to
make the timely assertion of a right.” Id. (citation omitted).
In civil and criminal cases, waiver has harsher consequences
than forfeiture. United States v. Lopez, 4 F.4th 706, 719 n.3
(9th Cir. 2021) (“Waiver is the intentional relinquishment or
abandonment of a known right and entirely precludes
appellate review.” (cleaned up)); Crowley v. Epicept Corp.,
1
Like the original panel, I would reject Brown’s assertion that the
control-over-context requirement can be satisfied by the University’s
control over Bradford’s previous assaults. See Brown, 23 F.4th at 1180–
81, 1193. Davis requires that the plaintiff suffered harassment under the
operations of the institution. 526 U.S. at 644–45.
72 BROWN V. STATE OF ARIZONA
883 F.3d 739, 748 (9th Cir. 2018) (“Forfeited rights are
reviewable for plain error, while waived rights are not.”); see
also Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir. 2019).
Adopting Brown’s disclaimed position also implicates
the party presentation principle: “It is the parties who ‘frame
the issues for decision,’ and we may entertain only those
arguments ‘bearing a fair resemblance to the case shaped by
the parties.’” AMA Multimedia, LLC v. Wanat, 970 F.3d
1201, 1214 (9th Cir. 2020) (quoting United States v.
Sineneng-Smith, 140 S. Ct. 1575, 1579, 1582 (2020)); see
also Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.
2011) (“[W]e will not reframe an appeal to review what
would be in effect a different case than the one decided by
the district court.”). In Sineneng-Smith, the Supreme Court
held that our court violated the party presentation principle
when the panel invited amici to brief and argue issues never
raised by the parties and then adopted those arguments in the
disposition. 140 S. Ct. at 1581. The Supreme Court taught
that “our system is designed around the premise that parties
represented by competent counsel know what is best for
them, and are responsible for advancing the facts and
argument entitling them to relief, . . . courts are essentially
passive instruments of government.” Id. at 1579 (cleaned
up).
As both the majority and the concurrence point out, Maj.
Op. 22; Conc. Op. 45–46, “we have authority and discretion
to decide questions first raised in a petition for rehearing en
banc.” United States v. Hernandez-Estrada, 749 F.3d 1154,
1159 (9th Cir. 2014) (en banc). And if the parties address
issues in a petition for rehearing en banc or en banc
supplemental briefing that were not previously raised, “[t]he
party-presentation principle is not implicated . . . because
the parties themselves have ‘frame[d] the issue for
BROWN V. STATE OF ARIZONA 73
decision.’” Lee v. Fisher, 70 F.4th 1129, 1154 (9th Cir.
2023) (en banc) (second alteration in original) (quoting
Sineneng-Smith, 140 S. Ct. at 1579).
As mentioned above, our caselaw regularly mixes up
waiver and forfeiture. Despite using the term “waiver,” each
of the cases cited by the majority and concurrence
suggesting that our en banc court can address Brown’s
disavowed argument really involve forfeiture. Id. (“Lee
failed to identify [the] Section 115 [issue] in her opening
brief before the panel . . . .”); Hernandez-Estrada, 749 F.3d
at 1159 (“Hernandez has waived his challenge to the
absolute disparity test by not specifically raising it before the
three judge panel.”); Socop-Gonzalez v. INS, 272 F.3d 1176,
1186 n.8 (9th Cir. 2001) (en banc), overruled on other
grounds by Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020)
(en banc) (“[F]ailure to raise an issue before an original
appellate panel does not preclude an en banc panel’s
jurisdiction over the issue.”). The majority and concurrence
cite no case in which we have adopted an argument that was
affirmatively disclaimed by a party. There is no precedent
supporting what the majority is actually doing here.2
Even if we can exercise discretion to address Brown’s
disclaimed argument, we shouldn’t. Brown made a
conscious choice, and that choice should carry
consequences. See Porter v. Martinez, 68 F.4th 429, 440 n.6
(9th Cir. 2023) (rejecting the dissent’s argument because the
plaintiff “expressly disavowed” it, instead “[t]aking [the
2
As Judge Friedland aptly notes, the en banc court should be free to
correct substantive errors by the three-judge panel on disavowed
arguments. Conc. Op. 45–46. But that can easily be done by vacating
the three-judge panel opinion. The en banc panel should not repeat the
error of addressing a disavowed argument.
74 BROWN V. STATE OF ARIZONA
plaintiff] at her word” and addressing only the argument she
advanced). Enforcing waiver here would “‘preserve the
integrity of the appellate structure’ by ensuring that ‘an issue
must be presented to, considered and decided by the trial
court before it can be raised on appeal.’” Honcharov v. Barr,
924 F.3d 1293, 1295 (9th Cir. 2019) (per curiam) (quoting
Torres de la Cruz v. Maurer, 483 F.3d 1013, 1023 (10th Cir.
2007)). Enforcing waiver “encourage[s] the orderly
litigation and settlement of claims by preventing parties from
withholding ‘secondary, back-up theories’ at the trial court
level, thus allowing party-opponents to appraise frankly the
claims and issues at hand and respond appropriately.” Id.(quoting Torres de la Cruz, 483 F.3d at 1023). The
majority’s opinion subverts the established appellate
structure and encourages future gamesmanship.
Indeed, the University suffers prejudice here, having
been unable to develop facts geared toward the majority’s
theory. Discovery has concluded. On remand, the case will
likely proceed to trial on a legal question that Brown
affirmatively abandoned. The parties have not had the
opportunity for proper discovery to address these claims. It
is hard to imagine a more unfair process for the University.3
The majority also says that only claims can be waived,
not arguments. See Maj. Op. 23. But we regularly hold that
arguments can be waived or forfeited. See, e.g., Freedom
from Religion Found., Inc. v. Chino Valley Unified Sch. Dist.
Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (per
3
Assuming the majority’s position, I agree with Judge Friedland’s
suggestion that discovery should be reopened. Conc. Op. 46.
Unfortunately, that position has not garnered a majority of the en banc
panel. But hopefully the district court will exercise its discretion to do
so.
BROWN V. STATE OF ARIZONA 75
curiam) (“[T]he [defendant] has chosen not to argue the
issue on appeal. This is waiver—the intentional
relinquishment or abandonment of a known right or
privilege.” (internal quotation marks and citation omitted));
GoPets Ltd. v. Hise, 657 F.3d 1024, 1033 (9th Cir. 2011)
(“The [defendants] waived that argument by failing to
present it to the district court in a timely fashion.”); Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate
court will not consider issues not properly raised before the
district court. Furthermore, on appeal, arguments not raised
by a party in its opening brief are deemed waived.”). Despite
this standard practice, the majority identifies our separate
line of cases, Maj. Op. 23, mirroring the Supreme Court’s
approach that “it is claims that are deemed waived or
forfeited, not arguments.” United States v. Pallares-Galan,
359 F.3d 1088, 1095 (9th Cir. 2004); accord Allen v. Santa
Clara Cnty. Corr. Peace Officers Ass’n, 38 F.4th 68, 71 (9th
Cir. 2022) (per curiam) (“The Employees’ argument . . . is
not a new claim but is, instead, a new argument in support
of their consistent claim.”).
Unlike most situations where we are bound to follow the
Supreme Court, application of the waiver rule by a court of
appeals may appropriately differ because the Supreme Court
has a discretionary docket. Our line of cases applying the
Supreme Court’s waiver rule disregards certain unique
characteristics of the Supreme Court—that “[a]ny argument
in support of a pleaded ‘claim’ may be raised in a petition
for writ of certiorari” and that “only the questions presented
in the petition for writ of certiorari are reviewed.” Chris
Goelz et al., Rutter Group Practice Guide: Federal Ninth
Circuit Civil Appellate Practice ¶ 7:83.5 (2023); see also id.
at ¶ 7:83.9 (explaining that Ninth Circuit cases adopting the
Supreme Court’s waiver standard “typically do not address
76 BROWN V. STATE OF ARIZONA
aspects of the U.S. Supreme Court’s waiver standards that
are unique to that Court or explain how and why they should
be applied in the Ninth Circuit . . . . For this reason, it is not
possible to completely reconcile all Ninth Circuit opinions
discussing waiver”). At any rate, concluding that waiver and
forfeiture only apply to claims abandons voluminous
caselaw in which we have applied these rules to arguments.
See, e.g., Freedom from Religion Found., 896 F.3d at 1152.
In short, the majority’s analysis and holding adopt a
theory that was affirmatively disclaimed in the district court
and on appeal, and entered the equation only because the
dissenting judge on the original panel interjected it on his
own. This absolves Brown of the consequences of her
deliberate litigation strategy and creates significant
consequences for future litigants in our circuit. Crafty
litigants will “withhold[] secondary, back-up theories at the
trial court level,”—even affirmatively disclaim them—to
prevent “party-opponents” like the University here from
“apprais[ing] frankly the claims and issues at hand and
respond[ing] appropriately.” See Honcharov, 924 F.3d at
1296. Whether or not our en banc court has discretion to
address Brown’s waived theory, we should “adjudicat[e]
[this] appeal attuned to the case shaped by the parties rather
than the case designed by the appeals panel.” See Sineneng-
Smith, 140 S. Ct. at 1578.
III
I remain firm that Brown’s waived argument should not
be addressed. But because the majority has chosen to
address a waived argument, I find it appropriate to respond.
The majority incorrectly concluded that the University
controlled the context here. A Title IX claim for student-on-
student harassment requires control over both the harasser
BROWN V. STATE OF ARIZONA 77
and the context of the harassment. Davis, 526 U.S. at 645.
Addressing Brown’s Title IX claim on summary judgment,
I would hold that the record does not show a genuine dispute
of material fact about whether the University controlled the
context of Bradford’s abuse of Brown in his off-campus
house.
A
Title IX provides that “[n]o 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). Protecting
against discrimination in education programs was the
motivating concern behind the Supreme Court’s recognition
of a Title IX claim for student-on-student harassment. See
Davis, 526 U.S. at 651 (“[A] plaintiff must establish sexual
harassment of students that is so severe, pervasive, and
objectively offensive, and that so undermines and detracts
from the victims’ educational experience, that the
victim-students are effectively denied equal access to an
institution’s resources and opportunities.”). To that end, the
Supreme Court outlined certain requirements that must be
satisfied for a plaintiff to prevail on a Title IX student-on-
student harassment claim. Id. at 643–50. Consistent with
the Court’s firm instruction that a school may be liable “only
for its own misconduct,” one requirement is that the school
must have “some control over the alleged harassment.” Id.
at 640, 644. Control over the alleged harassment has two
components: control over the harasser and control over the
“context” or “environment” in which the harassment occurs.
Id. at 644–45. As to the control-over-context requirement,
the Court stressed that “the harassment must take place in a
context subject to the school[’s] control,” id. at 645, because
78 BROWN V. STATE OF ARIZONA
Title IX prohibits discrimination “under any education
program or activity,” § 1681(a). Education “program or
activity” is defined as “the operations of” an educational
institution subject to Title IX. Davis, 526 U.S. at 645(quoting 20 U.S.C. § 1687).
The Court emphasized that control over the “context” or
“environment” of the harassment was a separate requirement
from control over the harasser. Id. at 644–45. But the
majority fails to heed that instruction. I agree with the
majority that the control-over-context requirement involves
more than just the geographic location of the harassment and
that this requirement can be satisfied in off-campus settings.
Maj. Op. 32. But even in off-campus settings, some element
of school sanction, sponsorship, or connection to a school
function is required. See Rost ex rel. K.C. v. Steamboat
Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th Cir.
2008) (“Davis suggests that there must be some nexus
between the out-of-school conduct and the school.”). This
tethers the control-over-context requirement to the statute,
which prohibits “discrimination under any education
program or activity,” § 1681(a), meaning that the harassment
“must occur ‘under’ ‘the operations of’” a school, see Davis,
526 U.S. at 645 (quoting §§ 1681(a), 1687). The statute’s
text, the Supreme Court emphasized, requires that the
harassment “have the systemic effect of denying the victim
equal access to an educational program or activity” and
“cabins the range of misconduct that the statute proscribes.”
Id. at 644, 652.
The cases the majority relies on are in harmony with this
understanding. In Simpson v. University of Colorado
Boulder, 500 F.3d 1170 (10th Cir. 2007), the sexual assaults
happened during a university football team recruiting visit,
in which the team brought high school students to campus
BROWN V. STATE OF ARIZONA 79
and paired them with “female ‘Ambassadors’” and “player-
hosts” who “were responsible for the recruits’
entertainment.” Id. at 1173. The recruits were taken to an
off-campus apartment, where players and recruits sexually
assaulted two female students. Id. at 1180. This was not just
a private party—the recruits were taken to the off-campus
apartment as part of the recruiting trip activities that the team
facilitated and organized to show the recruits a “good time.”
See id. at 1173. The court explained that “[t]he alleged
assaults were not simply misconduct that happened to occur
at [the university] among its students. Plaintiffs allege that
the assaults arose out of an official school program, the
recruitment of high-school athletes.” Id. at 1174. Although
Simpson focused on the actual-notice and deliberate-
indifference elements, see id. at 1174, 1184–85, the court
also concluded that “[i]mplementation 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 1178(quoting Davis, 526 U.S. at 644).
In Feminist Majority Foundation v. Hurley, 911 F.3d
674 (4th Cir. 2018), university students posted anonymous
messages on a social media platform that disparaged,
harassed, and threatened the plaintiffs. Id. at 680–82.
Holding that the plaintiffs’ Title IX claim survived a motion
to dismiss, the Fourth Circuit concluded that the control-
over-context requirement was sufficiently alleged because
the harassing posts “actually transpired on campus.” Id. at
687. The posts “originated on or within the immediate
vicinity of” campus, were posted using the university’s
wireless network, and “concerned events occurring on
campus and specifically targeted [university] students.” Id.80 BROWN V. STATE OF ARIZONA
In Weckhorst v. Kansas State University, 241 F. Supp.
3d 1154 (D. Kan. 2017), aff’d sub nom. Farmer v. Kansas
State University, 918 F.3d 1094 (10th Cir. 2019), the female
plaintiff was sexually assaulted by a male student in his
vehicle and again in his off-campus fraternity house. Id. at
1159. Addressing the plaintiff’s Title IX claim at the
motion-to-dismiss stage, the district court held that the
control-over-context requirement was satisfied because the
“fraternity allegedly is a [university] student organization, is
supervised by a faculty advisor, is overseen by [the
university’s] Office of Greek Affairs, is subject to
[university] rules specifically applicable to fraternity parties
and events, and was suspended by [the university] for
conduct at the party where Plaintiff was assaulted.” Id. at
1170.
The district court distinguished two Eighth Circuit cases
involving sexual assault by fraternity members where the
control-over-context requirement was not satisfied,
concluding that the assaults in those cases happened “at a
private residence that was not owned by the fraternity or the
university,” id. at 1167 (citing Ostrander v. Duggan, 341
F.3d 745, 750–51 (8th Cir. 2003)), and “at a party at an off-
campus apartment,” id. (citing Roe v. St. Louis Univ., 746
F.3d 874, 884 (8th Cir. 2014)). The district court determined
that “[h]ere, by contrast, the alleged assaults that give rise to
Title IX liability took place at a house owned by the
fraternity and at a fraternity event, and Plaintiff’s allegations
reflect that [the university] exercises substantial control over
the fraternity.” Id. at 1170.
In Roe ex rel. Callahan v. Gustine Unified School
District, 678 F. Supp. 2d 1008 (E.D. Cal. 2009), the plaintiff
was assaulted during a school-sponsored summer football
camp. Id. at 1013–14. Although the football camp was at a
BROWN V. STATE OF ARIZONA 81
different high school, the district court held that the control-
over-context requirement was satisfied because “the football
camp was sponsored and promoted by [the school], its
football coaches and administrators, was a core part of [the
school’s] football program, and was under the supervision of
[school] teachers and/or football coaches.” Id. at 1025.
In each of these cases, an element of school sanction,
sponsorship, or connection to a school function existed. See
Hurley, 911 F.3d at 687 (harassment originated on or near
campus, used the university’s wireless network, and
concerned events on campus); Simpson, 500 F.3d at 1173(assaults happened as part of university football team
recruiting activities); Weckhorst, 241 F. Supp. 3d at 1170(assault happened at a house owned by a fraternity (a
university student organization) at a fraternity event); Roe,
678 F. Supp. 2d at 1025 (assault happened at a school-
sponsored football camp); see also Foster v. Bd. of Regents
of Univ. of Mich., 982 F.3d 960, 970 (6th Cir. 2020) (en
banc) (contrasting misconduct “over which the University
has no control,” including Facebook comments and emails,
with misconduct “[i]t could and did control,” that is,
“classes, social events, ceremonies, and the like”).
This case has no similar indicia that the University
controlled the context of Bradford’s abuse of Brown.
Bradford attacked Brown in his off-campus house. The
house was not owned by or affiliated with the University,
nor did the abuse occur in connection with a University
function. The abuse here is akin to that in the two Eighth
Circuit cases distinguished by the district court in
Weckhorst, where the abuse occurred “at a private residence
that was not owned by the fraternity or the university,” 241
F. Supp. 3d at 1167 (citing Ostrander, 341 F.3d at 750–51),
and “did not occur under a university ‘program or activity,’”
82 BROWN V. STATE OF ARIZONA
id. (citing Roe, 746 F.3d at 884). Because the University did
not control the context of Bradford’s abuse of Brown, the
district court properly granted summary judgment to the
University.
B
In the majority’s view, none of this matters because “a
key consideration is whether the school has some form of
disciplinary authority over the harasser in the setting in
which the harassment takes place.” Maj. Op. 26. This
determination stems from the majority’s understanding of
the Supreme Court’s conclusion in Davis that “recipients of
federal funding may be liable for ‘subject[ing]’ their students
to discrimination where the recipient is deliberately
indifferent to known acts of student-on-student sexual
harassment and the harasser is under the school’s
disciplinary authority.” 526 U.S. at 646–47.
The majority characterizes this conclusion from Davis as
the Supreme Court’s “articulat[ion] [of] its holding on the
‘control’ element.” Maj. Op. 26. That is incorrect. In this
passage, the Court first stated the dual requirement that a
school must “exercise[] substantial control over both the
harasser and the context in which the known harassment
occurs.” Davis, 526 U.S. at 645. In the next paragraph, the
Court applied those two control requirements to the facts of
the case. It first found that the school easily satisfied the
control-over-context requirement because “the misconduct
occur[red] during school hours and on school grounds.” Id.
at 646.
With the control-over-context requirement squared
away, the Court distinctly transitioned to the control-over-
harasser requirement. Id. (“In these circumstances, the
recipient retains substantial control over the context in which
BROWN V. STATE OF ARIZONA 83
the harassment occurs. More importantly, however, in this
setting the [school board] exercises significant control over
the harasser.”). The Court then discussed whether the school
had control over the harasser, emphasizing the school’s
disciplinary authority over its students. Id. at 646–47. The
paragraph concludes with the statement the majority
mischaracterizes as a summary of the entire control element.
Id.This passage from Davis makes evident that the Court’s
conclusion about schools being liable when “the harasser is
under the school’s disciplinary authority” is not a summary
of the entire control element, but a conclusion specific to the
control-over-harasser requirement. See id. Reading the
statement any other way eviscerates the distinction between
the control-over-context requirement and the control-over-
harasser requirement that the Court had just finished
explaining in its last breath. It also ignores Congress’s
directive that conduct is actionable only if it occurs “under
an[] education program or activity.” § 1681(a).
Cases the majority relies on also read Davis this way.
See Hurley, 911 F.3d at 688 (“The substantial control
analysis also requires us to consider the educational
institution’s control over the harasser, especially its
‘disciplinary authority.’” (quoting Davis, 526 U.S. at 647));
Weckhorst, 241 F. Supp. 3d at 1167 (recognizing that
“disciplinary control” is relevant to whether the university
“had substantial control over the alleged assailants” (citing
Davis, 526 U.S. at 646–47)). The majority’s holding
dismantles the Supreme Court’s two separate control
requirements and makes disciplinary authority the sole
touchstone for evaluating a school’s control.
84 BROWN V. STATE OF ARIZONA
This new disciplinary-control requirement is remarkably
unlimited. In this case, for instance, the University would be
potentially liable for harassment by any student in any
location. The University’s off-campus disciplinary authority
is not limited to football players, or even athletes. As the
majority recognizes, the University’s Student Code of
Conduct is “applicable to all students” and “applies to
student conduct ‘both on-campus and off-campus.’” Maj.
Op. 33.
Now that disciplinary authority is enough to establish the
control-over-context requirement, there are no discernible
limits on the circumstances that could create Title IX
liability. Schools could be liable for what happens within
completely private, unsupervised settings such as spring
break trips abroad, online communication, and students’
family homes.
This is no hypothetical parade of horribles. Consider a
situation from the record. Brown testified that she was with
Bradford in a Goodyear Tire store waiting for a tire repair.
Bradford became upset upon seeing a contact named “Josh”
in Brown’s phone, and she testified that “he like grabbed my
arm and dug his nails into my arm. I have a scar.” The
University and the football team’s disciplinary authority
over Bradford was fully operative in the Goodyear Tire
store, just as it was in his off-campus house. Does that mean
the University controlled the context of the abuse in the tire
store? Under the majority’s reasoning, the answer must be
yes. This outcome bears no resemblance to the Supreme
Court’s teaching that “because the harassment must occur
‘under’ ‘the operations of’ a funding recipient . . . the
harassment must take place in a context subject to the school
district’s control,” thereby “denying the victim equal access
BROWN V. STATE OF ARIZONA 85
to an educational program or activity.” See Davis, 526 U.S.
at 645, 652 (quoting §§ 1681(a), 1687).
The majority stretches the record to assert that “[t]here is
undisputed evidence that the University had control over the
off-campus housing in which Bradford was living while
attending the University.” Maj. Op. 32. First, the majority
asserts that Bradford was allowed to live off campus only
with permission of his coaches and that his “permission to
live off campus was conditioned on good behavior.” Id.
Both assertions overstate the evidence. There is no evidence
that Bradford ever requested or received permission to live
off campus. Coach Rodriguez only testified that this was the
general rule. In fact, Bradford had lived off campus as a
freshman in violation of the rule that team freshmen must
live in the on-campus dorms. Id. at 33–34. Coach Rodriguez
testified that he had never enforced the rule requiring
permission to live off campus to make a player move back
to the dorms. The majority’s assertion that Bradford lived
off campus because his coaches gave permission is
unsupported by the record. See id. at 32.
Nor did Coach Rodriguez testify that permission to live
off campus was conditioned on general good behavior. See
id. He testified that permission was based on academic
performance and punctually keeping appointments: “as long
as they were doing okay academically and, you know, not
being irresponsible as far as making their appointments and
practices and meetings and everything else on time, they
could move off-campus.” Coach Rodriguez’s testimony
indicates that requiring a player to move on campus was a
disciplinary measure for problems associated with living
away from campus, that is, failing to attend classes and other
appointments. There is no evidence that this punishment
was used to generally police player behavior.
86 BROWN V. STATE OF ARIZONA
But even if Bradford were living off campus with
permission from the coaching staff and his permission could
have been revoked for bad behavior, that evidence only
shows that the University had control over Bradford—not
the context in which he abused Brown. The ability to make
Bradford move back on campus does not mean the
University owned or otherwise controlled Bradford’s off-
campus house, nor that Bradford’s abuse of Brown was
connected to any University function. Once again, the
majority conflates the control-over-harasser requirement
with the control-over-context requirement. See Davis, 526
U.S. at 645.
Second, the majority relies on Coach Rodriguez’s
testimony that if he had known about Bradford’s abuse
earlier, he would have kicked Bradford off the team earlier.
Maj. Op. 34. The majority infers that “had [Coach]
Rodriguez known of Bradford’s assaults on Student A and
DeGroote, Bradford’s September 12 and 13 assaults on
Brown at his off-campus house would never have occurred”
and he “likely would have been expelled from the
University.” Id. at 2–3, 34. The majority also speculates
that “[e]ven if [Bradford] had engaged in lesser misconduct,
he would never have been permitted to live off campus while
a member of the team.” Id. at 34.
The record contains no evidence that Bradford would
have been expelled if he had been kicked off the team earlier.
Nor is there evidence that he would have been barred from
living off campus for engaging in “lesser misconduct.” See
id. Of course, many scenarios exist concerning what might
have happened if Bradford had been kicked off the team
earlier. Perhaps it would have changed circumstances such
that his abuse of Brown would not have happened. Or,
Bradford might have continued living in his private off-
BROWN V. STATE OF ARIZONA 87
campus house and had the opportunity to abuse Brown there
regardless. The University could not have prevented
Bradford from living in the house if it expelled him. See
Foster, 982 F.3d at 970 (“Expulsion would not have
prevented many of the harassing acts . . . because they lay
beyond the school’s control.”). Here, the majority relies
only on its own speculation about what might have happened
if Bradford was kicked off the team earlier to conclude that
the University controlled the context of this abuse. See
Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir.
1996) (“[M]ere allegation and speculation do not create a
factual dispute for purposes of summary judgment.”).
But even accepting the majority’s chain of events as true,
Coach Rodriguez’s testimony that he would have kicked
Bradford off the team earlier had he known about Bradford’s
abusive behavior is again only evidence of the University’s
control over the harasser, not control over the context. This
is but another example of disciplinary control over Bradford,
which is separate from the requirement that the University
must control the context of the abuse. See Davis, 526 U.S.
at 645.
Third, the majority relies on an expert report to show that
“the University had control over where Bradford lived.”
Maj. Op. 35. But the expert report runs into the same
problem. That student-athletes like Bradford “are told where
they can live, where and when they will be places—
including practices, games, housing, meals, and study time”
speaks to the University’s disciplinary control over
Bradford—the control-over-harasser requirement. Id. As
the expert described, the University’s control over Bradford
was not limited to any particular setting. If that disciplinary
authority is enough, then the University would control
virtually any context involving Bradford.
88 BROWN V. STATE OF ARIZONA
Fourth, the majority also states that Bradford lived in his
off-campus house “with other members of the football team”
and describes the house as a “players’ residence.” Id. at 32.
Brown and the United States as amicus curiae go further,
characterizing Bradford’s off-campus house as a “de facto
football-team house” and “the team house.” The record
belies this description. Bradford did not “live[] exclusively
with other football players,” as the United States asserts.
The evidence shows that Bradford lived with at least one
non-student. There is no evidence that Bradford’s off-
campus house was affiliated with the football team, formally
or otherwise. Thus, the majority is wrong to say that the
“very existence” of Bradford’s off-campus house was
“subject to the coaches’ control.” See id.
***
In short, the record does not show that the harassment
here “t[ook] place in a context subject to the [University’s]
control.” See Davis, 526 U.S. at 645. Brown was abused in
a private, off-campus house. The University’s disciplinary
control over Bradford supports control over the harasser, but
not control over the context of the harassment. See id.Brown has shown no element of school sanction,
sponsorship, or connection to a school function associated
with the abuse. The harassment therefore did not “occur
under the operations of” the University, and the control-
over-context requirement was not satisfied. See id. (cleaned
up).
IV
The majority’s holding rests on a theory that Brown
affirmatively disclaimed. And that holding improperly
conflates Davis’s control-over-context and control-over-
harasser requirements. Bradford abused Brown in a private,
BROWN V. STATE OF ARIZONA 89
off-campus residence unconnected to any school function.
Thus, the district court properly determined that the
University did not control the context of the harassment and
granted summary judgment.
Aside from holding that Davis’s control requirements are
satisfied, the majority also holds, Maj. Op. 44, that Brown
survives summary judgment on the “actual knowledge” and
“deliberate indifference” requirements of a Title IX student-
on-student harassment claim. See Karasek, 956 F.3d at
1105. The majority does not address the requirement that
“the plaintiff must have suffered harassment that is so
severe, pervasive, and objectively offensive that it can be
said to deprive the plaintiff of access to the educational
opportunities or benefits provided by the school” or the
requirement that “the school must have caused the plaintiff
to undergo harassment or made the plaintiff liable or
vulnerable to it.” Id. (cleaned up). Because I would grant
the University’s motion for summary judgment based on the
University’s lack of control over the context of Bradford’s
abuse of Brown, I would not reach the other requirements of
a Title IX student-on-student harassment claim.
I respectfully dissent.
LEE, Circuit Judge, with whom RAWLINSON, Circuit
Judge, joins, dissenting:
I join Judge Rawlinson’s persuasive dissent but write
separately to detail further how courts have drifted from the
text of Title IX. Like Judge Rawlinson and the majority, I
am disturbed by the facts of the case. Orlando Bradford
rightfully received a five-year prison sentence for brutally
assaulting his girlfriend in his off-campus house. The
90 BROWN V. STATE OF ARIZONA
University of Arizona administrators and employees who
failed to protect her should also be held accountable—
whether it be losing their jobs or facing other discipline.
But as horrendous as the facts are, this should not be a
Title IX case. It stretches the text and meaning of the statute
to say that Bradford’s criminal actions—and the
University’s oversight—amount to “discrimination under
an[] education program or activity receiving Federal
financial assistance.” See 20 USC § 1681(a). Simply put, a
criminal act by a student in an off-campus house does not
implicate an “education program or activity” under Title IX.
I thus respectfully—and reluctantly—dissent.
* * * * *
Congress enacted Title IX to bar sex discrimination in
federally funded schools. It states that “[n]o 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 USC § 1681(a)
(emphasis added). Title IX has had a far-reaching and
salutary impact in rooting out sex discrimination in schools.
No longer can schools discriminate against female students
in awarding scholarships or making admissions decisions
because doing so “excludes” and “denies” benefits under an
“education program or activity” on the basis of sex. Nor can
schools provide more funding for boys’ sports programs than
girls’ because athletics are an “education program or
activity” that require equal treatment.
Over the years, however, courts have expanded the reach
of Title IX beyond its text. The plain language of Title IX
strongly suggests that it bars discrimination by the school
receiving federal funds: It prohibits students from being
BROWN V. STATE OF ARIZONA 91
“excluded, “denied the benefits,” or being “subjected to
discrimination under any education program or activity”
(i.e., it is the school that discriminates against students
“under” the school’s policy or actions). See Davis v. Monroe
Cnty. Bd. Of Ed., 526 U.S. 629, 659-62 (1999) (Kennedy, J.,
dissenting). Indeed, the Supreme Court has held that Title
IX does not impose vicarious liability on the school just
because, say, a student discriminates against a student. See
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).
But the Court faced a set of ugly facts in Davis: A fifth-
grader waged a terrible campaign of sexual harassment and
abuse against his classmate, yet the school did little to stop
it. 526 U.S. at 633-35. The Court found a private right of
action under Title IX, holding that the student can seek
damages from the school for failing to address student-on-
student harassment. In other words, the Court held that
schools in some cases could be liable under Title IX for
harassment perpetrated by students, even though the text of
the statute suggests otherwise. But recognizing that Title IX
does not allow vicarious liability, the Court tried to cabin in
that possibility by fashioning a multi-pronged test that
required, among other things, schools to have “substantial
control over both the harasser and the context in which the
known harassment occurs.” Id. at 645. That “context” prong
ensured that a school would not be held liable if a student,
for example, harassed other students at a mall because that
would not have occurred under an “education program or
activity.” And under the facts of Davis, the Court’s new test
perhaps made sense, even if it veered from the text of the
statute: The school had notice of and control over what
happened in the classroom, and yet did little to prevent it.
Our case law has drifted so far from Title IX’s text that
the majority barely discusses how an “education program or
92 BROWN V. STATE OF ARIZONA
activity” is implicated by a student committing a violent
crime in an off-campus house. Instead of looking at the
statutory text, the majority jumps straight to the Davis
factors. The facts here, however, are significantly different
from Davis. Unlike Davis and other Title IX cases, the facts
here do not involve an educational “program” (e.g., incidents
in a classroom, athletic programs) or a school-sponsored
“activity” (e.g., school-sanctioned summer program). By
extending the holding of Davis, the majority’s decision loses
any semblance of a connection to the plain—or even
strained—reading of Title IX's statutory text.
As explained in Judge Rawlinson’s dissent, the
University of Arizona had substantial control over Bradford
but not the “context” in which the abuse occurred. Judge
Rawlinson’s dissent points out that the majority effectively
conflates the two Davis requirements—control over the
harasser and the context in which the harassment occurs—
to find liability by the school.
The majority opinion cobbles together various facts to
assert that the school had “substantial control” over the
“context” of the abuse. First, it points out that Bradford
could have been expelled under the football team’s strict
rules. But the school presumably could expel any student—
football player or not—if he committed violence against
another student. In other words, there is nothing materially
unique about Bradford’s status as a football player to claim
that the University had substantial control over the context
of the abuse. And if the ability to expel a student amounts
to substantial control over the context, then it is tantamount
to vicarious liability because a school can always expel any
student committing violent crimes.
BROWN V. STATE OF ARIZONA 93
Second, the majority opinion argues that the University
had substantial control over the “context” of the abuse
because Bradford was on a football scholarship. But that is
an odd fact to hang a Title IX claim. If a wealthy trust fund
student assaults a classmate in his luxury apartment, would
there be no Title IX liability for the school just because his
parents are paying full tuition?
Finally, the majority opinion stresses that football
players must receive permission to live off campus. Judge
Rawlinson’s dissent explains why that does not amount to
substantial control over the context of the abuse under Davis.
But stepping back to see the big picture, I do not think it
should make much difference under the Davis’ “context”
prong whether Bradford had the luxury of living off campus.
Certainly, under the facts of Davis, the context prong was
met: The harassment occurred in the classroom (and not,
say, a shopping center), putting teachers directly on notice
of the abuse and allowing them to stop it. But when it comes
to physical violence in this case, I question whether it
matters that it occurred in a dormitory room or an off-
campus house. Unlike the classroom or a schoolyard,
dormitory rooms and off-campus houses are private, so
school officials do not directly observe what happens in
those rooms and are not on notice of what may occur there.
It thus seems odd to say that whether abuse occurred in a
dorm room or an off-campus house should affect the
school’s liability.
But we are stuck with the Davis test, and we must apply
it. And under the logic of Davis, the school did not have
“substantial control” over the context of the abuse occurring
in an off-campus house. This case reminds us of what
happens when courts tinker with statutes to reach a
seemingly just result in a particular case. No longer tethered
94 BROWN V. STATE OF ARIZONA
to the text, courts fashion an amorphous multi-factor test that
leads to a fair outcome in a specific case (like in Davis). We,
however, have to live with the judicially concocted test that
we create. And when we have to apply that test to other
factual scenarios, it may make little sense (like in this case).
This is an awful case with horrendous facts. But I do not
think it is a Title IX case under the text of the statute or under
Davis’ judicially created test. I thus respectfully dissent.