With Thompson & Horton Counsel Matthew Reed

In a recent decision, the Ninth Circuit Court of Appeals affirmed the dismissal of a Title IX lawsuit against the University of Arizona by a female student, Mackenzie Brown, alleging assault by a student-athlete, Orlando Bradford, at his off-campus apartment. It reached the decision even though Bradford, a football player, had to have his coaches’ approval to live off-campus and used a University scholarship to pay his rent. Because the University lacked substantial control over the context of the alleged conduct, it was also irrelevant that the University knew of a previous on-campus assault by Bradford but failed to discipline him. Brown is a welcome acknowledgment for colleges and universities that an educational institution must have substantial control over the specific context of alleged harassment, even if they have previously failed to exercise disciplinary control over the harasser. It provides valuable contours to the “substantial control” analysis used by courts and the U.S. Department of Education’s Office for Civil Rights under the 2020 Title IX regulations.