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.

In Brown v. Arizona, Brown reported that she was physically sexually assaulted by her former boyfriend, Bradford, at his off-campus apartment while the two were students in 2016. Bradford allegedly physically assaulted two other female students in the months before assaulting Brown, at least once on campus. In response to the on-campus conduct, the University issued a no-contact order against Bradford concerning the alleged victim of the on-campus assault. It took no disciplinary action against him.

Bradford was arrested, removed from the football team, expelled from the University, and ultimately convicted of felony aggravated assault and domestic violence after assaulting Brown. Brown sued the University based on a “before” theory of Title IX liability despite that robust response. In contrast to an “after” claim that challenges how an educational institution responds to a report of sexual harassment, Brown claimed that the University’s failure to discipline Bradford for the prior reported assaults led to her assault.

The trial court granted summary judgment to the University, and Brown appealed. In upholding the trial court’s decision, the Ninth Circuit held that the University could not be liable for Bradford’s assault of Brown regardless of its prior knowledge because the latter assault did not occur in its education program or activity. For conduct to be within a program or activity, the educational institution must exercise substantial control over both the context of the harassment and the alleged harasser.

Though the University exercised disciplinary authority over the harasser, “[d]isciplinary authority over a student is not enough by itself to establish that the school controls the locations or contexts where the student is found.” And here, the court found, the University did not exercise substantial control over the off-campus apartment even though Bradford had to have his coaches’ approval to live off-campus and his University scholarship paid his rent. Although “Brown’s anger with how the University handled the reports of … abuse of other students is understandable,” “it would be unreasonable to conclude that Title IX gives educational institutions adequate notice that accepting federal education funds imposes on them liability for what happens between students off-campus, unconnected to any school event or activity.”

For assistance on implementing and administering Title IX policies and procedures or other questions about the potential implications of this case, please contact Lisa Brown, Matthew Reed, or Jackie Gharapour Wernz. We will continue to follow and update you on developments in Title IX law in the higher education context.