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Title IX Liability Does Not Exist When University Does Not Have Control Over Context In Which Student-On-Student Harassment Occurred Off-Campus
Orlando Bradford was a university football player at the University of Arizona. During the 2015-2016 school year, he assaulted two female students, Student A and Lida DeGroote. Student A told police that Bradford hit and choked her repeatedly and the University issued a no-contact order against Bradford in April 2016. Bradford then moved off-campus and lived with another football player. Student A also told the Title IX investigator that she believed Bradford was living with DeGroote. DeGroote did not offer any information about Bradford to university officials, but DeGroote’s mother told a university administrator that she was concerned about DeGroote’s safety and referenced bruises on DeGroote’s arm.
In February 2016, Bradford started dating MacKenzie Brown. In September 2016, Bradford physically assaulted Brown multiple times at his off-campus apartment, and Brown suffered significant injuries. Brown told her mother about the assault and her mother reported the abuse to the police. Bradford was then arrested. The next day, DeGroote’s mother made an anonymous report to the police that Bradford abused her daughter. The University placed Bradford an interim suspension after his arrest and the football coach removed him from the team. Bradford was expelled from the University a month after his arrest.
Brown sued the University, alleging it violated Title IX by failing to respond appropriately to reports that Bradford assaulted Student A and DeGroote. The trial court ruled in favor of the University because Brown did not offer any evidence that the University exercised control over the context of Brown’s abuse. Brown appealed to the Ninth Circuit Court of Appeals.
The Ninth Circuit rejected Brown’s theory that the University should be liable because it had control over the context in which Bradford previously assaulted two other students. The Ninth Circuit cited the U.S. Supreme Court decision, Davis v. Monroe County Board of Education, which set out two separate control requirements in order to find liability – the educational institute must have control over the harasser and control over the context of the harassment. The Ninth Circuit agreed with Brown that the University exercised substantial control over Bradford because he was a student at the University. However, the Ninth Circuit held that University did not have substantial control over the context of Brown’s assault, which occurred off-campus.
The Ninth Circuit explained that the control-over-context requirement arises from the limitation of Title IX, which addresses discrimination occurring only under an “education program or activity receiving Federal financial assistance.” The limitation recognizes that just because a person who is subject to an educational institution’s rules or authority engages in misconduct does not necessarily mean the misconduct occurs under the institution’s education program. The Ninth Circuit reasoned that unlike other Title IX cases, Brown was not assaulted on school property or during a school-related activity, and Brown did not go to Bradford’s apartment for a school-related purpose. Furthermore, the University did not have control over Bradford’s off-campus apartment, unlike its on-campus housing.
Ultimately, the Ninth Circuit agreed with the trial court and held in favor of the University.
Brown v. Arizona (9th Cir. 2022) 23 F.4th 1173.