23 F.4th 1173
9th Cir.2022Background
- Mackenzie Brown, a University of Arizona student, was physically assaulted multiple times by fellow student and football player Orlando Bradford at his off‑campus residence in Sept. 2016.
- Bradford had previously assaulted two other students ("Student A" and Lida DeGroote); University officials (Title IX and athletics personnel) had received reports and issued a no‑contact order as to Student A but did not inform Bradford’s coaches of the prior abuse.
- Bradford was a scholarship athlete whose permission to live off campus required coach approval; he ultimately lived off campus in housing paid in part by scholarship funds and shared with other football players.
- Brown sued the University under Title IX, alleging deliberate indifference to known student‑on‑student harassment; the district court granted summary judgment for the University because the University lacked control over the context of Brown’s assault.
- The Ninth Circuit majority affirmed, holding the University lacked the required "control over the context" for Brown’s off‑campus assault; a dissent would have found the University’s control sufficient based on coach approval and scholarship funding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title IX's "control‑over‑context" element can be satisfied by control over contexts of the harasser's prior assaults (not the plaintiff's assault) | Brown: University controlled the context in which it failed to act (the prior assaults), so liability follows for her later assault | Univ.: Davis requires control over the context where the plaintiff was assaulted, not merely contexts of prior victims | Majority: No — plaintiff must show the school controlled the context in which her own known harassment occurred; claim fails |
| Whether disciplinary authority over the harasser alone satisfies the context requirement | (advanced by dissent) disciplinary authority (coach approval to live off campus) makes school control the context | Majority: control over the harasser and control over the context are distinct; disciplinary authority alone is insufficient | Majority: No — control over harasser ≠ control over context |
| Whether coach approval and scholarship payment for off‑campus housing convert that residence into a school‑controlled context | Brown/dissent: coach permission and scholarship-funded housing mean the school controlled the residence context | Univ.: Payment/conditional permission do not make off‑campus residence part of the school’s "operations" as required by Davis | Majority: No — these facts do not show the degree of control over the residence required by Title IX |
| Effect of University knowledge and possible deliberate indifference to Bradford’s prior misconduct | Brown: University had actual knowledge of prior assaults and was deliberately indifferent, which caused her exposure to risk | Univ.: Even assuming knowledge and deliberate indifference, Title IX liability requires control over the context of Brown’s assault | Court: Because control‑over‑context was not met, court did not find Title IX liability despite evidence of knowledge |
Key Cases Cited
- Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) (Title IX liability for student‑on‑student harassment requires substantial control over both the harasser and the context)
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (private Title IX damages require institution’s own misconduct and actual‑knowledge/deliberate‑indifference standard)
- Karasek v. Regents of Univ. of Cal., 956 F.3d 1093 (9th Cir. 2020) (summarizing Title IX elements for student‑on‑student harassment claims)
- Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613 (6th Cir. 2019) (deliberate‑indifference claims cannot be predicated on harassment of other victims)
- Doe v. Univ. of Ill., 138 F.3d 653 (7th Cir. 1998) (liability where harassment occurred during school activities or supervision)
- Simpson v. Univ. of Colorado Boulder, 500 F.3d 1172 (10th Cir. 2007) (off‑campus harassment can be within university control where it was part of school‑facilitated recruiting activities)
- Roe ex rel. Callahan v. Gustine Unified Sch. Dist., 678 F. Supp. 2d 1008 (E.D. Cal. 2009) (off‑campus school‑sponsored camp held sufficient contextual control)
- Weckhorst v. Kansas State Univ., 241 F. Supp. 3d 1154 (D. Kan. 2017) (university control over fraternities and related activities supported off‑campus context control)