MacKenzie Brown v. State of Arizona

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 University of OPINION

Arizona, a constitutionally created

body corporate,

Defendants-Appellees,

and

RICHARD A. RODRIQUEZ; RITA

RODRIQUEZ,

Defendants,

v.

LIDA DEGROOTE,

Third-Party-Plaintiff.

2 BROWN V. STATE OF ARIZONA

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

Argued and Submitted February 4, 2021

Phoenix, Arizona

Filed January 25, 2022

Before: William A. Fletcher, Eric D. Miller, and

Danielle J. Forrest, * Circuit Judges.

Opinion by Judge Forrest;

Dissent by Judge W. Fletcher

SUMMARY **

Title IX

The panel affirmed the district court’s summary

judgment in favor of the University of Arizona in a Title IX

action brought by Mackenzie Brown, who suffered physical

abuse at the hands of her former boyfriend and fellow

University student at his off-campus residence.

The panel held that, under Davis ex. rel. LaShonda D. v.

Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999), Title IX

liability exists for student-on-student harassment when an

*

Formerly known as Danielle J. Hunsaker.

**

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

educational institution exercises substantial control over

both the harasser and the context in which the known

harassment occurs. The panel unanimously held that the

control-over-context requirement was not met based on

Brown’s theory that the university had substantial control

over the context of Brown’s former boyfriend’s abuse of

other victims and failed to take proper action, and the

majority rejected the dissent’s theory that the boyfriend, a

university football player, had to have university approval to

live off campus and his housing was paid for with

scholarship funds that he received from the university.

Dissenting, Judge W. Fletcher wrote that, while the

physical location of the harassment can be an important

indicator of a school’s control over the “context” of alleged

harassment, the key consideration is whether the school had

disciplinary authority over the harasser in the setting in

which the harassment took place. Judge W. Fletcher wrote

that an off-campus residence paid with scholarship funds

that Brown’s former boyfriend received from the university,

and where students reside with permission of the school, is

such a setting. Accordingly, the university had control over

the “context” in which Brown was assaulted.

COUNSEL

Isabel M. Humphrey (argued), Hunter Humphrey & Yavitz

PLC, Phoenix, Arizona, for Plaintiff-Appellant.

Claudia Acosta Collings (argued), Assistant Attorney

General; Mark Brnovich, Attorney General; Office of the

Attorney General, Tucson, Arizona; Stephanie Elliott,

Assistant Attorney General, Office of the Attorney General

Phoenix, Arizona; for Defendants-Appellees.

4 BROWN V. STATE OF ARIZONA

OPINION

FORREST, Circuit Judge:

The Supreme Court has held that Title IX liability exists

for student-on-student harassment where an educational

institution “exercises 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). The question here is

whether the second control-over-context requirement is met

where Plaintiff Mackenzie Brown seeks to hold the

University of Arizona (University) liable for physical abuse

that she suffered at the hands of her former boyfriend and

fellow University student at his off-campus residence.

Brown asserts that the control-over-context requirement is

met because the University had substantial control over the

context of her former boyfriend’s abuse of other victims and

failed to take proper action, even though it did not have

control over the context of her abuse. Our dissenting

colleague alternatively asserts that Davis’s control-over-

context requirement is met because the boyfriend, a

University football player, had to have University approval

to live off campus and his housing was paid for with

scholarship funds that he received from the University. We

reject both propositions and affirm the district court’s grant

of summary judgment in favor of the University.

I. BACKGROUND

A. Factual Background

Mackenzie Brown was physically assaulted by her

boyfriend, Orlando Bradford, while they were both

undergraduates at the University. Bradford, a university

football player, physically assaulted two other female

BROWN V. STATE OF ARIZONA 5

students—Student A and Lida DeGroote—before assaulting

Brown. Brown sued the University, 1 alleging that it violated

Title IX by failing to respond to reports of Bradford’s prior

domestic abuse, giving Bradford an opportunity to abuse

Brown. Because Brown’s Title IX claim is based on the

University’s failure to respond appropriately to reports that

Bradford physically abused Student A and DeGroote, those

facts are outlined below.

1. Initial concerns arise about domestic violence

against Student A.

Bradford started dating Student A, a university softball

player, in fall 2015. Late one night in September 2015,

students informed a dormitory Resident Assistant (RA) that

they saw Student A and Bradford in a physical altercation in

a study room. When confronted by the RA, Bradford said

that he and Student A were just joking. The RA reported the

incident to the on-call Community Director and was told not

to call police. The RA created an electronic report of the

incident noting that he “felt like this might have started off

as a very serious physical and verbal altercation[.]”

Just before Thanksgiving, one of Student A’s teammates

escorted her to Bradford’s dorm room to collect some of

Student A’s belongings. Bradford refused to let Student A

get her things and screamed at her. Student A later admitted

to her teammate that Bradford had pushed her up against a

wall and choked her. When the teammate returned on

another occasion to get Student A’s belongings, Bradford

1

For simplicity, this opinion refers to all defendants collectively as

the “University.”

6 BROWN V. STATE OF ARIZONA

admitted to hitting Student A. The teammate did not report

this information until several months later.

During winter break, Student A told her family that she

broke up with Bradford. In January 2016, Student A’s

mother called softball coach John Candrea to discuss

concerns about Student A’s relationship and breakup with

Bradford, describing it as “not a good situation.” Candrea

relayed the conversation to Erika Barnes, the Senior

Associate Athletics Director and Deputy Title IX

Coordinator. Barnes arranged for Student A to see a school

psychologist.

2. University officials learn of potential abuse

against Student A and DeGroote.

In March 2016, Student A attended a team study hall

with a black eye that she claimed was caused by a door.

Another player also noticed fingerprints on her neck.

Concerned for Student A’s safety, two teammates told

Candrea about Student A’s black eye and what occurred

during the previously described trips to Bradford’s dorm

room. The next day, Candrea sent the two teammates to

speak with Barnes. They told Barnes about Bradford’s

earlier behavior towards Student A and Student A’s black

eye and bruises. The two teammates also told Barnes that

Bradford was dating and possibly abusing another student—

DeGroote.

Shortly after that meeting, Barnes met with Student A.

Barnes asked if Bradford had given her a black eye, which

Student A denied. Barnes encouraged Student A to visit the

Office of the Dean of Students to learn about available

university resources, including the procedure for filing a

complaint against Bradford. Student A agreed, and Barnes

accompanied her to meet with Susan Wilson, a Senior Title

BROWN V. STATE OF ARIZONA 7

IX Investigator in the Office of the Dean of Students.

Although Wilson gave Student A information about filing a

complaint and other resources, Student A said she was no

longer seeing Bradford and was not concerned about him.

Wilson asked whether she had concerns during the

relationship, and Student A disclosed that Bradford had put

his hands on her neck once. Student A also mentioned that

she believed Bradford was living or staying with someone

named “Lida.”

Wilson told Christina Lieberman, a university

administrator, about the conversation with Student A and the

mention of DeGroote. Lieberman had an upcoming meeting

for an unrelated issue with DeGroote, and Wilson relayed

that DeGroote might be in a concerning relationship.

Although Wilson suggested that Lieberman raise the issue

with DeGroote, Lieberman declined, stating she would

encourage DeGroote to share information about Bradford on

her own. But DeGroote did not offer any information about

Bradford during the meeting, and Lieberman did not ask her

about the relationship.

In early April 2016, Bradford went to Student A’s dorm

room late at night while intoxicated and knocked on the door

and yelled for several hours. Candrea told Barnes about the

incident, and Barnes called Student A. Barnes also arranged

a meeting in her office with Student A and the University of

Arizona Police Department. According to the police report,

Student A recounted the event the night before and stated

that she and Bradford had “several physical fights” and that

Bradford choked her three or four different times. Student A

asked about obtaining a protection order. No criminal

charges resulted from this investigation.

After the meeting with Student A and the university

police, Barnes contacted Athletic Director Greg Byrne and

8 BROWN V. STATE OF ARIZONA

told him about the late-night dorm room incident. She did

not mention the physical abuse Student A described. The

head football coach, Richard Rodriguez, was away, so Byrne

and assistant coach Calvin Magee met with Bradford. They

told Bradford that underage drinking violated the team rules

and punished him for the violation. Magee did not know that

allegations of violence were made against Bradford.

Later in April 2016, the University issued a no-contact

order against Bradford for Student A. Because of the no-

contact order, Bradford was removed from his dorm room

and reassigned to a different room. Ultimately, Bradford

moved off campus with another football player.

The following month in May 2016, DeGroote’s mother

told Lieberman during a phone call that she was concerned

for DeGroote’s safety and referenced bruises on her arm.

Lieberman was silent in response.

3. Bradford assaults Brown.

Bradford started dating Brown in February 2016. He

became abusive toward her several months later in the

summer of 2016. Between June and mid-September, Brown

alleges that there were five to ten instances where Bradford

physically abused her. She primarily focuses on a two-day

period in September 2016.

On September 12, Brown went to Bradford’s off-campus

house after she got off work. She and Bradford got into an

argument, and Bradford physically assaulted her multiple

times by pushing her, pulling her hair, and hitting her. The

next day, they again got into an argument at Bradford’s

house, and Bradford physically assaulted Brown multiple

times. Brown suffered significant injuries.

BROWN V. STATE OF ARIZONA 9

On September 14, Brown told her mother what had

happened, and her mother reported the abuse to police.

Bradford was arrested. 2 The next day, DeGroote’s mother

made an anonymous report to police that Bradford had also

abused her daughter.

The University placed Bradford on an interim

suspension after his arrest. Immediately upon learning of

Bradford’s arrest, Rodriguez also removed him from the

football team. Until the arrest, Rodriguez did not know about

Bradford’s violent behavior. Rodriguez knew only of the

April 2016 dorm-room incident where Bradford was “drunk

and banging on a door.” Rodriguez maintains that, had he

known of the earlier abuse, he would have dismissed

Bradford because he has a zero-tolerance policy for violence

against women. Bradford was expelled from the University

a month after his arrest.

B. Procedural History

Brown sued the University alleging, among other things,

that it violated Title IX by failing to appropriately respond

to reports that Bradford physically abused Student A and

DeGroote. 3 The University moved for summary judgment,

and the district court entered judgment in favor of the

University because, although it was “undeniable that [the

University] exercised substantial control over Bradford,”

Brown “ha[d] not offered any evidence that [the University]

2

The parties represent that Bradford was convicted of felony

aggravated assault and domestic violence and was sentenced to five

years’ imprisonment.

3

DeGroote sued separately, and her case was settled. See DeGroote

v. Ariz. Bd. of Regents, No. 2:18-cv-0310-SRB (D. Ariz. 2018).

10 BROWN V. STATE OF ARIZONA

exercised control over the context in which her abuse

occurred.” Brown timely appealed.

II. DISCUSSION

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 must 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).

A. Title IX Liability

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). The Supreme

Court has recognized an implied private right of action under

Title IX to seek monetary damages. Davis, 526 U.S. at 639.

However, the Court has also made clear that an educational

institution that receives federal funds “may be liable in

damages under Title IX only for its own misconduct.” Id. at

640. Title IX does not create respondeat superior liability.

Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 285

(1998). Where an educational institution does not directly

violate Title IX through an official policy or other direct

action, the institution is liable in damages for another actor’s

discriminatory conduct only if it exercises control over that

actor and an institution official with authority to take

corrective action has actual knowledge of the misconduct

and responds with deliberate indifference. Id. at 290; Davis,

526 U.S. at 642–44.

BROWN V. STATE OF ARIZONA 11

In Gebser, the Supreme Court applied this principle to

teacher-on-student misconduct and held that the school

district was not liable for a teacher’s sexual abuse of a

student about which it had no knowledge. 524 U.S. at 291.

There was no need for the Supreme Court to address the

school district’s control over the teacher or the context in

which the abuse occurred because these requirements were

clearly met. The key issue was whether the school district

engaged in misconduct by failing to properly respond to

known abuse. See id.

In Davis, the Supreme Court addressed student-on-

student misconduct and provided guidance about the control

an educational institution must exercise for liability to arise

in this context. 526 U.S. at 643–45. Title IX has a targeted

objective: It prohibits discrimination that occurs “under any

education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). Education “program or

activity” is defined as “the operations of” an educational

institution subject to Title IX. Id. § 1687. The Court

explained that this text “cabins the range of misconduct that

the statute proscribes . . . based on the [institution]’s degree

of control over the harasser and the environment in which

the harassment occurs.” Davis, 526 U.S. at 644 (emphasis

added). That is, because the statute only addresses

misconduct that occurs “‘under’ ‘the operations of’ a

funding recipient, the harassment must take place in a

context subject to the school[’s] . . . control.” Id. at 645

(internal citation omitted).

This second element of control is required because an

educational institution is not liable under Title IX for others’

misconduct that it cannot remedy. Id. at 644. Deliberate

indifference to discrimination—the institutional misconduct

that must be proven if the institution is not itself engaging in

12 BROWN V. STATE OF ARIZONA

misconduct—can occur only if the educational institution

can intervene or take some remedial action. See id. In other

words, there can be no institutional liability unless the

educational institution has notice and the ability to take

corrective action, which is premised on “substantial control

over both the harasser and the context in which the known

harassment occurs.” Id. at 645 (emphasis added).

To ensure that this direct-liability requirement is met, it

is well established that a plaintiff alleging a Title IX claim

arising from student-on-student harassment or assault must

establish five elements:

(1) “[T]he school . . . exercise[d] substantial

control over both the harasser and the

context in which the known harassment

occur[red]”;

(2) “[T]he plaintiff . . . 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”;

(3) “[A] school official with authority to

address the alleged discrimination and to

institute corrective measures on the

[school’s] behalf must have had ‘actual

knowledge’ of the harassment”;

(4) “[T]he school must have acted with

‘deliberate indifference’ to the

harassment, such that the school’s

response to the harassment or lack thereof

BROWN V. STATE OF ARIZONA 13

[was] clearly unreasonable in light of the

known circumstances”; and

(5) “[T]he school’s deliberate indifference

. . . subject[ed the plaintiff] to

harassment.”

Karasek, 956 F.3d at 1105 (internal quotation marks and

citation omitted); Davis, 526 U.S. at 640, 644, 648, 650.

B. Brown’s Theory

Applying this standard, the district court granted

summary judgment to the University on the first element.

The district court held that even though the University

exercised substantial control over Bradford because he was

a student athlete, the University did not have substantial

control over the context or environment where Brown’s

assault occurred—Bradford’s private, off-campus residence.

Brown argues this was error because she does not have to

show that the University controlled the context of her abuse,

only that the University controlled the context in which it

improperly failed to act, i.e., Bradford’s assaults on Student

A and DeGroote. Brown contends that the University’s

deliberate indifference towards Bradford’s abuse of these

earlier victims gave him an opportunity to abuse her. While

Brown’s anger with how the University handled the reports

of Bradford’s abuse of other students is understandable, her

argument stretches the text of Title IX and the implied

private action that the Supreme Court has recognized too far.

Davis requires that Brown prove the University

controlled the context in which her abuse occurred—not just

the context of Bradford’s other assaults. 526 U.S. at 644–45.

Where an educational institution has no control over the

abuse the plaintiff suffered, such abuse does not occur

14 BROWN V. STATE OF ARIZONA

“‘under’ ‘the operations of’” the institution. Id. at 645

(quoting 20 U.S.C. §§ 1681(a), 1687). And if this

requirement is not met, the institution has not “expose[d] its

students to harassment or cause[d] them to undergo

[harassment] under the [institution]’s programs.” Id.

(internal quotation marks omitted).

Brown does not argue that the University controlled the

off-campus environment in which she was assaulted. The

extent of the University’s involvement in Brown’s abuse was

allowing Bradford to remain a student after receiving reports

that he was physically abusive to other women. Bradford

abused Brown in a private, off-campus residence

unconnected to any school activity. Even though the abuse

may not have occurred absent Bradford and Brown’s shared

connection to the University, not everything that happens

between fellow students occurs “under [the operations of]”

the institution. 20 U.S.C. §§ 1681(a), 1687. 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. See Davis, 526 U.S. at 640.

Brown’s effort to circumvent Davis’s control-over-

context requirement by focusing on the University’s

knowledge of and failure to address Bradford’s prior abusive

behavior fails. She argues that her claim survives summary

judgment because the University knew about Bradford’s

abuse of Student A and DeGroote and these attacks occurred

in a context that the University controlled. In making this

argument, she relies on the statement in Davis that “the

school must exercise ‘substantial control over both the

harasser and context in which the known harassment

occurs.’” Id. at 645 (emphasis added). In her view, the proper

BROWN V. STATE OF ARIZONA 15

focus of the control inquiry is “the context of the harassment

that the university is being accused of failing to correct,” not

her abuse specifically. This argument misreads the

precedent.

The Supreme Court used the phrase “known harassment”

to reemphasize its earlier discussion limiting Title IX

liability to situations where the University has actual

knowledge of abuse. Davis, 526 U.S. at 645–46. The Court

noted that it previously rejected a negligence standard,

finding that it was insufficient to hold an educational

institution “liable for its failure to react to teacher-student

harassment of which it knew or should have known.” Id.

at 642 (citing Gebser, 524 U.S. at 283). Instead, the Court

adopted a deliberate-indifference standard for harassment of

which an educational institution has actual knowledge. Id.;

see also Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d

613, 621–22 (6th Cir. 2019) (holding a Title IX plaintiff

cannot establish deliberate indifference based on harassment

against other victims). The reference to “known

harassment”—a call-back to the Court’s rejection of a

negligence standard—does not open the door to satisfying

the control-over-context element by reference to events

other than those involving the plaintiff.

C. The Dissent’s Theory

Our dissenting colleague also rejects Brown’s theory as

going too far, and instead argues that “the key consideration”

in determining whether the educational institution controlled

the context where misconduct occurred “is whether the

school has disciplinary authority over the harasser in the

setting in which the harassment takes place.” That is,

according to the dissent, where a school has disciplinary

authority over the harasser, it necessarily has control over

the context in which harassment occurs. Brown has not

16 BROWN V. STATE OF ARIZONA

advanced this theory, and in fact expressly disclaimed it,

arguing 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.” Regardless, the

dissent’s reasoning conflates Davis’s two separate control

requirements (control over the harasser and control over the

context of the harassment) into one (control over the

harasser). See 526 U.S. at 645.

There is no dispute that the University exercised

substantial control over Bradford. But that is not enough.

Davis set out two separate control elements that are related

to two separate legal requirements. The control-over-

harasser requirement arises from the limitation that

educational institutions be held liable only for their own

misconduct. See id. at 644. The control-over-context

requirement arises from the limitation that Title IX addresses

discrimination occurring only under an “education program

or activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a). That a person subject to an educational

institution’s rules or authority engages in misconduct does

not necessarily mean that his misconduct occurs under that

institution’s education program. Stated another way, not

everything that a person subject to a school’s disciplinary

control does can be attributed to the school’s operations.

This is particularly true of student conduct.

The dissent focuses primarily on two facts in asserting

that the University controlled Bradford’s off-campus

residence: (1) under the football team rules, Bradford had to

have coach approval to live off campus; and (2) Bradford’s

University scholarship paid for his off-campus rent. The

second fact is easily dismissed. That a student’s off-campus

housing is paid for with scholarship funds awarded by his

BROWN V. STATE OF ARIZONA 17

school does not make his residence part of the school’s

“operations.” 20 U.S.C. §§ 1681(a), 1687. There is an

appreciable difference between the degree of control an

educational institution exercises over on-campus housing

and off-campus housing, regardless of how it is paid for. And

there is no indication in the record that by receiving

University scholarship funds to cover his living expenses,

Bradford’s residence was deemed University property or

that the University had regulatory control over his residence

like it does over on-campus housing.

The University’s ability to prevent Bradford from living

off-campus is a closer question but still insufficient to

establish that the University controlled Bradford’s off-

campus residence. The relevant football team rule provided:

“Living off-campus is subject to approval by head coach and

position coach. Off-campus subject to moving back on

campus.” The head football coach testified that players were

allowed to live off-campus after their freshman year “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.” 4

Undoubtedly, this rule, among others, gave the University

disciplinary authority over Bradford—the first control

requirement—but it does not follow that it also gave the

University control over Bradford’s off-campus residence in

the way that it controls its own property or the context of

team or school activities regardless of where they occur. See

4

The dissent asserts that the team rule permitted football players to

live off-campus after their freshman year only “on condition of good

behavior.” The record, however, establishes only that this rule was

intended to regulate players’ academic performance and team

obligations. The head coach also could not recall ever exercising his

authority under this rule and requiring a player to move back on campus.

18 BROWN V. STATE OF ARIZONA

Davis, 526 U.S. at 646 (finding that a school “retains

substantial control over the context in which the harassment

occurs” when the abuse “takes place while the students are

involved in school activities or otherwise under the

supervision of school employees”). Disciplinary authority

over a student is not enough by itself to establish that the

school controls the locations or contexts where the student is

found.

A couple examples further demonstrate the point.

Imagine the student who grew up in Tucson and opted to live

at home with his parents while attending the University and

playing on the football team. He would be subject to the

same player rule requiring permission to live off campus, but

allowing him to live at home with his family does not mean

that the University now controls the context of the family

home. The University’s control is limited to the student. And

Title IX is not limited to higher education. So, also imagine

a middle schooler who is subject to a student code of conduct

that prohibits harassment of other students. She has a

birthday party at her house over the weekend and violates

the school’s code of conduct. The school may have the

authority to discipline her for her offending conduct that

occurred outside of school hours and school activities, but

that does not mean that the school controlled the context of

her birthday party at her home sufficient to establish Title IX

liability against the school. To be faithful to Title IX and

Davis, there must be something beyond student-focused

disciplinary authority that renders the context where the

challenged harassment occurred part of the school’s

“operations.” 526 U.S. at 645. To conclude otherwise

eviscerates Congress’s express requirement that conduct is

actionable only if it occurs “under an[] education program or

activity receiving Federal financial assistance.” 20 U.S.C.

§ 1681(a).

BROWN V. STATE OF ARIZONA 19

The cases that the dissent cites in arguing that the

University’s control over Bradford is determinative of its

control over his off-campus residence are inapposite because

they all present circumstances where the institution had

control over the context in which the harassment or abuse

occurred separate from its control over the harasser. In Doe

v. University of Illinois, which was decided before Davis, the

plaintiff high-school student alleged she was subjected to

“an ongoing campaign of verbal and physical sexual

harassment perpetrated by a group of male students at the

school.” 138 F.3d 653, 655 (7th Cir. 1998). The Seventh

Circuit held that she successfully stated a Title IX claim

based on student-on-student harassment where the alleged

harassment occurred “while the students are involved in

school activities or otherwise under the supervision of school

employees.” Id. at 661. Doe does not explain how school

employees supervised the “self-styled ‘posse’ of male

students” who harassed the plaintiff, but it is clear from the

opinion that the school had some control over the context of

Doe’s harassment because it occurred during the school day

or under the school’s supervision. See id. at 655.

In Simpson v. University of Colorado Boulder, the

University football team brought prospective players to

campus to recruit them. 500 F.3d 1172, 1180 (10th Cir.

2007). The coaching staff chose player-hosts for the recruits

who “knew how to ‘party’ and how ‘to show recruits a good

time,’” and female students were chosen to serve as

“Ambassadors” for the recruits. Id. at 1173, 1180. The

player-hosts took the recruits to a female student’s off-

campus apartment where players and recruits sexually

assaulted the plaintiffs. Id. at 1180. This was not simply a

private, off-campus party. It was part of recruiting activities

that the football coaching staff facilitated and encouraged to

show recruits a “good time.” Indeed, at least one recruit

20 BROWN V. STATE OF ARIZONA

knew that the purpose of going to the off-campus apartment

was “to provide recruits another chance to have sex.” Id.

Similarly, in Roe ex rel. Callahan v. Gustine Unified School

District, the plaintiff student was physically assaulted and

harassed by fellow students at a school-sponsored football

camp. 678 F. Supp. 2d 1008, 1012–14 (E.D. Cal. 2009). In

these circumstances, the educational institutions had control

over the context of the plaintiffs’ abuse and harassment

because it occurred during team or school activities.

Finally, in Weckhorst v. Kansas State University, the

plaintiff got intoxicated at an off-campus fraternity event,

and a fellow student who was a designated driver for a

different fraternity sexually assaulted her in his vehicle and

his off-campus fraternity house. 241 F. Supp. 3d 1154, 1159

(D. Kan. 2017). The district court concluded that the plaintiff

sufficiently alleged that the University controlled the context

in which her abuse occurred because, among other things,

the University’s website described fraternities “as ‘Kansas

State University Organizations’”; promoted fraternities; and

had the authority to regulate fraternities, including fraternity

parties. Id. at 1167.

Unlike these prior cases, this case has none of the indices

that the University controlled the context where Brown was

abused. Brown was not assaulted on school property or

during a school-related activity, and she did not go to

Brown’s off-campus apartment for a school-related purpose.

Nor did the University have regulatory control over

Bradford’s off-campus apartment like Kansas State

University had over fraternities in Weckhorst. For example,

the team rule that allowed coaching staff to force players to

live on campus as a disciplinary tool did not give the coaches

the right to enter or inspect the players’ homes or otherwise

control what occurred at the residence. Any control that the

BROWN V. STATE OF ARIZONA 21

University had related to Bradford’s residence arose only

from its control over him.

III. CONCLUSION

Title IX’s elements, as delineated by the Supreme Court,

are not met where an educational institution controlled the

context where abuse against other victims occurred but not

where the plaintiff was abused. Likewise, a Title IX claim

fails where the educational institution has substantial control

over the harasser but no control over the context where the

harassment occurred. We do not dispute that control over the

harasser is a key component of a Title IX claim, but it is not

sufficient. Conflating the control-over-context requirement

into the control-over-harasser requirement expands Title

IX’s implied private right of action beyond what Title IX can

bear. 5

AFFIRMED.

W. FLETCHER, Circuit Judge, dissenting:

University of Arizona football player Orlando Bradford

repeatedly assaulted 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.

5

Because we conclude that Brown failed to establish the University

“exercise[d] substantial control over . . . the context in which the known

harassment occur[red],” Davis, 526 U.S. at 645, we need not address her

additional arguments on appeal.

22 BROWN V. STATE OF ARIZONA

Bradford’s athletic scholarship paid his living expenses.

Bradford and the other football players were living in the off-

campus house only because the coaches of the university

football team had given them permission to do so.

Bradford’s and the other players’ permission to live off

campus was conditioned on good behavior.

At the time of Bradford’s assaults on Brown, university

officials, including Title IX administrators, had knowledge

of repeated prior violent assaults by Bradford on two other

female undergraduates during his freshman year. Despite

their 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

those officials had informed Bradford’s coaches of his

assaults on the other students, Bradford would have been

immediately thrown off the football team, would have lost

his athletic scholarship, and 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 an appropriate response to Bradford’s

repeated assaults on the two other female students would

have prevented Bradford’s assaults on her. The panel

majority holds that the University is not liable under Title IX

because Bradford assaulted Brown in an off-campus house,

and that the University therefore did not exercise control

over the “context” in which Bradford attacked Brown.

I strongly but respectfully dissent.

BROWN V. STATE OF ARIZONA 23

I. Factual Background

The majority provides an accurate but truncated

description of the factual record.

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. During his time at the University, Bradford

physically assaulted three women: Student A, Lida

DeGroote, and plaintiff Mackenzie Brown. He assaulted

Student A multiple times during his freshman year, choking

her repeatedly. He assaulted DeGroote over 100 times

during his freshman year. He assaulted Brown somewhere

between five and ten times in the summer after his freshman

year and in the fall of his sophomore year.

University Title IX officials had learned of Bradford’s

physical assaults on Student A and DeGroote in the winter

and spring of his freshman year, months before he assaulted

Brown. As a result of his assaults on Student A, university

officials issued a “no contact” order forbidding Bradford to

contact Student A either on or off campus. But they failed

to tell Bradford’s football coaches of his assaults on Student

A and DeGroote.

Beginning in the fall of his sophomore year, Bradford’s

coaches gave him permission to live off campus. On two

successive nights that fall, in the off-campus house which

was paid for by the University and where he was living with

the permission of his coaches, 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 assaults on Student A and

DeGroote, the coaches would not have given him permission

to live off campus. Indeed, if his coaches had been informed,

24 BROWN V. STATE OF ARIZONA

Bradford would have lost his football scholarship, would

been removed from the football team, and would have been

expelled from the University by the end his freshman year.

A. Student A and Lida DeGroote

Student A was a member of the 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, four female students saw

from the window of another building Bradford and Student

A physically fighting in a dormitory study room. They

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.

An incident report was filed in “Advocate,” the

University’s case management system. According to the

report, the RA “felt like this may have started off as a very

serious physical and verbal altercation between resident

Bradford and resident Student A, but then may have turned

into somewhat of a joke.” After speaking to Bradford and

Student A together, the Community Director wrote in a

report that they told him that they were “just joking” and

“agreed that they w[ould] not engage in this type of behavior

in the future.” The Community Director never talked to

Student A alone.

BROWN V. STATE OF ARIZONA 25

In late 2015, Student A’s parents learned of her abusive

relationship with Bradford. A campus police report

recounted that Student A’s parents had told Student A’s head

softball coach about Bradford’s violence against her after

they had 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 her 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 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 to the Athletics Department. In

her deposition, Barnes recounted 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 softball coach that she wanted Student A to

meet with a school psychologist. Barnes told the

psychologist about the call and said that she wanted Student

A to meet with her.

Neither Barnes nor the softball coach contacted 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 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. They told him that

Student A now had a black eye and finger marks on her neck.

26 BROWN V. STATE OF ARIZONA

One of them recounted in a declaration that the coach told

them that he knew about the situation with Student A and

Bradford, and about the efforts to keep Student A away from

him.

When Student A arrived at softball practice that day, the

assistant softball coach saw the black eye and overheard

conversations between the players saying that Student A’s

boyfriend may have been responsible. He asked Student A

what happened. She replied that had been hit by a door. The

assistant softball coach called Barnes later that same 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 and told her what

had happened the previous fall, including that Bradford had

choked Student A. They told Barnes about Student A’s

black eye and the finger marks on her neck. They told

Barnes that Bradford had told 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 heard

that Bradford was hitting another girlfriend, Lida DeGroote,

and that DeGroote often had bruises and marks all over her

body. They reported hearing that in front of others Bradford

had kicked and thrown DeGroote’s dog into another room.

They told Barnes that Bradford’s roommate and best friend

from high school had told them that Bradford “had a violent

past,” that Bradford was not afraid “to hurt someone,” and

that “people need to be careful.” Barnes took detailed notes

of her conversation with Student A’s teammates.

On March 24, Barnes called Student A into her office

and asked her about her black eye. Student A reported that

BROWN V. STATE OF ARIZONA 27

she was clumsy and had run into a door. That same day,

Barnes accompanied Student A to another building to meet

with Susan Wilson, a Title IX investigator in the Dean of

Students Office, 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 told Wilson about Student A’s black eye

and her 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. Wilson asked no follow-up questions about the

choking.

When Barnes returned to her office after the meeting

with Wilson and Student A, she photocopied her notes from

her interview with Student A’s two softball teammates the

previous day. She sent the notes to Wilson and to Kendal

Washington White, Assistant Vice President for Student

Affairs and Dean of Students.

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

have been referring to Lida DeGroote because, as Wilson

stated in her deposition, “Lida’s an unusual name.” On

several occasions during 2016, Barnes had 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

28 BROWN V. STATE OF ARIZONA

DeGroote 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.

Neither Barnes nor Wilson, nor anyone in the Dean of

Students Office, contacted anyone on the football coaching

staff about the reports of Bradford’s violence against Student

A and DeGroote.

On Saturday night, April 9, Bradford went to Student A’s

dorm 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 about 1:30 a.m.

Student A’s softball coach called Barnes the next morning to

tell her about the incident. Barnes contacted Student A and

asked if she wanted to call the police. When Student A

replied that she did, Barnes called the University of Arizona

Police Department. Later that day, a university police

officer met in Barnes’s office with Student A and Barnes.

Student A told the police officer about the door-banging

incident, and about Bradford’s previous assaults. In the

presence of Barnes, she told the officer that on at least three

occasions Bradford had choked her to the point that she

could not breathe. Student A asked the officer how to get a

protective order from the county court.

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 Athletic Director Byrne about

Student A’s black eye, the finger marks on her neck, or the

BROWN V. STATE OF ARIZONA 29

prior 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 Athletic Director 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, 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.”

Bradford was reassigned to another dorm for the remainder

of his freshman year. The football team’s Player Rules

required freshmen to live in a university dorm. DeGroote

testified in her deposition that even though Bradford was

supposed to have been living in Student A’s dorm, in fact he

had been staying at DeGroote’s house on “most nights” from

January to April. Instead of moving to his assigned room in

the new dorm, 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. 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

30 BROWN V. STATE OF ARIZONA

believe you saw the bruises on her when she was in there.”

The reference was to bruises 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 an off-campus house that

he shared with other members of the football team. Bradford

needed the permission of 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 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 five and ten times during the

course of their relationship. She testified that Bradford

“would get upset about little things.” On one occasion

during the summer, Brown was in Phoenix visiting her

father. 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 to

leave where I was in Phoenix, even though he wasn’t there.

And I was like: ‘No I’m not leaving. I’m in Phoenix.

BROWN V. STATE OF ARIZONA 31

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,

“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 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. 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 [he] open[ed] 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

32 BROWN V. STATE OF ARIZONA

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 was at Bradford’s house again the next day,

September 13. 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 Uber. Bradford

came outside and forced her 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 looked through Brown’s

phone and 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 it was

BROWN V. STATE OF ARIZONA 33

her brother’s number. She testified: “And so then he got

upset, and that’s like when he started hitting me again.”

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

Athletic Director Byrne.

Brown went to her family doctor on September 16. She

presented with:

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 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.

34 BROWN V. STATE OF ARIZONA

Bradford was criminally charged based on his assaults on

Brown and DeGroote, and he pleaded guilty to felony

aggravated assault and domestic violence. In November

2017, Bradford was sentenced to five years in prison.

C. Proceedings in the District Court

DeGroote and Brown each sued the University under

Title IX in 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 sufficiently established that

the University exercised substantial control over the

“context” of Bradford’s abuse of DeGroote, including abuse

that took place off-campus. Id. at *8 (“Bradford’s violence

against women, regardless of geographic location, not only

threatened the safety of Plaintiff and Student A, but

threatened the safety of the larger University community.”).

The parties settled before trial.

The district judge in Brown’s case granted summary

judgment to the University. In the view of the judge,

Brown’s claim failed because none of the abuse, including

the assaults on September 12 and 13, was in a “context”

under the control of the University. 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

BROWN V. STATE OF ARIZONA 35

exercised control over the context in which

her abuse occurred. Defendants therefore

cannot be liable for Plaintiff’s harassment

under Title IX.

(Emphasis added.)

Brown timely appealed.

II. Discussion

A. Title IX

Subject to exceptions not relevant here, 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). Deliberate indifference by an

educational institution to student-on-student sexual

harassment supports a private suit for money damages under

Title IX.

The key Supreme Court case is Davis ex rel. LaShonda

D. v. Monroe County Board of Education, 526 U.S. 629

(1999). The plaintiff in Davis had been sexually harassed by

another student at school. Id. at 646. The Court held that

the school could be liable for failing to respond to complaints

by plaintiff and other students about the conduct of the

harasser. Id. at 646–47. The Court limited a school’s

liability for student-on-student sexual harassment, however,

to circumstances where the school “exercises substantial

control over the harasser and the context in which the known

harassment occurs.” Id. at 645. Justice O’Connor wrote for

the Court:

36 BROWN V. STATE OF ARIZONA

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. If a funding recipient

does not engage in harassment directly, it

may not be liable for damages unless its

deliberate indifference “subject[s]” its

students to harassment. That is, the

deliberate indifference must, at a minimum,

“cause [students] to undergo” harassment or

“make them liable or vulnerable” to it.

Moreover, 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.

Id. at 644–45 (alterations 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.

at 646 (quoting Doe v. Univ. of Ill., 138 F.3d 653, 661 (7th

Cir. 1998)) (emphasis added). Finally, the Court

summarized the applicable law: “We thus conclude that

BROWN V. STATE OF ARIZONA 37

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 (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, the key consideration is whether the school has

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

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 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 for which the school pays the rent

and where students reside with permission of the school. 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.

A number of courts have concluded that liability attaches

under Title IX when harassment occurs off the physical

location of the 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

1172, 1173 (10th Cir. 2007) (Hartz, McKay & Gorsuch, JJ.),

38 BROWN V. STATE OF ARIZONA

two female undergraduates, Lisa Simpson and Anne

Gilmore, were raped in Simpson’s off-campus apartment by

members of the university football team and by high school

students who were being recruited for the team. The court

held that the rapes took place in a “context” over which the

university had control, even though they took place in

Simpson’s off-campus apartment. 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 Ms. Simpson’s

apartment had been promised an opportunity

to have sex.

Id.

Reversing the district court’s grant of summary

judgment to the University, the court held that plaintiffs had

presented evidence sufficient to support a jury verdict under

Title IX. Id. at 1185. Viewing the evidence in the light most

favorable to plaintiffs, the court held that the University had

a policy of showing recruits “good time”; that the rapes of

Simpson and Gilmore in Simpson’s 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 deliberate indifference.” Id.

at 1173.

BROWN V. STATE OF ARIZONA 39

In Roe ex rel. Callahan v. Gustine Unified School

District, 678 F. Supp. 2d 1008, 1011 (E.D. Cal. 2009),

plaintiff was a high school student who was sexually

assaulted and verbally harassed by several upper-class

teammates during a school district’s summer football camp

held off campus. The school district moved for summary

judgment on his Title IX claim, arguing that it lacked

substantial control over the “context” of the harassment

because “none of the allegedly harassing acts took place on

‘school grounds.’” Id. at 1016, 1025. The district court

denied the motion, finding that the school district had

substantial control over the context of the harassment

because the football camp was (1) sponsored and promoted

by the district’s coaches; (2) the players were transported on

district buses and supervised on the bus 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 Weckhorst v. Kansas State University, 241 F. Supp.

3d 1154 (D. Kan. 2017), aff’d 918 F.3d 1094 (10th Cir.

2019), plaintiff Sara Weckhorst was a student at Kansas

State University (“KSU”). 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 plaintiff

into his truck and raped her in front of about fifteen KSU

students, some of whom took photographs and videos. 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 took her to the fraternity’s “sleep room”

and raped her again. Id. He left her there, naked and passed

out. Id. When she woke up, she was being raped by J.G.,

another KSU student and a member of the fraternity. Id. She

left the room and went downstairs. J.G. followed her onto

40 BROWN V. STATE OF ARIZONA

the patio and raped her again. Id. Photographs and videos

were later circulated widely on social media. Id. at 1159–

60.

The University refused to discipline J.F. and J.G. on the

ground that the rapes had taken place off campus. Id. at

1160–63. After the rapes and after the University’s refusal

to discipline J.F. and J.G, Weckhorst suffered from

symptoms of post-traumatic stress disorder. Id. at 1163. She

stopped going to classes, withdrew from her math course,

and lost her scholarship. Id. at 1163–64. She brought suit

under Title IX, alleging deliberate indifference by KSU. Id.

at 1164.

The University moved to dismiss under Rule 12(b)(6) on

the ground that it had no control over the context in which

the off-campus rapes occurred. Id. at 1165. The district

court disagreed, holding that the University had sufficient

control over the context to warrant liability under Title IX.

Id. at 1168. In support of its holding, the court cited a

number of factual allegations in the complaint: (1) KSU

fraternities are 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 promotes its

fraternities to prospective students and parents; (4) the

University has five employees specifically charged with

supporting and advising fraternities and sororities; (5) the

University has the authority to regulate fraternities,

including promulgating rules for parties; and (6) the Dean of

Students suspended the fraternity where the rapes occurred

for its use of alcohol at the party when plaintiff was raped.

Id. at 1167. In sum, the court found that while KSU may not

have had “complete control over the alleged assailants at the

fraternity house or the fraternity parties, [Weckhorst’s]

BROWN V. STATE OF ARIZONA 41

allegations do reflect that KSU had substantial control over

both the assailants and the fraternity.” Id. at 1168 (emphases

in original).

B. University Control Over the “Context” in Which

Bradford Assaulted Brown

The University does not argue that it was unaware of

Bradford’s assaults on Student A and DeGroote, or that it

had no control over the “context” of those assaults. Rather,

it argues that it had no control over the context of Bradford’s

assaults on Brown. 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. That is, Brown argues that because the

University had control over the context of Bradford’s

assaults on Student A and DeGroote, it necessarily had

control over the context of Bradford’s subsequent assaults

on other university students including Brown, regardless of

where in the community the assaults took place.

I would not go so far, and the facts of this case do not

require me to do so. It is clear, on the facts of this case, that

the University had control over the “context” in which

Bradford assaulted Brown.

Bradford was subject to Player Rules specific to football

players. The Player Rules required all freshmen team

members to live in university dorms. Bradford flouted the

rules during his freshman year. On most nights from January

to early April 2016, he stayed at DeGroote’s off-campus

house. After he was assigned to a different dorm from

Student A in mid-April, Bradford moved off campus

entirely, into a house shared with another football player.

42 BROWN V. STATE OF ARIZONA

Had university officials or football staff members chosen to

investigate, they could have enforced those Rules, requiring

Bradford to live in university dorms during the entirety of

his freshman year.

More important, and directly relevant to Brown’s claim

under Title IX, after he finished his freshman year, Bradford

moved into another off-campus house with other members

of the football team. The University paid for that off-campus

housing and allowed Bradford to live off campus only with

the permission of his coaches and on condition of good

behavior. Head coach Rodriguez specifically testified in his

deposition that Player Rule 15 required permission to live

off campus and that permission was conditioned on good

behavior. Rodriguez testified in his deposition 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 of the team.

Rodriguez said that if he had known earlier, he “certainly

would have kicked him off earlier.” Had University Title IX

officials informed Rodriguez of Bradford’s assaults on

Student A and DeGroote during his freshman year, Bradford

would never have been permitted to live off campus, and his

September 12 and 13 assaults on Brown at his off-campus

house would never have occurred.

Brown submitted an expert report to the district court.

The expert concluded that in failing to inform head coach

Rodriguez of the assaults on Student A and DeGroote, the

University failed to fulfill its responsibilities under Title IX.

Among other things, the expert wrote that the University had

BROWN V. STATE OF ARIZONA 43

virtually complete control over Bradford, including control

over where he lived:

Student-athletes, especially those at large

Division I “Power 5” conference schools, are

very much under the control of the

University. They 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, and they are certainly under the

financial control of the University and the

Athletics department. Having worked with

and trained thousands of coaches and athletes

at all levels from high school to college to

Olympians, I can state unequivocally that any

belief that UA [the University of Arizona]

has no control over Bradford is misplaced

and uninformed.

University administrators knew about the September

2015 fight between Bradford and Student A in the dorm

study room; knew that Bradford had been abusing Student

A, including choking her three times; knew that Student A

had a black eye and finger marks on her neck in March 2016;

knew that Student A wanted a court-issued protective order

against Bradford in April 2016; knew that the University had

issued a no-contact order to Bradford; and knew about

reports that Bradford lived with and frequently hit DeGroote.

They never told Athletic Director Byrne or head coach

Rodriguez any of this.

The district judge ruled against Brown on the ground that

she failed to “allege that any of her abuse occurred on

44 BROWN V. STATE OF ARIZONA

campus or in any other setting under Defendant’s control,”

and that Brown had not “offered any evidence that

Defendants exercised control over the context in which her

abuse occurred.” The district judge was mistaken.

Brown both alleged and introduced evidence that the

University had substantial control over the “context” in

which Bradford assaulted her on September 12 and 13. She

introduced Player Rule 15, which allowed Bradford to live

off campus only with permission of his coaches; she

introduced evidence that Bradford had a football scholarship

that paid his living expenses; she introduced Rodriguez’s

testimony that Bradford’s permission to live off campus was

conditioned on good behavior; she introduced Rodriguez’s

testimony that if he had known of his assaults on Student A

and DeGroote he would have thrown Bradford off the team,

with the result that he would have lost his scholarship and

been expelled from the University; and she introduced expert

evidence, consistent with Rodriguez’s testimony, that the

University had extensive control over Bradford, including

control over where he could live. In her response to the

University’s motion for summary judgment, Brown

specifically pointed out to the district judge the University’s

control over where Bradford lived. She wrote, “Coach

Rodriguez permitted his players to reside off-campus only

on good behavior, ‘subject to moving back on campus’ if

more supervision was required but, as discussed above, he

was kept out of the loop.” Pl.’s Resp. to State Def’s Mot. for

Summ. J., at 8.

Brown thus produced extensive evidence that Bradford’s

violent assaults on September 12 and 13 were in a “context”

over which the University exercised substantial control. The

University not only “exercise[d] significant control over the

BROWN V. STATE OF ARIZONA 45

harasser,” but also over the “context” in which the

harassment took place. Davis, 526 U.S. at 645, 646.

Conclusion

Brown seeks “to hold the [University] liable for its own

decision to remain idle in the face of known student-on-

student harassment in its school[].” Davis, 526 U.S. at 641

(emphasis omitted). Because the University had significant

control not only over Bradford, but also over the “context”

in which he assaulted Brown, I would reverse the decision

of the district court.

I strongly but respectfully dissent.