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 OPINION

University of Arizona, a

constitutionally created body

corporate,

Defendants-Appellees,

and

RICHARD A. RODRIQUEZ; RITA

RODRIQUEZ,

Defendants,

v.

LIDA DEGROOTE,

Third-party-plaintiff.

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, Chief District Judge, Presiding

2 BROWN V. STATE OF ARIZONA

Argued and Submitted En Banc March 21, 2023

Pasadena, California

Filed September 25, 2023

Before: Mary H. Murguia, Chief Judge, and William A.

Fletcher, Johnnie B. Rawlinson, Milan D. Smith, Jr.,

Jacqueline H. Nguyen, John B. Owens, Michelle T.

Friedland, Ryan D. Nelson, Kenneth K. Lee, Lucy H. Koh

and Jennifer Sung, Circuit Judges.

Opinion by Judge W. Fletcher;

Concurrence by Judge Friedland;

Dissent by Judge Rawlinson;

Dissent by Judge R. Nelson;

Dissent by Judge Lee

SUMMARY*

Title IX

The en banc court reversed the district court’s summary

judgment in favor of the University of Arizona and

remanded in an action brought under Title IX by Mackenzie

Brown.

Orlando Bradford, who was attending the University on

a football scholarship, repeatedly and violently assaulted

Brown, his fellow student, in an off-campus house where

*

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

Bradford was living with other university football players.

At the time of the assault, university officials knew that

Bradford had repeatedly and violently assaulted two other

female undergraduates the previous year. Brown sued the

University under Title IX, contending that the University’s

actions and omissions in response to Bradford’s violent

assaults on the other female students deprived her of the full

benefits of her education and that an appropriate response

would have prevented Bradford’s assaults on her.

The en banc court held that to obtain damages under Title

IX for student-on-student harassment, a plaintiff must show

(1) that the educational institution had substantial control

over both the harasser and the context in which the known

harassment occurs; (2) that the harassment was so severe,

pervasive, and objectively offensive that it denied its victims

the equal access to education that Title IX is designed to

protect; (3) that a school official with authority to address

the alleged discrimination and to institute corrective

measures has actual knowledge of the discrimination; (4)

that the school acted with deliberate indifference to the

harassment; and (5) that the school’s deliberate indifference

must, at a minimum, cause students to undergo harassment,

or make them liable or vulnerable to it. At issue were the

first, third, and fourth requirements.

As to the first requirement, the en banc court held that it

was clear that the University had substantial disciplinary

control over Bradford, the harasser. The en banc court held

that the University also had substantial control over the

context in which the harassment occurred, even though it

occurred off campus, because location is only one factor in

determining the control over context. Considering all the

circumstances of this case and viewing the facts in the light

most favorable to Brown, the en banc court held that Brown

4 BROWN V. STATE OF ARIZONA

presented sufficient evidence to allow a reasonable

factfinder to conclude that the University had substantial

control over the context in which Bradford assaulted Brown.

The University had control over the off-campus housing in

which Bradford was living. In addition, the University’s

Student Code of Conduct applied to student conduct both on-

campus and off-campus, and Bradford was subject to

increased supervision through Player Rules specific to

football players.

The en banc court held that there also was a sufficient

showing as to the third requirement, actual knowledge, and

the fourth requirement, deliberate indifference. The en banc

court held that evidence in the record would support a

conclusion by a reasonable factfinder that University

officials had actual knowledge or notice of Bradford’s

violent assaults, and that Erika Barnes, the University’s Title

IX liaison within the Athletics Department, was an official

who had authority to address Bradford’s assaults and to

institute corrective measures. A reasonable factfinder also

could conclude that Barnes’s response amounted to

deliberate indifference.

Concurring, Judge Friedland wrote that she concurred in

the majority’s opinion in its entirety. She wrote separately

to address a waiver argument raised in dissent. Judge

Friedland wrote that, in proceedings before the three-judge

panel, Brown disavowed the argument that the University

exercised control over Bradford’s off-campus apartment, but

a majority of the three-judge panel addressed that theory on

its merits anyway. Because the majority’s holding on that

theory was incorrect, and because Brown raised the issue in

supplemental briefing to the en banc court, it was proper for

the en banc court to address the issue.

BROWN V. STATE OF ARIZONA 5

Dissenting, Judge Rawlinson, joined by Judge Lee,

wrote that the facts showed that the University had control

over Bradford, the harasser, but not over the context in which

the harassment occurred.

Dissenting, Judge R. Nelson, joined by Judges

Rawlinson and Lee, wrote that, before the district court and

before the three-judge panel, Brown expressly disclaimed

the position that the University controlled the context of the

abuse in Bradford’s off-campus house, arguing instead that

the control-over-context requirement was met because the

University controlled Bradford’s previous abuse of two

other female students. Therefore, the majority improperly

rested its holding on this theory. Judge R. Nelson wrote that

the majority got the merits wrong as well, because the

evidence showed that the University did not control the

context of Bradford’s abuse of Brown.

Dissenting, Judge Lee, joined by Judge Rawlinson,

wrote that courts have drifted from the text of Title IX, and

a criminal act by a student in an off-campus house does not

implicate an “education program or activity” under Title IX.

6 BROWN V. STATE OF ARIZONA

COUNSEL

Alexandra Z. Brodsky (argued), Adele P. Kimmel, and

Mollie Berkowitz, Public Justice PC, Washington, D.C.;

Isabel M. Humphrey, Hunter Humphrey & Yavitz PLC,

Phoenix, Arizona; Jim Davy, All Rise Trial & Appellate,

Philadelphia, Pennsylvania; for Plaintiff-Appellant.

Stephanie S. Elliott (argued), Assistant Attorney General;

Mark Brnovich, Arizona Attorney General; Office of the

Arizona Attorney General, Phoenix, Arizona; Claudia A.

Collings, Assistant Attorney General, Office of the Arizona

Attorney General, Tucson, Arizona; for Defendants-

Appellees.

Jason Lee (argued) and Kristen Clarke, Assistant Attorneys

General; Nicolas Y. Riley, Attorney; United States

Department of Justice, Civil Rights Division/ Appellate

Section, Washington, D.C.; Lisa Brown, General Counsel;

Vanessa Santos and Mary Rohmiller, Attorneys, United

States Department of Education, Office of the General

Counsel, Washington, D.C.; for Amicus Curiae United

States Department of Education.

John C. Clune, Daniel D. Williams, Colleen M. Koch, and

Matthew A. Simonsen, Hutchinson Black and Cook LLC,

Boulder, Colorado; Shiwali Patel, Hunter Iannucci, Sunu

Chandy, and Emily Martin, National Women’s Law Center,

Washington, D.C.; for Amici Curiae National Women's Law

Center and 31 Additional Organizations.

Gemma Donofrio, Relman Colfax PLLC, Washington, D.C,

for Amici Curiae Professor Paul Bender, et al.

BROWN V. STATE OF ARIZONA 7

OPINION

W. FLETCHER, Circuit Judge:

Orlando Bradford, attending the University of Arizona

on a football scholarship, repeatedly and violently assaulted

his girlfriend and 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.

Bradford and the other football players were allowed to live

off-campus only because the coaches of the university

football team had given them permission to do so. That

permission was conditioned on good behavior.

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

officials knew that Bradford had repeatedly and violently

assaulted two other female undergraduates during his

freshman year. Despite this 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 Bradford’s coaches had been told of his

assaults on the two other students, Bradford would have been

kicked off the football team, would have lost his athletic

scholarship, and likely 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 the University’s actions and omissions in

response to Bradford’s violent assaults on two other female

students deprived her of the full benefits of her education and

8 BROWN V. STATE OF ARIZONA

that an appropriate response would have prevented

Bradford’s assaults on her. For simplicity, this opinion

refers to all defendants collectively as the “University.”

The district court granted summary judgment to the

University, holding as a matter of law that the University did

not exercise control over the “context” in which Bradford’s

abuse of Brown occurred. A divided three-judge panel

affirmed in a published opinion. Brown v. Arizona, 23 F.4th

1173 (9th Cir. 2022), vacated by 56 F.4th 1169 (9th Cir.

2022). We granted rehearing en banc. Brown, 56 F. 4th at

1169–70.

We hold that Brown presented sufficient evidence to

allow a reasonable factfinder to conclude that a responsible

university official exercised sufficient control over the

“context” in which Bradford attacked Brown to support

liability under Title IX. Davis ex rel. LaShonda D. v.

Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999). We

further hold that she presented sufficient evidence to allow a

reasonable factfinder to conclude that the University had

“actual knowledge” of facts that required an appropriate

response, and that a university official’s failure to escalate

reports of Bradford’s actions was a “clearly unreasonable”

response demonstrating the University’s “deliberate

indifference.” Id. at 642–43, 648–49; see also Gebser v.

Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998).

I. Factual Background

In reviewing the district court’s grant of summary

judgment for the University, we view disputed evidence in

the light most favorable to Brown, the non-moving party.

See Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104

(9th Cir. 2020) (citing Tauscher v. Phx. Bd. of Realtors, Inc.,

BROWN V. STATE OF ARIZONA 9

931 F.3d 959, 962 (9th Cir. 2019)). The evidence in the

record is largely undisputed.

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. As will be described in greater detail below,

during his time at the University, Bradford violently

assaulted three women: Student A, Lida DeGroote, and

plaintiff Mackenzie Brown. During his freshman year, he

assaulted Student A multiple times and DeGroote over 100

times. In the summer after his freshman year and in the fall

of his sophomore year, he assaulted Brown between four and

ten times.

University officials learned of Bradford’s violent

assaults on Student A and DeGroote during Bradford’s

freshman year. As a result of Bradford’s assaults on Student

A, the University issued a “no contact” order in April of his

freshman year, forbidding him from contacting Student A

either on or off campus. University officials never told the

University Athletic Director or Bradford’s football coaches

of his assaults on Student A or DeGroote.

Bradford’s coaches gave him permission to live off

campus for his sophomore year. On two successive nights

that fall, in the off-campus house where he was living,

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

violent assaults on Student A and DeGroote, Bradford would

have lost his football scholarship, been kicked off the

football team, and likely been expelled from the University

by the end of his freshman year.

10 BROWN V. STATE OF ARIZONA

A. Student A and Lida DeGroote

Student A was a member of the university 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, from the window

of another building, four students saw Bradford and Student

A physically fighting in a dormitory study room. The

students 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. The

RA told university administrators that “this may have started

off as a very serious physical and verbal altercation between

. . . Bradford and . . . Student A.” The Community Director

later spoke to Bradford and Student A together. He never

talked to Student A alone. The Community Director wrote

in a report that Bradford and Student A told him that they

were “just joking” and “agreed that they w[ould] not engage

in this type of behavior in the future.” An incident report

was filed in “Advocate,” the University’s case management

system.

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

relationship with Bradford. A university police report

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

coach about Bradford’s violence against her after they had

BROWN V. STATE OF ARIZONA 11

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 their 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 specific 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 within the Athletics

Department. Barnes’s formal title was Senior Associate

Athletics Director, Senior Woman Administrator, and

Deputy Title IX Coordinator for Athletics. Barnes recounted

in her deposition 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 coach that she wanted Student A to meet with a

school psychologist. She informed the psychologist that she

wanted Student A to meet with her.

Neither Barnes nor the softball coach contacted the

University Athletic Director or 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 head 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. The teammates

also told him that Student A now had a black eye and finger

12 BROWN V. STATE OF ARIZONA

marks on her neck. One of them recounted that the coach

told them that he knew about the situation with Student A

and Bradford, and about efforts to keep the two apart.

When Student A arrived at softball practice that day, an

assistant softball coach saw the black eye and overheard

conversations among the players saying that Student A’s

boyfriend may have been responsible. He asked Student A

what had happened. She replied that she had been hit by a

door. The assistant softball coach called Barnes later that

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. Barnes took

detailed notes of the conversation. The teammates told

Barnes that Student A had told them that in the fall Bradford

had pushed her up against the wall and choked her. They

also described Student A’s current black eye and the finger

marks on her neck. They told Barnes that Bradford had

“threatened” 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 had

heard that Bradford was hitting another girlfriend, Lida

DeGroote, and that DeGroote often had bruises and marks

all over her body. According to the notes taken by Barnes,

the teammates reported hearing that Bradford had sent to

unspecified persons a video “of Lida & O.B. [Orlando

Bradford] having sex,” and that DeGroote’s friends say that

“he hits her often.” They reported hearing that in front of

others Bradford had kicked and thrown DeGroote’s dog into

another room. The teammates told Barnes that Bradford’s

BROWN V. STATE OF ARIZONA 13

university roommate and best friend from high school in

Louisiana had warned them that Bradford “had a violent

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

that “[people] need to be careful.”

On March 24, Barnes called Student A into her office

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

she was clumsy and had run into a door. Barnes then

accompanied Student A to another building to meet with

Susan Wilson, a Senior Title IX Investigator employed by

the University, 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 had told Wilson about Student A’s black

eye and Student A’s 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. Neither Barnes nor Wilson asked

follow-up questions about the choking.

When Barnes returned to her office after the meeting

with Wilson and Student A, she photocopied the notes she

had taken during her interview with Student A’s two softball

teammates the previous day. She sent the notes to Wilson

and Dean of Students Kendal Washington White.

Neither Barnes nor Wilson in the University’s Title IX

office, nor anyone in the Dean of Students office, contacted

the University Athletic Director or anyone on the football

coaching staff about Bradford’s assaults on Student A and

DeGroote.

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

14 BROWN V. STATE OF ARIZONA

have been referring to Lida DeGroote because, as Wilson

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

had already 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 DeGroote on March 25, 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.

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

dormitory 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 at about 1:30 a.m.

On April 10, the next morning, Student A’s softball

coach called Barnes to tell her about the incident in the

dormitory. Barnes contacted Student A and asked if she

wanted to call the police. When Student A replied that she

did, Barnes called the University Police Department. Later

that day, a university police officer met in Barnes’s office

with Student A and Barnes. Student A told them about the

door-banging incident and about Bradford’s previous

assaults. Student A said that on at least three occasions

Bradford had choked her to the point that she could not

BROWN V. STATE OF ARIZONA 15

breathe. Student A told them that she wanted to obtain a

protective order.

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 Byrne about Student A’s black

eye, the finger marks on her neck, or the three 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 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, on behalf of Student A, 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.” Dean of Students White was informed that

a no-contact order would be sent to Bradford. Bradford was

reassigned to another dormitory for the remainder of his

freshman year.

The football team’s Player Rules required freshmen to

live in a university dormitory. DeGroote testified in her

deposition that even though Bradford was supposed to have

been living in Student A’s dormitory, in fact he had been

16 BROWN V. STATE OF ARIZONA

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

to April. Instead of moving to his assigned room in the new

dormitory in April, 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. As noted above, Lieberman

had previously been alerted by Wilson that DeGroote was in

a “concerning relationship.” 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

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

The reference was to bruises that 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 a different off-campus

house that he shared with other members of the football

team.

Bradford needed permission from 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

BROWN V. STATE OF ARIZONA 17

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 four and ten times during

their relationship. She testified that Bradford “would get

upset about little things.” On one occasion during the

summer, Brown was in Phoenix where her father lived.

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 I needed to leave

where I was in Phoenix, even though he wasn’t [t]here. And

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

“You’re disrespecting me. 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

18 BROWN V. STATE OF ARIZONA

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

leave. 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 open 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 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 V. STATE OF ARIZONA 19

Brown was at Bradford’s house again the next day.

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 an Uber.

Bradford came outside, tried to take her phone, and grabbed

her by the stomach to try to pull her into the house. He then

convinced her to get 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 followed Brown inside and

began looking through Brown’s phone. He 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 that it was her brother’s number.

She testified in her deposition: “And so then he got upset,

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

later, 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

University Athletic Director Byrne.

20 BROWN V. STATE OF ARIZONA

Brown went to her family doctor on September 16. She

presented with:

psychological trauma, 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 from the University 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. He was criminally charged based

on his assaults on Brown and DeGroote, and he pleaded

guilty to two counts of felony aggravated assault and

domestic violence. In November 2017, Bradford was

sentenced to five years in prison.

BROWN V. STATE OF ARIZONA 21

II. Procedural History

DeGroote and Brown each sued the University under

Title IX in the 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 had presented sufficient

evidence to allow a reasonable factfinder to conclude that the

University: (1) had actual knowledge of Bradford’s abuse of

DeGroote; (2) exercised substantial control over the

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

that took place off-campus; and (3) had shown “deliberate

indifference” to Bradford’s abuse. Id. The parties settled

before trial.

The district judge in Brown’s case granted summary

judgment to the University. The judge held that Brown’s

claim failed because none of the abuse, including the assaults

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

University had substantial control. 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

exercised control over the context in which

her abuse occurred. Defendants therefore

22 BROWN V. STATE OF ARIZONA

cannot be liable for Plaintiff’s harassment

under Title IX.

Brown v. Arizona, No. CV-17-03536-PHX-GMS, 2020 WL

1170838, at *3 (D. Ariz. Mar. 11, 2020) (emphasis added).

The judge did not reach any other issue.

Brown timely appealed. Brown argued in her briefs to

the three-judge panel of our court that because the University

had substantial control over the context of Bradford’s known

harassment of Student A and DeGroote, it necessarily had

control over the context of Bradford’s September 12 and 13

assaults on Brown in his off-campus house. Before our en

banc court, Brown made a narrower argument. She

contended that under the circumstances of this case in which

the University had extensive authority over Bradford,

including control over whether he could live off campus, the

University had “substantial control” over the “context” in

which he assaulted Brown.

We are free to address this narrower argument. First,

“we have the authority and discretion to decide questions

first raised in a petition for rehearing en banc.” United States

v. Hernandez-Estrada, 749 F.3d 1154, 1159 (9th Cir. 2014)

(en banc). Brown raised the question of whether the

University had control over the off-campus contexts where

the assaults occurred in her petition for review en banc, and

the University addressed the question in its response to the

petition. The party presentation principle that our colleague

Judge Nelson identifies in his dissent does not govern at the

en banc stage here, where the parties “themselves have

‘frame[d] the issue for decision.’” Lee v. Fisher, 70 F.4th

1129, 1154 (9th Cir. 2023) (en banc) (quoting United States

v. Sineneng-Smith, 140 S. Ct. 1575, 1579 (2020)); see also

Hernandez-Estrada, 749 F.3d at 1159.

BROWN V. STATE OF ARIZONA 23

Second, while Brown has made a narrower argument,

she has not raised a new claim. See United States v.

Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004) (“As

the Supreme Court has made clear, it is claims that are

deemed waived or forfeited, not arguments.”). Rather,

Brown raised an “alternative argument to support what has

been [her] consistent claim from the beginning: that” the

University violated Title IX by failing to prevent Bradford’s

abuse of her. Id. United States v. Sineneng-Smith, 140 S.

Ct. at 1580–82, is not to the contrary. The defendant in

Sineneng-Smith initially claimed that her conduct was not

proscribed by the criminal statute; in the alternative, she

claimed that the statute was vague and did not provide fair

notice that her conduct was criminal. Id. at 1580. She raised

those same issues on appeal. Id. The three-judge panel then

ordered further briefing from three non-party organizations

on an issue that had never been raised by Sineneng-Smith.

Id. at 1580–81. Unlike in Sineneng-Smith, our en banc panel

has neither turned over the appeal to non-parties, nor

“radical[ly] transform[ed]” the case by raising a new issue.

Id. at 1581–82.

III. Standard of Review

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 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). “When determining whether

a genuine issue of material fact exists, we ‘must draw all

justifiable inferences in favor of the nonmoving party.’”

Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1189 (9th

Cir. 2021) (quoting Suzuki Motor Corp. v. Consumers Union

24 BROWN V. STATE OF ARIZONA

of U.S., Inc., 330 F.3d 1110, 1132 (9th Cir. 2003)). “An

issue of material fact is genuine if there is sufficient evidence

for a reasonable jury to return a verdict for the non-moving

party.” Karasek, 956 F.3d at 1104 (citation omitted).

IV. Discussion

Subject to exceptions not relevant here, 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). Gebser v. Lago Vista

Independent School District, 524 U.S. 274 (1998), and Davis

ex rel. LaShonda D. v. Monroe County Board of Education,

526 U.S. 629 (1999), set out the guideposts for liability

under Title IX. To obtain damages under Title IX for

student-on-student harassment, a plaintiff must show (1) that

the educational institution had “substantial control over both

the harasser and the context in which the known harassment

occurs,” Davis, 526 U.S. at 645; (2) that the harassment was

so “severe, pervasive, and objectively offensive that it denies

its victims the equal access to education that Title IX is

designed to protect,” id. at 652; (3) that a school official with

“authority to address the alleged discrimination and to

institute corrective measures . . . has actual knowledge of

[the] discrimination,” Gebser, 524 U.S. at 290; (4) that the

school acted with “deliberate indifference” to the

harassment, Davis, 526 U.S. at 633; and (5) that the school’s

“[d]eliberate indifference ‘must, at a minimum, cause

students to undergo harassment, or make them liable or

vulnerable to it,’” Grabowski v. Arizona Board of Regents,

69 F.4th 1110, 1120 (9th Cir. 2023) (quoting Davis, 526 U.S.

at 645).

BROWN V. STATE OF ARIZONA 25

Because we review the district court’s grant of summary

judgment de novo and because we can “affirm on any ground

supported by the record,” including a ground upon which the

district court did not rely, see Olson v. Morris, 188 F.3d

1083, 1085 (9th Cir. 1999), the University asks us to hold

that Brown has failed to satisfy the first, third, and fourth

requirements—“substantial control” over the “context” of

the harassment, “actual knowledge,” and “deliberate

indifference.” We discuss these three requirements in turn.

A. “Substantial Control” over the “Context”

The Supreme Court held in Davis that a damages remedy

is not available under Title IX unless the defendant had

“substantial control” over both the harasser and the

“context” in which the harassment occurred. 526 U.S. at

645. The plaintiff in Davis had been sexually harassed by

another student at school. Id. at 633–35. The Court held that

the school could be liable for failing to respond to complaints

by the plaintiff and other students about the conduct of the

harasser. Id. at 646–47, 649. The Court limited a school’s

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

to circumstances where the school “exercises substantial

control over both the harasser and the context in which the

known harassment occurs.” Id. at 645. Justice O’Connor

wrote for the Court:

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. . . . [B]ecause the

harassment must occur “under” “the

operations of” a funding recipient, the

26 BROWN V. STATE OF ARIZONA

harassment must take place in a context

subject to the school district’s control.

Id. at 644–45 (quotation marks 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.

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

1998)) (emphasis added). Finally, the Court articulated its

holding on the “control” element: “We thus conclude that

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 (alteration in original)

(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, a key consideration is whether the school has

some form of 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

BROWN V. STATE OF ARIZONA 27

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, depending

on the circumstances, 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. 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.

In the case before us, it is clear that the University had

substantial disciplinary control over Bradford, the harasser.

The disputed question is whether it had substantial control

over the context in which the harassment occurred.

Fortunately, we do not write on a clean slate. Engaging in

fact-specific inquiries, a number of courts have concluded

that liability attaches under Title IX when harassment occurs

off 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

1170 (10th Cir. 2007) (Hartz, McKay & Gorsuch, JJ.), two

female undergraduates were sexually assaulted in an off-

campus apartment by members of the university football

team and by high school students who were being recruited

for the team. Id. at 1172–73. The court recognized that the

sexual assaults took place in a “context” over which the

university had “substantial control,” even though they took

28 BROWN V. STATE OF ARIZONA

place in the off-campus apartment of one of the plaintiffs.

Id. at 1173, 1177–78, 1785. 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 [the plaintiff’s]

apartment had been promised an opportunity

to have sex.

Id. at 1173.

Reversing the district court’s grant of summary

judgment to the university, the Tenth Circuit held that

plaintiffs had presented evidence sufficient to support a jury

verdict under Title IX. Id. at 1185. The Tenth Circuit,

describing the reach of Title IX, wrote that

“[i]mplementation of an official policy can certainly be a

circumstance in which the recipient exercises significant

‘control over the harasser and the environment in which the

harassment occurs.’” Id. at 1178 (quoting Davis, 526 U.S.

at 644). Viewing the evidence in the light most favorable to

plaintiffs, the court held that the university had a policy of

showing recruits “a good time”; that the sexual assaults in

the 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

BROWN V. STATE OF ARIZONA 29

deliberate indifference.” Id. at 1173. In short, the Simpson

court made clear that a university can exercise substantial

control over an off-campus context when it facilitates the

presence of both the perpetrators and victims of sexual

violence at the site, chooses to minimize its own oversight

of their activities, and thus increases the risk of assault.

In Feminist Majority Foundation v. Hurley, 911 F.3d

674 (4th Cir. 2018), a student organization, Feminists

United, had spoken out against a student senate vote to

authorize male-only fraternities at University of Mary

Washington (“UMW”). Id. at 680. UMW students debated

the issue through anonymous posts on Yik Yak, a social

media platform that allowed users to communicate with each

other within a 1.5-mile radius, such that the “harassing and

threatening messages originated on or within the immediate

vicinity of the UMW campus.” Id. at 680 n.1, 687. Between

November 2014 and the summer of 2015, UMW students

posted hundreds of harassing messages on the Yik Yak

platform, many threatening “physical and sexual violence”

against members of Feminists United. Id. at 680, 682, 684.

The Fourth Circuit held that UMW had substantial

control over the context of the harassment conducted over

Yik Yak, as “the harassing and threatening messages

originated on or within the immediate vicinity of the UMW

campus.” Id. at 687 (emphasis added). Even though the

offending posts on Yik Yak were anonymous, plaintiffs

contended that UMW exercised control over the context of

the harassment because it had some ability to identify the

harassers. “If the University had pinpointed the harassers, it

could then have circumscribed their use of UMW’s

network.” Id. at 688. The court discussed the range of other

remedial measures that the University had at its disposal: (1)

“[T]he University could have disabled access to Yik Yak

30 BROWN V. STATE OF ARIZONA

campuswide”; (2) “UMW administrators could have more

clearly communicated to the student body that the University

would not tolerate sexually harassing behavior”; (3) “[t]he

University also could have conducted mandatory assemblies

to explain and discourage cyber bullying and sex

discrimination”; and (4) the University “could have provided

anti-sexual harassment training to the entire student body

and faculty.” Id. at 688. In other words, the Feminist

Majority court held that a university has substantial control

over an off-campus context when it has the ability to take

actions that would likely prevent harassment in the

immediate vicinity of the campus.

In Weckhorst v. Kansas State University, 241 F. Supp.

3d 1154 (D. Kan. 2017), aff’d sub nom. Farmer v. Kansas

State University, 918 F.3d 1094 (10th Cir. 2019), the

plaintiff was a female student at Kansas State University

(“KSU”). Id. at 1159. 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 the plaintiff into his

truck and raped her in front of about fifteen KSU students.

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 raped her again, left her alone,

naked and passed out, and another KSU student and member

of the fraternity, J.G., raped her two more times. Id.

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

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

1160. The plaintiff suffered from symptoms of post-

traumatic stress disorder, stopped going to class, and

ultimately lost her scholarship. Id. at 1163–64. She sued

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

at 1164.

BROWN V. STATE OF ARIZONA 31

The district court held that the University had sufficient

control over the off-campus contexts to warrant Title IX

liability. Id. at 1168. In support, the court cited a number of

factual allegations in the complaint: (1) KSU fraternities

were 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 promoted its

fraternities to prospective students and parents; (4) the

University had five employees specifically charged with

supporting and advising fraternities and sororities; (5) the

University had the authority to regulate fraternities,

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

Student Life approved the suspension of the fraternity for its

use of alcohol at the party where the plaintiff was raped. Id.

at 1167. In sum, the oversight of the relevant organization

by a school staff member, regulatory authority by the school,

and strong affiliation of the fraternity with the school were

sufficient, when considered together, to establish control

over the off-campus contexts where the plaintiff was raped.

In Roe ex rel. Callahan v. Gustine Unified School

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

held that a school had substantial control over the context

where upper-class teammates sexually assaulted and

harassed the plaintiff at an off-campus summer football

camp. Id. at 1011, 1025. The court so held because (1) the

camp was sponsored and promoted by the high school and

the district’s coaches; (2) the players were supervised at the

camp 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 determining that the school had substantial control over

the off-campus context, the district court considered the

32 BROWN V. STATE OF ARIZONA

school’s connection to the location where the harassment

took place as well as the school’s disciplinary authority over

both the setting and the individuals involved.

In the case before us, the district court held as a matter

of law that the University did not have substantial control

over the context in which Bradford’s September 12 and 13

assaults on Brown occurred because the assaults took place

off campus.

Depending on the circumstances of the case, the location

of harassment can be important in a student-on-student Title

IX case. But location is only one factor in determining the

control over context. Considering all the circumstances of

this case and viewing the facts in the light most favorable to

Brown, we hold that Brown presented sufficient evidence to

allow a reasonable factfinder to conclude the University had

“substantial control” over the “context” in which Bradford

assaulted Brown on September 12 and 13.

There is undisputed evidence that the University had

control over the off-campus housing in which Bradford was

living while attending the University. After he finished his

freshman year, Bradford moved into another off-campus

house with other members of the football team. The

University and football program allowed Bradford and his

teammates to live off campus only with the permission of

their coaches. Head coach Rodriguez testified in his

deposition that under Player Rule 15, permission to live off

campus was conditioned on good behavior and could be

revoked. The very existence of this off-campus players’

residence was therefore subject to the coaches’ control.

Even behavior as innocuous as being late to appointments or

receiving bad grades could result in players’ being forced to

move back on campus.

BROWN V. STATE OF ARIZONA 33

The University’s Student Code of Conduct applies to

student conduct “both on-campus and off-campus” because

off-campus misconduct can affect student health, safety, and

security as much as on-campus misconduct can. The Code

“seeks to hold students and organizations accountable for

misconduct and to prevent it from happening again in the

future.” The University issued a no-contact order to

Bradford on behalf of Student A that expressly applied both

to on-campus and off-campus spaces. As the dissenters

recognize, an element of “school sanction, sponsorship, or

connection to a school function is required” for a school to

control an off-campus context. Here, the University’s rules

and “sanction” authority created such a connection.

This discipline-related factor was critical in both Roe and

Weckhorst. See 678 F. Supp. 2d at 1025; 241 F. Supp. 3d at

1167. In those cases, the schools imposed heightened

supervisory control and specific rules over the football camp

and university fraternities, respectively. Id. Also, in

Feminist Majority, the Fourth Circuit identified all the

disciplinary and remedial tools that UMW could have

mobilized to mitigate or prevent the on- and off-campus

harassment. 911 F.3d at 688.

In addition to the Code of Conduct applicable to all

students, Bradford was subject to increased supervision

through Player Rules specific to football players. Cf. Roe,

678 F. Supp. 2d at 1025; Weckhorst, 241 F. Supp. 3d at 1167.

The Player Rules required all freshmen team members to

live in university dormitories. Bradford flouted the rules

during his freshman year. Even though Bradford had an

assigned dormitory room, DeGroote testified that he stayed

at her off-campus house “most nights” from January to

“around” April 2016, when she “kicked him out.” When

Bradford was no longer allowed to live in the same

34 BROWN V. STATE OF ARIZONA

dormitory as Student A in mid-April because of the no-

contact order, Bradford moved off campus entirely, into a

house shared with another football player. Had university

officials or football staff members chosen to investigate,

they could have enforced the Player Rules, requiring

Bradford to live in university dormitories during the entirety

of his freshman year. This heightened level of control and

disciplinary power strengthened the connection between

Bradford’s off-campus housing and the University’s football

program.

Rodriguez testified 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 the team. Rodriguez said that if he had known

earlier, he “certainly” “would have kicked him off earlier.”

According to Rodriguez’s undisputed testimony, had he

been informed of Bradford’s assaults on Student A and

DeGroote during Bradford’s freshman year, Bradford would

have been kicked off the team, and accordingly would have

lost his football scholarship. Even if he had engaged in

lesser misconduct, he would never have been permitted to

live off campus while a member of the team. As in Simpson,

the University failed to impose its supervisory power and

disciplinary authority over an off-campus context, despite

having notice of the high risk of misconduct. See 500 F.3d

at 1173. A reasonable factfinder could infer from

Rodriguez’s testimony that, had Rodriguez known of

Bradford’s assaults on Student A and DeGroote, Bradford’s

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

house would never have occurred.

BROWN V. STATE OF ARIZONA 35

Brown submitted an expert report to the district court.

Among other things, the expert wrote that the University had

control over where Bradford lived. “Student-athletes,

especially those at large Division I ‘Power 5’ conference

schools, . . . 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[.]”

Viewing this evidence in the light most favorable to

Brown, a reasonable factfinder could conclude that the

University had “substantial control” over the “context” in

which Bradford violently assaulted Brown on September 12

and 13.

B. “Actual Knowledge” and “Deliberate Indifference”

The district court addressed only the requirement that

Brown show that the University had substantial control over

the “context” in which her abuse occurred. It did not address

either the “actual knowledge” or “deliberate indifference”

requirements to establish a Title IX claim based on student-

on-student sexual harassment. We could remand to allow

the district court to address these two requirements in the

first instance. However, in the interest of judicial efficiency,

we address them now. See Harris Rutsky & Co. Ins. Servs.

v. Bell & Clements Ltd., 328 F.3d 1122, 1136 (9th Cir.

2003); Dole Food Co. v. Watts, 303 F.3d 1104, 1117–18 (9th

Cir. 2002) (“Because the record is sufficiently developed

and the issue has been presented and argued to us, we agree

that it is appropriate for us to decide the question.”).

1. “Actual Knowledge”

The Supreme Court held in Gebser that a damages

remedy under Title IX is not available “unless an official

36 BROWN V. STATE OF ARIZONA

who at a minimum has authority to address the alleged

discrimination and to institute corrective measures . . . has

actual knowledge of discrimination . . . and fails adequately

to respond.” 524 U.S. at 290 (emphasis added). Neither

respondeat superior nor constructive knowledge is

sufficient. Id. at 285; see also Davis, 526 U.S. at 642.

We agree with the Fourth Circuit that “actual

knowledge,” as used by the Court in Gebser, means either

actual knowledge or actual notice. See Doe v. Fairfax Cnty.

Sch. Bd., 1 F.4th 257, 266–68 (4th Cir. 2021). The Court in

Gebser wrote that an official must be “advised of a Title IX

violation.” 524 U.S. at 290 (emphasis added). The Fourth

Circuit construed this passage to mean that “a school has

actual notice or knowledge when it is informed or notified of

the alleged harassment—most likely via a report.” Doe, 1

F.4th at 266. Further, the Court in Gebser denied liability on

the ground that the information reaching the principal of the

school was “plainly insufficient to alert the principal to the

possibility that [the teacher] was involved in a sexual

relationship with [the student plaintiff].” 524 U.S. at 291

(emphasis added). In Davis, decided a year after Gebser, the

Court indicated that its definition of “knowledge” included

“notice,” holding that the plaintiff could establish liability by

showing that the school board had failed to respond to “five

months [of] complaints of [the alleged harasser’s] in-school

misconduct.” 526 U.S. at 649 (emphasis added); see also

Doe v. Galster, 768 F.3d 611, 614 (7th Cir. 2014) (“To have

actual knowledge of an incident, school officials must have

witnessed it or received a report of it.” (emphasis added)).

In its brief to us, the University seeks to minimize the

knowledge of, or notice given to, responsible university

officials. The University writes, “[Brown] has pointed to no

authority or evidence that allows such a leap—that notice

BROWN V. STATE OF ARIZONA 37

about a single incident where Student A was not harmed was

notice that all women were substantially at risk of Bradford’s

violence or harassment.” (Emphasis added). The University

substantially understates the matter. Responsible university

officials had actual knowledge and notice of far more than

“a single incident” in which Student A “was not harmed.”

As recounted above, in the fall of 2015, an RA

investigated and reported a physical fight between Bradford

and Student A, but university administrators declined to

inform the police or take further action. Once Student A’s

softball coach learned from her parents about Braford’s

abuse in early 2016, the coach called Erika Barnes, the

Senior Associate Athletics Director, Senior Woman

Administrator, and Deputy Title IX Coordinator for

Athletics. Barnes learned about the parents’ concerns with

the relationship, and accordingly sent Student A to meet with

a school psychologist.

On March 23, 2016, two of Student A’s softball

teammates told Barnes that Student A was Bradford’s

girlfriend; that Student A had told them that in the fall

Bradford had pushed her up against a wall and had choked

her; and that Student A currently had a black eye and

fingermarks on her neck. They told Barnes that Bradford

had also assaulted another girlfriend, DeGroote; that

Bradford often hit DeGroote and that she often had bruises

and marks all over her body; that Bradford had sent to

unspecified persons a video of DeGroote having sex with

him; and that Bradford had kicked and thrown DeGroote’s

dog into another room. The teammates also told Barnes that

Bradford’s university roommate and best friend from high

school had warned them that Bradford “had a violent past”;

that Bradford was not afraid “to hurt someone”; and that

“[people] need to be careful.”

38 BROWN V. STATE OF ARIZONA

On March 24, Barnes and Susan Wilson, Senior Title IX

Investigator, interviewed Student A. During the interview,

Student A told Barnes and Wilson that Bradford had choked

her. She also told them that Bradford might be living with

another student, “Lida.”

Wilson then informed the Associate Dean of Students,

Chrissy Lieberman, that she had heard thirdhand “that there

was potential that Lida was in a concerning relationship.”

Wilson asked Lieberman to check in with Lida about the

relationship. Lieberman never did so.

On April 10, Barnes and a university police officer

interviewed Student A. Student A told Barnes and the police

officer that Bradford had choked her on three occasions to

the point where she could not breathe. She also told the

police officer that she wanted a protective order against

Bradford. Wilson then issued one.

Later on April 10, after Bradford had banged on Student

A’s dormitory room door the previous night, Barnes called

Byrne, the University’s Athletic Director, to report the door-

banging incident. Barnes told Byrne that Bradford had been

intoxicated and that he had banged on Student A’s door for

nearly two hours. In response to Barnes’s call, Byrne

notified Bradford’s position coach on the football team.

Rodriguez, the head coach of the football team, was out of

town but was notified later. As a result of Barnes’s report to

Byrne, Bradford was subjected to “a lecture on underage

drinking” and three days of “physical punishment.” While

Barnes’s report to Byrne was radically incomplete (as we

discuss in the next section), this chain of events shows that

Barnes had the “authority to address” Bradford’s behavior

and “to institute corrective measures.” See Gebser, 524 U.S.

at 290.

BROWN V. STATE OF ARIZONA 39

We therefore hold that evidence in the record would

support a conclusion by a reasonable factfinder that

University officials had actual knowledge or notice of

Bradford’s violent assaults, and that Barnes was “an official

who . . . ha[d] authority to address [Bradford’s violent

assaults on Student A and DeGroote] and to institute

corrective measures.” Id.

2. “Deliberate Indifference”

The Supreme Court held in Davis that an educational

institution is liable under Title IX only if it is “deliberately

indifferent” to student-on-student harassment. 526 U.S. at

646–47. The Court wrote that an educational institution

covered by Title IX can be “deemed ‘deliberately

indifferent’ to acts of student-on-student harassment only

where the [institution’s] response to the harassment . . . is

clearly unreasonable in light of the known circumstances.”

Id. at 648.

“Clearly unreasonable” responses take many forms. See,

e.g., Doe v. Sch. Dist. No. 1, Denver, Colo., 970 F.3d 1300,

1304 (10th Cir. 2020) (holding that a school administration’s

failure to investigate numerous complaints of harassment

and taking “little if any[]” action to prevent the harassment

was unreasonable). Several decisions by our sister circuits

are particularly on point.

In Simpson, the Tenth Circuit case involving CU football

recruits, the University had failed to address numerous

instances of sexual assault and harassment in the years prior

to the rapes at issue. 500 F.3d at 1181–83. The University

had known that two recruits had assaulted a high-school girl

at an off-campus hotel party hosted by a CU football player

in 1997. Id. at 1181. After a meeting with the District

Attorney’s office “to work to prevent these . . . kinds of

40 BROWN V. STATE OF ARIZONA

events from occurring,” “none of the eventual recruiting or

policy changes—the most substantive of which was

apparently a ban on alcohol or tobacco for recruits—

addressed either sexual contact between recruits and females

or the responsibilities of player-hosts.” Id. at 1182. The

abusive culture persisted. The father of a female player on

the predominantly male team reported to the head coach and

the athletic director “about multiple instances of sexual

harassment of [his] daughter by CU football players, which

the coaching staff had allowed to continue.” Id. at 1183.

When the player made additional complaints, the head coach

and the athletic director “retaliated against her by preventing

her from staying on the football team and interfered with her

playing elsewhere.” Id. Then, in September 2001, a football

player raped a female student employed by the athletic

department, and the head coach discouraged her from

pressing charges. Id.

The Tenth Circuit observed that in light of the

university’s knowledge of the foregoing, the “central

question” was whether there was an “obvious” risk that a

future Title IX violation would occur. Id. at 1180–81. The

court held that the evidence before the district court could

support finding that (1) the head coach “had general

knowledge of the serious risk of sexual harassment and

assault during college-football recruiting efforts; (2) [he]

knew that such assaults had indeed occurred during . . .

recruiting visits; (3) [he] nevertheless maintained an

unsupervised player-host program to show high-school

recruits a ‘good time’; and (4) [he] knew, both because of

incidents reported to him and because of his own

unsupportive attitude, that there had been no change in

atmosphere” since the earlier assault. The court held that

“[a] jury could infer that ‘the need for more or different

BROWN V. STATE OF ARIZONA 41

training of player-hosts was so obvious, and the inadequacy

so likely to result in Title IX violations, that the head coach

could reasonably be said to have been deliberately

indifferent to the need.’” Id. at 1184–85 (quoting City of

Canton v. Harris, 489 U.S. 378, 390 (1989)) (cleaned up).

In Vance v. Spencer County Public School District, 231

F.3d 253 (6th Cir. 2000), the Sixth Circuit found that a

school was deliberately indifferent to ongoing physical and

sexual harassment. Id. at 262. The principal was informed

that the plaintiff experienced harassment, and the plaintiff’s

mother filed a detailed complaint with the Title IX

coordinator. Id. at 262–63. The school did not investigate

or discipline anyone. Id. at 262. School officials merely

“talked” to the students harassing the plaintiff, which only

increased the harassment. Id.

In Williams v. Board of Regents of University System of

Georgia, 477 F.3d 1282 (11th Cir. 2007), the Eleventh

Circuit held that the plaintiff adequately alleged deliberate

indifference by the University of Georgia to state a Title IX

claim. Id. at 1296–97. A basketball player, Tony Cole, had

invited the plaintiff over to his dormitory. Id. at 1288. After

they engaged in consensual sex, Cole encouraged his

teammate and two football players to sexually assault the

plaintiff. Id. The head coach, athletic director, and

university president knew that Cole had previously been

expelled from another school for sexually assaulting two

women and had been dismissed from a team at another

school for disciplinary problems, including sexually

harassing a woman. Id. at 1289–90. Despite this knowledge,

they still recruited and admitted Cole through a special

admissions process, providing him a full scholarship. Id. at

1290. The school also “failed to inform student-athletes

about the applicable sexual harassment policy,” id. at 1297,

42 BROWN V. STATE OF ARIZONA

after “UGA officials received suggestions from student-

athletes that coaches needed to inform the student-athletes

about” it, id. at 1290.

In Hall v. Millersville University, 22 F.4th 397 (3d Cir.

2022), parents sued Millersville University under Title IX

after their daughter was murdered in her dorm room by her

non-student boyfriend. Id. at 399. Four months before the

murder, in October 2014, a resident assistant had provided

an incident report to the university’s Deputy Title IX

Coordinator and its Area Coordinator after she heard and

then intervened in a fight between the victim and her

boyfriend. See id. at 400–01. The Title IX officials never

sent the report to the university’s Title IX Coordinator, as

required by university policy. Id. at 401–02. The university

also did not reach out to the victim after the October incident.

Id. at 411. Nor did it respond after her roommate’s mother

called the school to report that the victim had been assaulted

and had a black eye. Id. at 401. The court held that these

facts established that a reasonable juror could find that the

university was deliberately indifferent. Id. at 411.

As noted above, Barnes chose to report to Athletic

Director Byrne only that Bradford had yelled and banged on

Student A’s dormitory room door for almost two hours. That

Bradford had done this was already public knowledge.

Barnes chose not to report to Byrne Bradford’s actions that

were not public knowledge. She chose not to report

Bradford’s repeated violent assaults on Student A and

DeGroote; not to report that Bradford had threatened to send

compromising pictures to Student A’s family members if she

reported his violence; not to report that Bradford had sent to

unspecified persons a video of DeGroote having sex with

him; and not to report that Bradford’s university roommate

BROWN V. STATE OF ARIZONA 43

and best friend from high school had warned Student A’s

teammates that Bradford was a violent person.

Other officials had information about Bradford’s

violence towards Student A and DeGroote and chose not to

report or investigate. In fall 2015, the University

Community Director instructed an RA not to call the police

after he learned of a physical fight between Bradford and

Student A. Additionally, as discussed above, Senior Title IX

Investigator Susan Wilson requested that Associate Dean of

Students Chrissy Lieberman follow up about DeGroote’s

potentially concerning relationship. Lieberman met with

DeGroote but did not check in about the relationship.

As in Hall, Title IX officials failed to report critical facts

about Bradford’s actions. See 22 F.4th at 401–02. Further,

as in Simpson, the University had knowledge of prior

harassment and assaults, such that there was an “obvious”

risk that without intervention, a future Title IX violation

would occur. 500 F.3d at 1180–81.

Given Barnes’s report to Athletic Director Byrne, a

reasonable factfinder could conclude that Barnes’s

responsibilities included reporting to Byrne, or to other

responsible parties in the Athletic Department, student-on-

student harassment by university athletes. A reasonable

factfinder also could conclude that Barnes’s reporting only

Bradford’s yelling and banging on Student A’s dormitory

room door while failing to report his much more serious

behavior was “clearly unreasonable in light of the known

circumstances.” Davis, 526 U.S. at 648. That is, a

reasonable factfinder could conclude that Barnes’s response

amounted to “deliberate indifference.” Id.

44 BROWN V. STATE OF ARIZONA

Conclusion

We hold that a reasonable factfinder, viewing the

evidence in the light most favorable to Brown and drawing

all justifiable inferences in her favor, could conclude that the

University had “substantial control” over the “context” in

which Bradford violently assaulted Brown; that Barnes, an

official with “authority to address” student-on-student

harassment and “to institute corrective measures,” had

“actual knowledge” of Bradford’s violence against Student

A and DeGroote; and that Barnes’s response was “clearly

unreasonable in light of the known circumstances,”

demonstrating the University’s “deliberate indifference” to

the danger Bradford posed to other female students at the

University.

We reverse and remand for further proceedings

consistent with this opinion.

REVERSED and REMANDED.

FRIEDLAND, Circuit Judge, concurring:

I concur in Judge Fletcher’s thoughtful opinion in its

entirety. I write separately to address the waiver argument

raised by Judge Nelson and Judge Rawlinson in their

respective dissents.

In proceedings before the three-judge panel, Brown did,

in my view, disavow the argument that the University

exercised control over Bradford’s off-campus apartment.

But a majority of the three-judge panel addressed that theory

on its merits anyway, devoting more than twice as much

space to it than to the argument that Brown herself advanced.

Brown v. Arizona, 23 F.4th 1173, 1181-83 (9th Cir. 2022).

BROWN V. STATE OF ARIZONA 45

Had the three-judge panel merely disposed of the control-

over-off-campus-apartment theory on waiver or forfeiture

grounds—which it could have done in an unpublished

memorandum disposition—there likely would not have been

a rehearing en banc. And if there still had been a rehearing

en banc, I likely would have thought it inappropriate for the

en banc panel to resolve this case based on a theory that

Brown herself disclaimed. When we publish opinions

addressing arguments on their merits, however, it is crucial

that we get the law right―and I agree with Judge Fletcher

that the majority opinion for the three-judge panel got the

law wrong.

The University’s control over the context of Bradford’s

abuse of Brown was the basis for the en banc call in this case.

After a majority of the active judges on our court voted to

rehear this case en banc, Brown sought to file a supplemental

brief addressing that issue, noting that the vacated opinion

“reached an issue of significant public importance that was

not the subject of adversarial party briefing.” The en banc

panel granted Brown’s motion, and both parties filed

supplemental briefs addressing the University’s control over

the context in which Bradford abused Brown. When an

opinion by a three-judge panel resolves a legal claim and

“the case is called en banc on grounds that would correct the

opinion but which were not raised before the original panel,

the en banc panel [is] certainly . . . permitted, if not

encouraged, to decide the case on the correct, unraised

grounds.” Socop-Gonzalez v. I.N.S., 272 F.3d 1176, 1186

n.8 (9th Cir. 2001) (en banc), overruled on other grounds by

Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020) (en banc);

see also United States v. Hernandez-Estrada, 749 F.3d 1154,

1159-60 (9th Cir. 2014) (en banc) (addressing an issue raised

46 BROWN V. STATE OF ARIZONA

in a concurrence by a member of a three-judge panel and

further developed in en banc briefing).

Because Brown has now “unquestionably raised” her

argument that the University exercised substantial control

over the context in which she was abused, I believe it is

proper for the en banc panel to address that issue. Socop-

Gonzalez, 272 F.3d at 1186 n.8. On remand, however, the

University should be permitted to reopen discovery, if there

is discovery that the University would have conducted had

Brown advanced this theory from the outset.

RAWLINSON, Circuit Judge, with whom LEE, Circuit

Judge, joins, dissenting:

I will be the first to say that what happened to Ms. Brown

at the hands of serial offender Orlando Bradford, a football

player at the University of Arizona, was a horrific experience

that no one should have to endure. But the question before

us is not whether we abhor the abominable conduct to which

Ms. Brown was subjected. The question before us is whether

Ms. Brown can recover damages from the University of

Arizona under Title IX. Because the circumstances of this

case do not fall within the parameters of Title IX as enacted

and as interpreted by the United States Supreme Court, I

respectfully dissent.

As context is a pivotal part of this case, it might be

helpful to recall the context surrounding the enactment of

Title IX. Title IX initially emerged as a mechanism for

ensuring that female athletes were provided equal

opportunity for participating in athletic programs and other

activities conducted under the auspices of educational

institutions receiving federal funds. See 20 U.S.C.A.

BROWN V. STATE OF ARIZONA 47

§ 1681(a) (“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

assistance . . .”) (emphasis added); see also Breaking Down

Barriers, A Legal Guide To Title IX and Athletic

Opportunities, National Women’s Law Center (2007), p.3

(“Title IX of the Education Amendments of 1972 is the

primary federal law barring sex discrimination in all facets

of education, including sports programs. Title IX requires

that members of both sexes have equal opportunities to

participate in sports and receive the benefits of competitive

athletics. It also requires that athletic scholarships be

allocated equitably and that men and women be treated fairly

in all aspects of sports programming.”)

This emphasis on a tether to the programs and activities

of educational institutions to support a Title IX claim is

echoed in the seminal Supreme Court cases addressing Title

IX. In Gebser v. Lago Vista Independent School District,

524 U.S. 274, 285 (1998), the Supreme Court “conclude[d]

that it would frustrate the purposes of Title IX to permit a

damages recovery . . . based on principles of respondeat

superior or constructive notice.” Stated differently, without

a tether to a program or activity of an educational institution,

no remedy is available under Title IX. See id.

This theme was reiterated and refined in Davis v. Monroe

Cty. Bd. of Educ., 526 U.S. 629 (1999), involving a

“prolonged pattern of sexual harassment” against a fifth-

grade student who was victimized by one of her classmates.

Id. at 633. In its analysis, the Supreme Court reiterated its

holding in Gebser that “a recipient of federal funds may be

liable in damages under Title IX only for its own

misconduct.” Id. at 640. The Supreme Court emphasized

48 BROWN V. STATE OF ARIZONA

that the “recipient itself” must engage in the acts prohibited

by Title IX and that those acts must be “under [the

recipient’s] programs or activities.” Id. at 640-41 (emphasis

added) (cleaned up).

The Supreme Court refined the analysis applicable to

Title IX claims by explicating how to determine whether the

prohibited acts occurred “under [the recipient’s] programs or

activities.” Id. The Supreme Court clarified that Title IX’s

“plain language confines the scope of prohibited conduct

based on the recipient’s degree of control over the harasser

and [over] the environment in which the harassment occurs.”

Id. at 644 (emphasis added). The Supreme Court explained

further that for the harassment to 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 645

(citations and internal quotation marks omitted). The

Supreme Court encapsulated its holding by limiting “a

recipient’s damages liability to circumstances wherein the

recipient exercises substantial control over both the harasser

and the context in which the known harassment occurs.” Id.

(emphasis added).

Applying this holding to the facts before it, the Supreme

Court noted that the sexual harassment “occurr[ed] during

school hours and on school grounds,” quintessentially

“under an operation of the funding recipient.” Id. at 646

(citation and internal quotation marks omitted). The

Supreme Court considered these specific circumstances,

with the school “retain[ing] substantial control over the

context in which the harassment occurr[ed] . . . during

school hours and on school grounds” and “exercis[ing]

significant control over the harasser.” Id. The Davis case

reinforced the requirement of a tether to the programs and

BROWN V. STATE OF ARIZONA 49

activities of an educational institution to impose liability for

damages under Title IX. See id.

With this framework firmly in mind, I proceed to the

facts and issues presented in this appeal which do not fit

within the straightforward analysis articulated in Davis.

I. Background

There is no real dispute about the underlying facts of this

case in terms of the inexcusable physical abuse heaped upon

Ms. Brown and other female students at the University of

Arizona. The majority recites the facts in painstaking detail,

see Majority Opinion, pp. 8-20, but these recited facts

establish only that the University had control over the

harasser. Glaringly absent from the majority’s recitation of

the facts is any factual underpinning establishing both

control elements set forth in Davis: “significant control over

the harasser” and “substantial control over the context in

which the harassment occurr[ed].” Davis, 562 U.S. at 646.

Lacking that underpinning, the majority has not and cannot

identify a program or activity of the University of Arizona

that was involved in the alleged Title IX infraction.

It is undisputed that the physical abuse inflicted upon

Ms. Brown occurred in Bradford’s off-campus house. There

is no indication in the record that the house is affiliated with

the University of Arizona in any respect. The University did

not lease the house for Bradford and did not pay the owner

of the house for Bradford to live there. Coach Rodriguez,

the then-head football coach testified in his deposition that

under the rules governing football players “[l]iving off-

campus is subject to approval by [the] head coach and

position coach. Off-campus subject to moving back on

campus.” When asked to explain what the rule meant, Coach

Rodriguez clarified that in the second year of college players

50 BROWN V. STATE OF ARIZONA

could move off-campus “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, they could move off-campus.”

Coach Rodriguez continued that if a player moved off-

campus and “were late to class all the time or missing or

being late for different things or missing appointments, . . .

we could move them back on campus.” However, Coach

Rodriguez could not recall a single instance “where a student

was living off-campus and [the coach] moved him back on

campus.”1

II. Discussion

A. Control Over The Harasser (Bradford)

As a student athlete, Bradford was subject to discipline

from the University of Arizona as a student and from the

football coaches as a football player. There were specific

rules governing the conduct of football players. Indeed,

Coach Rodriguez testified in his deposition that he had a zero

tolerance policy for domestic violence, and that he dismissed

Bradford from the team as soon as he learned about his

physical abuse of Ms. Brown.

As discussed, Bradford could only move off-campus

with permission from his coaches. And he could be required

to move back on campus if he were not “doing okay

academically” and “not being responsible as far as making

1

The Majority Opinion characterizes Coach Rodriguez’s testimony as

conditioning permission to live off-campus on “good behavior.”

Majority Opinion, p. 32. However, Coach Rodriguez never mentioned

“good behavior” in his testimony. He only discussed acting responsibly

in terms of academics and being on time for practices, meetings, and

appointments.

BROWN V. STATE OF ARIZONA 51

[his] appointments and practices and meetings and

everything else on time.”

From these facts, I readily agree that the University of

Arizona “exercise[d] significant control over the harasser.”

Davis, 526 U.S. at 646.

B. Control Over The Context In Which The

Harassment Occurred

On this issue, I fundamentally disagree with the

majority’s analysis and conclusion. I start from the premise

set forth in Davis that for damages liability to be available

under Title IX, the harassment must be tethered to the

programs and activities of the educational institution, in this

case the University of Arizona. See id. at 640-41. To

determine whether the harassment is sufficiently tethered to

the programs and activities of an educational institution, not

only must the institution “exercise significant control over

the harasser,” id. at 646, but also “retain substantial control

over the context in which the harassment occurred.” Id.

(emphasis added). These are two separate inquiries. As

discussed, the record definitively supports the conclusion

that the University of Arizona “exercise[d] significant

control over” Bradford, the harasser. Id. However, the same

is not true for the separate inquiry of whether the University

“retain[ed] substantial control over the context in which the

harassment occurred,” id., (emphasis added), an off-campus

house that was not connected to the University in any way.

As acknowledged by the majority, before the district

court and the three-judge panel Ms. Brown never argued that

the University of Arizona “retained substantial control” over

the off-campus house. Id. Rather, she predicated the

University’s liability on allowing Bradford to remain a

student and football player at the University after receiving

52 BROWN V. STATE OF ARIZONA

reports that Bradford had been physically abusive to other

female students at the University. Majority Opinion, p. 22.

Ms. Brown, in fact, expressly disclaimed any argument

based on the University’s control over the context in which

the harassment occurred. Rather, she argued that “[t] he

question is whether the University had sufficient control

over the context in which [Brown] alleges that [the

University] failed to act, not whether [the University] had

sufficient control over the context in which she was later

attacked.” (emphasis in the original). In contrast, at oral

argument before the en banc panel, counsel for Ms. Brown

took the cue from the dissenting opinion of the three-judge

panel to advance the theory that the University had control

over the context in which Ms. Brown’s harassment occurred,

a theory that is embodied in the en banc majority opinion.

To support its conclusion that the University “retain[ed]

substantial control over the [off-campus] context in which

the harassment occurred,” Davis, 526 U.S. at 646 (emphasis

added), the majority references the following facts:

1. Bradford was subject to Player Rules

specific to football players, including a

rule requiring players to obtain

permission before moving off-campus.

2. Bradford was subject to the

University’s Student Code of Conduct

that applied to all students and

organizations, seeking to hold them

“accountable for misconduct and to

prevent it from happening again in the

future.”

BROWN V. STATE OF ARIZONA 53

3. Coach Rodriguez expressed a zero-

tolerance policy for violence against

women.

Majority Opinion, pp. 32-34.

The majority professes that “[this] heightened level of

control and disciplinary power strengthened the connection

between Bradford’s off-campus housing and the

University’s football program.” Id., p. 34. Not so. The

described “heightened level of control and disciplinary

power” applied only to Bradford and not to the off-campus

house.

More specifically, the problem with reliance on these

facts is that they are all indicia of control over Bradford, the

harasser, rather than indicia of control over the off-campus

context in which the assault occurred. This failing is

highlighted by the majority’s discussion of the expert report

concluding that “the University had control over where

Bradford lived.” Id., p. 35. But control over whether

Bradford, the harasser, could live off-campus does not

equate to control over the off-campus context in which the

harassment occurred, the separate inquiry required under

Davis.

The majority asserts that “[t]here is undisputed evidence

that the University had control over the off-campus housing

in which Bradford was living while attending the

University.” Id., p. 32. Nothing could be further from the

truth. In fact, there is absolutely no evidence in the record

that the University had control over the off-campus house

where the assault occurred. There is no evidence in the

record that the house was designated student housing. There

is no evidence in the record that the owner of the house had

54 BROWN V. STATE OF ARIZONA

a contract with the University to house students. There is no

evidence in the record that anyone from the University

directed Bradford to live in that particular house. There is

no evidence in the record that the University leased the house

for Bradford. There is no evidence in the record that the

University paid for Bradford to live in the house. There is

no evidence in the record that the University in any way

supervised or endorsed the activities in the house.

Adoption of the majority’s approach would sever the

pivotal tether to programs and activities of the educational

institution that is at the core of Title IX. See 20 U.S.C.A.

§ 1681(a) (prohibiting “discrimination under any education

program or activity”) (emphasis added). Under the

majority’s view, so long as the educational institution had

control over the harasser, the institution’s liability would

automatically follow, regardless of whether a “program or

activity” of the institution was involved. With permission

from the author, I paraphrase the two examples discussed in

the panel opinion because they vividly demonstrate the

overreach of the majority’s conclusion:

Example Number One: A fellow student and

football player at the University of Arizona

lives at home with his parents while attending

the University and playing on the football

team. That player would be subject to the

same University Student Code of Conduct

and Player Rules referenced by the majority.

Under the majority’s analysis, the University

would be deemed to have control over the

parent’s residence, and an assault occurring

in that home would be considered committed

BROWN V. STATE OF ARIZONA 55

“under an[] education program or activity” of

the University.

Example Number Two: A fifth-grader (same

age as the harasser in Davis) is subject to a

student code of conduct that prohibits

harassment of other students. At a birthday

party at her home over the weekend, the

student engages in behavior that violates the

code of conduct, and subjects her to

discipline by the school. Under the majority’s

analysis, because of its ability to discipline

the student for violation of the code of

conduct, the school controlled the context of

the birthday party held at the student’s

home.2

The majority’s collapsing of the two prongs is exposed

in its articulation that “a key consideration is whether the

school has some form of disciplinary authority over the

harasser in the setting in which the harassment takes place.”

Majority Opinion, p.26. But this analysis is a sharp and

troubling departure from the two-pronged analysis

articulated in Davis, and the cases cited by the majority do

not support this overreach. Actually, a discussion of the

facts of those cases serves to distinguish them.

The case with the most analogous facts is Simpson v.

University of Colorado Boulder, 500 F.3d 1170 (10th Cir.

2007). In that case, two female University students were

sexually assaulted in one of the female student’s off-campus

2

Tellingly, the majority offers no response to these clear demonstrations

of the effects of collapsing the two prongs articulated in Davis to focus

solely on control over the harasser.

56 BROWN V. STATE OF ARIZONA

apartment. See id. at 1172-73. The female students were

assaulted by members of the University’s football team and

by high school students being recruited to play football at the

University. See id. at 1173. The record reflected that the

University “paired each visiting recruit with an

‘Ambassador,’ usually female, who escorted the recruit

around campus throughout the visit.” Id. at 1180. The

University also matched the high school recruits with

University football players “selected by the coaching staff,

including the head coach.” Id. According to an attorney in

the University’s counsel office, who later became associate

athletic director, “the player-hosts, who were usually

underclassmen, were chosen because they knew how to

party and how to show recruits a good time and would do a

good job of entertaining them.” Id. (citation, alteration, and

internal quotation marks omitted). As alleged by the

plaintiffs, and confirmed by the University’s counsel, these

recruiting activities were “officially sanctioned” by the

University. Id. at 1175. Under these facts, a conclusion that

the University had substantial control over the context of the

off-campus sexual assault is completely consistent with

Davis and vastly at odds with the facts of our case, when the

only involvement of the University of Arizona was

permitting Bradford to live off-campus.

The majority represents that Simpson “made clear that a

university can exercise substantial control over an off-

campus context when it facilitates the presence of both the

perpetrators and victims of sexual violence at the site,

chooses to minimize its own oversight of their activities, and

thus increases the risk of assault.” Majority Opinion, p. 29.

However, as with most other broad statements, the devil is

in the details. The court in Simpson found liability under

Title IX only after first observing that the sexual assault took

BROWN V. STATE OF ARIZONA 57

place within the context of a program or activity of the

University. See Simpson, 500 F.3d at 1175 (observing that

the recruiting visits during which the sexual assaults

occurred were “officially sanctioned” by the University.)

“The assault[] arose out of an official school program,” the

recruiting of high school football students. Id. at 1174. This

conclusion provided the required tether to a program or

activity of the University. In contrast, this record contains

absolutely no evidence that Brown was assaulted during any

“officially sanctioned” event or that “[t]he assault[] arose out

of an official [University of Arizona] program. Id. at 1174-

75. In sum, the holding in Simpson is premised on facts that

simply do not exist in this case.

Similarly, in Feminist Majority Foundation v. Hurley,

911 F.3d 674 (4th Cir. 2018), there was a clear tether to

university involvement and on-campus activities. In this

case, Feminists United, a student organization at the

University of Mary Washington, and several of its members

objected to a vote by the student senate “to authorize male-

only fraternities at [the University].” Id. at 680 (emphasis

added). Plaintiff Paige McKinsey was especially disturbed

by the prospect that approval of male fraternities on-campus

would “increase[] the number of on-campus sexual

assaults.” Id.

Soon after the on-campus town hall meeting, University

students began debating the issue on Yik Yak, a social media

application that allowed users within a limited geographic

range to create and view messages posted anonymously. See

id. The application was available to students on the

University campus and several students posted strong and

offensive “criticism of Feminist United and its members for

their opposition to on-campus fraternities.” Id. (footnote

reference omitted).

58 BROWN V. STATE OF ARIZONA

Later in the month that the town hall meeting occurred,

several members of Feminists United met with the

University’s Title IX coordinator to address “their concerns

about the University’s past failures in responding to student

sexual assault complaints.” Id. As the Feminists United

members walked home from their meeting with the Title IX

coordinator, other students drove by, screaming “F___ the

feminists!” Id. (citation omitted).

Two days after the meeting with the Title IX coordinator,

the University’s men’s rugby team was videotaped

performing a graphic and highly offensive chant “that

glorified violence against women, including rape and

necrophilia.” Id. & n.2.

After concluding that the University was not responding

“to the rugby team’s chant and other discriminatory acts

suffered by female students on campus,” Ms. McKinsey

“published an opinion piece in [the University’s] student

newspaper. Id. at 681 (emphasis added). The opinion piece

discussed the rugby team’s chant and “recent harassing and

threatening” postings on Yik Yak “aimed at Feminists

United members.” Id. There was an immediate backlash to

the article, leading “to an escalation of verbal assaults and

cyber-attacks on members of Feminists United.” Id.

(citation omitted). These attacks included “various

comments of a derogatory, sexist and threatening nature . . .

posted to the [University] newspaper’s website.” Id.

(citation and internal quotation marks omitted).

Less than a month after Ms. McKinsey’s opinion piece

was published, members of the University’s rugby team

accosted Ms. McKinsey in the University’s dining hall. See

id. That same day, Ms. McKinsey informed the University’s

BROWN V. STATE OF ARIZONA 59

Title IX coordinator that she “felt unsafe on the

[University’s] campus.” Id.

The Fourth Circuit discussed the Yik Yak postings in

some detail. On March 19, 2015, following expressions of

outrage on Facebook in response to the rugby team’s chant,

the President of the University suspended all rugby activities

indefinitely and required all rugby players “to participate in

anti-sexual assault and violence training.” Id. at 682. The

President’s decision unleashed a torrent of graphic abuse on

Yik Yak “directed at members of Feminists United, blaming

them for the rugby team’s suspension.” Id. The messages

named Ms. McKinsey and two other members of Feminists

United specifically, and threatened physical violence, sexual

violence and death. See id.

Approximately one week after the rugby team’s

suspension, Ms. McKinsey was scheduled to speak at a

meeting of the University’s Young Democrats Club. After

an anonymous Yik Yak user shared Ms. McKinsey’s

scheduled appearance “and outlined a plan to accost her” at

the meeting of the Young Democrats Club, Ms. McKinsey

contacted the University’s police and reported “that she felt

unsafe attending the Young Democrats meeting.” Id. The

campus police considered the threat serious enough to assign

an officer to the meeting. See id.

The day after the meeting of the Young Democrats Club,

Plaintiff Julia Michels, also a member of Feminists United,

sent an email to the University President, the University

Vice-President, and the University Title IX Coordinator. See

id. The email described “nearly 200 examples of students

using Yik Yak to post either vitriolic hate or threats” against

the plaintiffs. Id. (citation omitted). The email reiterated

60 BROWN V. STATE OF ARIZONA

that the plaintiffs “feared for their safety on the [University]

campus.” Id. (citation omitted).

The day following Ms. Michels’ email, members of

Feminists United met with University administrators and

requested that the University: 1) have the Yik Yak

application disabled on campus; 2) bar access to Yik Yak on

the University’s wireless network; 3) be more transparent in

communicating with students; 4) announce to the student

body that Feminists United was not responsible for the

suspension of rugby activities; and 5) hold an assembly to

discuss “rape culture, harassment, [and] cyber bullying.” Id.

at 682-83 (cleaned up). One Feminists United member

emailed the University President that she felt “so unsafe at

[the University] that she could not concentrate on her

classwork.” Id. at 683.

After a lack of action from the University administration,

the plaintiffs filed a Title IX complaint with the Department

of Education Office of Civil Rights, which they later

withdrew to file an action in federal district court. See id. at

683-84. The district court dismissed the plaintiffs’

complaint on the basis that the University “had little — if

any — control over the context in which the Feminists

United members were harassed, because nearly all of that

harassment occurred through Yik Yak.” Id. at 687.

On appeal, the Fourth Circuit disagreed with the district

court’s conclusion, stating from the outset that the

University “had substantial control over the context of the

harassment because it actually transpired on campus.” Id.

The Fourth Circuit noted that “due to Yik Yak’s location-

based feature, the harassing and threatening messages

originated on or within the immediate vicinity of the

[University] campus.” Id. The Fourth Circuit also observed

BROWN V. STATE OF ARIZONA 61

that some of the offending messages “were posted using the

University’s wireless network, and the harassers necessarily

created those [messages] on campus.” Id. Most importantly,

the Fourth Circuit concluded that “the harassment concerned

events occurring on campus and specifically targeted

[University] students.” Id., quoting Davis, 526 U.S. at 646

(“Where the misconduct occurs during school hours and on

school grounds, the educational institution retains

substantial control over the context in which the harassment

occurs.”) (alterations omitted).

The events occurring on campus that prompted and

epitomized the harassment included: 1) the student vote to

authorize male-only fraternities; 2) the on-campus town hall

meeting at which Feminists United members “questioned the

wisdom of having such fraternities at [the University]”; 3)

the vulgar chant performed by the University’s rugby team;

4) members of the rugby team accosting Ms. McKinsey in

the dining hall; and 5) the posting of derogatory comments

to the University’s newspaper. See Feminist Majority, 911

F.3d at 680-81.

In sum, the fact that pivotal events occurred on campus

and that programs and activities of the University were at the

heart of the harassment completely distinguishes Feminist

Majority from the case before us. The rationale of the Fourth

Circuit does not support the majority’s conclusion that the

University of Arizona had significant control over the off-

campus harassment of Ms. Brown.

The majority recasts the holding of Feminist Majority by

ignoring all of the harassment that took place on the

university campus and the demonstrated control the

university had over the off-campus conduct. Rather, the

majority rephrases the Feminist Majority holding by

62 BROWN V. STATE OF ARIZONA

declaring: “In other words, the Feminist Majority court held

that a university has substantial control over an off-campus

context when it has the ability to take actions that would

likely prevent harassment in the immediate vicinity of the

campus.” Majority Opinion, p. 31. Not exactly. The precise

statement made in Feminist Majority was this:

At bottom, in assessing whether [the

university] . . . had sufficient control over the

harassers and the context of the harassment

we cannot conclude that [the university]

could turn a blind eye to the sexual

harassment that pervaded and disrupted its

campus solely because the offending conduct

took place through cyberspace.

911 F.3d at 688-89 (citation omitted) (emphases added).

Noticeably absent from the majority’s paraphrasing is

any similar reference to an on-campus connection to the

harassing behavior. See id. Again, the holding in Feminist

Majority does not support the majority’s conclusion that the

University of Arizona controlled the context of the off-

campus harassment in this case.

In Weckhorst v. Kansas State University, the Title IX

plaintiff was sexually assaulted at a University fraternity

house. See 241 F. Supp. 3d 1154, 1157 (D. Kan. 2017). As

the district court determined, the fraternity house was

indisputably “a program or activity” of the University under

Title IX. 20 U.S.C. § 1681(a). The University fraternities

served as “student housing organizations that are open only

to [University] students.” Weckhorst, 241 F. Supp. 3d at

1158. The University described fraternities as “Kansas State

University Organizations” on its website. Id. The

BROWN V. STATE OF ARIZONA 63

fraternities were overseen by the University, and

importantly, the Director of the fraternity that was the situs

of the sexual assault was an instructor at the University. See

id. at 1159. The majority simply ignores these crucial factual

distinctions in its analysis. See Majority Opinion, pp. 30-31.

Finally, Roe ex. rel. Callahan v. Gustine Unified School

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

the harassment of Plaintiff during his participation in a high

school football camp at Liberty High School. See id. at

1011. Plaintiff was an incoming student at Gustine High

School, and the football camp was “jointly coordinated by

Gustine and Liberty High Schools.” Id. In denying the

motion for summary judgment filed by the Gustine Unified

School District, the court referenced the joint sponsorship of

the program, the supervisory role of teachers and coaches

from Gustine High School, and the players’ transportation to

the camp in Gustine School District buses under the

supervision of Gustine coaches. See id. at 1025. The court

also observed that “[t]he football camp was governed by a

[School District] Administrative Directive.” Id. These

circumstances were sufficient “to satisfy th[e] threshold

inquiry” of substantial control over the context in which the

harassment of Plaintiff occurred. Id. Once more, no similar

facts exist in this case. Indeed, the majority merely recites

the facts of Roe without even attempting to explain how

these starkly divergent facts support the majority’s attempt

to attribute the off-campus harassment in this case to the

University of Arizona without any tether to a program or

activity of the University. See Majority Opinion, pp. 31-32.

III. Conclusion

The facts of this case are disturbing. A football player at

the University of Arizona physically assaulted Ms. Brown

64 BROWN V. STATE OF ARIZONA

and other female students at the University. However,

because this case was brought under Title IX, the

requirements of that statute must be met to provide relief to

Ms. Brown. One of those requirements is that the University

have “substantial control over the context in which the

harassment occurr[ed].” Davis, 526 U.S. at 646. The

physical assault of Ms. Brown took place in an off-campus

house and unlike the fraternity house in Weckhorst, the

University of Arizona had no connection to or involvement

with the house. Unlike in Feminist Majority, the harassment

did not occur on campus. Unlike in Simpson, the assault did

not occur off-campus during a University-sanctioned

activity. Unlike in Roe, the assault did not occur during a

football camp sponsored by the school. Stated differently,

the facts of this case lack any tether to a program or activity

of the University, as contemplated by Title IX. The sole fact

that the football coach granted Bradford permission to live

off campus does not constitute “substantial control” over the

context of the harassment as was present in the cases relied

on by the majority. In the absence of this required tether to

a program or activity of the University of Arizona, I must

respectfully dissent.

R. NELSON, Circuit Judge, with whom RAWLINSON and

LEE, Circuit Judges, join, dissenting:

Two control requirements must be satisfied for a school

receiving federal funding to be liable under Title IX for

student-on-student harassment: the school must exercise

“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). Today, the majority holds that the University of

BROWN V. STATE OF ARIZONA 65

Arizona controlled the context of Orlando Bradford’s abuse

of Mackenzie Brown in Bradford’s off-campus house. Maj.

Op. 35.

The trouble is, Brown expressly disclaimed that position

below and before the three-judge panel on appeal, arguing

instead that the control-over-context requirement was met

because the University controlled Bradford’s previous abuse

of two other female university students. The majority

asserts, misleadingly, that Brown merely raised a “narrower

argument” before our en banc court. Id. at 22. What the

majority fails to acknowledge or address is that this

argument was not only not raised, but affirmatively

abandoned. By embracing an argument that Brown

affirmatively disavowed, the majority encourages future

plaintiffs to hide the ball on their arguments for strategic

litigation advantage. Indeed, the University is now forced to

proceed to trial on a legal theory that was not the subject of

discovery or pursued below. That is not good judicial

process.

But the majority gets the merits wrong as well. I largely

agree with Judge Rawlinson’s dissent. I also share many of

Judge Lee’s concerns about how Title IX jurisprudence has

strayed from the text and meaning of the statute. But the

majority is incorrect even under existing precedent. The

majority’s holding rests on the determination that a school

has control over the context of harassment as long as the

school has disciplinary authority over the harasser in the

setting in which the harassment takes place. Id. at 27. No

other court has gone as far as the majority does. Schools,

like the University here, generally exercise wide-reaching

disciplinary authority over their students without geographic

limitation. In other words, when a school has disciplinary

authority over the harasser it will nearly always have

66 BROWN V. STATE OF ARIZONA

disciplinary authority in the setting of the harassment. As a

result, the control-over-harasser requirement now swallows

the control-over-context requirement, at least in our circuit.

A single disciplinary-control requirement is all that

remains—unmoored from Title IX’s targeted directive of

prohibiting discrimination in education programs and

activities, irreconcilable with the Supreme Court’s

instruction in Davis that a school must have control over

both the harasser and the context of the harassment, and

without meaningful limits on a school’s liability for student-

on-student abuse claims. We can’t ignore Davis and we

can’t overrule the Supreme Court implicitly either.

I would stick to deciding the questions presented by the

parties. And even if it were proper to decide whether the

University had control over the context of the abuse Brown

suffered, like Judge Rawlinson, I would preserve the

Supreme Court’s distinction between control over the

harasser and control over the context of the harassment. In

this case, the evidence shows that the University did not

control the context of Bradford’s abuse of Brown. I

respectfully dissent.

I

Bradford was a scholarship athlete on the University

football team. He was subject to team rules and disciplinary

policies. For part of his freshman year, Bradford lived off

campus in violation of the team rule requiring freshmen to

live on campus. The summer after his freshman year,

Bradford moved to a different private, off-campus house.

Others lived in the house as well, including a nonstudent.

Near that time, Bradford started dating Brown, also a

University student. Brown regularly spent time at

Bradford’s house and often stayed overnight. While they

BROWN V. STATE OF ARIZONA 67

were dating, Bradford physically abused Brown. The

assaults that form the primary basis for Brown’s Title IX

claim happened on two successive days during the fall of

2016, though Brown testified that Bradford physically

abused her four to ten times in total. These assaults occurred

at Bradford’s off-campus residence. He pushed her to the

floor, hit her, dragged her by the hair, choked her, and

threatened her. Bradford was arrested for these assaults and

pleaded guilty to two counts of felony aggravated assault and

domestic violence. He was sentenced to five years in prison.

Bradford was suspended from the football team and the

University on the day of his arrest and later expelled.

II

Brown claims that the University is liable under Title IX

for these assaults. In Davis, the Supreme Court recognized

a Title IX claim for student-on-student harassment only

when a school acts with deliberate indifference to known

acts of harassment in its programs or activities. 526 U.S. at

633. The Court set forth several requirements for such a

claim to succeed, including that the school must exercise

“substantial control over both the harasser and the context in

which the known harassment occurs.” Id. at 645; see also

Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1105

(9th Cir. 2020) (separating Davis’s requirements into five

elements).

In the district court and her appeal to this court, Brown

argued that “the focus of the ‘substantial control’

requirement must always be on the context of the harassment

that the university is being accused of failing to correct—or

of inviting due to its official policies.” Brown maintained

that the University was liable for her abuse because it failed

to address Bradford’s prior abuse of two other female

68 BROWN V. STATE OF ARIZONA

students: Student A and Lida DeGroote. Brown explained

that “[u]nlike many Title IX plaintiffs, [she] does not fault

the University for its response to her own attack,” instead,

her attack “is alleged to be an effect of the University’s

previous Title IX violation, not an event that itself triggered

the University’s Title IX obligations.” Thus, she argued, the

“important question as to the University’s control . . . is

whether the University had control over the context of those

attacks,” that is, Bradford’s abuse of Student A and

DeGroote. In other words, “[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.”

Her reply brief reiterated this position. She contended

that the control-over-context requirement “applies to the

harassment that the University is alleged to have known

about and ignored (primarily the harassment of Student A),

not to the harassment that [Brown] is alleged to have later

suffered as a consequence.” Indeed, she argued:

The University’s confusion regarding th[e]

[control-over-context] element of the claim

stems from its persistent misidentification of

the Title IX violation alleged by [Brown].

The act for which [Brown] seeks to hold the

University responsible is not Bradford’s

September 2016 attack in the off-campus

house rented by the football players, but

rather the University’s deliberate indifference to

Bradford’s reported on-campus attacks and

harassment (primarily of Student A). (The

University has never challenged its control over

BROWN V. STATE OF ARIZONA 69

the dormitories.) [Brown’s] claim is not, in

other words, that federally-funded schools

should be guarantors of the off-campus safety

of their students, but rather simply that they

should be held responsible if they act with

deliberate indifference toward known acts of

on-campus dating violence and harassment.

All three members of the original panel, including the

dissenting judge, rejected the only argument that Brown

made: that the control-over-context requirement could be

satisfied by the University’s control over the separate

context of Bradford’s abuse of Student A and DeGroote.

Brown v. Arizona, 23 F.4th 1173, 1179–81 (9th Cir. 2022);

id. at 1193 (W. Fletcher, J., dissenting) (“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. . . . I would not go so

far . . . .”). The panel agreed that, to satisfy the control-over-

context element, Brown had to show that the University

controlled the context of her own abuse. Id. at 1180, 1193.

The majority determined that “Brown does not argue that the

University controlled the off-campus environment in which

she was assaulted.” Id. at 1180. But despite Brown’s

disavowal of that argument, the panel dissenter sua sponte

concluded that the University had control over the context of

Bradford’s abuse of Brown in his off-campus house. Id. at

1195.

Brown took up the panel dissent’s argument for the first

time before our en banc court. Indeed, she had to seek the

court’s leave to file a supplemental brief addressing her new

70 BROWN V. STATE OF ARIZONA

argument because, as Brown explained, “[t]he vacated panel

opinion in this case reached an issue . . . that was not the

subject of adversarial party briefing.” Today, the majority

adopts Brown’s new position, inspired by the original panel

dissent, and holds that the University controlled the context

of Bradford’s abuse of Brown. Maj. Op. 35.

To her credit, Judge Friedland recognizes in her

concurrence that Brown affirmatively disavowed the

argument the majority adopts. Conc. Op. 44. The majority

tries to evade Brown’s original disavowal of this argument

by concluding that Brown simply “made a narrower

argument” before our en banc court. Maj. Op. at 22. This

seriously mischaracterizes the story.

Brown, represented by counsel throughout these

proceedings, had every opportunity to argue that the

University controlled the context of her abuse. But Brown

argued before the district court that the University’s control

over Bradford’s previous abuse of Student A and DeGroote

satisfied the control-over-context requirement. The district

court rejected this argument, leaving no doubt that it granted

summary judgment because “[w]hile it is undeniable that

[the University] exercised substantial control over Bradford,

[Brown] has not offered any evidence that [the University]

exercised control over the context in which her abuse

occurred.” Brown knew that her claim failed in the district

court because the University lacked control over the context

of her abuse, and she could have challenged that conclusion

on appeal if she chose.

She chose not to. On appeal, Brown doubled down on

her argument, repeatedly and emphatically maintaining that

her claim was directed at the University’s deliberate

indifference toward Bradford’s previous abuse. She argued

BROWN V. STATE OF ARIZONA 71

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.” She characterized

the University’s arguments directed at her own abuse as the

source of the University’s “confusion” and its “persistent

misidentification” of her Title IX claim. The control-over-

context requirement, she argued, “applies to the harassment

that the University is alleged to have known about and

ignored (primarily the harassment of Student A), not to the

harassment that [Brown] is alleged to have later suffered as

a consequence.” Make no mistake, Brown affirmatively

disclaimed the majority’s position.1

This is waiver, in the true sense of the word. “The terms

waiver and forfeiture—though often used interchangeably

by jurists and litigants—are not synonymous.” Hamer v.

Neighborhood Hous. Servs. of Chi., 138 S. Ct. 13, 17 n.1

(2017). Our own caselaw is rife with misuse of the terms—

we have often stated that an argument, issue, or claim is

“waived” when we really mean “forfeited.” Waiver is the

“intentional relinquishment or abandonment of a known

right.” Id. (citation omitted). Forfeiture is the “failure to

make the timely assertion of a right.” Id. (citation omitted).

In civil and criminal cases, waiver has harsher consequences

than forfeiture. United States v. Lopez, 4 F.4th 706, 719 n.3

(9th Cir. 2021) (“Waiver is the intentional relinquishment or

abandonment of a known right and entirely precludes

appellate review.” (cleaned up)); Crowley v. Epicept Corp.,

1

Like the original panel, I would reject Brown’s assertion that the

control-over-context requirement can be satisfied by the University’s

control over Bradford’s previous assaults. See Brown, 23 F.4th at 1180–

81, 1193. Davis requires that the plaintiff suffered harassment under the

operations of the institution. 526 U.S. at 644–45.

72 BROWN V. STATE OF ARIZONA

883 F.3d 739, 748 (9th Cir. 2018) (“Forfeited rights are

reviewable for plain error, while waived rights are not.”); see

also Claiborne v. Blauser, 934 F.3d 885, 893 (9th Cir. 2019).

Adopting Brown’s disclaimed position also implicates

the party presentation principle: “It is the parties who ‘frame

the issues for decision,’ and we may entertain only those

arguments ‘bearing a fair resemblance to the case shaped by

the parties.’” AMA Multimedia, LLC v. Wanat, 970 F.3d

1201, 1214 (9th Cir. 2020) (quoting United States v.

Sineneng-Smith, 140 S. Ct. 1575, 1579, 1582 (2020)); see

also Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir.

2011) (“[W]e will not reframe an appeal to review what

would be in effect a different case than the one decided by

the district court.”). In Sineneng-Smith, the Supreme Court

held that our court violated the party presentation principle

when the panel invited amici to brief and argue issues never

raised by the parties and then adopted those arguments in the

disposition. 140 S. Ct. at 1581. The Supreme Court taught

that “our system is designed around the premise that parties

represented by competent counsel know what is best for

them, and are responsible for advancing the facts and

argument entitling them to relief, . . . courts are essentially

passive instruments of government.” Id. at 1579 (cleaned

up).

As both the majority and the concurrence point out, Maj.

Op. 22; Conc. Op. 45–46, “we have authority and discretion

to decide questions first raised in a petition for rehearing en

banc.” United States v. Hernandez-Estrada, 749 F.3d 1154,

1159 (9th Cir. 2014) (en banc). And if the parties address

issues in a petition for rehearing en banc or en banc

supplemental briefing that were not previously raised, “[t]he

party-presentation principle is not implicated . . . because

the parties themselves have ‘frame[d] the issue for

BROWN V. STATE OF ARIZONA 73

decision.’” Lee v. Fisher, 70 F.4th 1129, 1154 (9th Cir.

2023) (en banc) (second alteration in original) (quoting

Sineneng-Smith, 140 S. Ct. at 1579).

As mentioned above, our caselaw regularly mixes up

waiver and forfeiture. Despite using the term “waiver,” each

of the cases cited by the majority and concurrence

suggesting that our en banc court can address Brown’s

disavowed argument really involve forfeiture. Id. (“Lee

failed to identify [the] Section 115 [issue] in her opening

brief before the panel . . . .”); Hernandez-Estrada, 749 F.3d

at 1159 (“Hernandez has waived his challenge to the

absolute disparity test by not specifically raising it before the

three judge panel.”); Socop-Gonzalez v. INS, 272 F.3d 1176,

1186 n.8 (9th Cir. 2001) (en banc), overruled on other

grounds by Smith v. Davis, 953 F.3d 582, 599 (9th Cir. 2020)

(en banc) (“[F]ailure to raise an issue before an original

appellate panel does not preclude an en banc panel’s

jurisdiction over the issue.”). The majority and concurrence

cite no case in which we have adopted an argument that was

affirmatively disclaimed by a party. There is no precedent

supporting what the majority is actually doing here.2

Even if we can exercise discretion to address Brown’s

disclaimed argument, we shouldn’t. Brown made a

conscious choice, and that choice should carry

consequences. See Porter v. Martinez, 68 F.4th 429, 440 n.6

(9th Cir. 2023) (rejecting the dissent’s argument because the

plaintiff “expressly disavowed” it, instead “[t]aking [the

2

As Judge Friedland aptly notes, the en banc court should be free to

correct substantive errors by the three-judge panel on disavowed

arguments. Conc. Op. 45–46. But that can easily be done by vacating

the three-judge panel opinion. The en banc panel should not repeat the

error of addressing a disavowed argument.

74 BROWN V. STATE OF ARIZONA

plaintiff] at her word” and addressing only the argument she

advanced). Enforcing waiver here would “‘preserve the

integrity of the appellate structure’ by ensuring that ‘an issue

must be presented to, considered and decided by the trial

court before it can be raised on appeal.’” Honcharov v. Barr,

924 F.3d 1293, 1295 (9th Cir. 2019) (per curiam) (quoting

Torres de la Cruz v. Maurer, 483 F.3d 1013, 1023 (10th Cir.

2007)). Enforcing waiver “encourage[s] the orderly

litigation and settlement of claims by preventing parties from

withholding ‘secondary, back-up theories’ at the trial court

level, thus allowing party-opponents to appraise frankly the

claims and issues at hand and respond appropriately.” Id.

(quoting Torres de la Cruz, 483 F.3d at 1023). The

majority’s opinion subverts the established appellate

structure and encourages future gamesmanship.

Indeed, the University suffers prejudice here, having

been unable to develop facts geared toward the majority’s

theory. Discovery has concluded. On remand, the case will

likely proceed to trial on a legal question that Brown

affirmatively abandoned. The parties have not had the

opportunity for proper discovery to address these claims. It

is hard to imagine a more unfair process for the University.3

The majority also says that only claims can be waived,

not arguments. See Maj. Op. 23. But we regularly hold that

arguments can be waived or forfeited. See, e.g., Freedom

from Religion Found., Inc. v. Chino Valley Unified Sch. Dist.

Bd. of Educ., 896 F.3d 1132, 1152 (9th Cir. 2018) (per

3

Assuming the majority’s position, I agree with Judge Friedland’s

suggestion that discovery should be reopened. Conc. Op. 46.

Unfortunately, that position has not garnered a majority of the en banc

panel. But hopefully the district court will exercise its discretion to do

so.

BROWN V. STATE OF ARIZONA 75

curiam) (“[T]he [defendant] has chosen not to argue the

issue on appeal. This is waiver—the intentional

relinquishment or abandonment of a known right or

privilege.” (internal quotation marks and citation omitted));

GoPets Ltd. v. Hise, 657 F.3d 1024, 1033 (9th Cir. 2011)

(“The [defendants] waived that argument by failing to

present it to the district court in a timely fashion.”); Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[A]n appellate

court will not consider issues not properly raised before the

district court. Furthermore, on appeal, arguments not raised

by a party in its opening brief are deemed waived.”). Despite

this standard practice, the majority identifies our separate

line of cases, Maj. Op. 23, mirroring the Supreme Court’s

approach that “it is claims that are deemed waived or

forfeited, not arguments.” United States v. Pallares-Galan,

359 F.3d 1088, 1095 (9th Cir. 2004); accord Allen v. Santa

Clara Cnty. Corr. Peace Officers Ass’n, 38 F.4th 68, 71 (9th

Cir. 2022) (per curiam) (“The Employees’ argument . . . is

not a new claim but is, instead, a new argument in support

of their consistent claim.”).

Unlike most situations where we are bound to follow the

Supreme Court, application of the waiver rule by a court of

appeals may appropriately differ because the Supreme Court

has a discretionary docket. Our line of cases applying the

Supreme Court’s waiver rule disregards certain unique

characteristics of the Supreme Court—that “[a]ny argument

in support of a pleaded ‘claim’ may be raised in a petition

for writ of certiorari” and that “only the questions presented

in the petition for writ of certiorari are reviewed.” Chris

Goelz et al., Rutter Group Practice Guide: Federal Ninth

Circuit Civil Appellate Practice ¶ 7:83.5 (2023); see also id.

at ¶ 7:83.9 (explaining that Ninth Circuit cases adopting the

Supreme Court’s waiver standard “typically do not address

76 BROWN V. STATE OF ARIZONA

aspects of the U.S. Supreme Court’s waiver standards that

are unique to that Court or explain how and why they should

be applied in the Ninth Circuit . . . . For this reason, it is not

possible to completely reconcile all Ninth Circuit opinions

discussing waiver”). At any rate, concluding that waiver and

forfeiture only apply to claims abandons voluminous

caselaw in which we have applied these rules to arguments.

See, e.g., Freedom from Religion Found., 896 F.3d at 1152.

In short, the majority’s analysis and holding adopt a

theory that was affirmatively disclaimed in the district court

and on appeal, and entered the equation only because the

dissenting judge on the original panel interjected it on his

own. This absolves Brown of the consequences of her

deliberate litigation strategy and creates significant

consequences for future litigants in our circuit. Crafty

litigants will “withhold[] secondary, back-up theories at the

trial court level,”—even affirmatively disclaim them—to

prevent “party-opponents” like the University here from

“apprais[ing] frankly the claims and issues at hand and

respond[ing] appropriately.” See Honcharov, 924 F.3d at

1296. Whether or not our en banc court has discretion to

address Brown’s waived theory, we should “adjudicat[e]

[this] appeal attuned to the case shaped by the parties rather

than the case designed by the appeals panel.” See Sineneng-

Smith, 140 S. Ct. at 1578.

III

I remain firm that Brown’s waived argument should not

be addressed. But because the majority has chosen to

address a waived argument, I find it appropriate to respond.

The majority incorrectly concluded that the University

controlled the context here. A Title IX claim for student-on-

student harassment requires control over both the harasser

BROWN V. STATE OF ARIZONA 77

and the context of the harassment. Davis, 526 U.S. at 645.

Addressing Brown’s Title IX claim on summary judgment,

I would hold that the record does not show a genuine dispute

of material fact about whether the University controlled the

context of Bradford’s abuse of Brown in his off-campus

house.

A

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). Protecting

against discrimination in education programs was the

motivating concern behind the Supreme Court’s recognition

of a Title IX claim for student-on-student harassment. See

Davis, 526 U.S. at 651 (“[A] plaintiff must establish sexual

harassment of students that is so severe, pervasive, and

objectively offensive, and that so undermines and detracts

from the victims’ educational experience, that the

victim-students are effectively denied equal access to an

institution’s resources and opportunities.”). To that end, the

Supreme Court outlined certain requirements that must be

satisfied for a plaintiff to prevail on a Title IX student-on-

student harassment claim. Id. at 643–50. Consistent with

the Court’s firm instruction that a school may be liable “only

for its own misconduct,” one requirement is that the school

must have “some control over the alleged harassment.” Id.

at 640, 644. Control over the alleged harassment has two

components: control over the harasser and control over the

“context” or “environment” in which the harassment occurs.

Id. at 644–45. As to the control-over-context requirement,

the Court stressed that “the harassment must take place in a

context subject to the school[’s] control,” id. at 645, because

78 BROWN V. STATE OF ARIZONA

Title IX prohibits discrimination “under any education

program or activity,” § 1681(a). Education “program or

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

institution subject to Title IX. Davis, 526 U.S. at 645

(quoting 20 U.S.C. § 1687).

The Court emphasized that control over the “context” or

“environment” of the harassment was a separate requirement

from control over the harasser. Id. at 644–45. But the

majority fails to heed that instruction. I agree with the

majority that the control-over-context requirement involves

more than just the geographic location of the harassment and

that this requirement can be satisfied in off-campus settings.

Maj. Op. 32. But even in off-campus settings, some element

of school sanction, sponsorship, or connection to a school

function is required. See Rost ex rel. K.C. v. Steamboat

Springs RE-2 Sch. Dist., 511 F.3d 1114, 1121 n.1 (10th Cir.

2008) (“Davis suggests that there must be some nexus

between the out-of-school conduct and the school.”). This

tethers the control-over-context requirement to the statute,

which prohibits “discrimination under any education

program or activity,” § 1681(a), meaning that the harassment

“must occur ‘under’ ‘the operations of’” a school, see Davis,

526 U.S. at 645 (quoting §§ 1681(a), 1687). The statute’s

text, the Supreme Court emphasized, requires that the

harassment “have the systemic effect of denying the victim

equal access to an educational program or activity” and

“cabins the range of misconduct that the statute proscribes.”

Id. at 644, 652.

The cases the majority relies on are in harmony with this

understanding. In Simpson v. University of Colorado

Boulder, 500 F.3d 1170 (10th Cir. 2007), the sexual assaults

happened during a university football team recruiting visit,

in which the team brought high school students to campus

BROWN V. STATE OF ARIZONA 79

and paired them with “female ‘Ambassadors’” and “player-

hosts” who “were responsible for the recruits’

entertainment.” Id. at 1173. The recruits were taken to an

off-campus apartment, where players and recruits sexually

assaulted two female students. Id. at 1180. This was not just

a private party—the recruits were taken to the off-campus

apartment as part of the recruiting trip activities that the team

facilitated and organized to show the recruits a “good time.”

See id. at 1173. The court explained that “[t]he alleged

assaults were not simply misconduct that happened to occur

at [the university] among its students. Plaintiffs allege that

the assaults arose out of an official school program, the

recruitment of high-school athletes.” Id. at 1174. Although

Simpson focused on the actual-notice and deliberate-

indifference elements, see id. at 1174, 1184–85, the court

also concluded that “[i]mplementation of an official policy

can certainly be a circumstance in which the recipient

exercises significant ‘control over the harasser and the

environment in which the harassment occurs.’” Id. at 1178

(quoting Davis, 526 U.S. at 644).

In Feminist Majority Foundation v. Hurley, 911 F.3d

674 (4th Cir. 2018), university students posted anonymous

messages on a social media platform that disparaged,

harassed, and threatened the plaintiffs. Id. at 680–82.

Holding that the plaintiffs’ Title IX claim survived a motion

to dismiss, the Fourth Circuit concluded that the control-

over-context requirement was sufficiently alleged because

the harassing posts “actually transpired on campus.” Id. at

687. The posts “originated on or within the immediate

vicinity of” campus, were posted using the university’s

wireless network, and “concerned events occurring on

campus and specifically targeted [university] students.” Id.

80 BROWN V. STATE OF ARIZONA

In Weckhorst v. Kansas State University, 241 F. Supp.

3d 1154 (D. Kan. 2017), aff’d sub nom. Farmer v. Kansas

State University, 918 F.3d 1094 (10th Cir. 2019), the female

plaintiff was sexually assaulted by a male student in his

vehicle and again in his off-campus fraternity house. Id. at

1159. Addressing the plaintiff’s Title IX claim at the

motion-to-dismiss stage, the district court held that the

control-over-context requirement was satisfied because the

“fraternity allegedly is a [university] student organization, is

supervised by a faculty advisor, is overseen by [the

university’s] Office of Greek Affairs, is subject to

[university] rules specifically applicable to fraternity parties

and events, and was suspended by [the university] for

conduct at the party where Plaintiff was assaulted.” Id. at

1170.

The district court distinguished two Eighth Circuit cases

involving sexual assault by fraternity members where the

control-over-context requirement was not satisfied,

concluding that the assaults in those cases happened “at a

private residence that was not owned by the fraternity or the

university,” id. at 1167 (citing Ostrander v. Duggan, 341

F.3d 745, 750–51 (8th Cir. 2003)), and “at a party at an off-

campus apartment,” id. (citing Roe v. St. Louis Univ., 746

F.3d 874, 884 (8th Cir. 2014)). The district court determined

that “[h]ere, by contrast, the alleged assaults that give rise to

Title IX liability took place at a house owned by the

fraternity and at a fraternity event, and Plaintiff’s allegations

reflect that [the university] exercises substantial control over

the fraternity.” Id. at 1170.

In Roe ex rel. Callahan v. Gustine Unified School

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

was assaulted during a school-sponsored summer football

camp. Id. at 1013–14. Although the football camp was at a

BROWN V. STATE OF ARIZONA 81

different high school, the district court held that the control-

over-context requirement was satisfied because “the football

camp was sponsored and promoted by [the school], its

football coaches and administrators, was a core part of [the

school’s] football program, and was under the supervision of

[school] teachers and/or football coaches.” Id. at 1025.

In each of these cases, an element of school sanction,

sponsorship, or connection to a school function existed. See

Hurley, 911 F.3d at 687 (harassment originated on or near

campus, used the university’s wireless network, and

concerned events on campus); Simpson, 500 F.3d at 1173

(assaults happened as part of university football team

recruiting activities); Weckhorst, 241 F. Supp. 3d at 1170

(assault happened at a house owned by a fraternity (a

university student organization) at a fraternity event); Roe,

678 F. Supp. 2d at 1025 (assault happened at a school-

sponsored football camp); see also Foster v. Bd. of Regents

of Univ. of Mich., 982 F.3d 960, 970 (6th Cir. 2020) (en

banc) (contrasting misconduct “over which the University

has no control,” including Facebook comments and emails,

with misconduct “[i]t could and did control,” that is,

“classes, social events, ceremonies, and the like”).

This case has no similar indicia that the University

controlled the context of Bradford’s abuse of Brown.

Bradford attacked Brown in his off-campus house. The

house was not owned by or affiliated with the University,

nor did the abuse occur in connection with a University

function. The abuse here is akin to that in the two Eighth

Circuit cases distinguished by the district court in

Weckhorst, where the abuse occurred “at a private residence

that was not owned by the fraternity or the university,” 241

F. Supp. 3d at 1167 (citing Ostrander, 341 F.3d at 750–51),

and “did not occur under a university ‘program or activity,’”

82 BROWN V. STATE OF ARIZONA

id. (citing Roe, 746 F.3d at 884). Because the University did

not control the context of Bradford’s abuse of Brown, the

district court properly granted summary judgment to the

University.

B

In the majority’s view, none of this matters because “a

key consideration is whether the school has some form of

disciplinary authority over the harasser in the setting in

which the harassment takes place.” Maj. Op. 26. This

determination stems from the majority’s understanding of

the Supreme Court’s conclusion in Davis that “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.” 526 U.S. at 646–47.

The majority characterizes this conclusion from Davis as

the Supreme Court’s “articulat[ion] [of] its holding on the

‘control’ element.” Maj. Op. 26. That is incorrect. In this

passage, the Court first stated the dual requirement that a

school must “exercise[] substantial control over both the

harasser and the context in which the known harassment

occurs.” Davis, 526 U.S. at 645. In the next paragraph, the

Court applied those two control requirements to the facts of

the case. It first found that the school easily satisfied the

control-over-context requirement because “the misconduct

occur[red] during school hours and on school grounds.” Id.

at 646.

With the control-over-context requirement squared

away, the Court distinctly transitioned to the control-over-

harasser requirement. Id. (“In these circumstances, the

recipient retains substantial control over the context in which

BROWN V. STATE OF ARIZONA 83

the harassment occurs. More importantly, however, in this

setting the [school board] exercises significant control over

the harasser.”). The Court then discussed whether the school

had control over the harasser, emphasizing the school’s

disciplinary authority over its students. Id. at 646–47. The

paragraph concludes with the statement the majority

mischaracterizes as a summary of the entire control element.

Id.

This passage from Davis makes evident that the Court’s

conclusion about schools being liable when “the harasser is

under the school’s disciplinary authority” is not a summary

of the entire control element, but a conclusion specific to the

control-over-harasser requirement. See id. Reading the

statement any other way eviscerates the distinction between

the control-over-context requirement and the control-over-

harasser requirement that the Court had just finished

explaining in its last breath. It also ignores Congress’s

directive that conduct is actionable only if it occurs “under

an[] education program or activity.” § 1681(a).

Cases the majority relies on also read Davis this way.

See Hurley, 911 F.3d at 688 (“The substantial control

analysis also requires us to consider the educational

institution’s control over the harasser, especially its

‘disciplinary authority.’” (quoting Davis, 526 U.S. at 647));

Weckhorst, 241 F. Supp. 3d at 1167 (recognizing that

“disciplinary control” is relevant to whether the university

“had substantial control over the alleged assailants” (citing

Davis, 526 U.S. at 646–47)). The majority’s holding

dismantles the Supreme Court’s two separate control

requirements and makes disciplinary authority the sole

touchstone for evaluating a school’s control.

84 BROWN V. STATE OF ARIZONA

This new disciplinary-control requirement is remarkably

unlimited. In this case, for instance, the University would be

potentially liable for harassment by any student in any

location. The University’s off-campus disciplinary authority

is not limited to football players, or even athletes. As the

majority recognizes, the University’s Student Code of

Conduct is “applicable to all students” and “applies to

student conduct ‘both on-campus and off-campus.’” Maj.

Op. 33.

Now that disciplinary authority is enough to establish the

control-over-context requirement, there are no discernible

limits on the circumstances that could create Title IX

liability. Schools could be liable for what happens within

completely private, unsupervised settings such as spring

break trips abroad, online communication, and students’

family homes.

This is no hypothetical parade of horribles. Consider a

situation from the record. Brown testified that she was with

Bradford in a Goodyear Tire store waiting for a tire repair.

Bradford became upset upon seeing a contact named “Josh”

in Brown’s phone, and she testified that “he like grabbed my

arm and dug his nails into my arm. I have a scar.” The

University and the football team’s disciplinary authority

over Bradford was fully operative in the Goodyear Tire

store, just as it was in his off-campus house. Does that mean

the University controlled the context of the abuse in the tire

store? Under the majority’s reasoning, the answer must be

yes. This outcome bears no resemblance to the Supreme

Court’s teaching that “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,” thereby “denying the victim equal access

BROWN V. STATE OF ARIZONA 85

to an educational program or activity.” See Davis, 526 U.S.

at 645, 652 (quoting §§ 1681(a), 1687).

The majority stretches the record to assert that “[t]here is

undisputed evidence that the University had control over the

off-campus housing in which Bradford was living while

attending the University.” Maj. Op. 32. First, the majority

asserts that Bradford was allowed to live off campus only

with permission of his coaches and that his “permission to

live off campus was conditioned on good behavior.” Id.

Both assertions overstate the evidence. There is no evidence

that Bradford ever requested or received permission to live

off campus. Coach Rodriguez only testified that this was the

general rule. In fact, Bradford had lived off campus as a

freshman in violation of the rule that team freshmen must

live in the on-campus dorms. Id. at 33–34. Coach Rodriguez

testified that he had never enforced the rule requiring

permission to live off campus to make a player move back

to the dorms. The majority’s assertion that Bradford lived

off campus because his coaches gave permission is

unsupported by the record. See id. at 32.

Nor did Coach Rodriguez testify that permission to live

off campus was conditioned on general good behavior. See

id. He testified that permission was based on academic

performance and punctually keeping appointments: “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, they

could move off-campus.” Coach Rodriguez’s testimony

indicates that requiring a player to move on campus was a

disciplinary measure for problems associated with living

away from campus, that is, failing to attend classes and other

appointments. There is no evidence that this punishment

was used to generally police player behavior.

86 BROWN V. STATE OF ARIZONA

But even if Bradford were living off campus with

permission from the coaching staff and his permission could

have been revoked for bad behavior, that evidence only

shows that the University had control over Bradford—not

the context in which he abused Brown. The ability to make

Bradford move back on campus does not mean the

University owned or otherwise controlled Bradford’s off-

campus house, nor that Bradford’s abuse of Brown was

connected to any University function. Once again, the

majority conflates the control-over-harasser requirement

with the control-over-context requirement. See Davis, 526

U.S. at 645.

Second, the majority relies on Coach Rodriguez’s

testimony that if he had known about Bradford’s abuse

earlier, he would have kicked Bradford off the team earlier.

Maj. Op. 34. The majority infers that “had [Coach]

Rodriguez known of Bradford’s assaults on Student A and

DeGroote, Bradford’s September 12 and 13 assaults on

Brown at his off-campus house would never have occurred”

and he “likely would have been expelled from the

University.” Id. at 2–3, 34. The majority also speculates

that “[e]ven if [Bradford] had engaged in lesser misconduct,

he would never have been permitted to live off campus while

a member of the team.” Id. at 34.

The record contains no evidence that Bradford would

have been expelled if he had been kicked off the team earlier.

Nor is there evidence that he would have been barred from

living off campus for engaging in “lesser misconduct.” See

id. Of course, many scenarios exist concerning what might

have happened if Bradford had been kicked off the team

earlier. Perhaps it would have changed circumstances such

that his abuse of Brown would not have happened. Or,

Bradford might have continued living in his private off-

BROWN V. STATE OF ARIZONA 87

campus house and had the opportunity to abuse Brown there

regardless. The University could not have prevented

Bradford from living in the house if it expelled him. See

Foster, 982 F.3d at 970 (“Expulsion would not have

prevented many of the harassing acts . . . because they lay

beyond the school’s control.”). Here, the majority relies

only on its own speculation about what might have happened

if Bradford was kicked off the team earlier to conclude that

the University controlled the context of this abuse. See

Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir.

1996) (“[M]ere allegation and speculation do not create a

factual dispute for purposes of summary judgment.”).

But even accepting the majority’s chain of events as true,

Coach Rodriguez’s testimony that he would have kicked

Bradford off the team earlier had he known about Bradford’s

abusive behavior is again only evidence of the University’s

control over the harasser, not control over the context. This

is but another example of disciplinary control over Bradford,

which is separate from the requirement that the University

must control the context of the abuse. See Davis, 526 U.S.

at 645.

Third, the majority relies on an expert report to show that

“the University had control over where Bradford lived.”

Maj. Op. 35. But the expert report runs into the same

problem. That student-athletes like Bradford “are told where

they can live, where and when they will be places—

including practices, games, housing, meals, and study time”

speaks to the University’s disciplinary control over

Bradford—the control-over-harasser requirement. Id. As

the expert described, the University’s control over Bradford

was not limited to any particular setting. If that disciplinary

authority is enough, then the University would control

virtually any context involving Bradford.

88 BROWN V. STATE OF ARIZONA

Fourth, the majority also states that Bradford lived in his

off-campus house “with other members of the football team”

and describes the house as a “players’ residence.” Id. at 32.

Brown and the United States as amicus curiae go further,

characterizing Bradford’s off-campus house as a “de facto

football-team house” and “the team house.” The record

belies this description. Bradford did not “live[] exclusively

with other football players,” as the United States asserts.

The evidence shows that Bradford lived with at least one

non-student. There is no evidence that Bradford’s off-

campus house was affiliated with the football team, formally

or otherwise. Thus, the majority is wrong to say that the

“very existence” of Bradford’s off-campus house was

“subject to the coaches’ control.” See id.

***

In short, the record does not show that the harassment

here “t[ook] place in a context subject to the [University’s]

control.” See Davis, 526 U.S. at 645. Brown was abused in

a private, off-campus house. The University’s disciplinary

control over Bradford supports control over the harasser, but

not control over the context of the harassment. See id.

Brown has shown no element of school sanction,

sponsorship, or connection to a school function associated

with the abuse. The harassment therefore did not “occur

under the operations of” the University, and the control-

over-context requirement was not satisfied. See id. (cleaned

up).

IV

The majority’s holding rests on a theory that Brown

affirmatively disclaimed. And that holding improperly

conflates Davis’s control-over-context and control-over-

harasser requirements. Bradford abused Brown in a private,

BROWN V. STATE OF ARIZONA 89

off-campus residence unconnected to any school function.

Thus, the district court properly determined that the

University did not control the context of the harassment and

granted summary judgment.

Aside from holding that Davis’s control requirements are

satisfied, the majority also holds, Maj. Op. 44, that Brown

survives summary judgment on the “actual knowledge” and

“deliberate indifference” requirements of a Title IX student-

on-student harassment claim. See Karasek, 956 F.3d at

1105. The majority does not address the requirement that

“the plaintiff must have 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” or the

requirement that “the school must have caused the plaintiff

to undergo harassment or made the plaintiff liable or

vulnerable to it.” Id. (cleaned up). Because I would grant

the University’s motion for summary judgment based on the

University’s lack of control over the context of Bradford’s

abuse of Brown, I would not reach the other requirements of

a Title IX student-on-student harassment claim.

I respectfully dissent.

LEE, Circuit Judge, with whom RAWLINSON, Circuit

Judge, joins, dissenting:

I join Judge Rawlinson’s persuasive dissent but write

separately to detail further how courts have drifted from the

text of Title IX. Like Judge Rawlinson and the majority, I

am disturbed by the facts of the case. Orlando Bradford

rightfully received a five-year prison sentence for brutally

assaulting his girlfriend in his off-campus house. The

90 BROWN V. STATE OF ARIZONA

University of Arizona administrators and employees who

failed to protect her should also be held accountable—

whether it be losing their jobs or facing other discipline.

But as horrendous as the facts are, this should not be a

Title IX case. It stretches the text and

This text is long and has been trimmed here. Open the source document for the complete record.