Divided Ninth Circuit Expands Liability for Universities

Plaintiff Mackenzie Brown brought a claim against the university for damages arising from student Orlando Bradford’s sexual assault of Brown in 2016 at an off-campus house where Bradford resided.  Brown argued that the university was deliberately indifferent to Bradford’s prior violent assaults on other female students in violation of Title IX.

The district court and the Ninth Circuit’s three-judge panel each found that, as a matter of law, the university did not have substantial control over the context in which the assault occurred. The three-judge panel explained that the assault was not “on school property or during a school-related activity,” and Brown did not go to Bradford’s “off-campus apartment for a school-related purpose,” and, accordingly, “this case has none of the indices that the University controlled the context where Brown was abused.” (See Brown v. State of Arizona, 23 F.4^th 1173, 1183 (9th Cir. 2022).) The Ninth Circuit’s en banc panel reversed.

In Davis ex rel. LaShonda D. v. Monroe County Board of Education, the Supreme Court established that a school may be liable for sexual harassment under Title IX where the school “exercises substantial control over both the harasser and the context in which the known harassment occurs.” (See 526, U.S. 629, 645 (1999).) Davis further held that “control” could be found if “students are involved in school activities or otherwise under the supervision of school employees,” or if “the harasser is under the school’s disciplinary authority.” (See Brown, 2023 WL 6207762, at *11, quoting Davis (emphasis omitted).)

In an opinion written by Judge William A. Fletcher (who dissented from the three-judge panel’s decision), the Ninth Circuit held that a reasonable factfinder “could conclude that the University had ‘substantial control’ over the ‘context’ in which Bradford violently assaulted Brown.” (See Brown, 2023 WL 6207762, at *19.) The court held 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 took place.” Applying that holding to the facts at issue, the en banc panel found 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,” pointing to the following facts: First, Bradford could only live in off-campus housing with the permission of his football coaches, which was granted on the condition of good behavior. Second, the university’s Student Code of Conduct applied to students off-campus. Third, Bradford was subject to more supervision than most students through “Player Rules” that applied to football players. Based on this evidence, the Ninth Circuit concluded that the issue of “substantial control” had to be ruled upon by a jury, and that the district court’s grant of summary judgment was in error.

Additionally, the Ninth Circuit held that university officials had actual knowledge or notice of prior incidents of violent assaults by Bradford on other women. The decision by the university’s Title IX liaison within the Athletics Department to report only Bradford’s yelling and banging on another student’s door was “clearly unreasonable in light of the known circumstances,” given that the Athletics Department liaison also knew about and failed to report Bradford’s much more serious behavior including repeated violent assaults on other female students, a threat to send compromising pictures to another student’s family members if she reported his violence, and sending to unspecified persons a compromising video. (Quote is from Davis, 526 U.S. at 648.)

Brown counsels colleges and universities to take a broad view of the contexts over which they could be held to have exercised substantial control over a harasser, including off-campus locations and unsponsored activities. It is important to note that the conduct at issue in Brown happened in 2016, prior to the enactment of federal Title IX regulations in 2020, which interpreted Davis’s substantial control test to “not require schools to address a sex-based hostile environment in its education program or activity if the ... sex-based harassment [] happened outside of the recipient’s education program or activity, or outside of the United States.” The guidance in Brown is timely, given that new proposed Title IX regulations would expand universities’ jurisdiction over conduct that occurs “off campus” and require schools to address sex-based harassment that occurs outside the recipient’s educational program or outside the United States if that conduct creates a sex-based hostile environment within an educational program or activity. (See Summary of Major Provisions of the Department of Education’s Title IX Notice of Proposed Rulemaking at *2.)

For more information, please contact Jeffrey P. Metzler, Jacob R. Sorensen, Stacie O. Kinser or Max A. Winograd.