Brown v. State of Arizona

In this appeal, the U.S. Court of Appeals for the Ninth Circuit, sitting en banc, held that a school may be liable under Title IX for causing a student to be sexually harassed in an off-campus location, including a student residence.

Mackenzie Brown, a student at the University of Arizona, was viciously abused by her classmate Orlando Bradford, a football player. The violence was preventable: By the time Bradford began abusing Mackenzie, the University already knew that Bradford had abused two other female students. Yet administrators did nothing to protect other students, including Mackenzie, from future violence at Bradford’s hands. To the contrary, the football team had given Bradford special permission to move off campus, a privilege dependent on players’ good behavior.

Mackenzie filed a Title IX lawsuit against the University, alleging that its deliberate indifference to Bradford’s pattern of violence against women had allowed him to abuse her. The district court granted summary judgment to the school on the basis that Bradford’s violence toward Mackenzie occurred in the off-campus house he shared with teammates – even though the University exerted significant control over Bradford and his residence.

Over the forceful dissent of Judge Fletcher, a Ninth Circuit panel affirmed the district court’s ruling on January 25, 2022. Public Justice and co-counsel All Rise Trial & Appellate joined the case to draft the petition for rehearing or rehearing en banc, a procedure that asks the Court to rehear the case with a special eleven judge panel. The United States filed an amicus brief in support of the petition, as did a coalition of 32 organizations led by the National Women’s Law Center.

On December 9, 2022, the Ninth Circuit granted the petition for rehearing en banc and vacated the panel opinion. A group of law professors filed an amicus brief in support of Mackenzie on the merits, and the parties submitted supplemental briefing. The Ninth Circuit, sitting en banc, heard oral argument in the case on March 21, 2023.

On September 25, 2023, the en banc Ninth Circuit ruled for Mackenzie. In a majority opinion joined by eight of the panel’s eleven judges, the Court held that schools may be liable under Title IX for causing students to be sexually harassed in off-campus locations over which the school exercises “control,” which may include off-campus student residences. “[W]hile 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,” wrote Judge William Fletcher on behalf of the Ninth Circuit. “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.”