En Banc Ninth Circuit Allows Victim’s Title IX Claim for Off-Campus Abuse to Move Forward
For Immediate Release: September 25, 2023
Contact: Lucy Sears
lsears@publicjustice.net
En Banc Ninth Circuit Allows Victim’s Title IX Claim for Off-Campus Abuse to Move Forward
In a sweeping victory for student survivors across the country, the Ninth Circuit, sitting en banc, held that schools may be liable under Title IX for causing students to be sexually harassed in off-campus student residences. The Court ruled in favor of Mackenzie Brown, who was viciously abused by her University of Arizona classmate Orlando Bradford and who then sued the school for its failure to address the football player’s pattern of violence against women.
In 2016, Ms. Brown was nearly killed by Bradford, whom the University of Arizona knew had previously abused two other female students. Rather than taking action to stop Bradford from abusing more students, the University gave him permission to move to an off-campus football team house, where the worst of his abuse of Ms. Brown occurred. The University argued that, because the abuse occurred off school grounds, it could not be liable under Title IX of the Education Amendments of 1972, the federal civil rights law that prohibits sex discrimination, including sexual abuse, in schools.
Today, the special eleven-judge panel of the Ninth Circuit rejected that argument forcefully.
“[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.”
The Ninth Circuit also held that a jury could find the University had “actual knowledge” of Bradford’s earlier abuse and that its response was “deliberately indifferent.”
“Today’s opinion is a victory for Mackenzie and for student survivors across the country,” said Alexandra Brodsky, a staff attorney at Public Justice who argued the case before the en banc court. “Gender violence has grave effects on students’ access to education. For that reason, the civil rights law Title IX requires schools to address known abuse. And as the Ninth Circuit explained today, a school’s power to stop violence—and its responsibility to do so—doesn’t stop at the campus boundary.”
“There is no question the University of Arizona could have taken steps to prevent Bradford from hurting more women, including in the off-campus football house where he abused Mackenzie. Instead, it failed to take even the most basic steps to protect its student body. The Ninth Circuit was right to rule that the location of Mackenzie’s abuse is no obstacle to liability under Title IX,” said Jim Davy of All Rise Trial & Appellate.
“I am very pleased that we will, at long last, have the opportunity to present Mackenzie’s case to a jury,” said Isabel Humphrey of Hunter, Humphrey and Yavitz.
Ms. Brown is represented by Public Justice, All Rise Trial & Appellate, and Hunter, Humphrey & Yavitz. Learn more about the case here.
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