A female student at Arizona State University (ASU) was physically assaulted by her ex-boyfriend who played football for the Sun Devils, the ASU team. Since the athlete was on scholarship, the woman sued ASU for her injuries. She lost her appeal, despite a strong dissent from one judge who thought ASU should be held responsible.

In a 2-1 decision written by Circuit Judge Danielle J. Forrest on January 25, the United States Court of Appeal for the Ninth Circuit upheld the summary judgment of the District Court for the District of Arizona. The lawsuit was a Title IX action brought by plaintiff Mackenzie Brown against defendant Orlando Bradford. The appellate court found that Brown failed to meet the legal requirements of a successful Title IX action.

Title IX, part of the Education Amendments of 1972, prohibits discrimination in any educational program or activity that gets federal financial assistance. Monetary damages are available. Sexual violence is covered by the Act, and ASU would be held liable if two conditions were met. First, the “educational institution must exercise substantial control over the harasser.” Second, the context in which the harassment occurred must be examined. It is this second prong that sparked a strong dissent from Judge William A. Fletcher.

Forrest’s opinion began with a succinct description of the issue on which the appeal was based. She defined the question before the court as “whether the second control-over-context requirement is met.” She explained that ASU would be liable only if it “exercise(d) control over the actor.” In addition, school officials with authority must have “actual knowledge of the misconduct and respond to it with deliberate indifference.”

The judge then reported the facts that the court would use to determine whether these conditions were met. At the time of the incident, both Brown and Bradford were undergraduates at ASU. Bradford lived in off-campus housing and before the assault on Brown took place, the record showed that he had previously assaulted two other female students. One was identified as Student A, a softball player, while the other student was identified in court documents as Lida DeGroote.

Forrest’s published opinion provides detailed background on Bradford’s previous abusive incidents, some of which were reported to University officials, including its Title IX coordinator and some administrators in the athletic department. After being told about the incidents in 2015, Erica Barnes, a Senior Associate Athletic Director, recommended that Student A be seen by a school psychologist.

In March 2016, Barnes was again contacted by Student A’s teammates who were concerned about her “black eye” and the “fingerprints on her neck.” When Student A met with Barnes, she denied that she had been abused by Bradford. She also met with a senior Title IX investigator but said she was no longer seeing Bradford so was “not concerned about him” and that he was now seeing “someone named Lida.”

The next month, Bradford’s attention returned to Student A. One night, while he was drunk, he “knocked on her door and yelled” for several hours. At the request of her softball coach, Barnes met her and a police report was filed. She told the police Bradford had choked her “on three or four” occasions. Neither a protective order nor criminal charges were filed, however.

In April, after additional but incomplete reports were made to ASU’s Athletic Department, Bradford was issued a “no-contact order” regarding Student A. Bradford was removed from his dorm room and moved to an off-campus apartment, which ASU continued to pay for. In May, DeGroote’s mother reported bruises on her daughter’s arm to a University administrator.

A few months before he left his dorm, in February 2016, Bradford met and began dating Brown. He became abusive that summer, assaulting her “five to ten times.” Her complaint focuses on a two-day period in September when she was pushed, hit, and had her hair pulled, causing “significant injuries,” including “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… upper back pain, left rib pain with breathing and movement, left upper abdominal pain abdominal contusions, . . . “

Both Brown’s and DeGroote’s mothers report his assaults to the police. Bradford was arrested on September 16, and ASU removed him from the football team and placed him on an interim suspension.

Head football coach Richard Rodriguez said the news of Bradford’s arrest was the first time he had heard about his player’s assaults, with the exception of the April incident. He says that he would have dismissed Bradford much earlier because he has a “zero-tolerance policy for violence against women.” Bradford was expelled from ASU shortly after his arrest.

Forrest then reviewed the procedural history of Brown’s case and reviewed the District Court’s conclusion that although it was “undeniable that [the University] exercised substantial control over Bradford,” Brown “ha[d] not offered any evidence that [the University exercised control over the context in which her abuse occurred.” Brown timely appealed.

Summary judgment motions, Forrest explained, must be “viewed in the light most favorable to the plaintiff,” as the court decides “whether there are any genuine issues of material fact and whether the University is entitled to judgment as a matter of law.”

Applying the facts to the law, Forrest said the District Court gave summary judgment to ASU because they believed Brown failed to meet Title IX’s “direct liability” requirement. True, Bradford was an athlete, but ASU had no control over the private, off-campus residence where Brown’s assault took place. The Court said Brown’s reliance on the University’s knowledge of Bradford’s previous attacks on Student A and DeGroote,” stretches the text of Title IX and the implied private action that the Supreme Court has recognized too far.” Brown’s abuse, not that of Student A or DeGroote, was paramount.

Forrest said it would be unreasonable to conclude that Title IX imposes liability on universities who get federal aid for “what happens between students off campus, unconnected to any school event or activity.” She dismissed Judge Fletcher’s dissent by disagreeing that the key issue is whether the school has disciplinary authority over the harasser in the setting where the harassment took place. She agreed that ASU had substantial control over Bradford, but said, “…that was not enough.” Student conduct cannot be “attributed to university operations,” she wrote. Brown was “not assaulted on school property, and she did not go to Brown’s off-campus apartment for a school-related purpose.”

Fletcher’s dissent focused on the fact that many university officials in both the athletic and Title IX offices “had knowledge of repeated prior violent assaults by Bradford on two other female undergraduates … but did not take steps to ensure that Bradford would not be a danger to Brown and other students.” He wrote that the court relied on a “truncated version of the facts” and placed too much emphasis on where the assaults took place rather than the fact that team administrators had approved and were paying for Bradford’s off-camping housing. Football team decision-makers should have been alerted about every instance of misbehavior by their players, he believed.

Brown said he “Strongly but respectfully” dissented because he believes precedent shows the court should have held ASU liable for its own decision to remain idle in the face of known student-on-student sexual harassment.”