FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MACKENZIE BROWN, a single 

woman,

Plaintiff-Appellant,

 v. 

STATE OF ARIZONA; ARIZONA 

BOARD OF REGENTS, DBA 

University of Arizona, a 

constitutionally created body 

corporate,

Defendants-Appellees,

and 

RICHARD A. RODRIQUEZ; RITA 

RODRIQUEZ,

Defendants,

 v. 

LIDA DEGROOTE,

Third-party-plaintiff.

No.20-15568 

D.C. No.

2:17-cv-03536-

GMS 

OPINION

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 oncampus 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 DefendantsAppellees.

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 offcampus 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-PHXSRB, 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 offcampus 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 highschool 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 posttraumatic 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 nocontact 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 zerotolerance 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 studenton-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 doorbanging 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 studentathletes 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-onstudent 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 controlover-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. SocopGonzalez, 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 fifthgrade 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 offcampus 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 offcampus 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 zerotolerance 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 offcampus 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 maleonly 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 locationbased 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 offcampus 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 offcampus 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 studenton-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-overcontext 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-overcontext 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 SinenengSmith, 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-onstudent 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-onstudent 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 “playerhosts” 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 deliberateindifference 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 controlover-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 offcampus 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 controlover-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 schoolsponsored 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-overharasser 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-overharasser 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 offcampus 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 offcampus 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 controlover-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-overharasser 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 studenton-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 meaning of the statute 

to say that Bradford’s criminal actions—and the 

University’s oversight—amount to “discrimination under 

an[] education program or activity receiving Federal 

financial assistance.” See 20 USC § 1681(a). Simply put, a 

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

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

I thus respectfully—and reluctantly—dissent. 

* * * * *

Congress enacted Title IX to bar sex discrimination in 

federally funded schools. It states 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 USC § 1681(a) 

(emphasis added). Title IX has had a far-reaching and 

salutary impact in rooting out sex discrimination in schools. 

No longer can schools discriminate against female students 

in awarding scholarships or making admissions decisions 

because doing so “excludes” and “denies” benefits under an 

“education program or activity” on the basis of sex. Nor can 

schools provide more funding for boys’ sports programs than 

girls’ because athletics are an “education program or 

activity” that require equal treatment.

Over the years, however, courts have expanded the reach 

of Title IX beyond its text. The plain language of Title IX 

strongly suggests that it bars discrimination by the school

receiving federal funds: It prohibits students from being 
BROWN V. STATE OF ARIZONA 91

“excluded, “denied the benefits,” or being “subjected to 

discrimination under any education program or activity” 

(i.e., it is the school that discriminates against students 

“under” the school’s policy or actions). See Davis v. Monroe 

Cnty. Bd. Of Ed., 526 U.S. 629, 659-62 (1999) (Kennedy, J., 

dissenting). Indeed, the Supreme Court has held that Title 

IX does not impose vicarious liability on the school just 

because, say, a student discriminates against a student. See 

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

But the Court faced a set of ugly facts in Davis: A fifthgrader waged a terrible campaign of sexual harassment and 

abuse against his classmate, yet the school did little to stop 

it. 526 U.S. at 633-35. The Court found a private right of 

action under Title IX, holding that the student can seek 

damages from the school for failing to address student-onstudent harassment. In other words, the Court held that 

schools in some cases could be liable under Title IX for 

harassment perpetrated by students, even though the text of 

the statute suggests otherwise. But recognizing that Title IX 

does not allow vicarious liability, the Court tried to cabin in

that possibility by fashioning a multi-pronged test that 

required, among other things, schools to have “substantial 

control over both the harasser and the context in which the 

known harassment occurs.” Id. at 645. That “context” prong 

ensured that a school would not be held liable if a student, 

for example, harassed other students at a mall because that 

would not have occurred under an “education program or 

activity.” And under the facts of Davis, the Court’s new test 

perhaps made sense, even if it veered from the text of the 

statute: The school had notice of and control over what 

happened in the classroom, and yet did little to prevent it. 

Our case law has drifted so far from Title IX’s text that 

the majority barely discusses how an “education program or 
92 BROWN V. STATE OF ARIZONA

activity” is implicated by a student committing a violent 

crime in an off-campus house. Instead of looking at the 

statutory text, the majority jumps straight to the Davis 

factors. The facts here, however, are significantly different 

from Davis. Unlike Davis and other Title IX cases, the facts 

here do not involve an educational “program” (e.g., incidents 

in a classroom, athletic programs) or a school-sponsored 

“activity” (e.g., school-sanctioned summer program). By 

extending the holding of Davis, the majority’s decision loses 

any semblance of a connection to the plain—or even 

strained—reading of Title IX's statutory text.

As explained in Judge Rawlinson’s dissent, the 

University of Arizona had substantial control over Bradford 

but not the “context” in which the abuse occurred. Judge 

Rawlinson’s dissent points out that the majority effectively 

conflates the two Davis requirements—control over the 

harasser and the context in which the harassment occurs—

to find liability by the school. 

The majority opinion cobbles together various facts to 

assert that the school had “substantial control” over the 

“context” of the abuse. First, it points out that Bradford 

could have been expelled under the football team’s strict 

rules. But the school presumably could expel any student—

football player or not—if he committed violence against 

another student. In other words, there is nothing materially 

unique about Bradford’s status as a football player to claim 

that the University had substantial control over the context 

of the abuse. And if the ability to expel a student amounts 

to substantial control over the context, then it is tantamount 

to vicarious liability because a school can always expel any 

student committing violent crimes. 
BROWN V. STATE OF ARIZONA 93

Second, the majority opinion argues that the University 

had substantial control over the “context” of the abuse 

because Bradford was on a football scholarship. But that is 

an odd fact to hang a Title IX claim. If a wealthy trust fund 

student assaults a classmate in his luxury apartment, would 

there be no Title IX liability for the school just because his 

parents are paying full tuition?

Finally, the majority opinion stresses that football 

players must receive permission to live off campus. Judge 

Rawlinson’s dissent explains why that does not amount to 

substantial control over the context of the abuse under Davis. 

But stepping back to see the big picture, I do not think it 

should make much difference under the Davis’ “context” 

prong whether Bradford had the luxury of living off campus. 

Certainly, under the facts of Davis, the context prong was 

met: The harassment occurred in the classroom (and not, 

say, a shopping center), putting teachers directly on notice 

of the abuse and allowing them to stop it. But when it comes 

to physical violence in this case, I question whether it 

matters that it occurred in a dormitory room or an offcampus house. Unlike the classroom or a schoolyard, 

dormitory rooms and off-campus houses are private, so 

school officials do not directly observe what happens in 

those rooms and are not on notice of what may occur there. 

It thus seems odd to say that whether abuse occurred in a 

dorm room or an off-campus house should affect the 

school’s liability.

But we are stuck with the Davis test, and we must apply 

it. And under the logic of Davis, the school did not have 

“substantial control” over the context of the abuse occurring 

in an off-campus house. This case reminds us of what 

happens when courts tinker with statutes to reach a 

seemingly just result in a particular case. No longer tethered 
94 BROWN V. STATE OF ARIZONA

to the text, courts fashion an amorphous multi-factor test that 

leads to a fair outcome in a specific case (like in Davis). We, 

however, have to live with the judicially concocted test that 

we create. And when we have to apply that test to other 

factual scenarios, it may make little sense (like in this case). 

This is an awful case with horrendous facts. But I do not 

think it is a Title IX case under the text of the statute or under 

Davis’ judicially created test. I thus respectfully dissent.