(CN) — An en banc Ninth Circuit ruled 8-3 Monday that the University of Arizona violated the Title IX rights of a student who was abused by a football scholarship recipient at his off-campus house.
While attending the University of Arizona on a football scholarship, Orlando Bradford “repeatedly and violently assaulted” Mackenzie Brown, as well as two other female students that university staff were aware of.
Brown sued the University of Arizona in 2017 in Maricopa County Court detailing how Bradford “repeatedly restrained, brutalized, and humiliated” her during the summer and fall of 2016. Bradford sent text messages threatening Brown, “I’m going to show you what happens to people who disrespect me,” and “You’re going to make me break your fucking face.”
One night that September, Bradford refused to let Brown leave his off-campus house. Bradford dragged Brown upstairs by her hair, hit her and told her she was never going to see her mother again. Tucson police documented her injuries on Sept. 14, and Bradford was arrested on multiple felony counts.
In November 2017, Bradford was sentenced to five years in prison. According to the Arizona Department of Corrections, he was released in December 2021.
A federal judge granted summary judgment in favor of the university since the abuse happened off campus, a decision affirmed by a divided three-judge Ninth Circuit panel. Brown requested an en banc rehearing, which took place in March.
"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,” wrote Bill Clinton-appointed U.S. Circuit Judge William Fletcher in a 44-page opinion.
Joe Biden appointees U.S. Circuit Judges Lucy Koh and Jennifer Sung joined the majority opinion along with Barack Obama appointees Chief U.S. Circuit Judge Mary Murguia and U.S. Circuit Judges Jacqueline Nguyen and John Owens and George W. Bush appointee U.S. Circuit Judge Milan Smith Jr.
Title IX states “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.” An education institution violates a students rights if officials knew about the harassment and had "substantial control over both the harasser and the context in which the known harassment occurs."
Even though Bradford abused Brown in off-campus housing, the panel found, he was only allowed to live off-campus if he maintained good standing with the university. Additionally the football team had a “zero-tolerance policy for violence against women.”
University of Arizona football Coach Rich Rodriguez testified that he removed Bradford from the team as soon as he learned about the abuse, telling the court “he certainly would have kicked him off earlier” had he known before Bradford’s September 2017 arrest.
Obama-appointed U.S. Circuit Judge Michelle Friedland issued a separate concurrence to address a waiver issue raised in dissents filed by other judges.
U.S. Circuit Judge Johnnie Rawlinson, a Bill Clinton appointee, wrote a dissent which Donald Trump appointee Kenneth Lee joined, arguing the university did not have control over Bradford in the context of the harassment.
While Rawlinson agreed Bradford subjected Brown to “a horrific experience that no one should have to endure,” she argued Title IX still did not offer victims in Brown’s circumstance any remedy.
"The circumstances of this case do not fall within the parameters of Title IX as enacted and as interpreted by the U.S. Supreme Court,” Rawlinson wrote.
Lee wrote his own dissent, joined by Rawlinson, to detail “how courts have drifted from the text of Title IX,” finding “a criminal act by a student in an off-campus house does not implicate an ‘education program or activity’ under Title IX.”
Donald Trump-appointed U.S. Circuit Judges Ryan Nelson filed a third dissent on which both Lee and Rawlinson joined.
"No other court has gone as far as the majority does,” Nelson lamented. “As a result, the control-over-harasser requirement now swallows the control-over-context requirement, at least in our circuit.”
If the university controlled the context in Bradford’s off-campus housing, Nelson said, then the university must also be responsible for an argument he and Brown had at a tire store.
Attorneys from the Washington D.C. nonprofit Public Justice represented Brown on appeal.
“Today’s opinion is a victory for Mackenzie and for student survivors across the country,” Alexandra Brodsky, an attorney at Public Justice who argued the case, said in a statement. “As the Ninth Circuit explained today, a school’s power to stop violence — and its responsibility to do so — doesn’t stop at the campus boundary.”
The office of the Arizona Attorney General, which represents the university, declined to comment.
With this reversal, Brown’s case has been remanded for further proceedings.
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