UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT MACKENZIE BROWN, a single No. 20-15568 woman, Plaintiff-Appellant, D.C. No. 2:17-cv-03536- v. GMS STATE OF ARIZONA; ARIZONA BOARD OF REGENTS, DBA OPINION University of Arizona, a constitutionally created body corporate, Defendants-Appellees, and RICHARD A. RODRIQUEZ; RITA RODRIQUEZ, Defendants,

v. LIDA DEGROOTE, Third-party-plaintiff.

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. STAT