Why Title IX if the sex did not take place on school grounds?

In Brown v. State of Arizona, d/b/a the University of Arizona, an important development for students trying to understand if the sexual assault in college that they are responding to has risk, the 9th Circuit Court of Appeals has just said that even if the alleged sexual conduct took place off campus, the school must investigate the male respondent.  That is to say that a male student can be punished for anything that another student claims he did, even if this was, as in this example, in an off-campus, private apartment.

In the specific situation, Mackenzie Brown, a female student at the University of Arizona, accused her boyfriend, Orlando Bradford, who played for the Arizona Wildcats football team, of assaulting her in his private apartment.  According to the opinion, the school knew of Bradford’s reputation:

“At the time of the assault, university officials knew that Bradford had repeatedly and violently assaulted two other female undergraduates the previous year.”

And the school did nothing about that, ever:

“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.”

Ordinarily, a non-Title IX lawyer might think that because Ms. Brown said the assault took place at an off-campus, not University owned apartment, there would be no Title IX risk for Mr. Bradford.  Not so.  The Title IX legal world is very different.  As of now, the University of Arizona must and will prosecute Mr. Bradford for the alleged off-campus assault of Ms. Brown under UA’s Title IX and sexual misconduct process.

That is the important news out of Brown v. State of Arizona, case no. 20−15568, an en banc decision that came out on September 25, 2023.  The 9th Circuit has now set this as the law for states including Alaska, Arizona, Hawaii and all of California.  As a result, we believe it makes sense that any school in the remaining states will follow the Brown decision, and start to take seriously off-campus sexual assault complaints against male students that ordinarily would be only a police matter, and not a Title IX investigation, because this type of assault would have taken place, if at all, off campus.

The Brown decision means that, for example, if you are a male college student in Pennsylvania, and any of your classmates accuses you of sexual assault (or sexual harassment, or stalking) claiming you did this completely out of school property, you will very likely be prosecuted for violating your school’s Title IX and sexual harassment policy.

What is the take away here?  

FIRST, as a matter of Title IX law, the Brown decision states a powerful concept that affects all of our work for students (and faculty) responding to notices of allegations that they may have violated Title IX or the schools’ discipline.  Namely, the concept is that schools have the most power, the most money, and the greatest ability to control risk and protect all their students--including protecting them while they are not physically at the school, either on campus, or on campus dorms.  This makes them the cheapest-cost-avoider.  As the 9th Circuit put it:

“...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.”

SECOND, as a matter of your personal risk, if you are a male respondent to a Title IX or sexual assault notice of allegations that your complainant says took place off campus, on private property, like Ms. Brown’s complaint against Mr. Bradford about the horrid stuff that she says happened in his apartment, you seriously risk expulsion and you need a legal strategy now.

If you are a male respondent trying to deal with this kind of Title IX problem, do not do it alone, give us a call.

You can read the decision here:

https://www.publicjustice.net/wp-content/uploads/2022/03/Brown-En-Banc-Opinion.pdf