On December 30, 2022, Relman Colfax filed an amicus brief on behalf of law school professors in support of Plaintiff-Appellant in Brown v. State of Arizona et al (20-15568), a case being reheard en banc by the U.S. Court of Appeals for the Ninth Circuit. In this case, Plaintiff Mackenzie Brown, a student at the University of Arizona, brought a Title IX lawsuit against the University, alleging that its deliberate indifference to sexual harassment allowed a classmate to abuse her. The University had notice that the perpetrator—a football player—had previously abused two other female students before he assaulted Ms. Brown. Yet administrators took no action to protect students, and to the contrary, allowed the perpetrator to live off campus with teammates, a permission he was granted by the football team and that was dependent on “good behavior.” He subsequently assaulted Ms. Brown in his residence.

The district court granted summary judgment to the University, noting that the perpetrator’s abuse of Ms. Brown occurred in his off-campus residence and holding that the University did not exert substantial control over that residence. A divided Ninth Circuit panel affirmed the district court’s ruling, though Judge Fletcher penned a forceful dissent explaining why the University, in fact, did exert substantial control over the perpetrator’s home. Plaintiff-Appellant subsequently filed a petition for rehearing or rehearing en banc. On December 9, 2022, the Ninth Circuit granted Plaintiff-Appellant’s petition for rehearing en banc and vacated the panel opinion.

The amicus brief highlights the text of Title IX, which demonstrates that universities can have substantial control over off-campus contexts. The brief notes that whether a context or environment falls under Title IX turns on the degree of control a university has over that context or environment, and the statute and case law illustrate that a university can have control over contexts where the university has disciplinary or regulatory authority. Moreover, the realities of university life demonstrate that a university’s substantial control is not contained to a campus map or to school-sponsored activities. Here, the University provided the perpetrator with permission to live off campus, a permission they could revoke at any time, and funded his residence through a football scholarship, clearly demonstrating substantial control over the context of the harassment.

Nine law school professors and directors of law school clinical programs joined this brief: Ian Ayres, Kelly Behre, Paul Bender, Rachel F. Moran, Peter Nicolas, Noah A. Rosenblum, Jane K. Stoever, Merle H. Weiner, and Michael J. Wishnie. Gemma Donofrio drafted the brief, with assistance from Yiyang Wu, and paralegal assistance from Don Scales and Mariana Boully Perez. 


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