82 F.4th 863
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
United States Court of Appeals, Ninth Circuit
Argued and Submitted En Banc March 21, 2023 Pasadena, California
Filed September 25, 2023
Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief District Judge, Presiding D.C. No. 2:17-cv-03536-GMS
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 Defendants-Appellees.
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.;
Gemma Donofrio, Relman Colfax PLLC, Washington, D.C, for Amici Curiae Professor Paul Bender, et al.
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
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 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, 119 S.Ct. 1661, 143 L.Ed.2d 839 (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"
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., 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.
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
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 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...
