Sanford Heisler Sharp LLP | 20th Anniversary 2004 - 2024
Sanford Heisler Sharp LLP | 20th Anniversary 2004 - 2024

Recent Appellate Court Decision Helps Survivors Hold Schools Accountable For Off-Campus Sexual Misconduct

On Behalf of | October 16, 2023 | Civil Litigation

Sexual misconduct is pervasive at educational institutions across the country. Under certain federal and state laws – including, Title IX of the Education Amendments of 1972 – schools can be held liable when they fail to take complaints of gender-based violence, discrimination, retaliation, and sexual misconduct seriously. Survivors of sexual misconduct at schools may have grounds to sue their school under Title IX and relevant state or local law.

But what if the sexual misconduct occurred off-campus? The Ninth Circuit Court of Appeals recently addressed this issue en banc, reaching an important decision in Brown v. State of Arizona.

What Happened In Brown v State Of Arizona?

The case involved Mackenzie Brown, a former student at the University of Arizona, who was sexually assaulted by a fellow student, Orlando Bradford, at an off-campus house, where he lived with other members of the university football team. Bradford was eventually convicted of two counts of felony assault.

Brown sued the university under Title IX on the grounds that school officials knew that Bradford had previously sexually assaulted two other female students, yet failed to take sufficient action against him. As a result of the school’s alleged inaction, he was able to assault Brown, which caused her extreme trauma and effectively cost her the ability to fully benefit from her education.

Can A School Be Sued For A Sexual Assault That Occurred Off Campus?

A key issue in the case came down to the “substantial control” element. To be liable for student-on-student misconduct under Title IX, the school must have been in a position to exercise some degree of control over the student who committed the assault as well as the context in which the assault occurred.

In cases involving on-campus sexual misconduct, that element can be easier to establish because the school has control over its campus and student housing.

The appellate court’s en banc decision recognized that the physical location of the misconduct is just one factor in determining whether the school had “substantial control”. Just because the misconduct occurred off-campus doesn’t mean the school had no control over it, the court held. If the school had disciplinary authority over the student committing the assault and could have taken steps to prevent the it – for example, by suspending or expelling the student – then the school can still be liable.

As Judge W. Fletcher wrote in the opinion, “A [school] cannot be directly liable for its indifference where it lacks the authority to take remedial action. That setting could be a school playground. But, depending on the circumstances, it could equally well be an off-campus field trip, an off-campus research project in a laboratory not owned by the school, or an off-campus residence. If the harassment occurs in such a setting—that is, in a “context” over which the institution has substantial control—the institution may be held liable for deliberate indifference under Title IX even though the harassment takes place off the physical property of the institution.”

In this case, the court concluded that the school had control over the off-campus housing in which Bradford was living, because the school and its football team had given football players permission to move off-campus, the school’s code of conduct applied to both on- and off-campus students, and both the school and the football team had the ability to discipline Bradford.

Speaking Up Against Sexual Assault And Misconduct

When sexual misconduct happens in an education setting – either on or off campus – the survivor may be impacted in many ways. It takes profound courage to speak up and take action against sexual assault in any context.

It is important to know that help is available when choosing to hold schools accountable. Survivors deserve a team of strong advocates on their side to help them pursue justice, which can ultimately help promote safer campus environments.