Arizona, et al. v. Mackenzie Brown

Title IX of the Education Amendments of 1972 provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a). In Davis ex rel. LaShonda D. v. Monroe County Board of Education, 526 U.S. 629 (1999), this Court recognized an implied private right of action under Title IX against educational institutions who show “deliberate indifference” to student-on-student harassment in their programs or activities. To succeed on such a claim, a plaintiff must show that the educational institution “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Id. at 645 (emphasis added). Under Davis, does a university’s authority to discipline students for misconduct taking place off of the university campus constitute “substantial control” over the “context” in which the off-campus harassment occurs?

Under the party presentation principle, courts rely on the parties to frame the issues for decision and act as neutral arbiters of the issues the parties present. Did the Ninth Circuit abuse its discretion in deciding this case based on an argument expressly disclaimed by the appellant?