Whether an educational institution can be held liable under Title IX for student-on-student harassment that occurs off-campus when the institution retains disciplinary authority over the student harasser

No question identified. : TO: The Honorable Elena Kagan, Associate Justice of the United States Supreme Court and Circuit Justice for the United States Court of Appeals for the Ninth Circuit The State of Arizona and the Arizona Board of Regents (dba the University of Arizona) (together, the “Applicants”) respectfully seek a 30-day extension of time within which to file a petition for a writ of certiorari to review the Ninth Circuit’s judgment in this case, to and including January 25, 2024. Absent an extension, the deadline for filing the petition will be December 26, 2023. This application is being filed on December 13, 2023—more than 10 days before the petition is due. See U.S. Sup. Ct. R. 13.5. In support of this request, Applicants state as follows: 1. The Ninth Circuit entered judgement and issued its en banc opinion on September 25, 2023. A corrected opinion was issued on October 2, 2023, correcting a minor typographical error. A copy of the corrected opinion is attached. This Court has jurisdiction under 28 U.S.C. § 1254(1). 2. This case concerns the extent of an educational institution’s liability under Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688, for student misconduct that takes place off school campus. This is an important issue that has divided the circuits and that merits this Court’s review. 3. Title IX 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, Davis held that a plaintiff must show that the educational institution “exercises substantial control over both the harasser and the context in which the known harassment occurs.” Davis, 526 U.S. at 645. 4. Davis did not define what it means for a school to have substantial control over the “context” in which known harassment occurs, nor did it address whether and under what circumstances a school may exercise “substantial control” over harassment that takes place in off-campus contexts. The Court has not subsequently addressed this important issue. 5. Mackenzie Brown, the plaintiff and appellant below, brought this Title IX action against Applicants after being physically assaulted by her boyfriend and fellow student, Orlando Bradford, while attending the University of Arizona. The assaults occurred at Bradford’s off-campus residence on two consecutive days in September 2016. Bradford was arrested and suspended from the University the next day, and subsequently expelled and sentenced to five years in prison. Brown did not fault the University for its response to her own abuse, which led to Bradford’s arrest, but argued that the University violated Title IX by not adequately responding to Bradford’s abuse of two prior girlfriends, who were also students at the University. 6. The district court granted summary judgment in Applicants’ favor, holding that the University had no control over the off-campus context in which Brown was abused. It held that the University therefore could not be held lable under Title IX, which, under Davis, imposes liability only where the educational institution has substantial control over both the harasser and the context in which the harassment took place. See Brown v. Arizona, No. CV-1703536-PHX-GMS, 2020 WL 1170838 (D. Ariz. Mar. 11, 2020). Brown appealed the district court’s ruling. 7. Ina split decision, a three-judge panel of the Ninth Circuit affirmed the district court’s ruling that the University had no control over Bradford’s off-campus house and, accordingly, coul