Regents want high court review of ruling U of A can be sued for player's assault

The Arizona Board of Regents is petitioning the U.S. Supreme Court to extend its deadline so the court may review a ruling that the University of Arizona can be sued by the victim and held liable for her assault by a former football player.

The regents’ lawyers have filed “an application for an extension of time within which to file a petition for a writ of certiorari” on the case filed by Mackenzie Brown, who was a UA student when she was assaulted by then-Wildcat football player Orlando Bradford in 2016.

A writ of certiorari orders a lower court, in this case the 9th U.S. Circuit Court of Appeals, to deliver its record in a case so that the higher court may review it and decide whether or not to take the case on. The U.S. Supreme Court uses certiorari to select most cases it hears. Supreme Court Justice Elena Kagan will decide whether to grant the extension.

Bradford was found guilty of two counts of domestic violence-related aggravated assault of Brown and sentenced to five years in prison. Brown sued the UA in 2017 under Title IX, arguing that the university knew of previous reports Bradford abused other female students but failed to take an appropriate response that would have prevented his assault of her.

Title IX is the U.S. law that protects people from discrimination based on sex in education programs or activities that receive federal financial assistance.

Though Brown’s arguments were rejected in district court and by a three-judge panel on the federal circuit court in January 2022, the decision was reversed by a full 11-judge panel of the 9th Circuit, which ruled this September that the lawsuit against the UA can move forward.

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ABOR is petitioning the Supreme Court to extend its deadline from Dec. 26, 2023, to Jan. 25, 2024, to accept a filing of its writ.

The extension is warranted, the application argues, because the attorney representing ABOR has had to work on other important cases and only began his representation on this case in November.

The application argues that “Title IX, by its plain terms, applies only to discrimination occurring within a funding recipient’s ‘programs and activities.’” One of the main arguments from ABOR and the UA is that the assault occurred at an off-campus property.

The document also quotes a dissenting opinion on the case: “‘no other court has gone as far’ as the Ninth Circuit did in this case in broadly defining the circumstances in which schools may exercise control over off-campus harassment,” it states.

It is unclear when Justice Kagan will issue her decision. If she rejects ABOR’s extension request, the UA could be forced to go to trial against Brown. If she accepts it, the case could make it to the high court.