Title IX “Control” Is a Functional, Fact-Based Inquiry: Indirect Authority Over a Third-Party Harasser Can Satisfy Davis

1. Introduction

This published Tenth Circuit decision addresses when a federally funded university may face Title IX damages liability for deliberate indifference to sexual abuse perpetrated by a person who is neither a student nor an employee, but who is closely connected to the university’s athletic program. Plaintiffs Jane Doe 1, Jane Doe 2, and Jane Doe 3 (members of Eastern New Mexico University’s women’s basketball team) alleged that Glen de los Reyes— husband of the team’s head coach—sexually abused them during purported “biomechanics” treatment sessions. The core appellate issue was whether ENMU could be liable under Title IX when the alleged harasser lacked a formal university role and much of the conduct occurred off campus.

The district court entered summary judgment for ENMU, reasoning primarily that ENMU lacked sufficient “control” over Glen to satisfy Title IX’s deliberate indifference framework. The Tenth Circuit reversed, clarifying that “control” under Davis v. Monroe Cnty. Bd. of Educ. is not a narrow, formalistic inquiry limited to the school’s ability to fire, expel, suspend, or otherwise directly discipline the harasser.

2. Summary of the Opinion

The Tenth Circuit held that the district court applied an overly formalistic “control over the harasser” test. Viewing the record in the light most favorable to the Does at summary judgment, the court concluded that ENMU had multiple practical tools to protect students and curb Glen’s access to them, including measures that would operate indirectly (e.g., directing coaches not to refer athletes to Glen, banning Glen from campus, restricting team events at the coach’s home, and leveraging the university’s authority over the coach and student-athletes). Those tools created a genuine dispute of material fact as to whether ENMU exercised “substantial control” over both the harasser and the context in which the known harassment occurred.

The court also agreed with the district court that the record did not support a distinct “official policy” theory of deliberate indifference under Gebser v. Lago Vista Indep. Sch. Dist., distinguishing Simpson v. University of Colorado Boulder. The Title IX retaliation ruling was not reviewed because the Does did not adequately preserve it on appeal.

Disposition: Summary judgment for ENMU reversed; case remanded.

3. Analysis

3.1 Precedents Cited

• Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998)
  Establishes that Title IX damages liability is not vicarious; it attaches to the funding recipient’s own misconduct when an official with authority to take corrective action has actual notice and responds with deliberate indifference. The panel uses Gebser to anchor the idea that the control inquiry is about the school’s capacity to take corrective action—if the school lacks authority to act, it cannot be “deliberately indifferent.”
• Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999)
  Provides the two-part “substantial control” requirement—control over the harasser and control over the context of known harassment—and the causation concept that indifference must “cause [students] to undergo” harassment or make them “liable or vulnerable” to it. This opinion’s key doctrinal move is to interpret Davis pragmatically: “control” is not confined to formal disciplinary power.
• Murrell v. School Dist. No. 1, 186 F.3d 1238 (10th Cir. 1999)
  The Tenth Circuit’s early post-Davis application, emphasizing a practical ability to halt abuse (e.g., supervision, curtailing privileges). The panel treats Murrell as confirming that control is satisfied when the school can implement effective measures, not only expel or terminate.
• Bryant v. Indep. Sch. Dist. No. I-38, 334 F.3d 928 (10th Cir. 2003) (Tacha, C.J., concurring)
  Cited for the proposition that the deliberate indifference factors depend on a “constellation of surrounding circumstances, expectations, and relationships,” reinforcing a contextual, fact-intensive approach.
• Hall v. Millersville Univ., 22 F.4th 397 (3d Cir. 2022)
  Supports a broad conception of control: not limited to “formal disciplinary authority,” but the degree of control and ability to take remedial action. The panel aligns with Hall, rejecting a rigid “must be able to terminate/discipline” rule.
• Doe v. Edgewood Indep. Sch. Dist., 964 F.3d 351 (5th Cir. 2020)
  Cited as a contrary approach—suggesting the power to institute corrective measures must include power to terminate or discipline. The panel expressly declines that narrow formulation for the Tenth Circuit.
• Feminist Majority Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018)
  Used to illustrate the interrelationship between “control over context” and “control over harasser,” particularly where the institution can regulate those creating the harmful environment.
• Simpson v. University of Colorado Boulder, 500 F.3d 1170 (10th Cir. 2007)
  The leading Tenth Circuit decision recognizing an “official policy” deliberate indifference theory. The panel distinguishes Simpson: ENMU’s alleged failures were framed as nonfeasance in response to reports, not an affirmative, institutionally sanctioned program designed to foster a sexually risky environment.
• Farmer v. Kan. State Univ., 918 F.3d 1094 (10th Cir. 2019)
  Cited for post-assault deliberate indifference theory and as an example where off-campus context can still satisfy Title IX when there is a sufficient nexus to the university (e.g., ongoing exposure to perpetrators in the educational program).
• Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114 (10th Cir. 2008)
  Provides summary judgment posture and the “nexus” discussion for off-campus harassment context; also cited for the appellate lens of construing evidence in favor of the non-movant.
• Oldham v. Penn. State Univ., 138 F.4th 731 (3d Cir. 2025)
  Illustrates “control over context” where the university hosts or supervises the event—even if harassment occurs in a specific location associated with the event.
• Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248 (11th Cir. 2010)
  Cited in a footnote as an example of a “pre-assault” theory (deliberate indifference to a known risk causing later assaults), while the panel leaves claim categorization to the district court on remand.
• C.S. v. Madison Metro. Sch. Dist., 34 F.4th 536 (7th Cir. 2022)
  Cited for the “head in the sand” concept: deliberate indifference can include actions designed to avoid acquiring or acting on knowledge of misconduct.
• Cannon v. Univ. of Chicago, 441 U.S. 677 (1979) and Medina v. Planned Parenthood S. Atl., 606 U.S. 357 (2025)
  Cannon is used to emphasize Title IX’s focus on protecting the “benefited class” (students) rather than simply policing recipient misconduct; Medina is noted for abrogation recognition on other grounds, not for altering the core student-protective framing invoked here.
• Loper Bright Enters. v. Raimondo, 603 U.S. 369 (2024)
  Cited to explain that agency interpretations are not given Chevron deference, though they may still be considered for persuasive value—relevant to the panel’s discussion of Department of Education guidance recognizing third-party harassment.
• Summary judgment standards: Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253 (1968); Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008); Harden v. Hedgecock, 181 F.4th 1094 (10th Cir. 2026).
  These authorities frame the procedural posture: the appellate court does not weigh credibility and must ask whether a rational jury could find for the non-movants.
• Doe v. Univ. of Tenn., 186 F. Supp. 3d 788 (M.D. Tenn. 2016)
  Cited as an example of the relatively rare post-Simpson cases finding an official-policy-type theory viable.

3.2 Legal Reasoning

A. The doctrinal clarification: “control” is functional, not formal

The opinion’s principal contribution is its clarification of “control over the harasser” under Davis. The district court treated control as largely coextensive with formal disciplinary authority (e.g., an employment or enrollment relationship). The Tenth Circuit rejected that framing and reaffirmed a pragmatic inquiry: whether the recipient had “the ability to protect its students from the threat” and “authority to take remedial action” that could effectively curb the harassment.

The panel emphasizes that courts must examine “what the defendant could have done,” not merely whether the institution could “fire or expel” the harasser. It also underscores that Title IX’s text and Davis focus on whether the recipient’s indifference “subjects” students to harassment or makes them “vulnerable” to it.

B. Indirect levers can satisfy the harasser-control requirement

Applying that functional test to the record, the court identified multiple remedial avenues available to ENMU that could have materially reduced Glen’s access to student-athletes—despite his lack of formal university status. These included:

• Directing coaches not to refer, require, or transport athletes to Glen for treatment.
• Restricting team activities at the coach’s home (where Glen lived and where treatments and mandatory dinners occurred).
• Banning Glen from campus (a measure ENMU eventually took) and curtailing his perceived legitimacy with athletes.
• Using ENMU’s authority over Coach Meghan (an employee) to separate the team’s required activities from Glen’s access.
• Protecting athletes against retaliation for refusing contact or treatment—thereby making restrictions practicable.

The district court dismissed such measures as “control over employees and students” rather than “control over Glen himself.” The Tenth Circuit rejected that distinction as unsupported by Davis. The relevant question is whether the school had effective corrective tools; indirect control that meaningfully prevents access can satisfy the control prong.

C. Interplay between “control over harasser” and “control over context”

The panel recognizes that the two Davis prongs are distinct but “intertwined.” Here, the alleged abuse occurred at a residence that also hosted mandatory team events—creating a stronger institutional nexus to an otherwise off-campus location. The opinion cautions, however, that control over a context does not automatically imply control over “any random third party,” illustrating with a hypothetical home-intruder scenario.

D. Deliberate indifference and knowledge: a triable record

ENMU sought affirmance on the alternative ground that the Does could not show deliberate indifference to a known risk. The panel rejected that at summary judgment, pointing to evidence that the athletic director had notice of allegations by at least October 2022 (and arguably earlier), convened a meeting where the allegations were raised, accepted Glen’s explanations without an investigation, failed to report to the Title IX office, and delayed meaningful restrictions for months.

Importantly, the court treats ENMU’s asserted inability to control Glen as potentially consistent with the Does’ theory: ENMU allegedly prioritized liability and staffing gaps over athlete safety, allowed continued access, and tolerated mandatory events at the home—facts from which a jury could infer deliberate indifference.

E. “Official policy” liability rejected

The court separately affirms the district court’s conclusion that the record did not establish an “official policy” of deliberate indifference as described in Gebser. Distinguishing Simpson v. University of Colorado Boulder, the panel characterized ENMU’s conduct as failing to intervene in response to reports, not an affirmative, sanctioned institutional program that predictably encouraged sexual misconduct absent supervision.

3.3 Impact

This decision meaningfully broadens (or, more precisely, clarifies) the Tenth Circuit’s approach to third-party harasser cases by rejecting a bright-line rule that “control” requires the power to terminate, expel, or formally discipline the perpetrator. Likely consequences include:

• Greater exposure in athletics-adjacent settings: Universities may face trial where boosters, volunteers, spouses/partners of staff, private trainers, or other non-affiliates obtain access through team structures and the school can practically restrict that access.
• Focus on “available corrective tools”: Litigation will center on the menu of measures a school realistically could deploy (directives to staff, rules for team activities, restrictions on travel and treatment referrals, campus bans, reporting obligations), not solely on formal status.
• Off-campus does not end the inquiry: The “nexus” analysis for context, supported by cases like Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., Farmer v. Kan. State Univ., and Oldham v. Penn. State Univ., is reinforced where the location is intertwined with school-sponsored events or requirements.
• Program design and staffing pressures: The opinion’s discussion of alleged reliance on “free” treatment and fear of liability may encourage future plaintiffs to probe structural incentives (resource shortfalls, informal practices, discouraged reporting) as evidence of deliberate indifference.
• Inter-circuit tension persists: The court’s explicit rejection of the Fifth Circuit’s narrower framing (citing Doe v. Edgewood Indep. Sch. Dist.) sets up continued doctrinal divergence on “control,” which may affect forum strategy and potentially invite Supreme Court review if splits deepen.

4. Complex Concepts Simplified

• Title IX deliberate indifference (damages standard): A school is not automatically liable for sexual misconduct. Damages require proof that the school, after having actual notice through an appropriate official, responded in a way that was clearly unreasonable and that its response caused or made the student vulnerable to further harassment.
• “Substantial control” over the harasser: Not limited to the power to fire/expel. It asks whether the school had practical means to curb the harasser’s access to students or stop the misconduct (directly or indirectly).
• “Substantial control” over the context: Whether the harassment occurred in a setting connected to the school’s programs/activities such that the school could take steps to address it—often framed as a “nexus” between the school and the location/event.
• “Official policy” theory (a narrow category): Separate from ordinary deliberate indifference. It concerns institutional policies or sanctioned practices that predictably create a heightened risk of sexual misconduct, as in Simpson v. University of Colorado Boulder.
• Summary judgment posture: At this stage, courts do not decide who is telling the truth. They ask whether a reasonable jury could find for the nonmoving party based on the record, drawing reasonable inferences in that party’s favor.

5. Conclusion

The Tenth Circuit’s central holding is that Title IX’s Davis “control” requirement is a functional, fact-based inquiry, not a formal-status test. A university may have sufficient control over a third-party harasser when it can deploy practical corrective tools—often by regulating access through employees, team rules, and school-sponsored activities—even if the harasser is not an employee, student, or formal volunteer.

While the court rejected an “official policy” theory under Gebser, it revived the Does’ core deliberate indifference claims by emphasizing that ENMU’s ability to restrict access, coupled with delayed or inadequate response to reports, creates triable issues for a jury. The decision strengthens Title IX’s remedial focus: whether a recipient’s inaction or inadequate action “subject[s]” students to harassment by leaving preventable access and vulnerability in place.