Executive summary
In an 8–4 en banc decision issued July 20, 2026, the Seventh Circuit affirmed summary judgment for the University of Wisconsin (the University) in Arana v. Board of Regents, holding that the University’s overall response to a student’s sexual assault report, which included a prompt investigation, discipline, and maintenance of an apparently effective no-contact order, did not constitute “deliberate indifference” under Title IX, even assuming internal and public pressure played some role in the decision to readmit the accused student. The ruling reinforces the demanding Davis[1] standard to establish Title IX institutional liability for peer harassment, but the underlying facts—donor emails to the Chancellor, a social media campaign to re-admit the respondent, an eight-day readmission decision made without key evidence the University’s attorney identified as essential, and the Chancellor’s decision to disregard the Title IX Coordinator’s recommendation that the Complainant be consulted—illustrate governance challenges that could equate to deliberate indifference under certain scenarios.
The practical takeaway for institutions: clearing the Davis bar is not the same as proactively managing and avoiding risk. Readmission, reinstatement, safety planning, athletics influence, and donor pressure remain significant sources of litigation, reputational, and governance exposure with impacts upon campus life, regardless of how the liability question ultimately resolves.
Arana v. Board of Regents, in brief
The Complainant, a freshman at the University of Wisconsin-Madison, reported that the Respondent, a star wide receiver on the University's football team, sexually assaulted her at an off-campus apartment in April 2018. The University responded promptly with academic accommodations, an indefinite no-contact order, and a Title IX investigation. After a four-month investigation and formal hearing, the Respondent was found responsible for sexual assault and sexual harassment in violation of Wisconsin statutes and the University’s code of conduct and was expelled. Both the Chancellor and Board of Regents rejected his appeals.
In a separate criminal proceeding, a Wisconsin state jury acquitted the Respondent of related criminal charges. Four days later, and weeks before the semester was set to begin, the Respondent filed a 242-page petition requesting readmission to the University, urging a swift decision so he could return to the football field. State law required that the Chancellor was responsible for deciding whether to admit the Respondent.
The Chancellor readmitted the Respondent eight days after he filed his petition, vacated the sexual assault finding, converted the expulsion to a suspension (effectively time-served), and left the no-contact order in place.
The Court noted several concerning aspects of the readmission process:
- The Chancellor received emails from alumni, donors, employees, students, and others; the football team wrote a letter; the Respondent held a press conference the Chancellor believed was an attempt to pressure the University; and a group of major donors called for the Respondent’s prompt readmission.
- A University attorney characterized the trial transcript as “an essential element in the [C]hancellor’s review,” in an email to the Respondent's attorney, but when a court reporter said it would take at least two months to prepare, the Chancellor determined that was too long and proceeded without it in the readmission evaluation.
- The Title IX Coordinator encouraged the Chancellor to give the Complainant a chance to respond, but the Chancellor did not do so.
After learning of the readmission, the Complainant requested a safety plan; University officials determined she had not identified any specific threats and declined to implement additional measures beyond the no-contact order. The Respondent never contacted the Complainant again and withdrew after the fall semester to enter the 2020 NFL draft. The Complainant, however, changed her behavior substantially while the Respondent remained on campus: she avoided certain campus areas, withdrew from a class, reduced her course load, socialized less, and delayed graduation by one semester.
The Complainant ultimately sued the University in federal court, alleging that the University violated her rights under Title IX. The district court granted summary judgment to the University. On appeal, a divided panel of the Seventh Circuit reversed the grant of summary judgment to the University, finding that a reasonable jury could have found that the University violated Title IX. The court agreed to hear the case en banc and affirmed summary judgment to the University in an 8–4 decision.
The majority’s holding
Writing for the majority, Judge Kirsch held that no jury could reasonably conclude the University acted with deliberate indifference, as required by Davis. The majority's key points included:
- Overall response controls. Schools are entitled to flexibility in their responsive measures. A disciplinary process need not be perfect, especially through the lens of hindsight, and a complaining student is not entitled to every requested safety measure. Here, the University separated the parties, investigated, imposed discipline, and relied on an apparently effective no-contact order after readmission with no reports of its violation. Because the court’s task is to assess whether the University acted with “deliberate indifference” and not re-adjudicate the dispute, the response controls were sufficient to meet the University’s obligations.
- Improper pressure is not dispositive. The Court assumed internal and public pressure played a role in the Chancellor’s decision to re-admit the Respondent, but held that, even if it did, no jury could find the overall response clearly unreasonable. Notably, the majority drew a distinction between direct discrimination claims (where evidence of pretext and motive is central to the analysis) and indirect discrimination claims, such as deliberate indifference to peer harassment (where the school's real reason for a decision is merely “one fact to consider” in weighing the overall response). The Court held that “the typical burden-shifting framework and pretext analysis associated with direct discrimination cases are wholly inapplicable to a Title IX indirect discrimination claim.”
- Process flaws are not enough. Title IX did not require the University to take more time, wait for the transcript, or include the Complainant in the process. These were matters of negligence at most, not deliberate indifference. The Supreme Court has held that negligence principles cannot establish Title IX institutional liability.
- No entitlement to particular remedial measures on these facts. Complainants are not entitled to base Title IX claims on whether a University met “particular remedial demands” about how the University should respond upon its actual knowledge of reported peer harassment. The Court emphasized that on the facts presented—no specific threats identified, no violations of the existing no-contact order after readmission—the University's decision to rely on the existing order rather than implement a broader safety plan was not clearly unreasonable.[2]
The concurrences
Chief Judge Brennan (Spending Clause): Chief Judge Brennan joined the majority in full but wrote separately to emphasize the analysis that applies to Title IX as a Spending Clause statute. His concurrence asserted that the Pennhurst[3] canon, requiring that conditions attached to federal funding must be unambiguous before states can be held liable, should inform the resolution of the open questions in Title IX law. His concurrence specifically cautioned that:
- Pre-notice liability may be impermissible because a school cannot “discriminate” or “exclude” anyone “when it hasn't a clue” that harassment is occurring.
- Single-instance liability may be barred because of current circuit disagreement on whether a single incident is actionable, suggesting textual ambiguity that should be resolved against the funding recipient bearing liability.
- Off-campus control theories face similar ambiguity, and “the less expansive reading of the statute should control.”
Chief Judge Brennan’s concurrence connected these principles to the Supreme Court's June 2026 decision in West Virginia v. B.P.J. (transgender athletics), which held that Title IX does not clearly and unambiguously require schools to allow birth-assigned males to compete on girls’ sports teams. His concurrence framed the Title IX analysis in the broader context of Spending Clause limits upon a funding recipient’s scope of liability.
Judge Easterbrook (Sex Discrimination Requirement): Judge Easterbrook joined the majority but raised a more fundamental question: whether the Complainant-plaintiff proved the University discriminated “on the basis of sex” at all, as opposed to simply providing inadequate protection of her welfare. His concurrence observed that the Complainant-plaintiff “does not contend that the University’s disciplinary process favors men over women,” arguing that “inadequate consideration to a student's well-being differs from sex discrimination.” Rather, Judge Easterbrook suggested that if Davis is read to dispense with proof that the funding recipient engaged in sex-based discrimination, “that decision needs another look in order to respect the statutory text.” If adopted, this concurrence signals that the doctrinal foundation of peer-harassment claims under Title IX may be vulnerable to future challenge.
The dissent
Judge Jackson-Akiwumi, joined by three colleagues, would have remanded the case for a trial. The dissent’s central critique: the majority disregarded facts a reasonable jury could use to find in the Complainant's favor and rested its holding on facts that are not dispositive alone in the deliberate indifference analysis. The dissent also argued that deliberate indifference isn't measured on a binary scale; it's measured on a continuing spectrum, and that crediting the University for an “apparently effective” no-contact order ignores that the Complainant’s own self-protective measures may explain why she never encountered the Respondent again.
The dissent further argued that (1) the Chancellor never adequately explained what newly supplied evidence undermined the University’s finding on sexual assault (which required only lack of consent, not incapacitation), (2) the Respondent had violated the no-contact order once prior to his readmission and had five prior unrelated disciplinary incidents, and (3) the majority effectively picks a side in the circuit split on whether post-notice further harassment is required, while claiming to leave the question open.
Unresolved questions
The majority expressly reserved decisions on three central questions that have increasingly divided the circuits, and that institutions must track closely:
- Institutional control over off-campus conduct. Does Title IX require a school to exercise “substantial control over both the harasser and the context in which the known harassment occurs” for off-campus misconduct to be actionable? The circuits are split. Compare Brown v. Arizona, 82 F.4th 863 (9th Cir. 2023) (sufficient control could exist over off-campus house) with Roe v. Marshall Univ., 145 F.4th 561 (4th Cir. 2025) (insufficient control over off-campus residence). The University waived this argument at en banc oral argument, so the Seventh Circuit still has not addressed it.
- Single-instance actionability. Can a single instance of student-on-student sexual harassment give rise to a Title IX claim? The 6th, 8th, and 11th Circuits say no; the 1st and 4th Circuits say yes. Davis requires proof of “pervasive” sexual harassment, but circuits disagree on how to define and measure “pervasiveness.”
- The “subjects” requirement. Must a complainant experience additional harassment after the school's response for liability to attach, or is it enough that the school’s response made the student “vulnerable to” further harassment? Several circuits require actual post-notice harassment; others do not and deem vulnerability to further harassment to be enough to create a duty to respond.
These questions have enormous practical significance, particularly the off-campus control issue for institutions managing conduct in off-campus fraternities, apartments, and athletics travel contexts. We continue to monitor decisions around the country where these questions are percolating, including any attempts to seek cert from the Supreme Court.
Key takeaways for institutions
- The doctrinal bar remains high. The Arana decision is favorable for institutions defending Title IX damages claims in the Seventh Circuit. It confirms that courts will not impose liability for mere negligence, imperfect procedures, or a complainant's disagreement with the school's chosen remedial measures. A school’s response must be clearly unreasonable in light of the known circumstances to establish Title IX institutional liability.
- Readmission and reinstatement are the pressure points. Here, the initial investigation was not the problem; the post-acquittal, pre-football-season readmission decision created the liability risk. Institutions should treat readmission, reinstatement, sanction modification, and return-to-campus decisions with the same procedural rigor as the original disciplinary process and should review their policies to ensure there is a process for doing so.
- External pressure is a documented risk factor even where it does not create liability. Trustee, donor, athletics, alumni, and social media pressure should be logged, insulated from decision-makers as much as possible, and never allowed to drive timelines. Protocols should be designed and implemented that limit direct donor, trustee, athletics, and alumni communications with disciplinary decision-makers and that require any such communications to be logged. The Arana record includes donor letters, a coach’s press conference, a social media campaign the University itself was tracking, and a donor list the Chancellor was told to personally notify of her decision. Even where this does not create Title IX liability, it creates significant discovery, reputational, and regulatory exposure.
- Process still matters—and the law is not settled. Four judges saw enough to send this case to trial. The next case, with slightly different facts or in a different circuit, may similarly find triable issues that a jury must decide. While not yet a widely accepted view among the circuits, the Brennan concurrence signals that Spending Clause principles may further narrow liability, which is an evolving legal issue worth watching.
- Written rationales must match the finding being changed. One of the dissent’s most damaging critiques focused upon the Chancellor’s conclusions from the newly supplied evidence, most of which concerned how intoxicated others believed the Complainant to be, but did not explain why the Respondent’s sobriety or the Complainant’s intoxication had any bearing on the University’s sexual assault finding, which requires only that the assaulted person did not consent. When decisions are being made to overturn a prior finding, whether at the appeal stage or otherwise, clear explanations of why those reversals are being made and how the evidence and facts support that alteration are critical.
Areas of ongoing uncertainty
Nearly three decades after the Supreme Court decided Davis, Title IX institutional liability for peer harassment remains an evolving area of the law with nuanced issues that are splitting the circuits. The Brennan and Easterbrook concurrences suggest grounds upon which future cases may apply to further narrow the scope of Title IX peer-harassment liability. Given the fact-specific analysis in Davis’s deliberate indifference paradigm, institutions should document their reasoning carefully during investigations and grievance processes and create a strong record justifying any alteration of the result either through an appeal or subsequent action (such as the readmission of a student prior to the expiration of an imposed sanction). The Seventh Circuit’s divided en banc ruling demonstrates the vexing issues that administrators face in real time—with many competing considerations—which can create liability risk in court through cases brought by both complainants and respondents. Unless and until the Supreme Court revisits Davis, these questions will continue to arise, with courts reaching differing conclusions on the appropriate scope of Title IX institutional liability.
- Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
[Back to reference] - Note: This holding is fact-specific, not a categorical rule that safety plans are never required.
[Back to reference] - Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.1 (1981)
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