On September 1, 2026, the US Court of Appeals for the Tenth Circuit reversed summary judgment in favor of Eastern New Mexico University (the University) in a Title IX case involving allegations of sexual abuse by an individual who had no formal affiliation with the University. The Court held that whether an institution has “substantial control” over a third-party harasser is a fact-intensive inquiry that cannot be resolved solely by asking whether the institution had the formal authority to hire, fire, suspend, or discipline the individual.
The decision reinforces an important point for higher education institutions: Formal affiliation is not necessarily determinative of Title IX exposure. Institutions should consider the practical ways in which their employees, programs, facilities, and policies create or facilitate access to students, and whether the institution has practical means to protect students from misconduct when concerns arise.
Summary of the case
The Plaintiffs were three women’s basketball players who alleged that the Respondent, the husband of the team’s head coach, sexually abused them while providing purported physical therapy services. The Respondent had no official role at the University. He nevertheless provided treatment to student-athletes, initially on campus and later at his and the head coach’s off-campus home.
The record reflected the following timeline of events
Spring 2022: A student-athlete reported inappropriate touching by the Respondent to the head athletic trainer who in turn reported the allegation to athletic director. The athletic director did not take action on the report.
August 2022: Doe 3, a freshman, was assaulted at a mandatory team dinner held at the Respondent’ and head coach’s home.
September–October 2022: Does 1 and 2, also freshmen, alleged that they were sexually assaulted multiple times during Respondent’s “treatments.”
During this time, a “team mom” instructed players not to tell trainers about the Respondent’s treatments. Players were told “snitches get stitches.”
The head athletic trainer warned the athletic director that there could be a “Larry Nassar” situation.
November 2, 2022: The athletic director held a meeting with the Respondent, head coach, head athletic trainer, and other athletics staff. The athletic director pressed the concern of a non-affiliated person working with the student-athletes and offered to make the Respondent a formal University volunteer to address this concern. The Respondent declined the offer. The athletic director also asked about the Respondent’s treatments, inquiring why he might touch a student-athlete’s pelvic area or breast area for a seemingly unrelated injury. The Respondent explained that it was part of his methodology of determining a person’s “sensory imbalances.”
Later that month, Doe 3 reported her concerns to a counselor, who reported the same to Human Resources, which began an investigation. Doe 1 had reported her concerns to an athletic trainer in January, which also was passed on to Human Resources.
February 2023: The University criminally trespassed the Respondent from campus and instructed coaches to stop referring players to him.
The district court granted the University summary judgment, concluding that the University lacked sufficient control over the Respondent to state a deliberate indifference claim under Title IX and that the Does had not demonstrated an official policy at the University of deliberate indifference to sexual harassment.
The Tenth Circuit reversed and remanded.
Control is a functional, fact-intensive inquiry
As held by the Supreme Court in Davis v. Monroe County Board of Education, an institution may be liable under Title IX when it is deliberately indifferent to known harassment in circumstances in which it has substantial control over both the harasser and the context in which the harassment occurs. The Tenth Circuit rejected a narrow approach that would limit institutional “control” to formal authority over the alleged harasser. Instead, the Court held that control is “necessarily a fact-based inquiry,” focused on whether the institution had the practical ability to take remedial action to protect students. Aligning with the Third Circuit’s reasoning in Hall v. Millersville University, 22 F.4th 397 (3d Cir. 2022),[1] the Court stated:
“Liability is precluded only when ‘the school district could not have remedied the harassment because it…had no authority to respond to the harassment.’ The focus is ‘functional: did [the University] have the ability to protect its students from the threat of [the Respondent’s] harassment?’”
The Court identified a number of measures the University could have taken, including directing coaches not to refer or transport student-athletes to the Respondent, prohibiting the Respondent from accessing the campus sooner, instructing student-athletes not to have contact with him, directing the coaching staff to prevent further contact, and addressing the conduct of employees who facilitated that contact.
The Court observed that these responsive measures would have “indirectly but effectively” controlled the Respondent’s access to students. Critically, the Court noted that the University conceded at oral argument that if the Respondent had signed the University’s volunteer form, the University would have had “control” over him. However, signing the form would have conferred no additional practical control: Tearing up the form would simply return the parties to the status quo. The Court called this “a distinction without a difference.”
Importantly, the Court did not hold that every third party who interacts with students is subject to institutional control. Rather, the relevant question is whether, considering the specific circumstances and their interrelated context, the institution had sufficient practical authority to protect students from the alleged harasser.
Institutional facilitation matters
The decision emphasizes the role of the institution’s employees and programs in creating and maintaining access to students.
Here, Plaintiffs alleged that coaching staff facilitated the Respondent’s access to student-athletes, including by referring or requiring them to receive treatment from him. The court viewed those allegations as relevant to whether the University had sufficient control over both the Respondent and the context in which the alleged misconduct occurred.
For higher education institutions, this suggests that the analysis should not stop with the question, “Is this person our employee?” Institutions also should consider:
- Who introduced or referred the individual to students?
- Who authorized, encouraged, or facilitated the individual’s access?
- Was the individual operating through an institutional program, team, department, or activity?
- Could an employee have directed students to stop interacting with the individual?
- Could the institution restrict the individual’s access to campus, programs, or students?
- What steps could the institution reasonably have taken once concerns were reported?
These questions may be particularly important in athletics, where coaches and other personnel may exercise substantial influence over student-athletes’ activities and relationships with outside providers.
Off-campus conduct is not necessarily outside the scope of Title IX
The alleged misconduct did not occur exclusively on university property; some of the alleged conduct occurred at the Respondent’s home. The Tenth Circuit nevertheless concluded that the allegations presented a sufficient nexus to the University’s programs and activities to survive summary judgment. The Court emphasized allegations that the Respondent’s access to student-athletes was facilitated through the basketball program and that a mandatory team event occurred at the Respondent’s home.
The decision therefore underscores that location alone may not resolve the Title IX analysis. Institutions should consider the relationship between the alleged misconduct and the institution’s programs, activities, personnel, and exercise of authority.
Court distinguished individual deliberate indifference from an official-policy theory
The Tenth Circuit rejected Plaintiffs’ separate theory that the University had an official policy of deliberate indifference. The Court concluded that the evidence did not establish an affirmative official policy comparable to the circumstances the Tenth Circuit addressed in Simpson v. University of Colorado Boulder.[2] At the same time, the Court held that the same underlying conduct could support the plaintiffs’ individual deliberate-indifference theory.
That distinction is important. The decision does not establish that an institution’s failure to respond to misconduct automatically constitutes an official policy or practice. Rather, the focus remains on whether the institution had actual knowledge of harassment, had substantial control over the harasser and context, and responded in a manner that was clearly unreasonable in light of the known circumstances.
What this means for higher education institutions
The Tenth Circuit’s decision provides several practical considerations and actions for colleges and universities.
Review third-party access to students, paying particular attention to athletics and other high-trust environments. Institutions should understand how individuals who are not employees—such as outside providers, consultants, volunteers, trainers, mentors, clinicians, or others—obtain access to students and whether institutional personnel facilitate that access.
Where employees exercise significant authority over students, especially in athletics, informal referrals or expectations can create institutional involvement even when the outside individual has no formal university appointment.
This case highlights a recurring institutional risk: When concerns arise about a person who has been given access to students through a university program, the institution cannot necessarily rely on the individual’s lack of formal employment status to define the limits of its responsibility.
Do not assume that off-campus conduct is outside the Title IX framework. When institutional programs or employees facilitate the relationship or provide the context for the interaction, the location of the alleged misconduct may not be dispositive.
Escalate reports appropriately. When allegations implicate an individual who has access to students through an institutional program, athletics personnel and other employees should understand their reporting and escalation obligations and know when concerns should be brought to the Title IX office or other appropriate institutional officials.
Document the institution’s response. Once concerns are raised, institutions should carefully document the information received, individuals involved in decision-making, steps considered, and basis for remedial measures. The question is not simply whether action was taken, but whether the institution responded reasonably in light of what it knew and the authority it possessed.
Looking ahead
Doe v. Eastern New Mexico University Board of Regents does not hold that universities are responsible for the conduct of every unaffiliated third party, nor does it eliminate the requirement that an institution have substantial control over the harasser and the context in which the harassment occurs. It does, however, demonstrate that formal institutional relationships are not the end of the control inquiry. Where an institution’s employees or programs create or facilitate a third party’s access to students, courts may look to the institution’s practical ability to intervene and protect students.
For institutions, the decision is a useful reminder to evaluate third-party relationships not only through the lens of formal affiliation, but also through the lens of access, institutional involvement, practical authority, and steps available to protect students when concerns arise.
- After a freshman at Millersville University was murdered in her on-campus dorm room by her boyfriend who was not a student at the university, but was a frequent guest, the Third Circuit held that colleges and universities may face damages liability under Title IX for deliberate indifference to known sexual harassment committed by non-student guests.
[Back to reference] - 500 F.3d 1170 (10th Cir. 2007). In Simpson, the university had a program to show athletic recruits around campus, led by “ambassadors” who were typically female students. The purpose of these visits was to show the recruits a “good time”. When multiple female students were sexually assaulted by recruits, the Tenth Circuit found that the university had “sanctioned, supported, even funded, a program (showing recruits a ‘good time’) that, without proper control, would encourage young men to engage in opprobrious acts.”
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