Universities generally know who works for them. There are contracts, identification cards, email addresses, reporting lines, and offices with names on the doors. But in Title IX cases, liability may turn less on formal labels than on a more practical question of control: whether the institution had meaningful authority over the alleged harasser, the setting, or the circumstances that gave that person access to students. The harder question is not always who was officially inside the institution, but who the institution allowed to feel as if they belonged there.
Athletic programs make that question especially complicated. Alongside coaches, trainers, administrators, and compliance officers, there may be private specialists recommended by coaches, informal volunteers who are always nearby, family members offering services to athletes, and unofficial helpers who acquire credibility because someone within the program treats them as trustworthy. They may never appear on an organizational chart. Students may nevertheless understand them to be part of the program.
A recent decision from the United States Court of Appeals for the Tenth Circuit brings that control analysis into sharper focus. In Jane Doe 1, Jane Doe 2, and Jane Doe 3 v. Eastern New Mexico University Board of Regents, the court held that control under Title IX cannot be determined simply by asking whether a university could fire, suspend, or discipline the alleged harasser. The inquiry is more practical: did the university have the ability to protect its students from the risk that person posed?
Background
The case involved Glen de los Reyes, the husband of Meghan de los Reyes, head coach of the women’s basketball team at Eastern New Mexico University. Although he held no official university position, he treated student-athletes as a self-described “biomechanics specialist,” first on campus and later at the couple’s home. The athletes alleged that their coach referred or required them to receive those treatments and questioned the seriousness of their injuries when they refused. During the treatments, they alleged that Glen de los Reyes touched their breasts, groin areas, and other intimate body parts while purporting to treat unrelated injuries, at times continuing after being told to stop. The home also served as the site of mandatory team gatherings, further connecting the private setting to the basketball program.
The university argued that it lacked sufficient control because Glen de los Reyes was neither an employee nor a formal volunteer. The Tenth Circuit found that view too “formalistic.” University officials could have stopped coaches from referring athletes to him, ended mandatory team activities at his home, barred him from campus, disciplined employees who facilitated contact, and assured athletes they could refuse treatment without retaliation. None of those measures required the university to fire or discipline Glen de los Reyes directly. By controlling the people and practices that connected him to the athletes, the university may also have controlled his access to them. As a result, the Tenth Circuit reversed the district court’s decision, which had adopted the university’s “formalistic” view of control, and held that a university’s lack of a formal relationship with an alleged harasser does not necessarily foreclose a finding of control. Even absent an employment or volunteer relationship, the university could have exercised sufficient control over both the alleged harasser and the circumstances in which the alleged misconduct occurred.
Title IX Case Trends
The Eastern New Mexico University decision did not emerge in isolation. Rather, it reflects a broader trend in recent Title IX cases away from rigid labels and toward a more functional understanding of control.
In Hall v. Millersville University, a 2022 Third Circuit decision, the alleged harasser likewise had no formal relationship with the university. He was a nonstudent who was the boyfriend of a student living in a university residence hall. The university argued that it could not be liable under Title IX because the boyfriend was neither a student nor employee, it lacked the requisite control or disciplinary authority over him. The Third Circuit disagreed and concluded formal disciplinary authority does not matter because the university possessed broader remedial tools. (e.g. university could have barred him from the residence hall, issued a no-trespass order excluding him from campus, restricted his access to university housing, and otherwise intervened to protect the student after learning of the alleged abuse).
In Brown v. Arizona, the Ninth Circuit addressed the other side of the equation. Just as in Eastern New Mexico University Board of Regents, the alleged violence occurred away from university grounds, at a private residence. The Ninth Circuit, sitting en banc, nevertheless held that a reasonable factfinder could conclude the university had substantial control over the off-campus residence where the alleged assaults occurred because the football program controlled whether the student-athlete could live off campus, retained the power to revoke that permission, and applied conduct rules to his off-campus behavior. The decision illustrates that physical location alone does not resolve the Title IX control analysis. A private residence is not automatically beyond a university’s reach simply because it sits beyond the edge of campus.
Viewed all together, these decisions suggest that courts are increasingly focused on a common question: how the institution’s own actions may have created, facilitated, or maintained access to students, not simply who the alleged harasser was, or where the misconduct occurred.
Approach Behind the Court's Decision
That approach was central in the Tenth Circuit’s analysis in Eastern New Mexico University Board of Regents. Although Glen had no formal relationship with the university and the alleged misconduct occurred largely at a private home, the athletes’ connection to both arose through the basketball program: their coach allegedly sent them to her spouse for treatment, directed them to the couple’s home, and held mandatory team activities there. For the court, those facts made the private setting less important than the university-created pathway that brought students there and the practical steps the university could have taken to close it.
Many organizations have people who arrive through relationships rather than applications. Someone is recommended; someone is vouched for; someone begins helping, attends enough events, receives enough referrals, and eventually becomes part of the scenery. No one may remember exactly when that happened. Yet over time, trust becomes familiarity, familiarity becomes acceptance, and acceptance becomes access.
The lesson of Eastern New Mexico University Board of Regents may therefore be larger than Title IX alone. The greatest risks are not always the strangers standing outside the gate. Sometimes they are the people everyone assumes belong inside. And when something goes wrong, courts may be less interested in whether that person appeared on a roster than in who opened the door in the first place.