Jane Doe 1, et al. v. Eastern New Mexico University Board of Regents, et al.
Split Score
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Case Summary
Disposition
Reversed
The Tenth Circuit reversed the district court’s grant of summary judgment for Eastern New Mexico University, holding that a school may be liable under Title IX for deliberate indifference to sexual harassment by a non-employee spouse of a coach. Rejecting a purely formalistic approach, the court ruled that practical, indirect means of controlling the harasser (e.g., banning him from campus, instructing coaches and players) can satisfy Davis’s “substantial control” requirement and remanded the case for further proceedings.
Circuit Split Identified
Legal Issue
Whether, under Title IX, a funding recipient has "substantial control" over a third-party harasser only if it possesses formal disciplinary power to terminate/expel the harasser, or whether functional, fact-specific ability to restrict the harasser’s access to students suffices.
Circuit Positions
Formal disciplinary authority over the harasser (power to terminate/expel) is necessary to establish control under Davis.
A pragmatic, fact-intensive inquiry governs; indirect or functional ability to limit the harasser’s access to students can satisfy the control requirement without formal disciplinary power.
Conflict Summary
The Fifth Circuit requires that a school have formal authority to discipline, fire, or expel the harasser before liability can attach, whereas the Third, Fourth, Seventh, and now Tenth Circuits hold that a school’s practical ability to curb the harassment through indirect or contextual control meets the Davis control test even absent formal disciplinary power.