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FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS September 1, 2026
Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
JANE DOE 1; JANE DOE 2; JANE DOE
3,
Plaintiffs - Appellants,
v. No. 25-2044
EASTERN NEW MEXICO UNIVERSITY
BOARD OF REGENTS,
Defendant - Appellee,
and
MEGHAN DE LOS REYES; PAUL
WEIR; GLEN DE LOS REYES; GLEN'S
FITNESS LAB LLC.,
Defendants.
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:23-CV-00362-GBW-JHR)
Jim Davy of All Rise Trial & Appellate, Philadelphia, Pennsylvania (Chelsea Stine of All Rise Trial & Appellate, Philadelphia, Pennsylvania; Katherine Ferlic and Benjamin Osborn of Egolf + Ferlic + Martinex, LLC, Santa Fe, New Mexico, with him on the briefs) for Plaintiffs-Appellants.
Alisha L. Walz of Walz and Associates, P.C., Albuquerque, New Mexico (Jerry A. Walz of Walz and Associates, P.C., Albuquerque, New Mexico with her on the brief) for Defendant-Appellee.
Appellate Case: 25-2044 Document: 64-1 Date Filed: 09/01/2026 Page: 2
Before BACHARACH, EBEL, and KELLY, Circuit Judges.
EBEL, Circuit Judge.
In this civil appeal, Plaintiffs Jane Doe 1, 2, and 3 (the “Does”) challenge the
district court’s summary judgment award in favor of Defendant Eastern New Mexico
University (“ENMU”) with respect to the Does’ Title IX claims. The Does were all
members of the ENMU women’s basketball team, and their Title IX claims arose out of
ENMU’s alleged deliberate indifference to sexual abuse committed by Glen de los Reyes,
whose wife Meghan was the coach of the team. The district court granted ENMU’s
motion for summary judgment on the basis that 1) ENMU did not have sufficient control
over Glen for liability to attach, and 2) ENMU did not have an official policy of
deliberate indifference towards sexual harassment. Reviewing de novo, we conclude
that, although there is no evidence of an actual policy of deliberate indifference, ENMU
did have sufficient control over Glen and the situation under which the harassment
occurred for the claims to proceed. Having jurisdiction under 28 U.S.C. § 1291, we
REVERSE the summary judgment award and REMAND for further proceedings
consistent with this opinion.
I. BACKGROUND
A. De los Reyes’ Role at ENMU
At all relevant times, Meghan de los Reyes was the head coach of the ENMU
women’s basketball team. Her husband, Glen de los Reyes, had no official role with
ENMU. Glen did, however, offer his services as a “biomechanics specialist” to student
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athletes, among others. J.A. 0428. Glen held multiple certifications relating to muscle
recuperation, but the title of biomechanics specialist was his own invention. Up until
January 2022, Glen performed treatments on student athletes on ENMU’s campus,
ranging from in the gym to coaches’ offices to in the men’s locker room. Coach Meghan
asserts that she spoke with the Athletic Director, Paul Weir, before Glen began offering
any services to student athletes, but AD Weir says he was unaware until January 2022
that Glen was treating student athletes. 1
In January 2022, the head athletic trainer for ENMU, Daniella Torrosi, saw Glen
doing a treatment on a male basketball player in the gym. Because she did not know who
he was, Torrosi approached Glen, and he indicated that the coaches allowed him to give
their players treatments. Torrosi later told the administration she was concerned about
having a private actor working on their athletes, and that there could be questions of the
university’s liability if Glen injured someone via his treatments. At this time, AD Weir
met with Coach Meghan, who then instructed Glen not to give his treatments on campus
anymore. Neither Meghan nor Glen were under the impression that Glen was entirely
prohibited from giving treatments, though. Additionally, Glen did still come onto
1
Because this comes to us at the summary judgment stage, we view the facts contained in the record, construing all evidence in the light most favorable to the non-movant, the plaintiffs, female athletes. See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114, 1119 (10th Cir. 2008). The parties filed cross-motions for summary judgment, but because this appeal relates to the district court’s order granting summary judgment to ENMU, we view the facts in the light most favorable to the Jane Does.
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campus to lead self-defense classes (including to the women’s basketball team) and to
exercise.
B. Sexual Harassment Allegations
After January 2022, Glen continued to give ENMU student athletes treatments, but
at the de los Reyes home. Many of the student athletes who Glen saw at his home were
members of the women’s basketball team; it is alleged that Coach Meghan required her
players who complained of injuries to see Glen and that if they refused, she questioned
the severity of their injuries.
As early as spring 2022, a student athlete—not one of the Plaintiffs—raised
concerns with Torrosi that Glen was touching her inappropriately: when she had a
shoulder injury, he was touching her in the pelvic region. Torrosi states that she reported
this allegation to AD Weir both directly and through Assistant AD Liz Acosta, though it
appears that Acosta never actually told AD Weir even though she found the report
concerning. Acosta attributed her failure to report this information to her superior, AD
Weir, due to her own lack of Title IX training. Nothing was done at this time with this
report, as AD Weir apparently did not believe the allegation. 2
In the fall of 2022, the Plaintiffs, Jane Does, joined the ENMU basketball team as
freshmen. In late August 2022, Coach Meghan held a mandatory team dinner at the de
los Reyes home. At this dinner, the players were introduced to Glen and informed about
2
The record contains scattered references to another student athlete reporting in spring 2022 discomfort due to Glen touching her pelvic area, but there is no evidence in the record that AD Weir was aware of this second allegation.
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his treatments. A volunteer ‘team mom’ told the players not to tell the athletic trainers
that they were receiving treatments from Glen, and an unidentified individual stated,
“Snitches get stitches.” J.A. 0411. At this dinner, Doe 1 and Doe 3 received treatments
from Glen, and Doe 3 alleges that Glen sexually assaulted her by touching her vagina.
Doe 3 refused to get treatments from Glen after the August team dinner.
Does 1 and 2, however, continued to receive treatments in September and October,
attending eight and four sessions respectively. During this time, Glen made a group
message chat with the freshmen girls and himself to coordinate the ‘required’ treatments.
Doe 1 alleged that during her second session, Glen touched her inner thigh and continued
to do so even though she asked him to stop three to four times. In her third session, Glen
touched the top of her vagina and around her breasts and refused to stop. In her fourth
session, at the start of October, Glen touched her breasts and vagina. And after her
seventh session, Doe 1 discussed the sessions with Doe 2, each stating that the sessions
were “weird” and that the Does did not want to return. J.A. 0543, 0480. On that same
day, Doe 2 had attended her third session, in which she alleged Glen touched her vagina
and inner groin, supposedly to “activate[] [her] ankles and knees.” J.A. 0812.
The final time Does 1 and 2 saw Glen was on October 30. The Does allege that
Coach Meghan had Doe 2’s car keys and would only give them back if they both got
treatments from Glen. During their treatments on October 30, Glen climbed on top of
them while they were on their backs. In so doing, Glen’s genitals were on Doe 1’s
buttocks. Glen also touched Doe 1’s vagina and breasts and Doe 2’s groin during these
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sessions. Other student athletes also allege that Glen touched their breasts under the
guise of treatment for an unrelated body part.
C. Does’ reports to ENMU
On October 2, 2022, Doe 3 reported the August assault to Torrosi. Having heard
the prior report from another student athlete in the spring of 2022, Torrosi was concerned
that nothing was being done to stop Glen from treating the student athletes. She reported
again to AD Weir, saying that there could be a “Larry Nassar” situation at the school if he
did not intervene. 3 J.A. 0502. Does 1 and 2 had not reported their own experiences at
this time.
After several, weekly comments from Torrosi about the situation, AD Weir
eventually scheduled a meeting with Glen, Coach Meghan, Torrosi, and other members
of the athletics department and medical staff on November 2, 2022. At this meeting, AD
Weir had two main objectives. First, AD Weir again pressed the concern of a nonaffiliated person working with the student athletes. He offered to make Glen a formal
ENMU volunteer to address this concern, but otherwise Glen should no longer see the
student athletes. Glen declined the offer. After the meeting, AD Weir sent Glen a form
to fill in that would cement the volunteer relationship, but Glen never signed it. Second,
3
This was presumably in reference to the former university athletic trainer who was sentenced to sixty years imprisonment for child pornography and obstruction of justice charges, whose sentence was based in part on extensive testimony indicating he had molested dozens of minors under the guise of treatment in his role as an athletic trainer. See U.S. Att’y’s Off., W. Dist. of Mich., Press Release: Lawrence Nassar Sentenced to 60 Years in Federal Prison, Dep’t of Just. (Dec. 7, 2017).
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Weir and one of the medical staff members asked about Glen’s treatments, inquiring why
he might touch a student athlete’s pelvic area or breast area for a seemingly unrelated
injury. Glen explained that it was part of his methodology of determining a person’s
“sensory imbalances.” J.A. 0431. AD Weir was satisfied with this explanation. Glen
also said that he recorded the sessions to avoid later claims of misconduct, though the
student athletes did not know that and it does not appear anyone at ENMU reviewed this
footage. No investigation was begun at this point nor were the allegations reported to the
Title IX office. Later that same month, Doe 3 reported the misconduct to a counselor,
who passed it on to Human Resources, who did initiate an investigation.
Glen continued to see student athletes at the request of ENMU coaches, but it is
unclear who all knew this. Glen did, however, understand that he was violating the rules
as explained to him. None of these post-meeting treatments involved the Does, though it
appears that at least the last of Does 1 and 2’s treatments came after AD Weir was aware
of Doe 3’s allegations. Coach Meghan also continued to hold mandatory team dinners
involving the female athletes at the de los Reyes home, including for Thanksgiving and
Christmas that year.
In January 2023, Doe 1 reported to an athletic trainer that Glen’s treatments made
her feel uncomfortable, and the trainer passed it on to Human Resources. Also in January
2023, Does 1 and 2 were overheard discussing their allegations of sexual misconduct by
another member of the basketball team, who told her own mother. The mother, in turn,
told Coach Meghan, who sat down with Does 1 and 2 to discuss the allegations. Both
said they had nothing to report, though Doe 2 described the sessions as uncomfortable
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and Doe 1 directed Coach Meghan to speak with her parents. At this time, as indicated
above, Doe 1 had already reported the situation to an athletic trainer. And Doe 2 reported
her allegations of assault to the Human Resources director the day after their meeting
with Coach Meghan.
On February 6, 2023, ENMU filed a criminal trespass warning against Glen,
banning him from coming to campus. Finally, on February 9, 2023, AD Weir sent an
email to all ENMU coaches telling them that their players were not permitted to see Glen
for treatments. It appears the assaults ended at this point.
II. PROCEDURE
The Does filed suit in the federal district court for the District of New Mexico,
alleging state and federal law tort claims against Glen, Coach Meghan, AD Weir, and
ENMU’s Board of Regents. Relevant to this appeal, the Does alleged that ENMU
violated Title IX by discriminating against them on the basis of sex, both via deliberate
indifference to the risk of sexual harassment and by permitting retaliation against them
for reporting that harassment.
The parties filed cross-motions for summary judgment on the Title IX claims. The
district court granted summary judgment to ENMU and denied summary judgment to the
Does. The district court determined that, though the Does had pled facts that could
support some elements of their Title IX claims, they failed to demonstrate that ENMU
had the requisite “control” over Glen to state a deliberate indifference claim. Separately,
the district court determined that the Does had not demonstrated an official policy at
ENMU of deliberate indifference to sexual harassment. The district court also rejected
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the Does’ Title IX retaliation claim, which stemmed from allegations that Coach Meghan
suspended the Does due to their reports. The Does did not adequately preserve a
challenge to this retaliation ruling on appeal, and thus this court will not review it.
III. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo, applying the
same legal standard as the district court. Rost, 511 F.3d at 1118. Summary judgment is
only appropriate if “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Courts do not weigh the
evidence nor witness credibility, Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir.
2008), and instead must only determine whether there is evidence in the record from
which a rational jury could find in the non-movant’s favor. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986). Courts view the facts and make all reasonable inferences
in favor of the non-movant, Harden v. Hedgecock, 181 F.4th 1094, 1101 (10th Cir.
2026), but the non-movant still must put forth “significant probative evidence,”
Anderson, 477 U.S at 249 (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253,
290 (1968)), not just “a scintilla of evidence,” id. at 252.
IV. DISCUSSION
This case concerns the application of Title IX liability for a school’s alleged
deliberate indifference to sexual harassment carried out by a non-student, non-employee
who has, nonetheless, a unique connection to the university. Applying the Supreme
Court’s parameters for liability - - that the university must have “control” over both the
harasser and the context of harassment - - the district court concluded ENMU could not
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be liable for Glen’s harassment. The district court determined that, though there was
some support for a finding that ENMU had the requisite control over the context of the
harassment, ENMU could not have had control over Glen because he had no formal
relationship with the university. The primary focus of the parties’ dispute on appeal,
then, is what constitutes control over the harasser. We write now to clarify the
application of this test. And on the facts presented, we conclude at the summary
judgment stage, there are sufficient allegations of AD Weir’s control over the harasser—
Glen—for the Does’ claims to go forward.
A. Liability under Title IX
Under Title IX, a recipient of federal funding—such as a public university, like
ENMU—cannot “on the basis of sex” subject any person “to discrimination under any
education program” nor exclude them from participation in, nor deny the benefits of, said
program. 20 U.S.C. § 1681(a). Schools cannot be held vicariously liable for the
misconduct of their agents, but a school may be directly liable for its deliberate
indifference to known misconduct. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
288 (1998); Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 644 (1999). 4
4
In their appellate briefs, the parties categorize this claim as a “pre-assault,” as opposed to “post-assault,” deliberate indifference claim. However, this categorization does not appear to have played a part in the litigation below. The alleged facts relate primarily to ENMU’s deliberate indifference after Doe 3’s report but before Doe 1 and 2’s reports. Plaintiffs can state a claim of Title IX liability for a school’s deliberate indifference either by demonstrating deliberate indifference to a reported instance of assault or by demonstrating that the school’s deliberate indifference to a known risk of assault caused the Plaintiffs’ subsequent assault. See Farmer v. Kan. State Univ., 918 F.3d 1094, 1103 (10th Cir. 2019) (post-assault theory); Doe v. Sch. Bd. of Broward Cnty., 604 F.3d 1248, 1257–59 (11th Cir. 2010)
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In the context of sexual harassment at a school, the Supreme Court has said a
school “may not be liable for damages unless its deliberate indifference ‘subject[s]’ its
students to harassment.” Davis, 526 U.S. at 644 (alteration in original). “That is, the
deliberate indifference must, at a minimum, ‘cause [students] to undergo’ harassment or
‘make them liable or vulnerable’ to it.” Id. at 645 (alterations in original). The Davis
Court went on to provide parameters for “the set of parties whose known acts of sexual
harassment can trigger some duty to respond on the part of funding recipients.” Id. at
644. The Court said that a deliberate indifference finding is only appropriate “wherein
the recipient exercises substantial control over both the harasser and the context in which
the known harassment occurs” because “[a] recipient cannot be directly liable for its
indifference where it lacks the authority to take remedial action.” Id. at 644–45. This
two-part control requirement animates the Court’s prior holding that Title IX liability
exists when the harassment was ignored by “an official of the recipient entity with
authority to take corrective action to end the discrimination.” Gebser, 524 U.S. at 290. If
an official has no such authority, there is nothing that the recipient failed to do.
1. Control is a case-specific, factual inquiry
In this case, the Does argue that AD Weir had sufficient control over Glen
because, pragmatically, he could restrict Glen’s access to student athletes. On the other
hand, ENMU argues AD Weir did not have control over Glen because he could not fire,
discipline, nor suspend Glen. The district court sided with ENMU stating that “the focus
(pre-assault theory). The proper categorization of this claim is outside the scope of the question presented on appeal and is best suited to the district court on remand.
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is on whether the harasser is subject to the university’s disciplinary authority or some
other power which can be brought to bear against the harasser.” Dist. Ct. Order at 14. It
then said this authority was limited “almost always [to] students or employees.” Id. at 15.
The district court employed too formalistic an understanding of Davis.
Though different courts have followed different tacks in applying Davis, this court
has recognized that the application of the control test is “necessarily a fact-based
inquiry.” Murrell v. School Dist. No. 1, 186 F.3d 1238, 1247 (10th Cir. 1999); Bryant v.
Indep. Sch. Dist. No. I-38, 334 F.3d 928, 938 n.4 (10th Cir. 2003) (Tacha, C.J.,
concurring) (“A determination of whether particular conduct satisfies [the Title IX
liability] factors ‘depends on a constellation of surrounding circumstances, expectations,
and relationships.’” (quoting Davis, 526 U.S. at 651)). It is not a rote exercise of asking
merely whether the university can fire or expel the harasser. See Hall v. Millersville
Univ., 22 F.4th 397, 408–09 (3d Cir. 2022) (“Whether Millersville had control over [the
harasser] is not a limited inquiry into Millersville’s formal disciplinary authority, but a
broader examination of the degree of control Millersville had over him and its ability to
‘take remedial action.’” (quoting Davis, 526 U.S. at 644) (emphasis added)). Contra Doe
v. Edgewood Indep. Sch. Dist., 964 F.3d 351, 360 (5th Cir. 2020) (“[T]he power to
institute corrective measures must include the power to terminate or discipline.”).
Liability is precluded only when “the school district could not have remedied the
harassment because it . . . had no authority to respond to the harassment.” Murrell, 186
F.3d at 1246. The focus of our inquiry, then, is functional: did ENMU have the ability to
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protect its students from the threat of Glen’s harassment? This is a pragmatic inquiry and
is not limited to mere legal formalism.
There are undoubtedly ways to prevent sexual harassment other than simply
terminating an employee or expelling a student. For example, in Murrell, this court said,
“Davis makes clear . . . that a school official who has the authority to halt known abuse,
perhaps by measures such as transferring the harassing student to a different class,
suspending him, curtailing his privileges, or providing additional supervision” would
have adequate control over the harasser to trigger liability. 186 F.3d at 1247. Each of
these measures would serve the practical purpose of remedying the threat of assault, even
if they fall short of expulsion. Additionally, not all are punitive in nature.
Here, AD Weir was pragmatically capable of “curtailing [Glen’s] privileges” of
access to its female athletes by instructing its coaches not to refer nor transport their
players to Glen, by banning Glen from campus, which the university ultimately did
months after the allegations first arose, or by instructing its female athletes (over whom it
clearly had control) that they could not have contact with Glen nor go to his and Coach
Meghan’s home. Furthermore, AD Weir was capable of controlling Glen’s improper
conduct by indirect but effective control over the situation. AD Weir could have required
Coach Meghan over whom he did have control, to instruct her student athletes that if they
wanted to stay on the team they could not have any contact with her husband, Glen, nor
could they go to her house or meet anywhere other than in school sponsored or public
locations. AD Weir could also have ensured its women athletes that Coach Meghan
could not take retaliatory action against them when the female athletes followed these
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restrictions. These measures would indirectly have controlled Glen by controlling the
environment in which Glen could operate.
This fact-intensive approach makes sense when considering the goal of the
analysis set forth in Davis and Gebser. Courts are meant to ascertain whether the school
was capable of protecting its students or employees and, through its indifference, chose
not to do so. Here, if ENMU was aware that a third-party trainer was assaulting its
students and yet it continued to allow its coach to require its students to see the harasser,
even transporting them to the location of the assaults, it logically follows that the school
would face liability for such deliberate behavior of indifference to the safety of its
students. Further, given ENMU’s ability to remedy the harm and, in fact, its role in
actually fostering that harm, the school was obligated to take corrective action rather than
simply washing its hands of responsibility for Glen’s assaultive conduct toward its female
basketball athletes.
The formalistic approach taken by the district court is not supported by Davis’
language. In recognizing that Title IX liability is not limited to the misconduct of
employees, the Davis Court importantly said schools can be liable “for their failure to
protect students from the tortious acts of third parties.” 526 U.S. at 644 (citing
Restatement (Second) of Torts § 320, and cmt. a (1965) (listing examples of individuals
liable for the misconduct of someone in their control)). To be sure, the harasser in Davis
was another student, but if the Court meant to limit the term “third parties” strictly to
students and to cabin Title IX liability just to harassment by employees and students,
there would have been no reason to include this more generalized discussion of third
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parties. 5 See id. (stating only that possibility of liability for failure to protect from third
party misconduct “is not to say that the identity of the harasser is irrelevant”). Similarly,
if the Court meant that a school is only directly liable when it can terminate, expel, or
suspend the harasser, it would have said so. To evaluate a defendant’s deliberate
indifference, we necessarily must examine what the defendant could have done, not just a
defendant’s immediate legal authority over the third party offender.
Finally, the facts of this case demonstrate the fundamental flaw with applying a
narrow, formalistic approach of considering only the direct legal power of the school to
control the offender. Here, ENMU asserts it had no control over Glen because he was not
a formal volunteer. Though AD Weir offered Glen the opportunity to become a formal
volunteer, Glen declined this offer, and yet he continued to treat student athletes. ENMU
conceded at oral argument that had Glen signed the form AD Weir sent him and became
5
In guidance published shortly after the Davis opinion, the Department of Education discussed a school’s liability for “sexually harassing conduct by third parties, who are not themselves employees or students at the school (e.g., a visiting speaker or members of a visiting athletic team).” Dep’t of Educ., January 2001 Revised Sexual Harassment Guidance: Harassment of Students by School
Employees, Other Students, or Third Parties, at 12. Though agency interpretation is no longer given Chevron deference, we can still look to it for its persuasive value in applying a statute. Loper Bright Enters. v. Raimondo, 603 U.S. 369, 402 (2024). And while this guidance document, along with several others, was replaced by updated guidance in 2020, the Department’s new Title IX guidance specifically stated “[i]mportantly, the final regulations continue the 1997 Guidance and 2001 Guidance approach of including as sexual harassment unwelcome sexual advances, requests for sexual favors, and other verbal, nonverbal, or physical conduct of a sexual nature by an employee, by another student, or by a third party.” Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30026, 30036 (May 19, 2020) (codified at 34 C.F.R. pt. 106) (emphasis added).
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a formal volunteer, then ENMU would have had the requisite control over him. See Oral
Arg. at 15:45 – 16:40. But what additional “control” would this have given ENMU in
practice? Seemingly, ENMU relies on the fact that AD Weir could have terminated the
formal volunteer relationship at that point, essentially tearing up the paper Glen had just
signed. And yet, to do so would simply have returned the situation to where it already
was, with Glen treating students without a formal volunteer arrangement. This is a case
of a distinction without a difference, and to assign liability based exclusively on such
hollow grounds would be exceedingly odd as it adds nothing to ENMU’s ability to
protect its student athletes. We find the actual tools at ENMU’s disposal that could have
had a functional impact on curbing the abuse to be far more instructive than ending our
inquiries at whether the funding recipient could fire or expel the harasser.
2. The record indicates that ENMU had effective control over Glen
Having concluded that Davis requires us to examine the specific facts of this case
to determine whether ENMU had control over Glen—that is, whether ENMU could take
action to remedy the risk of Glen’s abuse to its student athletes—we next carry out that
examination and clarify what is required to satisfy this test. We conclude that the record
indicates ENMU had multiple mechanisms at its disposal to indirectly control Glen, both
those it ultimately employed and others, sufficient to support the Does’ Title IX claims at
this preliminary stage of the case.
Though the district court recognized that “in rare circumstances,” a third party
could be under a school’s control, Dist. Ct. Order at 16 (citing Hall, 22 F.4th 397;
Feminist Majority Found. v. Hurley, 911 F.3d 674 (4th Cir. 2018)), it said this was not
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one of those rare circumstances. In doing so, it specifically rejected the aforementioned
measures AD Weir took against Glen as indicative of ENMU’s control. First, it stated
that banning Glen from campus could not have addressed the harassment because the
alleged assaults all took place off campus. True enough, though it may be argued that
Glen’s ongoing presence on campus, including running self-defense classes for the
women’s basketball team added legitimacy to Glen and made the Does “‘vulnerable’ to”
further harassment. See Davis, 526 U.S. at 645. Second, and more peculiarly, the district
court stated that prohibiting coaches from referring their players to Glen and prohibiting
players from seeing Glen “reflect[ed] the University’s control over its employees and
students – not over Defendant Glen himself.” Dist. Ct. Order at 18. The district court
considered it dispositive that ENMU was not acting directly upon Glen. This distinction
is not supported by case law nor Title IX itself.
To start, it is worth reiterating the text of Davis, that a university’s liability is
limited “to circumstances wherein the recipient exercises substantial control over both the
harasser and the context in which the known harassment occurs.” 526 U.S. at 645.
Nowhere does Davis say that the school must have “legal” or “direct” or “employment”
control over the harasser. Instead, Davis is concerned with whether the school had
sufficient “authority to take remedial action,” that could effectively control the offender’s
illegal conduct so the school is not punished when there was nothing it could have done.
Id. at 644. Further, the language of Davis, which mirrors Title IX itself, is focused on the
victim, not the harasser: it asks whether the school’s deliberate indifference “‘subjects’ its
students to harassment,” “‘cause[s] students to undergo’ harassment or ‘make[s] them
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liable or vulnerable’ to it.” Id. at 644–45 (cleaned up). It does not ask whether the
school employed a harasser or formally admitted the harasser as a fellow student. See
Cannon v. Univ. of Chicago, 441 U.S. 677, 691‒92 (1979) (discussing Title IX’s focus
on the “benefited class” rather than acting “simply as a ban on discriminatory conduct by
recipients of federal funds”), abrogation recognized on other grounds in Medina v.
Planned Parenthood S. Atl., 606 U.S. 357, 369 n.1 (2025). Evidently, the purpose of the
control prongs is to determine whether the school had the power to correct the situation,
not to quarrel over how the precise measures at the school’s disposal ultimately act on the
harasser.
One’s ability to harass can be controlled in many indirect ways. As discussed
above, in addition to telling coaches not to require their players to get treatments from
Glen nor to drive their players to the de los Reyes home, AD Weir also could have told
Coach Meghan not to hold mandatory team dinners at the de los Reyes home anymore.
And, of course, AD Weir had the power to discipline Coach Meghan. It is of no moment
that these commands would have been directed at the coaches and student athletes.
To be sure, Davis requires examination of both control over the context of
harassment and control over the harasser. But control over the harasser and control over
the context, while distinct to a degree, can certainly inform one another. See Feminist
Majority, 911 F.3d at 687–88 (determining school had control over context of
harassment, an online app, in part because it had control over the students posting on that
app). Unsurprisingly, when a school has the requisite control over the context of
harassment, it will often have control over the harasser who has entered that context: the
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two inquiries are undeniably intertwined. Here, the de los Reyes home was both the site
of mandatory team events and the site of the alleged assaults. Knowing that Glen lived at
the de los Reyes home and that he was carrying out his treatments there, AD Weir could
have told Coach Meghan not to require her student athletes to come to her house. If Glen
was banned from campus and the student athletes were not mandated to come to his
home, Glen’s ability to continue harassing the student athletes would have been
drastically reduced. This is borne out by the fact that the assaults apparently stopped
once ENMU took some of these exact measures.
That will not always be the case, however, and we still must premise liability on a
school’s power to control the specific harasser. For example, ENMU does not
automatically have control over any harasser who enters the de los Reyes home simply
because ENMU has control over that context. If instead of the repeated assaults being
committed by Coach Meghan’s husband during treatments that she required her student
athletes to endure, someone broke into the de los Reyes home during a mandatory team
dinner and committed an assault, this would clearly fall outside ENMU’s ability to take
corrective action. See Hall, 22 F.4th at 407 (finding funding recipient had control over
non-student guest at a dormitory while stating “[w]e do not think it is likely that a
university would have substantial control over any random third party who wanders onto
an open campus and harasses students”). The purpose of the fact-driven analysis is
simply to make a common sense appraisal of whether the school had the ability to control
or correct the abuse and knowingly failed to do so. As such, we must take into account
all facts that bear on this authority. In so doing, we recognize that facts relevant to the
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context of harassment and to the harasser will at times have an effect on the other, but
these facts must be weighed in each individual case.
The district court stated that the facts of this case demonstrate that ENMU did not
have control over Glen because he continued to see student athletes after he was told that
he could not without a formal volunteer relationship. But this hardly shows that the other
mechanisms of control that ENMU had could not control Glen, and as stated above, some
of those mechanisms deployed months after Doe 3’s allegations did seem to control
Glen’s access to student athletes. Rather, the fact that Glen continued to see student
athletes for so long is powerful evidence of the very deliberate indifference alleged by the
Does: that ENMU was indifferent to the harassment because it was motivated by the
opportunity to get free athletic training “to fill gaps in its sports medicine program”
caused by “the University’s perpetual shortfall of available athletic trainers.” Aplt. Br. 6.
It is alleged that ENMU was more concerned with its liability for known
unsanctioned training sessions, than for the misconduct occurring within those sessions.
AD Weir was aware of Glen’s treatments at least as early as January 2022. All
discussions at that time, which led to the treatments moving off campus to Glen’s home,
revolved around ENMU’s interest in avoiding liability in case these treatments medically
went wrong. As the allegations turned to sexual harassment in the spring of 2022, AD
Weir wrote them off as unfounded or unconnected to sexual harassment, perhaps
unconcerned because the harassment was not taking place on campus. By this time, it
was alleged that ENMU had informed some student athletes that if they went to outside
providers for treatment, specifically Glen, the athletic training staff would not treat them
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“for liability reasons,” J.A. 0665, which put ENMU in a position not to learn about
further misconduct from student athletes required to see Glen. Cf. C.S. v. Madison
Metro. Sch. Dist., 34 F.4th 536, 545 (7th Cir. 2022) (discussing Title IX liability when
“the school official buried his head in the sand to avoid acquiring knowledge of past or
ongoing misconduct”). And when AD Weir held a meeting with Glen and relevant
ENMU personnel after the sexual harassment allegations came to light, the selfproclaimed primary focus of the meeting again was ENMU’s liability if Glen continued
seeing athletes without a volunteer relationship with ENMU, not the allegations
themselves. ENMU’s indifference to the danger its student athletes were being exposed
to does not demonstrate ENMU’s lack of control over Glen. Instead, it is this very
deliberate indifference that could itself subject ENMU to liability.
3. Conclusion
Properly applying Davis’ factual inquiry, we conclude that the district court erred
in granting summary judgment because a genuine dispute of fact exists as to ENMU’s
control over Glen in his ability to sexually assault members of the female ENMU
basketball team. Glen’s lack of a formal relationship with ENMU is not dispositive. The
record contains adequate evidence, when viewed in the light most favorable to the Does
at this preliminary stage of the proceedings, that ENMU had several tools at its disposal
demonstrating its ability to control Glen, at least indirectly, and the situation to prevent
the alleged harassment. As a result, the Does’ Title IX claims are sufficient to go
forward.
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B. Official policy liability
Though we conclude that the district court erred on its deliberate indifference
analysis under the Davis control test, we will also briefly address the Does’ alternative
argument that ENMU had an “official policy” of deliberate indifference towards the
threat of sexual harassment via unsupervised training sessions with informal volunteers.
See Gebser, 524 U.S. at 290 (recognizing subset of Title IX cases based on an “official
policy of the recipient entity”). We agree with the district court that the record does not
indicate ENMU had an official policy of deliberate indifference.
This court has found an official policy of deliberate indifference in limited
circumstances. The leading case on this type of claim is Simpson v. University of
Colorado Boulder. 500 F.3d 1170 (10th Cir. 2007). There, CU had a program to show
athletic recruits around campus, led by “Ambassadors” who were typically female
students. Id. at 1173. The purpose of these visits was to show the recruits a “good time,”
and there was some indication that the recruits were told they would get to have sex with
the female students. Id. When multiple female students were sexually assaulted by
recruits, this court found that “CU sanctioned, supported, even funded, a program
(showing recruits a ‘good time’) that, without proper control, would encourage young
men to engage in opprobrious acts.” Id. at 1177. The Simpson court said that “an
unsupervised player-host program,” id. at 1184, posed an obvious need for training to
prevent sexual harassment. Id. at 1173. And though there were reports about the threat
of sexual assault by student athletes, including some specific to CU, id. at 1184, the court
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acknowledged that “a need could be ‘obvious’ for reasons other than knowledge of
previous incidents.” Id. at 1178.
The same cannot be said of ENMU’s conduct here. As described above, it appears
that ENMU was made aware of the alleged sexual harassment and chose not to intervene.
That differs from the type of affirmative promulgation of an environment rife with risk
described in Simpson. And though athletic treatment sessions could be said to implicate
a need for consent training, such as the training head athletic trainer Torrosi herself had,
this is because “unfortunately, some flawed humans will engage in such misconduct
when they are in the company of others,” id. at 1177, not because ENMU was
encouraging such misconduct. There have been few cases since Simpson that have found
an official policy of deliberate indifference, and we do not think this case is one of those
few. 6
C. Alternative grounds for affirmance
Finally, given our conclusion as to the district court’s deliberate indifference
ruling, we address the alternative grounds for affirmance raised by ENMU. We conclude
that neither merits affirmance.
First, ENMU suggests that summary judgment is warranted because the Does
“failed to show substantial control over the context of the harassment” because the
assaults occurred at the off-campus, private de los Reyes residence. Aple. Br. 28–29.
We, like the district court, conclude that some of the Does’ arguments could support
6
See, e.g., Doe v. Univ. of Tenn., 186 F. Supp. 3d 788 (M.D. Tenn. 2016).
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a finding that ENMU had control over the context of the harassment, such that
summary judgment is inappropriate on that basis.
This court, when considering off-campus harassment, has looked for whether a
sufficient “nexus” exists between the school and the location of the harassment.
Rost, 511 F.3d at 1121 n.1 (citing Davis, 526 U.S. at 645). Such a nexus has been
found when an assault happened in a fraternity that the school has some control over
and the victims continued to see the fraternity members on campus, Farmer, 918 F.3d
at 1097, 1101 (finding at pleading stage sufficient allegation of deliberate
indifference when university refused to investigate off-campus rape), and when the
harassment occurred at a location where the university was hosting or supervising an
event. Oldham v. Penn. State Univ., 138 F.4th 731, 748 (3d Cir. 2025) (finding
control over context of fencing invitational hosted by university). Here, the assaults
themselves stemmed from the players’ relationship to the basketball team, as Coach
Meghan was referring, or even requiring, treatment with Glen. Additionally, Coach
Meghan (who was an employee and representative of ENMU) held mandatory events
at her home, making it a location of university-hosted events. Though ENMU
disputes its knowledge of these events, summary judgment is not warranted on this
ground.
Second, ENMU argues that we could affirm on the alternate ground that the
Does failed “to show that ENMU ever acted with deliberate indifference to a known
risk of harassment.” Aple. Br. 30. Again, we agree with the district court that there
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were sufficient facts to make this showing, such that summary judgment is
inappropriate.
AD Weir was aware of reports of misconduct at the very latest by October 2022,
and the record indicates he was aware of at least one report by the spring of 2022. He
held a meeting in which the allegations were raised. He learned that Glen recorded the
sessions without consent. And yet, AD Weir offered to formalize Glen’s relationship
with the university, so that Glen could continue treating student athletes. AD Weir also
failed to report the allegations to the Title IX office, and he did not instruct coaches to
stop referring players to Glen until months later. These allegations create a genuine issue
of fact as to whether ENMU was deliberately indifferent.
V. CONCLUSION
Because the record indicates ENMU had the power to take corrective action to
address the threat of sexual harassment Glen posed, we conclude ENMU had sufficient
control over Glen and the context of the abuse described in the Does’ Title IX claims to
survive summary judgment. The court has determined to leave the Sealing Order dated
September 11, 2025 in place.
We REVERSE the district court’s summary judgment order and REMAND for
further proceedings consistent with this opinion.
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