Summary
Jane Doe 1 v. E. New Mexico Univ. Bd. of Regents, No. 25-2044, 2026 WL 2577007 (10th Cir. Sept. 1, 2026)
On September 1, 2026, in Jane Doe 1 v. E. New Mexico Univ. Bd. of Regents, the U.S. Court of Appeals for the Tenth Circuit revived Title IX claims brought by three former Eastern New Mexico University (ENMU) women’s basketball players against the ENMU Board of Regents. The Court held that a jury could find that ENMU exercised sufficient “control” over a third-party who allegedly sexually assaulted student-athletes during off-campus “treatment” sessions.
The decision clarifies how courts in the Tenth Circuit should assess a school’s “control” over a harasser for purposes of Title IX deliberate-indifference liability. The three-judge panel explicitly rejected a narrow interpretation that a school must have an official relationship with the abuser. Instead, it ruled that Title IX liability applies if an institution possesses “indirect tools” to control the alleged harasser and curtail the behavior.
The Tenth The Tenth Circuit’s decision creates a circuit split with the Fifth Circuit and further establishes the Tenth Circuit’s position as a leading jurisdiction for broadening institutional accountability under Title IX.
Relevant Facts
- Glen de los Reyes was married to ENMU’s women’s basketball head coach. He offered “biomechanics” treatments to student-athletes, eventually moving these sessions to his home after university staff raised liability concerns about him doing so on-site. He was not a university employee and had no formal position with ENMU. Student-athletes alleged that the coach required or pressured players to attend treatment sessions with de los Reyes.
- Multiple athletes reported inappropriate touching during the sessions with de los Reyes, including allegations of sexual assault. At least one alleged assault occurred while the player was attending a mandatory team meeting at de los Reyes and the basketball coaches’ home.
- ENMU’s athletic director received reports of concerning conduct as early as spring 2022 and a direct report of assault in October 2022. Additional reports were made in January 2023. Yet, the athletic director did not ban de los Reyes from campus or instruct coaches to stop referring players to him until February 2023.
- Three former members of the ENMU women’s basketball team filed suit under Title IX, alleging deliberate indifference to sexual harassment and retaliation.
Procedural History
The district court granted summary judgment in favor of ENMU, reasoning that the university lacked sufficient “control” over de los Reyes, who was not subject to ENMU’s disciplinary authority because he was neither an employee nor a student. The district court also found that the plaintiffs had not demonstrated sufficient evidence of an official policy of deliberate indifference.
The Tenth Circuit’s Decision
On de novo review, the Tenth Circuit reversed the district court, rejecting the court’s narrow, formalistic approach to “control.” The Tenth Circuit based its decision on the following:
- Control is functional and fact-specific, not status-based. The Title IX control test requires a pragmatic inquiry into the school’s ability to protect its students. A school has control over a harasser if it has the practical ability to stop, prevent, or correct harassment. Control is not limited to the direct ability to fire, expel, or discipline the harasser directly. Instead, the court emphasized that indirect mechanisms for control count, including, without limitation, restricting the alleged harasser’s access and controlling the employee(s) who enabled access.
- ENMU had practical control. The Tenth Circuit found that ENMU could restrict de los Reyes’ access to student-athletes, including banning him from campus and directing coaches and players not to interact with him. It eventually exercised that control, undermining any claim that it lacked the means to act sooner.
- Control over the harasser and control over the context are intertwined inquiries. Turning to control over the context of the harassment, the Tenth Circuit explained that control over the harasser and control over the context are “undeniably intertwined” inquiries and can inform one another. Relying on the fact that the alleged harassment occurred at the same site as team meetings hosted by the women’s basketball coach, the Tenth Circuit held that ENMU had control over the context because it could restrict the basketball coach from hosting mandatory events at her home.
- Delay as sufficient evidence of deliberate indifference. The delay between the first reports and ENMU’s eventual action created a triable issue as to whether ENMU’s response was clearly unreasonable.
- No official policy of indifference. The Tenth Circuit agreed with the district court on this narrower point, distinguishing the case from precedent involving universities that affirmatively fostered a risk-prone environment.
Outcome: The Tenth Circuit reversed summary judgment and remanded the case for further proceedings, allowing the plaintiffs’ Title IX claims to move forward.
Why This Matters
This decision meaningfully broadens the scope of institutional exposure under Title IX:
- Formal status is not determinative. Institutions cannot use a harasser’s lack of formal employment or enrollment status to avoid liability if the institution had practical means to limit that person’s access to students.
- Practical authority triggers a duty to act. If an institution can restrict an individual’s access through campus bans, credentialing, facility access, or internal directives, courts may treat that ability as evidence of “control” sufficient to support Title IX liability.
- Timeliness of response is critical. The time gap between initial reports and institutional action is likely to be scrutinized closely as evidence of deliberate indifference.
Recommended Next Steps for Institutions
- Review protocols for evaluating and responding to complaints involving non-employee, non-student individuals with access to students (e.g., contractors, volunteers, affiliated professionals, coaches’ associates).
- Ensure reporting channels conduct a prompt review, regardless of formal employment status.
- Document the institution’s practical ability to restrict access (campus bans, credentialing revocation, withdrawing referrals, no-contact directives) and ensure these tools are used promptly once concerns are raised.
- Audit response timelines for existing complaints involving third parties to identify potential exposure under this expanded standard.
This update is provided for general informational purposes and does not constitute legal advice. Please get in touch with our office to discuss how this decision may affect your institution’s policies and practices.
