Seyfarth Synopsis: On May 29, 2025, the U.S. Court of Appeals for the Third Circuit held in Oldham v. Pennsylvania State Univ., No. 22-2056 (3d Cir. May 29, 2025) that Title IX may allow for claims by non-students and non-employees. In the Title IX context, as the court found, the "zone of interests" test requires the recipient of Title IX funds to (1) exercise substantial control over the individual who mistreats the plaintiff based on sex, and (2) have substantial control over the context in which the mistreatment occurred or manifested. With these requirements in mind, the Third Circuit ruled that a fencing coach, unaffiliated with Penn State, could sue the University for the misconduct of its employees in certain contexts.
Factual Background
In December 2017, Jennifer Oldham, a fencing coach from North Carolina, was sexually harassed by George Abashidze, an assistant fencing coach at Penn State, on a flight following a USA Fencing competition. Ms. Oldham reported the incident to her mentor, who informed Penn State's head fencing coach, Wieslaw Glon. Despite several meetings with Ms. Oldham, Mr. Glon refused to report the harassment to Penn State's Athletic Department and discouraged her from contacting SafeSport, an independent organization tasked with investigating sexual misconduct for USA Fencing.
Ms. Oldham chose not to report the incident, but unbeknownst to Ms. Oldham, the incident was later reported in 2018 to both Penn State and SafeSport. Both investigations substantiated her claims, but although SafeSport temporarily suspended Mr. Abashidze, Penn State found no violation of its policy. Subsequently, Ms. Oldham faced retaliation from Mr. Glon and Mr. Abashidze who sought to discredit her within the fencing community. This led to professional setbacks, including being ostracized by the fencing community and denied coaching positions at other universities.
Frustrated by the lack of disciplinary action and ongoing retaliation, Ms. Oldham filed a Title IX complaint and later sued Penn State, Mr. Abashidze, and Mr. Glon. After the case was transferred to the Middle District of Pennsylvania, Ms. Oldham amended her complaint to include two Title IX claims. The district court then dismissed both claims against all defendants. Notably, with respect to Penn State, the district court ruled that Ms. Oldham, as neither a student nor employee of Penn State, was outside Title IX's protected zone of interests. Ms. Oldham appealed, prompting this review by the Third Circuit.
The Third Circuit Expands Title IX's Zone of Interests
In finding Ms. Oldham's claims within Title IX's protected zone of interests, the Third Circuit relied on Title IX's language and Supreme Court precedent. Title IX states: "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . ." Though initially interpreted narrowly, the Civil Rights Restoration Act of 1987 expanded "program or activity" to include "all of the operations of . . . a college, university, or other postsecondary institution." In line with its own precedent in Doe v. Mercy Cath. Med. Ctr., 850 F.3d 545 (3d Cir. 2017), the Third Circuit interpreted Title IX's scope as covering "operations of colleges and universities that may be reasonably considered, at least in part, educational."
Yet, the court recognized that the clear-statement rule requires further limitations. Because the clear-statement rule mandates that recipients of federal funds must be on notice of any conditions of the funding, including exposure to civil liability, the court followed Supreme Court precedent, Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999), in requiring two conditions for Title IX liability: the college or university must "exercise substantial control" over (1) the individual who discriminates on the basis of sex and (2) the "context" in which the misconduct occurs or manifests.
The Third Circuit found Ms. Oldham's claims plausibly met both criteria. First, Mr. Abashidze and Mr. Glon were both Penn State employees representing the university at fencing events where the alleged sexual harassment and retaliation occurred, supporting a finding that Penn State exercised substantial control over the defendants.
Second, although the sexual harassment did not occur on campus, the court found non-campus contexts may still fall within Penn State's substantial control. While Ms. Oldham's complaint lacked a clear basis for inferring Penn State's substantial control over the flight where the sexual harassment occurred, the court highlighted, in dicta, the possibility of substantial control on a chartered flight with university-affiliated students and staff.
Moreover, the court emphasized that Ms. Oldham's retaliation claims featured conduct occurring or manifesting on campus and at university-hosted events. Notably, the court recognized that not only could Mr. Glon's and Mr. Abashidze's conversations that occurred on campus as part of the discrediting campaign infer Penn State's substantial control, but Ms. Oldham's retaliatory exclusion from fencing events that manifested at Penn State-hosted events could also reasonably infer substantial control. Although several of Ms. Oldham's allegations likely do not infer any substantial control by Penn State, such as the hiring decisions of other universities, the court held that Ms. Oldham had plausibly plead that her claims fell within Title IX's zone of interests. Accordingly, the Third Circuit vacated the district court's dismissal of Ms. Oldham's Title IX claims against Penn State and remanded for further proceedings.
Future Impact
Ultimately, Oldham stands to broaden the scope of Title IX liability, suggesting that even individuals unaffiliated with the institution may bring claims for sex-based discrimination committed by university students or employees and related to university activities. As of now, it is unclear whether other jurisdictions may follow the Third Circuit's lead, or how the Department of Education, Office of Civil Rights (OCR) may seek to adjust, if at all, its enforcement posture of Title IX complaints. In the meantime, educational institutions may wish to ensure their Title IX policies feature comprehensive measures that protect all individuals who interact with their programs, fostering an environment free from sex-based harassment and retaliation.
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