On May 29, 2025, in Oldham v. Pa. State University, the Third Circuit Court of Appeals held that the “zone of interest” test applies to Title IX claims. See No. 22-2056, 2025 WL 1524452 (3d Cir. 2025). The plaintiff, Jennifer Oldham, a private fencing coach, had sued Penn State, its Title IX Coordinator, its head fencing coach, and its assistant fencing coach under Title IX and various state-law tort claims.
The plaintiff made the following allegations: She had been on a cross-country flight following a fencing tournament that Penn State’s head fencing coach and assistant coach had also attended. During the flight, Oldham alleged that the assistant fencing coach, who was seated next to her, had sexually harassed and assaulted her. Further, Oldham alleged that “when she told the university’s head fencing coach about this incident, the coach rebuffed her, pressured her not to report it, and then along with the assistant coach initiated a retaliation campaign against her within the fencing community.” Oldham at *1. As to the retaliation campaign, the plaintiff alleged that the head coach and assistant fencing coach had accused her of fabricating her sexual harassment claims; she was then shunned within the fencing community; she could not attend some fencing events and her own fencing students faced retaliation at these events; she did not obtain coaching employment offers that she was qualified for; and students from her own fencing school departed. She also alleged that “when the university eventually investigated the matter in response to her formal complaint, it confirmed the truth of her assertions but concluded that the assistant coach had not violated any university policy.” Oldham at *1.
After the case was transferred from a federal district court in North Carolina to the Middle District of Pennsylvania, the plaintiff amended her complaint and the defendants then moved to dismiss that complaint. The district court then dismissed the entire lawsuit, finding in part that “only students, employees, or persons ‘so closely tied to a university that [they are] essentially [students]’ of an education institution receiving federal funding are within the zone of interests protected by Title IX”—and Oldham was not within that class of individuals. Oldham at *5. The Third Circuit then vacated in part, affirmed in part, and remanded for further proceedings.
The Third Circuit held, in what it identified as a matter of first impression, that the zone-of-interests test applies to Title IX claims. The Court explained that to be within the “zone of interests” protected by Title IX, there are two requirements: “First…the funding recipient must ‘exercise[] substantial control’ over the individual who mistreats the plaintiff based on sex.” Oldham at *7 (quoting Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999)). Second, the Title IX funding recipient “must have substantial control over ‘the context’ in which the mistreatment occurred or manifested.” Oldham at *7 (quoting Davis at 630).
The Third Circuit found that some of Oldham’s claims were within the zone of interests protected by Title IX because Penn State: (i) had substantial control over the alleged offenders; and (ii) had substantial control over some of the contexts in which the complained-of discrimination either occurred or manifested. See Oldham at *5-9.
First, as to Penn State’s control over the alleged offenders, since they were employed by Penn State and an employer generally exercises control over its employees, the Court found that it could be properly inferred that Penn State had substantial control over them. See Oldham at *7-8.
Second, as to Penn State’s control over the “context” of the alleged discrimination, the Third Circuit noted that while there may be cases in which a university exercises substantial control over an off-campus context (including potentially a chartered flight or a flight with a university chaperone), Oldham did not adequately allege that Penn State had substantial control over the flight at issue. Therefore, the Third Circuit found that Penn State lacked substantial control over the “context” in which the alleged sexual harassment occurred.
However, the Third Circuit determined that, at this stage of the proceedings, it would be reasonable to infer that certain aspects of Oldham’s Title IX retaliation claim could fall within Penn State’s substantial control. The Court found it reasonable to infer that conversations that were part of the retaliation campaign occurred on Penn State’s campus, and also observed that the retaliation campaign may have manifested through the exclusion of Oldham from fencing events hosted by Penn State. Further, the Court noted that “if any of the grounds for Oldham’s exclusion from those [fencing] events, her being passed over for the NCAA Division I coaching positions for which she had applied, or the loss of her students could be tied back to conversations occurring in a context over which Penn State had substantial control, then those components of her claim would also be within Title IX’s zone of interests.” Oldham at *9.
Also of significance, the Court rejected Oldham’s negligence theory that Penn State had a common-law duty to properly address a Title IX complaint that she had filed with the University. The Court found that there is no common-law duty under Pennsylvania law for a public school or university to investigate complaints by non-students or non-employees. “At most,” the Court noted, Pennsylvania “imposes on public universities a statutory duty to investigate claims made by students and employees.” Oldham at *14. That statutory duty comes from Pa.C.S. § 20-2003-J(a), which states that “[a] postsecondary institution shall establish and maintain an online reporting system to receive complaints of sexual harassment and sexual violence from students and employees” and that each “report shall be investigated through the process established in the postsecondary institution’s sexual harassment and sexual violence policy.” But the Third Circuit noted that this statutory duty does not extend to claims made by third parties, and Pennsylvania courts have not imposed a common-law duty upon schools or public universities to investigate complaints made by non-students and non-employees. Since Oldham did not allege being a student or an employee of Penn State, the Third Circuit found that she failed to state a plausible negligence claim against Penn State, the head coach, or the Title IX Coordinator based on their alleged mishandling of Oldham’s Title IX complaint.
The claims in this case that survived the Third Circuit’s decision have now been remanded to the U.S. District Court for the Middle District of Pennsylvania.
