“Context in Context”: The Collapse of Title IX’s Substantial Control Requirement

Authors

Morgan Bronson

Abstract

Title IX of the Education Amendments of 1972 (Title IX) plays a critical role in addressing sex discrimination in academic settings. Though the statute envisions robust administrative enforcement, courts have largely been responsible for shaping Title IX’s liability framework, including in cases involving student-on-student sexual harassment. In two early decisions, the Supreme Court introduced five conditions necessary to establish a federal funding recipient’s liability in such cases. Among them was a two-part “substantial control” requirement: the recipient must have exercised control over both the harasser and the context of the harassment. The Court, however, never clearly articulated these conditions, leading to disparate tests among the lower appellate courts—most of which have expanded recipient liability by diminishing (or altogether eliminating) the substantial control requirement. While this shift reflects a desire to remedy Title IX’s limitations, it distorts case law, creates inconsistent expectations for recipients, and undermines the potential for effective administrative redress.

This Note argues that the Supreme Court should resolve the growing circuit split by adopting the five-element framework initially outlined in early Title IX case law and reaffirmed in recent regulatory amendments. Such a test would reconcile increasingly diverging standards; better reflect statutory language and administrative action; and provide clarity to courts, federal funding recipients, and students alike.

Rights

© 2025 Brigham Young University Law Review

Recommended Citation

Morgan Bronson, “Context in Context”: The Collapse of Title IX’s Substantial Control Requirement, 50 BYU L. Rev. 1725 (2025).
Available at: https://digitalcommons.law.byu.edu/lawreview/vol50/iss6/9