PRECEDENTIAL
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`UNITED STATES COURT OF APPEALS
`FOR THE THIRD CIRCUIT
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`No. 22-2056
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`JENNIFER OLDHAM,
`Appellant
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`v.
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`THE PENNSYLVANIA STATE UNIVERSITY;
`WIESLAW R. GLON, as agent for Penn State in his official
`capacity and in his individual capacity; CHRISTOPHER J.
`HARRIS, Esq., as agent for Penn State in his official
`capacity; GEORGE G. ABASHIDZE, as agent for Penn State
`in his official capacity and in his individual capacity
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`On Appeal from the United States District Court
`for the Middle District of Pennsylvania
`(D.C. No. 4:20-cv-02364)
`District Judge: Honorable Matthew W. Brann
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`Argued: March 23, 2023
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`Before: RESTREPO, PHIPPS, and ROTH, Circuit Judges
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`(Filed: May 29, 2025)
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`Cathy E. Crosson [ARGUED]
`406 South Eastside Drive
`Bloomington, IN 47401
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`Stephen Lindsay
`LINDSAY LAW
`46 Haywood Street
`Asheville, NC 28801
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`Kerstin W. Sutton
`3215 Deerchase Wynd
`Durham, NC 27712
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` Counsel for Appellant
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`James A. Keller
`Patrick F. Nugent
`Amy L. Piccola [ARGUED]
`Shane P. Simon
`SAUL EWING
`1500 Market Street
`Centre Square West, 38th Floor
`Philadelphia, PA 19102
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`Counsel for Appellees Penn State University
`and Christopher J. Harris
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`Michael J. Engle
`Jeffrey A. Lutsky [ARGUED]
`Corey S. D. Norcross
`STRADLEY RONON STEVENS & YOUNG
`2005 Market Street
`Suite 2600
`Philadelphia, PA 19103
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` Counsel for Appellee Wieslaw R. Glon
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`Lee G. Valigorsky [ARGUED]
`GLEASON CHERRY & CHERRY
`1 North Franklin Street
`P.O. Box 505
`DuBois, PA 15801
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`Counsel for Appellee George G. Abashidze
`_______________________
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`OPINION OF THE COURT
`_______________________
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`PHIPPS, Circuit Judge.
`This case arises from allegations that during a cross -
`country flight following a fencing tournament , a state
`university’s assistant fencing coach sexually harassed and
`assaulted the woman in the seat next to him. That woman was
`also a member of the fencing community: she was a coach at a
`private fencing school that she owned. She alleges 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 co mmunity. Even more, she
`claims that when the university eventually investigated the
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`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.
`Based on those allegations, the private fencing coach sued
`the university, the two coaches, and the university’s Title IX
`coordinator in the federal district where she resided , even
`though neither the university nor any of the sued employees
`resided in that state. She claimed that the defendants violated
`Title IX of the Education Amendments of 1972 , and she also
`brought several state-law tort claims. All of the defendants
`moved to dismiss the complaint for failure to state a claim for
`relief, and all but one of the defendants – the assistant fencing
`coach – also challenged venue in at least one respect, such as
`by moving to dismiss the case for improper venue or by
`moving to transfer the case for either improper venue or the
`convenience of the parties. In response to those motions, the
`district court transferred the case to a new judicial district –
`partially to cure improper venue with respect to the head coach,
`the Title IX coordinator, and the state university, and partially
`for judicial efficiency with respect to the assistant coach.
`After the transfer, the plaintiff amended her complaint, and
`the defendants moved to dismiss the claims against them. The
`transferee district court dismissed the entire suit. As a matter
`of first impression, it held that to bring a Title IX claim , a
`plaintiff must be within the zone of interests protected by that
`statute and that the plaintiff – as neither a student nor an
`employee of the university – was outside of that zone. As for
`the state-law tort claims, the transferee district court applied
`the choice-of-law rules of the transferee forum and dismissed
`all of those claims as untimely or implausible.
`On de novo review, most of those conclusions are correct.
`A Title IX claim must be within the zone of interests protected
`by that statute. But the student-or-employee formulation of the
`Title IX zone-of-interests test is inaccurate, and under a correct
`understanding of the zone of interests protected by Title IX, the
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`private fencing coach’s Title IX claims against the university
`related to her exclusion from fencing events that were hosted
`or supervised by the universit y, as well as any aspects of the
`retaliation campaign that occurred or had harm therefrom
`manifested on campus, are within that zone. Also, many of the
`state-law tort claims are untimely or fail to state a plausible
`claim for relief. But because the claims against the university’s
`assistant fencing coach were transferred for judicial efficiency,
`the choice-of-law rules for the transferor, not the transferee ,
`forum apply. And application of those rules allows for a longer
`statute of limitations such that the tort claims agains t the
`assistant coach are not time barred. Thus, as elaborated below,
`we will vacate in part, affirm in part, and remand for further
`proceedings.
`I. FACTUAL BACKGROUND
`(AS ALLEGED IN THE AMENDED COMPLAINT)
`A. The Return Flight from a Portland Fencing
`Tournament
`In early December 2017, USA Fencing – the official
`national governing body for the sport of fencing in the United
`States1 – held a North American Cup fencing competition in
`Portland, Oregon. Jennifer Oldham, the head coach and owner
`of a private fencing club in Durham, North Carolina, attended
`the tournament. George Abashidze, an assistant fencing coach
`at the Pennsylvania State University, also attended.
`After the tournament, Oldham, Abashidze, and another
`member of the fencing community boarded a red -eye flight
`from Portland to Chicago and were seated in the same row.
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`1 See Amateur Sports Act of 1978, Pub. L. No. 95-606, sec. 2,
`§ 201, 92 Stat. 3045, 3050 (1978); USA Fencing, United States
`Fencing Association Bylaws § 2.1 (2024),
`https://www.usafencing.org/by-laws (choose “United States
`Fencing Association Bylaws – Effective September 15, 2024”)
`[https://perma.cc/VEP5-QYLF].
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`Oldham had the middle seat, Abashidze was to her left in the
`aisle seat, and the other fencing acquaintance was to her right
`in the window seat.
`Abashidze abused his proximity to Oldham. He made lewd
`comments to her. He touched her legs, arms, and face without
`her consent. And he repeatedly demanded that she have sex
`with him – during the flight. Even more, in the early morning
`hours of December 12, 2017, while the airplane was over the
`Great Plains, he thrust his hand between her legs and grabbed
`her genitalia without her consent.
`B. The Initial Aftermath of the Events on the
`Flight
`Upon her return home to North Carolina, Oldham told her
`husband what Abashidze had done to her. She later reached
`out to her mentor and former fencing coach for advice on how
`to deal with the incident. Her mentor was a long -time friend
`of Wieslaw Glon, the head fencing coach at Penn State, and in
`January 201 8, he spoke over the phone to Glon about
`Abashidze’s verbal and physical harassment of Oldham on the
`flight. Despite that conversation, Glon did not report the
`misconduct to Penn State’s Title IX Coordinator or to anyone
`in the hierarchy of the Penn State Athletic Department.
`In February 2018, there was a collegiate fencing
`tournament in Durham. Both Glon and Abashidze attended
`that event as part of their employment with Penn State. While
`in town, Glon met with Oldham, and she told him what
`happened on the flight from Portland. She also handed Glon a
`written account of the incident and watched as he read it. After
`providing Glon with that information, Oldham asked whether
`he would report the incident to Penn State’s Athletic
`Department. Glon refused , and in addition, he discouraged
`Oldham from reporting the incident to SafeSport , an
`independent organization that investigates and has the
`exclusive authority to respond to claims of sexual misconduct
`for USA Fencing. He told her that it would be embarrassing
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`for her if the incident were made known and that no one would
`believe her. Glon then brought Abashidze into the
`conversation and directed him to apologize to Oldham.
`After that meeting, Oldham did not report the incident to
`SafeSport or to Penn State’s Title IX Coordinator. But
`unbeknownst to Oldham, the passenger in the window seat on
`the flight from Portland had already reported the incident to
`SafeSport.
`In April 2018, another fencing tournament brought Glon,
`Oldham, and Oldham’s mentor to Richmond, Virginia. At the
`prompting of Oldham’s mentor, the three of them had coffee
`together. Glon again discouraged Oldham from reporting the
`incident to SafeSport for the same reasons as before. He also
`urged her to refute allegations by the third-party witness if
`questioned by SafeSport. Glon then communicated the
`anxiety, stress, and loss of sleep that Abashidze was
`experiencing. Oldham told Glon that he had a duty to report
`the incident to Penn State. Glon disagreed and explained that
`he was watching Abashidze closely and did not believe him to
`be a danger to the team.
`Over the next few months, there were several developments
`related to the incidents on the December 2017 flight. On
`June 30, 2018, without Oldham’s knowledge, her husband,
`also a fencing professional, emailed Penn State’s Athletic
`Director about it. Around the same time, SafeSport
`substantiated the report of Abashidze’s verbal and physical
`harassment of Oldham, and it suspended Abashidze from any
`association or involvement with USA Fencing -sanctioned
`events taking place in 2018. Abashidze appealed that
`suspension, which led to the scheduling of an arbitration
`hearing. And on August 14, 2018, in response to an email from
`Oldham’s husband, Penn State’s Title IX Coordinator,
`Christopher Harris, interviewed Oldham over the phone about
`Abashidze’s conduct and Glon’s failure to report it.
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`C. Efforts to Discredit Oldham
`Around that same time, Glon and Abashidze were accusing
`Oldham of fabricating the verbal and physical harassment
`based on nothing more than a brushing of arms on a plane. In
`addition, a t the SafeSport arbitration hearing in
`December 2018, both Glon and Abashidze called Oldham a
`liar.
`Oldham felt the effects of those developments. Members
`of the fencing community, including Oldham’s mentor,
`doubted her account, and she began to be shunned at fencing
`events. In addition, s ome of her colleagues in the fencing
`community were openly hostile toward her and spread Glon
`and Abashidze’s accusations. Also, in pursuit of her
`professional aspirations, Oldham had applied for coaching
`positions at the University of North Carolina and Northwestern
`University, and despite her qualifications, she rec eived no
`offers. She later heard that Glon had directly interfered with
`her candidacy for one of those positions – the coaching job at
`the University of North Carolina, her alma mater.
`In response to that hostility and in fear of further retaliation,
`Oldham decided against going to fencing events that she
`otherwise would have attended. In particular, she did not
`attend a fencing tournament at Penn State on November 3,
`2018. Nor did she attend the NCAA fencing championship in
`March 2021, which Penn State hosted.
`Oldham did receive some, albeit incomplete , vindication.
`SafeSport, after Abashidze’s arbitration hearing, determined
`that Abashidze was responsible for the verbal and physical
`harassment of Oldham and affirmed his suspension . Also,
`Penn State ’s February 2019 Title IX investigation
`substantiated the verbal and physical harassment . However,
`Penn State also concluded that Abashidze’s conduct did not
`violate university policy. On a phone call with Harris before
`that initial determination became final, Oldham communicated
`her disagreement with that conclusion. But Penn State’s final
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`determination reached the same conclusions as its initial
`decision. Dissatisfied with this result, in April 2019, Oldham
`submitted a written Title IX complaint against Glon for his
`response to Abashidze’s conduct on the December 2017 flight.
`After receiving that complaint, Penn State did not
`communicate with Oldham about it.
`II. PROCEDURAL HISTORY
`A. Commencement of Suit in the Middle
`District of North Carolina
`On May 27, 2020, Oldham sued Abashidze, Glon, Harris,
`and Penn State in the United States District Court for the
`Middle District of North Carolina. She brought claim s under
`the implied right of action for Title IX of the Education
`Amendments of 1972, Pub. L. No. 92 -318, § 901(a), 86 Stat.
`235, 373 (1972) (codified in relevant part as amended at
`20 U.S.C. § 1681). See generally Cannon v. Univ. of Chi. ,
`441 U.S. 677, 709 (1979) (recognizing an implied right of
`action for violations of Title IX). She also brought claims for
`battery, negligence, failure to supervise and train, and infliction
`of emotional distress. That district court had original
`jurisdiction over the Title IX claims because they arose under
`a federal law, see 28 U.S.C. § 1331, and it had supplemental
`jurisdiction over the state -law claims because those were
`related to her Title IX claims, see id. § 1367(a).2
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`2 Oldham also invoke d diversity jurisdiction , see 28 U.S.C.
`§ 1332(a)(1), and her allegations support complete diversity of
`citizenship between herself and each of the defendants, see
`Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267, 267 (1806) , as
`well as an amount in controversy that is not “to a legal
`certainty” below the threshold required for diversity
`jurisdiction, St. Paul Mercury Indem. Co. v. Red Cab Co. ,
`303 U.S. 283, 288 –89 (1938) . See generally 28 U.S.C.
`§ 1332(a) (predicating diversity jurisdiction on claims between
`completely diverse parties with a value in excess of $75,000).
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`Defendants filed three separate motions to dismiss that
`complaint. Harris and Penn State jointly moved to dismiss for
`lack of personal jurisdiction, see Fed. R. Civ. P. 12(b)(2),
`improper venue, see id. 12(b)(3), and failure to state a claim,
`see id. 12(b)(6). I n the alternative, they moved to transfer
`venue to the Middle District of Pennsylvania under 28 U.S.C.
`§ 1404(a), which permits a transfer to another judicial district
`where the case could have been brought “[f]or the convenience
`of parties and witnesses, in the interests of justice.” In his own
`motion, Glon also moved to dismiss for lack of personal
`jurisdiction, see Fed. R. Civ. P. 12(b)(2), improper venue, see
`id. 12(b)(3), and failure to state a claim, see id. 12(b)(6). As
`an alternative, Glon sought a transfer to the Middle District of
`Pennsylvania under either 28 U.S.C. § 1406(a) because the
`Middle District of North Carolina was the wrong venue or
`under § 1404(a) for convenience. Abashidze also moved to
`dismiss the case but only for a lack of personal jurisdiction.
`See Fed. R. Civ. P. 12(b)(2).
`That briefing convinced the district court in the Middle
`District of North Carolina that venue was not proper – only the
`February 2018 meeting between Oldham, Glon, and Abashidze
`took place there. Oldham v. Pa. State Univ. , 507 F. Supp. 3d
`637, 645 –47 (M.D.N.C. 2020) (hereinafter ‘ Oldham I’). To
`remedy that venue problem, the court made a hybrid transfer.
`It relied on the defect -curing transfer statute, 28 U.S.C.
`§ 1406(a), to transfer the claims against Glon, Harris, and Penn
`State – each of whom had mo ved to transfer venue in the
`alternative – to the Middle District of Pennsylvania. Oldham I,
`507 F. Supp. 3d at 649.3 And instead of severing the claims
`against Abashidze – who did not move to transfer venue – the
`court sua sponte invoked the convenience-transfer statute,
`28 U.S.C. § 1404, to transfer those claims to the Middle
`District of Pennsylvania as well. Oldham I, 507 F. Supp. 3d at
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`3 This transfer pursuant to 28 U.S.C. § 1406(a) was partially
`made sua sponte as only Glon had specifically requested a
`transfer under § 1406(a).
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`650. No party sought review of those rulings in the Fourth
`Circuit.
`B. The Litigation in the Middle District of
`Pennsylvania
`On September 28, 2021, after the transfer of venue, Oldham
`amended her complaint. That pleading had two counts for
`violations of Title IX against all defendants: one for deliberate
`indifference to discrimination (Count I) and the other for
`exclusion from university programs and activities (Count II).
`The remaining five counts were for tort claims under state law:
`for defamation against everyone except Harris (Count III);
`breaches of the duties to supervise and to train against everyone
`except Abashidze (C ount IV); battery against Abashidze and
`Penn State (Count V); negligence and gross negligence against
`all four defendants (Count VI); and negligent and intentional
`infliction of emotional distress against all four defendants
`(Count VII).
`The defendants moved to dismiss all of Oldham’s claims.
`They contested the plausibility of the Title IX claims and the
`state-law tort claims. They also disputed the timeliness of the
`defamation claim, which is subject to a one -year statute of
`limitations in both North Carolina and Pennsylvania. They
`further challenged the timeliness of Oldham’s remaining state-
`law tort claims on the grounds that those claims were subject
`to Pennsylvania’s two-year statute of limitations – not North
`Carolina’s three-year statute of limitations.
`The District Court granted those motions. Oldham v. Pa.
`State Univ. , 2022 WL 1528305, at *29 (M.D. Pa. May 13,
`2022) (hereinafter ‘Oldham II’). It rejected the Title IX claims
`(Counts I and II) against Abashidze, Glon, and Harris because
`Title IX does not impose individual -capacity liability. Id. at
`*17. And it dismissed the Title IX claims against Penn State
`because Oldham, as neither a student nor an employee, was not
`in the zone of interests protected by Title IX. Id. at *18–19.
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`The District Court resolved the state-law tort claims on
`timeliness and sufficiency -of-pleadings grounds. It
`determined that the defamation claim (Count III) was subject
`to a one-year statute of limitations under either North Carolina
`or Pennsylvania law, so it dismissed that count without
`prejudice because Oldham did not plead any plausible claims
`within that period. Id. at *6, 13, 20 –22. For the other tort
`claims, the District Court applied Pennsylvania’s two -year
`statute of limitations instead of North Carolina’s three -year
`statute of limitations. Id. at *6. Using that limitations period,
`the District Court dismissed without prejudice the claim for
`failure to train and supervise (Count IV) against Glon, Harris,
`and Penn State because Oldham did not allege facts that would
`make such a claim plausib le within that time period . Id. at
`*13–15, 22–24. And for the remaining tort claims – battery
`(Count V), negligence (Count VI), and infliction of emotional
`distress (Count VII) – the District Court dismissed those with
`prejudice after concluding that Oldham failed to plaus ibly
`allege conduct within the limitations period sufficient to
`sustain those counts. Id. at *15–17, 25–29.
`In response to that ruling, Oldham elected not to amend her
`allegations for the two claims dismissed without prejudice –
`defamation and failure to train or supervise. Instead, she
`notified the District Court that she would stand on those
`allegations. The District Court then dismissed those claims
`with prejudice on June 28, 2022.
`Through a notice of appeal filed on June 1, 2022, and
`amended July 6, 2022, Oldham timely invoked this Court’s
`appellate jurisdiction over the District Court’s final decision.
`See 28 U.S.C. § 1291; Fed. R. App. P. 4(a)(1)(A). Oldham
`now challenges the District Court’s dismissal of all of her
`claims except the individual -capacity Title IX claims against
`Abashidze, Glon, and Harris . See Fitzgerald v. Barnstable
`Sch. Comm. , 555 U.S. 246, 257 (2009) (explaining that
`Title IX does not authorize suits against individuals).
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`III. DISCUSSION
`A. Some of the Title IX Claims Against Penn
`State Are Within the Zone of Interests
`Protected by Title IX.
`The District Court dismissed Oldham’s Title IX claims
`against Penn State on the ground that she was not within the
`zone of interests that the statute was designed to protect.
`Oldham II, 2022 WL 1528305, at *18–19. Under this Court’s
`tripartite approach to motions to dismiss for failure to state a
`claim for relief, the first step is to identify the elements – or at
`a minimum the challenged element – of each claim. See Lutz
`v. Portfolio Recovery Assocs., LLC , 49 F.4th 323, 327 –28
`(3d Cir. 2022) (explaining all three steps). Consistent with that
`approach, the District Court, citing the Supreme Court’s
`decision in Lexmark International, Inc. v. Static Control
`Components, Inc. , 572 U.S. 118 (2014), reasoned that a
`plaintiff must fall within the zone of interests protected by
`Title IX as a prerequisite to stating a claim for relief under
`Title IX’s implied cause of action. Oldham II, 2022 WL
`1528305, at *18 & nn.209 –10. See generally Lexmark,
`572 U.S. at 129 (quoting Allen v. Wright , 468 U.S. 737, 751
`(1984)).4 In applying that zone-of-interests test at the motion-
`to-dismiss stage, the District Court reasoned that only students,
`employees, or persons “so closely tied to a university that [they
`are] essentially [students]” of an educational institution
`receiving federal funding are within the zone of interests
`protected by Title IX. Oldham II, 2022 WL 1528305, at *18
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`4 See generally Cannon, 441 U.S. at 689–709 (concluding that
`all four factors identified in Cort v. Ash , 422 U.S. 66, 78
`(1975), were satisfied such that a cause of action could be
`implied from Title IX); Alexander v. Sandoval, 532 U.S. 275,
`282 (2001) (explaining that Cannon held “that Title IX created
`a private right of action to enforce its ban on intentional
`discrimination”). Cf. generally Franklin v. Gwinnett Cnty.
`Pub. Schs., 503 U.S. 60, 71 (1992) (describing how “[Title IX]
`supported no express right of action”).
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`(quoting Doe v. Univ. of Ky. , 971 F.3d 553, 559 n.4 (6th Cir.
`2020)). Although it did not disregard any of Oldham’s
`allegations as speculative or too conclusory,5 the District Court
`determined that Oldham did not plausibly allege that she was a
`student or an employee or that she had a similarly close
`relationship with Penn State. 6 The District Court therefore
`concluded that Oldham was outside of the zone of interests
`protected by Title IX, and it dismissed her Title IX claims with
`prejudice. See id. at *19.
`That ruling presents a question of first impression for this
`Court, viz., whether the zone -of-interests test applies to
`Title IX claims. For the reasons below, it does, and some of
`Oldham’s claims are plausibly within that zone.
`Although similar considerations have deep roots in the
`common law, 7 the Supreme Court originally developed the
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`5 See Lutz, 49 F.4th at 327 –28 (describing the second step of
`the motion -to-dismiss analysis as “r eviewing the complaint
`and disregarding any formulaic recitation of the elements of a
`claim or other legal conclusion, as well as allegations that are
`so threadbare or speculative that they fail to cross the line
`between the conclusory and the factual” (cleaned up)).
`6 See Lutz, 49 F.4th at 328 (explaining that under step three of
`the motion -to-dismiss analysis, a court “ evaluates the
`plausibility of the remaining allegations” while “ assuming
`their veracity, construing them in the light most favorable to
`the plaintiff, and drawing all reasonable inferences in the
`plaintiff’s favor”).
`7 See Lexmark, 572 U.S. at 130 n.5 (“Although we announced
`the modern zone -of-interests test in 1971, its roots lie in the
`common-law rule that a plaintiff may not recover under the law
`of negligence for injuries caused by violation of a statute unless
`the statute ‘is interpreted as designed to protect the class of
`persons in which the plaintiff is included, against the risk of the
`type of harm which has in fact occurred as a result of its
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`zone-of-interests test as a means of determining who could sue
`a federal agency under the Administrative Procedure Act. See
`Ass’n of Data Processing Serv. Orgs., Inc. v. Camp , 397 U.S.
`150, 153 (1970) (construing 5 U.S.C. § 702); see also Alisa B.
`Klein, Major Questions Doctrine Jujitsu: Using the Doctrine
`to Rein in District Court Judges, 76 Admin. L. Rev. 327, 363–
`64 (2024) (“Lexmark explained that the ‘zone of interests’ test
`originated ‘as a limitation on the cause of action for judicial
`review conferred by the Administrative Procedure Act.’”
`(quoting Lexmark, 572 U.S. at 129)). But the Supreme Court
`“ha[s] since made clear” that zone -of-interests considerations
`“appl[y] to all statutorily created causes of action . . .
`‘unless . . . expressly negated.’” Lexmark, 572 U.S. at 129
`(emphasis added) (quoting Bennett v. Spear, 520 U.S. 154, 163
`(1997)). Accordingly, it is now “presume[d] that a statutory
`cause of action extends only to plaintiffs whose interests ‘fall
`within the zone of interests protected by the law invoked.’” Id.
`(quoting Allen, 468 U.S. at 757).8 In analyzing another federal
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`violation.’” (quoting W. Keeton, D. Dobbs, R. Keeton & D.
`Owen, Prosser and Keeton on Law of Torts § 36 (5th ed.
`1984)) (also citing Gorris v. Scott , [1874] 9 L.R. Exch. 125,
`125 (Eng.)) ); see also Restatement (Second) of Torts § 286
`(Am. L. Inst. 1965) (describi ng how the common -law
`negligence per se test applies if the statute’s purpose is “to
`protect that interest against the kind of harm which has
`resulted” and “to protect that interest against the particular
`hazard from which the harm results”).
`8 When a statute provides a cause of action for an ‘aggrieved
`person,’ a term used in the Administrative Procedure Act, see
`5 U.S.C. § 702, the Supreme Court uses a slightly relaxed
`version of the zone-of-interests test that was derived from the
`APA. That version of the test examines whether a plaintiff is
`“arguably within the zone of interests” protected by the statute.
`Bank of Am. Corp. v. City of Miami, 581 U.S. 189, 197 (2017)
`(quoting Ass’n of Data Processing, 397 U.S. at 153) (applying
`the ‘arguably’ formulation of the zone -of-interests text to the
`Fair Housing Act, which uses the term ‘aggrieved person’); see
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`civil rights statute, the Fair Housing Act, the Supreme Court
`did not reject the presumptive application of the zone -of-
`interests test, see Bank of Am. Corp. v. City of Miami, 581 U.S.
`189, 197 (2017) (citing 42 U.S.C. §§ 3602(i), 3604(b),
`3605(a), 3613(a)(1)(A), (c)(1)), as neither the text of the statute
`nor its later amendments “suggest[ed] that Congress intended
`to deviate from the zone -of-interests limitation,” id. at 205
`(Thomas, J., concurring in part and dissenting in part). The
`presumptive applica tion of the zone -of-interests test is
`similarly not rebutted with respect to Title IX’s implied cause
`of action: nothing in that statute’s original text or its later
`amendments suggests an intention to deviate from the
`common-law rule. See 20 U.S.C. §§ 1681, 1687. Thus, the
`zone-of-interests test applies to Title IX, and only those
`persons within the zone of interests it protects are eligible to
`sue under its implied cause of action.
`Determining whether a person is within the zone of
`interests protected by a statute requires analyzing the statute’s
`text, construed “using traditional tools of statutory
`
`also Match-E-Be-Nash-She-Wish Band of Pottawatomi
`Indians v. Patchak, 567 U.S. 209, 224–25 (2012) (applying the
`‘arguably’ formulation of the zone-of-interests test to an APA
`claim); Ass’n of Data Processing, 397 U.S. at 153 (articulating
`the ‘arguably’ formulation of the zone -of-interests test for a
`claim under the APA); cf. Clarke v. Sec. Indus. Ass’n, 479 U.S.
`388, 399 –400 (1987) (explaining that the ‘arguably’
`formulation of the zone -of-interests test “ is not meant to be
`especially demanding; in particular, there need be no indication
`of congressional purpose to benefit the would -be plaintiff ”
`(footnote omitted)). Because Title IX, like the statute at issue
`in Lexmark, the Lanham Act, see Lexmark , 572 U.S. at 122
`(citing 15 U.S.C. § 1125(a)), does not use the term ‘aggrieved
`person,’ the standard formulation of the zone -of-interests test
`applies.
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`interpretation.” Lexmark, 572 U.S. at 127; see United States v.
`Hallinan, 75 F.4th 148, 151 (3d Cir. 2023) (citing Lexmark,
`572 U.S. at 127); see also N. Haven Bd. of Ed. v. Bell, 456 U.S.
`512, 520 (1982) (“[The] starting point in determining the scope
`of Title IX is, of course, the statutory language.”). Applied to
`Title IX, much of its protective sweep comes from its
`prohibition of discriminatory actions taken on the basis of sex
`with respect to federally funded education programs or
`activities:
`No 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 . . . .
`20 U.S.C. § 1681(a) (emphasis added); see also id.
`§ 1681(a)(1)–(9) (enumerating exceptions); id. § 1684
`(prohibiting discrimination against persons with blindness or a
`visual impairment). As originally enacted, the term ‘program
`or activity’ was undefined. But after the Supreme Court ’s
`decision in Grove City College v. Bell , 465 U.S. 555 (1984),
`interpreted that term narrowly – to mean that receipt of federal
`funding did not “impose institution-wide obligations,” id. at
`574 – Congress enacted the Civil Rights Restoration Act of
`1987, which defined ‘program or activity’ to encompass “all of
`the operations of . . . a college, university, or other
`postsecondary institution,” Pub. L. No. 100-259, sec. 3(a),
`§ 908, 102 Stat. 28, 28 (1988) (codified as amended at
`20 U.S.C. § 1687) (emphasis added); see NCAA v. Smith ,
`525 U.S. 459, 466 n.4 (1999) (“Congress enacted the CRRA in
`response to [ Grove City College ], which concluded that
`Title IX, as originally enacted, covered only the specific
`program receiving federal funding.”). Thus, Title IX covers
`the operations of colleges and universities that may be
`reasonably considered, at least in part, educational. See Doe v.
`Mercy Cath. Med. Ctr. , 850 F.3d 545, 555 (3d Cir. 2017)
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`(construing the specific phase ‘education program or activity’
`to mean any program or activity that “has ‘features such that
`one could reasonably consider its mission to be, at least in part,
`educational’” (quoting O’Connor v. Davis, 126 F.3d 112, 117
`(2d Cir. 1997))).
`But that understanding alone does not sufficiently define
`the zone of interests protected by Title IX because, as
`legislation under Congress’s spending power, Title IX is
`subject to a clear-statement rule. See Jackson v. Birmingham
`Bd. of Educ., 544 U.S. 167, 181–82 (2005). Under that canon
`of construction, Congress must clearly state any conditions on
`the grant of federal funds so that funding recipients can
`knowingly decide whether to accept those funds. See
`Pennhurst State Sch. & Hosp. v. Halderman , 451 U.S. 1, 17
`(1981); see also Arlington Cent. Sch. Dist. Bd. of Educ. v.
`Murphy, 548 U.S. 291, 296 (2006); Pa. Dep’t of Hum. Servs.
`v. United States, 897 F.3d 497, 511 (3d Cir. 2018). And based
`on the Supreme Court’s holding that Title IX creates a private
`cause of action, see Cannon, 441 U.S. at 709, one of the
`conditions attached to the receipt of Title IX funding is
`exposure to civil liability for violating Title IX’s non -
`discrimin