Ninth Circuit revives anti-gay harassment case against University of Arizona | Courthouse News Service
Tuesday, November 28, 2023
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Ninth Circuit revives anti-gay harassment case against University of Arizona

A three-judge panel agreed that the university retaliated against a student after he complained of sexual harassment, but said the student didn't establish a clear link between the harassment and a loss of educational opportunity.

LAS VEGAS (CN) — A Ninth Circuit panel on Tuesday affirmed the dismissal of a former University of Arizona student athlete's Title IX discrimination claims, but agreed with the former student that the university retaliated against him and sent the case back to the trial court.

"I’m happy, because what it means is he can go ahead with all of his claims about these sexist, just outrageous coaches here on the track and field team," the student's attorney Bill Walker said in a phone call.

Michael Grabowski was kicked off of Arizona’s track and field team in September 2018, losing his scholarship and consequently changing schools. A year later, he sued the university along with the Arizona Board of Regents and multiple cross-country coaches and athletes, asserting Title IX harassment and alleging that the university revoked his scholarship in retaliation for his complaints of “sexual and homophobic bullying” from his teammates. 

Grabowski claims his treatment and later removal from the team constituted sexual harassment and retaliation because his teammates perceived him to be gay. He also claims track and field coach Fred Harvey assaulted him, and seeks punitive damages for his loss of scholarship.

“These are awful people, and he was treated terribly here," Walker said.

The university countered that he was removed because he made a rape joke to a group of teammates, had sexually harassed a female student and was involved in an “unidentified racial incident.” 

Grabowski denies those claims. 

U.S. District Judge Scott Rash dismissed all claims but Title IX retaliation in August 2021, then dismissed the final claim in April 2022. Grabowski appealed in March to a Ninth Circuit panel composed of U.S. Circuit Judges Susan Graber, Mark Bennett and Roopali Desai, appointed by Bill Clinton, Donald Trump and Joe Biden, respectively.

Grabowski’s first claim for Title IX discrimination hinged upon whether harassment based on perceived sexual orientation falls under the umbrella of sexual harassment. The panel found that it does.

"This is an important victory for LGBTQ students affirming their rights under Title IX, especially during a time when anti-LGBTQ discrimination is on the rise and students everywhere need stronger protections," said Alexandra Brodsky, staff attorney for Public Justice, a non-profit legal advocacy group that testified on Grabowski's behalf during his appeal.

But the panel also found that but also found that Grabowski's harassment claim wasn't strong enough in proving it hindered his educational opportunity. Grabowski's lawyers argued in March that he had no other choice but to leave the school after his scholarship was revoked, but the panel didn’t buy it.

“Those allegations fail to provide a potential link between the quality of plaintiff’s education and the alleged harassment,” Graber wrote in the panel’s 28-page opinion. “Plaintiff experienced increasing sadness, but the operative complaint contains no facts describing how, if at all, his educational opportunities were diminished. Therefore, the district court did not err by dismissing this claim.”

While the panel didn't see a clear link between the harassment Grabowski faced and the revocation of his scholarship, it agreed that the revocation itself constitutes retaliation. Because he was dismissed from the team just weeks after he first complained to his coaches about the harassment, the Ninth Circuit judges found it likely that the two are causally linked. 

“The short time between Plaintiff’s final report of bullying to his coaches and his dismissal from the track team supports a plausible inference that he was removed from the team in retaliation for complaining about bullying,” Graber wrote. 

Grabowski also claims that the two coaches who fired him violated his due process rights and asks for punitive damages against them. But because an athletic scholarship doesn’t constitute a constitutional property right, qualified immunity protects the coaches from those claims, the panel found.

In remanding the case back to the district court, Graber wrote that the judge may consider “any request for further amendment of the complaint,” allowing Grabowski another chance to show how the harassment affected his education.

"And I guarantee you, we will be able to prove that they are liars," Walker said.

Attorneys for the defendants haven't replied to a request for comment.

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Categories / Appeals, Civil Rights, Education, Sports

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