Ninth Circuit takes up claims of anti-gay harassment at University of Arizona

LAS VEGAS (CN) —  A Ninth Circuit panel will decide whether homophobic slurs used against a former University of Arizona student-athlete counted as sexual harassment under Title IX, which hinges on whether those he said harassed him actually believed he was gay. 

Michael Grabowski was kicked off of Arizona’s cross-country team in September 2018, losing his scholarship and in turn being forced to attend a different school. A year later, he sued the university along with the Arizona Board of Regents and multiple cross-country coaches and athletes, claiming he was removed in retaliation after he complained to the university of sexual harassment and bullying he received from his teammates. 

Grabowski claims his teammates called him “homo” and “fag,” and posted a video to the internet saying he’s gay. He says his treatment and later removal from the team constituted defamation, retaliation and sexual harassment because of his “perceived sexual orientation.” He also claims track and field coach Fred Harvey assaulted him and seeks punitive damages for his loss of scholarship.

The university countered in its response that he was removed because he made a joke about rape 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 a month later. 

Arguing for the defendants at the Ninth Circuit on Wednesday, attorney Patricia Watterkotte said Grabowski’s lawsuit didn’t sufficiently establish that his harassers believed him to be gay and therefore they didn’t violate Title IX, because “calling him gay or homo is not the same as accusing him of being gay.”

She argued that name-calling isn’t enough to prove they believed what they were saying, and that they would have to have a reason to believe he’s gay for it to be sexual harassment. 

“So if they said he dressed like he was gay, that would be sufficient?” asked U.S. Circuit Judge Mark Bennett, a Donald Trump appointee. 

“Yes,” Watterkotte replied. 

She also argued that because he has no protected interest in a scholarship, the university taking it away didn’t constitute retaliation. 

Grabowski’s lawyer William Walker acknowledged he couldn’t find a case that has decided the removal of a scholarship is a violation of a constitutional right. “But there should be,” he said. U.S. Circuit Judge Susan Graber, a Bill Clinton appointee, pushed back on that.

“But if it’s not a property interest, I’m not sure where a constitutional right comes in,” Graber said. “Scholarship is not a protected property right.”

U.S. Circuit Judge Roopali Desai, a Joe Biden appointee, said Grabowski failed to show how the university revoking Grabowski’s scholarship deprived him of educational opportunity, because he wasn’t actually kicked out of the school. 

Walker said Grabowski had no other choice but to leave because of his loss of scholarship.

On rebuttal, Watterkotte argued the harassment can’t be connected to the removal of Grabowski’s scholarship because one came from Grabowski's peers and the other from the coaches.

The panel did not indicate when or how it would rule.

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