Ninth Circuit Finds That Discrimination On The Basis Of Perceived Sexual Orientation Violates Title IX

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jun 26, 2023

In 2017, Plaintiff Michael Grabowski was a first-year student-athlete at the University of Arizona (University) on an academic and athletic scholarship. The University recruited him to join its Cross Country and Track and Field Teams. Starting in August 2017, his teammates bullied him and used homophobic slurs almost daily because they perceived him to be gay. Mr. Grabowski’s father reported the bullying to a coach, Mr. Li, who promised to investigate the bullying issue. Mr. Grabowski’s mother also emailed the team’s sports psychologist asking her to discuss the bullying with Mr. Grabowski. His teammates also posted a homophobic and harassing video in their team chat group about Mr. Grabowski. When Mr. Grabowski complained about this to his coaches, the coaches dismissed his complaints and acted as if they did not know about the bullying. Once, when Mr. Grabowski named the teammates who bullied him, a coach responded that he “can’t single out the top two runners on the team.” After this identification, Mr. Grabowski claimed that his coaches embarked on a concerted effort to demoralize him. For example, he claimed an assistant coach scolded him for “faking an illness,” even though a blood test later revealed that he had a viral illness at the time. During the last meeting, the coaches denied knowledge of the bullying, told Mr. Grabowski he did not fit in, and scared him so badly that he had a spontaneous bloody nose and fainted. The coaches then dismissed Mr. Grabowski from the team.

Mr. Grabowski sued employees of the University for a violation of Title IX due to their deliberate indifference to his bullying, a retaliation claim under Title IX, and a Section 1983 constitutional violation for punitive damages. The trial court dismissed all claims except for the retaliation claim and denied leave to amend. Two months later, the court ruled in favor of the University for the retaliation claim because Mr. Grabowski “failed to allege facts showing that he engaged in a protected activity.” Mr. Grabowski appealed.

On appeal, the Ninth Circuit Court of Appeals ruled that Title IX prohibits discrimination on the basis of perceived sexual orientation, not just actual sexual orientation. Mr. Grabowski did not allege that he was gay, but even so, the discrimination against him fell under the umbrella of discrimination on the basis of sex for the purposes of Title IX. The Ninth Circuit allowed Mr. Grabowski to amend his complaint alleging violation of Title IX to show that his education was essentially denied due to the bullying, the only element of the Title IX harassment claim left unanswered. The Ninth Circuit also remanded Mr. Grabowski’s retaliation claim because he showed that he suffered an adverse action of scholarship cancellation and removal from the team and participated in a protected activity of reporting sex discrimination.

The Ninth Circuit dismissed his Section 1983 claim and his request for punitive damages on the grounds that his athletic scholarship was not a property right and therefore no constitutional rights were violated.

Grabowski v. Arizona Bd. of Regents, (9th Cir. 2023) No. CV-19-00460-TUC-SHR, 2022 WL 1128936 (D. Ariz. Apr. 15, 2022), rev’d and remanded, No. 22-15714, 2023 WL 3961123.

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