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Student Stated Viable Gender Bias Claim Against University By Alleging University Faced Contemporaneous Pressure From Department Of Education And The University Had A Pattern Of Gender-Based Decision Making – For Private Schools
David Schwake was a graduate student pursuing a Ph.D. in microbiology at Arizona State University in the summer and fall of 2014. For over three years, he worked in a campus lab as a student researcher alongside other Ph.D. students, including a student who made a sexual misconduct complaint against him. Schwake and the Complainant had dozens of romantic encounters between February 2013 and July 2014.
In August 2014, the University sent Schwake a letter that notified him of the complaint against him and three pending disciplinary charges for Student Code violations, including unwanted or repeated significant behavior and sexual misconduct. A University employee coordinating the University’s response suggested Schwake prepare evidence and witnesses while the University investigated. Schwake provided a written account of the allegations, including text messages that he argued confirmed the sexual activity between him and the Complainant was consensual. Schwake stated several students and staff members could corroborate his account.
In early September 2014, the University sent Schwake a second letter stating it found him responsible for the disciplinary charges and immediately suspending him until fall 2017 unless he requested a hearing to appeal the decision.
Shortly thereafter, an associate professor loudly discussed details of Schwake’s disciplinary case with a group in his office with the door open and told the group the University “convicted Schwake of sexual assault and suspended him.” The associate professor also discussed the case in his course throughout the semester and disclosed confidential, graphic details about the alleged sexual misconduct.
In early October 2014, Schwake’s lawyer formally requested an appeal hearing on the University’s decision. In mid-October, the University removed Schwake from the lab after the Complainant obtained a state court harassment injunction against him.
On December 3, 2014, Schwake and his lawyer met with the Associate Dean of Students. Schwake’s lawyer and the Dean reached a settlement that allowed Schwake to graduate by changing Schwake’s punishment from suspension to certain campus restrictions. The Dean explained that, as a result, Schwake was not entitled to a hearing. When Schwake protested, the Dean stated the decision was final, and the University had no appeal process available. When Schwake asked the Dean whether he could file a complaint against the complainant, the Dean denied telling Schwake on multiple prior occasions that he could not do so until after the disciplinary hearing because it would appear retaliatory. The Dean then told Schwake that filing his own complaint could lead to further investigations and additional disciplinary sanctions, including degree revocation.
The following day, Schwake received a letter with the University’s final decision, outlining the following restrictions: a three-year restriction on accessing certain campus buildings, including the lab; a three-year ban on holding any paid or volunteer position at the University, including a post-doctoral position for Spring 2015; and a prohibition on any contact with the Complainant with no end duration.
Schwake sued in April 2015, seeking $20 million in damages as well as declaratory and injunctive relief. He asserted claims against University officials for alleged constitutional due process violations. He also asserted a Title IX claim against the University. The trial court granted the University’s motion to dismiss the lawsuit and dismissed Schwake’s claims with prejudice. Schwake appealed.
To state a Title IX claim, a plaintiff must plead that: (1) the defendant educational institutional received federal funding; (2) the plaintiff was excluded from participation in, denied the benefits of, or subjected to discrimination under any education program or activity, and (3) the latter occurred on the basis of sex. Here, Schwake alleged the University received federal funding. Thus, the Court of Appeals focused on the second and third elements. Schwake argued the University discriminated against him on the basis of sex during the course of the sexual misconduct disciplinary case against him.
While the Court of Appeals noted that other circuit courts fashioned doctrinal tests for sex discrimination claims in this context (the Second Circuit’s “erroneous outcome” and “selective enforcement” tests or the Sixth Circuit’s “deliberate indifference” test), it had not expressly adopted any of the tests. Instead, the Court of Appeals focused on whether the alleged facts, if true, raised a plausible inference that the University discriminated against Schwake on the basis of sex.
To survive a motion to dismiss, Schwake “need only provide enough facts to state a claim to relief that is plausible on its face.” Sex discrimination need not be the only plausible explanation or even the most plausible explanation for a Title IX claim to proceed. Here, the Court of Appeal found the trial court ignored many of the allegations in Schwake’s complaint that were relevant to the sufficiency of the Title IX claim.
First, Schwake argued that the University faced significant pressure that affected how it handled sexual misconduct complaints around the time of the complaint made against him. He pointed to a “Dear Colleague” letter that the Department of Education sent in 2011 regarding the handling of sexual misconduct complaints. Schwake also pointed to his allegation that in April 2014 the Department initiated an investigation of the University for possible Title IX violations in the University’s handling of sexual misconduct complaints. The Court of Appeal held it was reasonable to infer that such a federal investigation placed tangible pressure on the University. Schwake also alleged the University had a pattern of gender-based decision-making against male respondents in sexual misconduct disciplinary proceedings that make the inference in his case plausible. Although Schwake did not include significant details about this alleged pattern, this fact did not render Schwake’s allegation conclusory or insufficient. Instead, the Court of Appeals was satisfied that Schwake’s allegations of contemporaneous pressure and gender-based decision-making establish background indicia of sex discrimination relevant to his Title IX claim.
Although Schwake alleged background indicia of sex discrimination, he “must combine those allegations with facts particular to his case to survive a motion to dismiss.” The Court of Appeals held Schwake met this burden. First, Schwake drew the trial court’s attention to the allegations concerning the associate professor’s statements following the University’s initial decision against Schwake. The associate professor made these comments despite the fact that Schwake had the right to appeal the University’s decision, thereby ensuring that one version of the sexual misconduct disciplinary case would be the publicly known version. This alleged conduct reflects an atmosphere of bias against Schwake during the course of the University’s disciplinary case. The statements are relevant here because the associate professor knew privileged and confidential information about the case shortly after the University made a preliminary decision, despite not being a decision-maker.
Second, Schwake drew the trial court’s attention to the Dean’s treatment of him after Schwake’s lawyer and the Dean fashioned a new punishment for Schwake that did not involve suspension. Despite Schwake’s repeated protests, the Dean refused to permit Schwake to appeal the punishment and the University’s underlying finding of responsibility on the sexual misconduct Student Code violations. In modifying the punishment, the inference may be drawn that the University sought to show that it took sexual misconduct complaints seriously by punishing Schwake while simultaneously insulating the finding of responsibility from scrutiny in light of the University’s policy limiting the availability of an appeal hearing. The Dean’s refusal to permit Schwake to file a harassment complaint against the Complainant is also probative of gender bias. The Dean’s refusal to permit Schwake to pursue a complaint against the Complainant is consistent with the allegations that the University treated male respondents in sexual misconduct disciplinary proceedings differently because of the pending Department investigation into the University’s handling of sexual misconduct complaints.
Finally, Schwake’s allegations of the University’s one-sided investigation support an inference of gender bias. According to Schwake, the University (1) refused to provide him with any written information about the complainant’s allegations against him and only orally summarized them; (2) failed to consider his version of the alleged assault or to follow up with the witnesses and evidence he offered in his defense; (3) promised him that it would only consider “one accusation at a time” but then suspended him based on additional violations of the Student Code to which he was not given an opportunity to respond; and (4) ultimately found him responsible for the charges without any access to evidence or considering his exculpatory evidence.
Considering the combination of Schwake’s allegations of background indicia of sex discrimination along with the allegations concerning his particular disciplinary case, the Court of Appeal concluded that sex discrimination is a plausible explanation for the University’s handling of the sexual misconduct disciplinary case against Schwake, and his Title IX claim may proceed beyond the motion to dismiss stage.
Schwake v. Arizona Board of Regents (9th Cir. 2020) 967 F.3d 940.
This case highlights the importance of carefully following all policies and procedures for responding to and investigating complaints, conducting a fair and thorough investigation, maintaining confidentiality to the extent feasible and only sharing information with those who have a legitimate “need to know,” and strictly following the school’s disciplinary procedures if misconduct is confirmed.