Michael Grabowski v. Arizona Board of Regents
69 F.4th 1110
9th Cir.2023Background
- Michael Grabowski, a first-year University of Arizona cross-country/track athlete (2017–2018), was subjected to repeated homophobic slurs and a harassing video by teammates who perceived him as gay.
- His parents and he reported the bullying multiple times to coaches (James Li and Frederick Harvey) and the team sports psychologist; coaches took little meaningful remedial action and, after Grabowski identified specific teammates, coaches allegedly began to demoralize him.
- At a meeting in August 2018, Coach Harvey allegedly physically confronted Grabowski; Grabowski was dismissed from the team and his athletic scholarship was canceled.
- Grabowski sued under Title IX (deliberate indifference to student‑on‑student sexual/sex‑stereotype harassment and retaliation) and brought a § 1983 due‑process claim and punitive damages against the coaches; the district court dismissed most claims and later entered judgment against the remaining retaliation claim.
- The Ninth Circuit reviewed de novo: it addressed whether Title IX covers discrimination based on perceived sexual orientation, whether the complaint pleaded deprivation of educational opportunity, whether Grabowski stated a retaliation claim, and whether the coaches had qualified immunity for the § 1983 claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Title IX forbids harassment because of perceived sexual orientation | Title IX bars sex‑based discrimination that includes discrimination based on perceived sexual orientation or sex‑stereotype nonconformity | Title IX does not reach perceived sexual orientation harassment (or defendants urged narrower reading) | Yes. Title IX covers discrimination based on perceived sexual orientation, consistent with Bostock and sex‑stereotyping precedent |
| Whether the complaint plausibly alleged Title IX hostile‑environment harassment (deprivation of educational opportunity) | Harassment was severe, pervasive, and disrupted educational opportunities (interference with wellbeing; dismissal from team) | Allegations do not show a deprivation or link to education (grades, attendance, or loss of access not pleaded) | No. Plaintiff pleaded severity, control, actual knowledge, and deliberate indifference but failed to allege deprivation of educational opportunity; dismissal affirmed but denial of leave to amend vacated |
| Whether Grabowski stated a Title IX retaliation claim | Reporting sex‑based harassment was protected activity; removal and scholarship cancellation were adverse actions causally linked to complaints | Defendants argued Grabowski did not engage in protected activity or show causation | Yes. Reporting was protected, removal/scholarship cancellation were adverse, and temporal/other allegations suffice to plead causation; dismissal of retaliation claim reversed and remanded |
| Whether coaches are liable under § 1983 (due process) and whether punitive damages are available | Grabowski asserted property interest in team membership/scholarship and sought punitive damages for deliberate misconduct | Coaches invoked qualified immunity and argued no clearly established property right existed; punitive damages depend on surviving § 1983 claim | Coaches entitled to qualified immunity; no clearly established property interest at the time—§ 1983 and punitive‑damages claims against coaches affirmed dismissed |
Key Cases Cited
- Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (Title VII decision holding discrimination because of sexual orientation is discrimination because of sex; used to interpret Title IX)
- Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (sex‑stereotyping theory: adverse action for failure to conform to gender norms violates sex discrimination law)
- Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) (elements for school liability for student‑on‑student sexual harassment under Title IX)
- Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (reporting sex discrimination is protected activity for retaliation claims)
- Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75 (1998) (same‑sex harassment can be actionable under federal sex‑discrimination law)
- Nichols v. Azteca Restaurant Enterprises, Inc., 256 F.3d 864 (9th Cir. 2001) (application of sex‑stereotyping theory to male plaintiff subjected to effeminacy‑based abuse)
- Roberts v. Glenn Industrial Group, Inc., 998 F.3d 111 (4th Cir. 2021) (Title VII recognizes claims for perceived sexual orientation and sex‑stereotyping harassment)
- Emeldi v. University of Oregon, 673 F.3d 1218 (9th Cir. 2012) (Title VII interpretations guide Title IX analysis)
- Rutledge v. Arizona Board of Regents, 660 F.2d 1345 (9th Cir. 1981) (assumed, without deciding, a property interest in scholarships; court did not clearly establish such a right)
- Austin v. University of Oregon, 925 F.3d 1133 (9th Cir. 2019) (assumed property and liberty interests in scholarships for pleading purposes)
- Abercrombie & Fitch Stores, Inc. v. EEOC, 575 U.S. 768 (2015) (employer liability can rest on perceived characteristics; knowledge not required for motive proof)