A three-judge appeals court panel this week agreed with a former University of Arizona student-athlete that the university retaliated against him for making Title IX discrimination claims and sent the case back to the trial court.
As reported by the Tucson Sentinel, the Ninth Circuit panel's ruling Tuesday at the same time affirmed the lower court's dismissal of those discrimination claims made by Michael Grabowski, who was kicked off of Arizona’s track and field team in September 2018, costing him his scholarship and leading him to change schools. He sued the university — along with the Arizona Board of Regents and multiple cross-country coaches and athletes — a year later, 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.
According to Sentinel reporter Joe Duhownik, 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," Grabowski's attorney, Bill Walker, said.
The university countered that Grabowski 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” — all claims Grabowski denies.
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, Duhownik reported.
"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, according to Duhownik's report, the panel 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 disagreed.
“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.”
In a phone interview with Duhownik, Walker said he was pleased with this week's outcome, stating, "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."
