Michael Grabowski v. Arizona Board of Regents ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL GRABOWSKI, a single No. 22-15714
man,
Plaintiff-Appellant, D.C. No.
4:19-cv-00460-
v. SHR
ARIZONA BOARD OF REGENTS;
UNIVERSITY OF ARIZONA, OPINION
FREDERICK LEE HARVEY,
Director of Cross-Country/Track and
Field, JANET HARVEY, Wife,
JAMES L. LI, Associate Head Coach
of Cross-Country/Distance, JEAN
WANG, Wife, JAMES L. FRANCIS,
Senior Associate Director of
Athletics/Track and Field at the
University of Arizona,
Defendants-Appellees,
and
HANNAH VIVIAN PETERSON,
Assistant Coach of Cross-
Country/Distance, a single woman,
TAMMY FRANCES, Wife, KIM
HANSON BARNES, Executive
2 GRABOWSKI V. ARIZONA BOARD OF REGENTS
Senior Associate Director of Athletics,
ANDREW BARNES, Husband;
DAVID WOOD HEEKE, Director of
Athletics, ELIZABETH PANGBORN
HEEKE, Wife, BENJAMIN JAMES
CRAWFORD, Associate Athletics
Trainer, a single man; CARLOS
VILLAREAL, Student; HUNTER
DAVILA, Student; JAMES L.
FRANCES, Senior Associate Director
of Athletics/Track and Field; TAMMI
FRANCIS, Wife; ERIKA KIM
HANSON BARNES, Executive
Senior Associate Director of Athletics
at the University of Arizona,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Scott H. Rash, District Judge, Presiding
Argued and Submitted March 8, 2023
Las Vegas, Nevada
Filed June 13, 2023
Before: Susan P. Graber, Mark J. Bennett, and Roopali H.
Desai, Circuit Judges.
Opinion by Judge Graber
GRABOWSKI V. ARIZONA BOARD OF REGENTS 3
SUMMARY*
Title IX
The panel affirmed in part, vacated in part, and reversed
in part the district court’s dismissal of Michael Grabowski’s
action under Title IX and 42 U.S.C. § 1983 against the
Arizona Board of Regents, the University of Arizona, and
individual defendants, and remanded for further
proceedings.
Grabowski alleged that, when he was a first-year
student-athlete at the University of Arizona, his teammates
subjected him to frequent “sexual and homophobic bullying”
because they perceived him to be gay. He claimed that the
University defendants were deliberately indifferent to his
claims of sexual harassment and that they retaliated against
him in violation of Title IX. He also brought claims against
two of his coaches under § 1983 and sought punitive
damages.
The panel held that Title IX bars sexual harassment on
the basis of perceived sexual orientation. In Bostock v.
Clayton County, 140 S. Ct. 1731 (2020), the Supreme Court
brought sexual-orientation discrimination within Title VII’s
embrace. Construing Title IX’s protections consistently
with those of Title VII, the panel held that discrimination on
the basis of sexual orientation is a form of sex-based
discrimination under Title IX. Again looking to Title VII
caselaw, and agreeing with the Fourth Circuit, the panel
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 GRABOWSKI V. ARIZONA BOARD OF REGENTS
further held that discrimination on the basis of perceived
sexual orientation, as opposed to actual sexual orientation, is
actionable under Title IX.
The panel held that a school that receives federal funding
can be liable for an individual Title IX claim of student-on-
student harassment if (1) the school had substantial control
over the harasser and the context of the harassment; (2) the
plaintiff suffered harassment so severe that it deprived him
of access to educational opportunities or benefits; (3) a
school official who had authority to address the issue and
institute corrective measures for the school had actual
knowledge of the harassment; and (4) the school acted with
deliberate indifference to the harassment such that the
indifference subjected the plaintiff to harassment. The panel
held that Grabowski sufficiently alleged the first, third, and
fourth elements of his Title IX harassment claim, but the
operative complaint failed to allege a deprivation of
educational opportunity. The panel affirmed the dismissal
of the harassment claim, vacated the portion of the district
court’s order denying leave to amend, and remanded for the
district court to consider Grabowski’s request to amend the
complaint again, should he renew that request before the
district court.
The panel held that the operative complaint sufficiently
alleged that Grabowski suffered harassment on the basis of
perceived sexual orientation, that he asked the University
defendants to intervene, and that these defendants retaliated
against him when they failed to investigate his accusations
adequately. The panel therefore reversed the dismissal of
Grabowski’s retaliation claim and remanded for further
proceedings.
GRABOWSKI V. ARIZONA BOARD OF REGENTS 5
Affirming the judgment for defendants on the § 1983
claim and the claim for punitive damages, the panel held that
the coaches were entitled to qualified immunity as to
Grabowski’s claim that they violated his due process rights
when they removed him from the track team and cancelled
his athletic scholarship.
COUNSEL
William G. Walker (argued), William G. Walker P.C.,
Tucson, Arizona, for Plaintiff-Appellant.
Alexandra Z. Brodsky (argued), Adele P. Kimmel, and
Mollie Berkowitz, Public Justice, Washington, D.C., for
Amici Curiae Public Justice and 18 Additional Civil Rights
Organizations.
Patricia V. Waterkotte (argued) and Michael J. Rusing,
Rusing Lopez & Lizardi PLLC, Tucson, Arizona, for
Defendants-Appellees.
Hunter Davila, Cheyenne, Wyoming, pro se Defendant.
6 GRABOWSKI V. ARIZONA BOARD OF REGENTS
OPINION
GRABER, Circuit Judge:
Plaintiff Michael Grabowski alleges that, when he was a
first-year student-athlete at the University of Arizona, his
teammates subjected him to frequent “sexual and
homophobic bullying” because they perceived him to be
gay. He claims that the Arizona Board of Regents and the
University of Arizona (“University Defendants”) were
deliberately indifferent to his claims of sexual harassment
and that they retaliated against him in violation of Title IX.
He also brings claims under 42 U.S.C. § 1983 against two of
his coaches, Frederick Harvey and James Li (collectively,
“Defendant Coaches”). Finally, he seeks punitive damages
against the Defendant Coaches.
The district court dismissed the action. Reviewing de
novo, Soo Park v. Thompson, 851 F.3d 910, 918 (9th Cir.
2017) (dismissal for failure to state a claim); Knappenberger
v. City of Phoenix, 566 F.3d 936, 939 (9th Cir. 2009)
(judgment on the pleadings), we affirm in part, vacate in
part, reverse in part, and remand in part.
We hold that Title IX bars sexual harassment on the basis
of perceived sexual orientation. The operative complaint
sufficiently alleges that Plaintiff suffered such harassment,
that he asked Defendants to intervene, and that Defendants
retaliated against him when they failed to investigate his
accusations adequately. We therefore reverse the dismissal
of his retaliation claim. But the operative complaint fails to
allege a deprivation of educational opportunity, a required
element of the harassment claim. As to the harassment
claim, we affirm the dismissal and remand for the district
court to consider Plaintiff’s request to amend the complaint
GRABOWSKI V. ARIZONA BOARD OF REGENTS 7
again, should he renew that request before the district court.
Finally, we affirm the judgment for Defendants on the
§ 1983 claim and the claim for punitive damages.
FACTUAL AND PROCEDURAL HISTORY
Because we review a dismissal under Federal Rule of
Civil Procedure 12(b)(6) and a judgment on the pleadings,
we must take as true all plausible allegations in the operative
complaint. S.F. Taxi Coal. v. City & County of San
Francisco, 979 F.3d 1220, 1223 (9th Cir. 2020) (judgment
on the pleadings); Manzarek v. St. Paul Fire & Marine Ins.
Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (dismissal for
failure to state a claim). Accordingly, at this stage of the
litigation, our recitation of the facts assumes that the non-
conclusory allegations in the operative complaint are true.
Plaintiff attended the University of Arizona on an
academic and athletic scholarship, starting in 2017. He was
recruited to join the university’s Cross Country and Track
and Field Teams (“track team” or “team”), led by the
Defendant Coaches.
Plaintiff’s teammates subjected him to “sexual and
homophobic bullying” over the course of his first year on the
track team. Beginning in August 2017, at the team’s pre-
season training camp, his teammates used homophobic slurs
“almost daily.” Plaintiff’s father reported the bullying to
Defendant Li, who promised to investigate the issue. Li
spoke with Plaintiff about the bullying the next week. One
month later, in early October 2017, Plaintiff’s mother
emailed the team’s sports psychologist to request that she
discuss the bullying with Plaintiff.
Plaintiff’s teammates called him “gay” and a “fag,” and
on an “almost daily” basis they “made multiple additional
8 GRABOWSKI V. ARIZONA BOARD OF REGENTS
references alleging that they perceived him as gay.” His
teammates posted an “untrue,” “harassing, homophobic,
[and] obscene video” about Plaintiff in the team’s public
chat group. When Plaintiff raised his concerns to Defendant
Harvey about the “constant” homophobic bullying and the
published video, Harvey did not respond.
“Every time [Plaintiff] mentioned the ‘sexual and
homophobic bullying’ to either one of the Defendant
[C]oaches,” they dismissed it as “Plaintiff’s need to
‘adjust.’” In January 2018, Li promised Plaintiff’s father
that he would speak to Plaintiff about the bullying, and
Plaintiff’s mother again emailed the team’s sports
psychologist to report Plaintiff’s “increasing sadness.”
In August 2018, Plaintiff met with his coaches. At that
meeting, Li asked him if any bullying was going on, “as if
he had no advance reporting of it.” Plaintiff responded by
naming the teammates who had subjected him to bullying;
Li replied that Plaintiff “can’t single out the two top runners
on the team.”
After Plaintiff identified his bullies to Li, Plaintiff’s
coaches embarked on a “concerted effort . . . to demoralize
him.” One such effort occurred in early September 2018,
when an assistant coach scolded Plaintiff for “faking” an
illness after Plaintiff vomited twice during a team meeting
and then performed poorly in a race. A blood test later
revealed that Plaintiff had a viral illness at the time. Around
that same time, Plaintiff met with his coaches again. When
he raised the issue of homophobic bullying at that meeting,
the coaches denied knowledge of bullying and told Plaintiff
that “there’s a certain atmosphere we are trying to establish
on this team, and you do not fit in it.” At one point, in
response to Plaintiff’s raising the harassment issue,
GRABOWSKI V. ARIZONA BOARD OF REGENTS 9
Defendant Harvey “leapt out of his chair, ran up to within a
few inches of Plaintiff’s face, slammed his hands down hard
on Plaintiff’s arms . . . and called Plaintiff a . . . ‘white
racist.’” Plaintiff was so scared by Harvey’s actions that he
had a spontaneous bloody nose and fainted. At the end of
the meeting, the coaches dismissed Plaintiff from the team.
Plaintiff then filed this action in federal court against the
Arizona Board of Regents, the University of Arizona, and
many individuals associated with the track team. Plaintiff
amended his complaint twice to remove various defendants
and claims. His third amended complaint—the operative
complaint here—alleges that Plaintiff was harassed because
of his perceived sexual orientation. He alleges that the
University Defendants’ deliberate indifference to that
“severe, pervasive, and objectively offensive” harassment
violated Title IX. He also asserts a retaliation claim against
the University Defendants under Title IX. Finally, he seeks
to hold the Defendant Coaches liable under § 1983 for
constitutional violations, and requests punitive damages
against them.
Defendants moved to dismiss Plaintiff’s complaint for
failure to state a claim. The district court granted the motion
for all claims except the retaliation claim. The court denied
leave to amend, reasoning that the complaint’s deficiencies
could not be cured by further amendment. Two months later,
the court granted Defendants’ motion for judgment on the
pleadings for the retaliation claim, concluding that Plaintiff
“failed to allege sufficient facts showing that he engaged in
a protected activity,” a required element for a retaliation
claim. Plaintiff timely appeals.
10 GRABOWSKI V. ARIZONA BOARD OF REGENTS
DISCUSSION
We will address in turn Plaintiff’s (A) discrimination
claim under Title IX, (B) retaliation claim under Title IX,
(C) § 1983 claim against the Defendant Coaches, and (D)
claim for punitive damages.
A. Discrimination on the Basis of Sexual Orientation
Under Title IX
Plaintiff alleges that Defendants discriminated against
him “on the basis of sex,” 20 U.S.C. § 1681(a), because he
was mistreated due to the harassers’ perception that he is
gay. For example, he alleges that “[t]eammates regularly,
and almost daily, claimed that Plaintiff . . . was ‘gay’; that
he was a ‘fag’; and made multiple additional references
alleging that they perceived him as gay.” Additionally,
“other members of the team began accusing the Plaintiff of
being gay, alleging to him and others that he was
homosexual, gay, a fag.” Those allegations plausibly
suggest that Plaintiff’s teammates acted because they
perceived him to be gay. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (holding that courts must ask whether
allegations contain “sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face’”
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007))).
We first must decide, then, whether discrimination on
account of perceived sexual orientation qualifies as
discrimination on the basis of sex for purposes of Title IX.
Title IX provides that “[n]o person in the United States shall,
on the basis of sex, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination
under any education program or activity receiving Federal
GRABOWSKI V. ARIZONA BOARD OF REGENTS 11
financial assistance . . . .” 20 U.S.C. § 1681(a) (emphasis
added).
1. “On the Basis of Sex”
In Bostock v. Clayton County, 140 S. Ct. 1731 (2020),
the Supreme Court brought sexual-orientation
discrimination within Title VII’s embrace. The Court held
that discrimination “because of” sexual orientation is a form
of sex discrimination under Title VII. Id. at 1743. We
conclude that the same result applies to Title IX. “The
Supreme Court has often looked to its Title VII
interpretations of discrimination in illuminating Title IX.”
Emeldi v. Univ. of Or., 673 F.3d 1218, 1224 (9th Cir. 2012),
as amended, 698 F.3d 715 (9th Cir. 2012) (citation and
internal quotation marks omitted). And “[w]e construe Title
IX’s protections consistently with those of Title VII” when
considering a Title IX discrimination claim. Doe v. Snyder,
28 F.4th 103, 114 (9th Cir. 2022); see id. (reasoning that
Bostock’s use of the phrases “on the basis of sex” and
“because of sex” interchangeably suggests interpretive
consistency across the statutes); see also Emeldi, 698 F.3d at
724 (noting that “the legislative history of Title IX ‘strongly
suggests that Congress meant for similar substantive
standards to apply under Title IX as had been developed
under Title VII’” (quoting Lipsett v. Univ. of P.R., 864 F.2d
881, 897 (1st Cir. 1988))).1 Harmonizing the Court’s
holding in Bostock with our holding in Snyder, we hold
1
Since the Court’s decision in Bostock, at least one other circuit has
adopted the approach that we take here, in a similar context. See Grimm
v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 616 (4th Cir. 2020), as
amended (Aug. 28, 2020) (holding that, “[a]lthough Bostock interprets
Title VII . . . , it guides our evaluation of claims under Title IX” for a
discrimination claim based on transgender identity).
12 GRABOWSKI V. ARIZONA BOARD OF REGENTS
today that discrimination on the basis of sexual orientation
is a form of sex-based discrimination under Title IX.
Plaintiff does not allege that he is gay; rather, he alleges
that his harassers perceived him to be gay. We therefore next
consider whether discrimination on the basis of perceived
sexual orientation, as opposed to actual sexual orientation, is
actionable under Title IX.2
Because we construe Title VII and Title IX protections
consistently, Snyder, 28 F.4th at 114, we look again to Title
VII caselaw to guide our analysis. The conclusion that
discrimination on the basis of perceived sexual orientation is
actionable under Title IX follows from two related branches
of Title VII precedent. First, in Bostock, the Court
established that, when an employer fires an employee for
traits that it would tolerate in an employee of the opposite
sex, that employer discriminates in violation of Title VII.
140 S. Ct. at 1741. There, three plaintiffs—two gay men and
one transgender woman—sued their employers under Title
VII, alleging unlawful discrimination because of sex. Id. at
1737–38. Each plaintiff was fired shortly after revealing
their sexual orientation or transgender status to their
employer. Id. at 1737. The Court held that each of those
firings violated Title VII because “it is impossible to
discriminate against a person for being homosexual or
transgender without discriminating against that individual
based on sex.” Id. at 1741. Prior to Bostock, several federal
2
We have previously held that individuals who allege discrimination
based on perceived, and not actual, sexual orientation are part of an
identifiable class for the purpose of asserting a § 1983 Equal Protection
claim under the Fourteenth Amendment, Flores v. Morgan Hill Unified
Sch. Dist., 324 F.3d 1130, 1130–34 (9th Cir. 2003), but we have not yet
considered this issue in the Title IX context.
GRABOWSKI V. ARIZONA BOARD OF REGENTS 13
circuits had held that discrimination because of sexual
orientation was not actionable under Title VII. Id. at 1833
& n.9 (Kavanaugh, J., dissenting) (collecting cases). But, as
Bostock clarifies, Title VII prohibits discriminating against
someone because of sexual orientation; such discrimination
occurs “in part because of sex.” Id. at 1743.
Second, plaintiffs may bring a Title VII discrimination
claim under the theory that their harassers perceived them as
not conforming to traditional gender norms. In Price
Waterhouse v. Hopkins, 490 U.S. 228 (1989), superseded by
statute on other grounds as stated in Comcast Corp. v. Nat’l
Ass’n of Afr. Am.- Owned Media, 140 S. Ct. 1009, 1017
(2020), the Supreme Court held that a woman who was
denied a promotion for failing to conform to traditional
female gender norms had an actionable claim under Title
VII. Id. at 250–51 (plurality opinion); see also id. at 277
(O’Connor, J., concurring) (noting that the plaintiff showed
“direct evidence that decisionmakers placed substantial
negative reliance on an illegitimate criterion,” which
constitutes an actionable claim under Title VII).
There, an accounting firm passed over a female senior
manager for a promotion to the partnership because she was
“macho” and needed to “walk more femininely, talk more
femininely, dress more femininely, . . . and wear jewelry.”
Id. at 235. A plurality of the Court reasoned that, “[i]n the
specific context of sex stereotyping, an employer who acts
on the basis of a belief that a woman cannot be aggressive,
or that she must not be, has acted on the basis of gender.” Id.
at 250.
That reasoning applies “with equal force to a man who is
discriminated against for acting too feminine.” Nichols v.
Azteca Rest. Enters., Inc., 256 F.3d 864, 874 (9th Cir. 2001).
14 GRABOWSKI V. ARIZONA BOARD OF REGENTS
In Nichols, a male employee was verbally abused because
his co-workers and supervisor perceived him to be
effeminate. Id. at 870, 874. His harassers derided him for
carrying his serving tray “like a woman” and mocked him
for not having sex with a female coworker. Id. at 874. And
“at least once a week and often several times a day,” his
coworkers referred to him using female pronouns and called
him derogatory names, such as “faggot” and “female
whore.” Id. at 870. Relying on Price Waterhouse, we held
that the verbal abuse occurred because of sex in violation of
Title VII: “At its essence, the systematic abuse directed at
[the plaintiff] reflected a belief that [he] did not act as a man
should act. . . . [T]hat . . . verbal abuse was closely linked to
gender.” Id. at 874.
The same logic applies to Plaintiff’s allegations here.
Under Price Waterhouse and Nichols, an employer cannot
discriminate against a person—male or female—for failure
to conform to a particular masculine or feminine sex
stereotype. Nichols, 256 F.3d at 874; Price Waterhouse, 490
U.S. at 250. A sex stereotype is a belief that a person is not
acting “as [their sex] should act.” Nichols, 256 F.3d at 874.
In Nichols, the harassers believed that the male plaintiff was
behaving like a woman and not a man. That harassment was
motivated by the stereotype that men should act masculine.
Id. Here, the harassment allegedly stemmed from the belief
that the male Plaintiff was attracted to men instead of
women. That harassment is motivated by the stereotype that
men should be attracted only to women. Both instances of
harassment are motivated by a core belief that men should
conform to a particular masculine stereotype. Both are
impermissible forms of discrimination in violation of Title
VII and Title IX. See Snyder, 28 F.4th at 114.
GRABOWSKI V. ARIZONA BOARD OF REGENTS 15
We are not the first court to grapple with this issue. In
Roberts v. Glenn Industrial Group, Inc., 998 F.3d 111 (4th
Cir. 2021), the Fourth Circuit held that Title VII protects
plaintiffs who suffer discrimination because of their
perceived sexual orientation. Id. at 120–21. There, the
plaintiff sued under Title VII, alleging, among other things,
that his supervisor sexually harassed him because of his
perceived sexual orientation, including by repeatedly calling
him “gay” and making “sexually explicit and derogatory
remarks towards him.” Id. at 115–16. The Fourth Circuit
held that “a plaintiff may prove that same-sex harassment is
based on sex where the plaintiff was perceived as not
conforming to traditional male stereotypes.” Id. at 121. The
court noted that Title VII affords protection for a claim of
discrimination because of perceived sexual orientation
because the Court’s reasoning in Bostock
“applie[s] . . . broadly to employees who fail to conform to
traditional sex stereotypes.” Id. We agree.
Our holding also is consistent with precedent holding
that discrimination because of other perceived
characteristics is a violation of Title VII. In EEOC v.
Abercrombie & Fitch Stores, Inc., 575 U.S. 768 (2015), for
example, the Court held that a Muslim plaintiff, who wore a
headscarf to a job interview and was denied that job, need
not show that the employer knew that the applicant required
a religious accommodation to prevail on a religious
discrimination claim under Title VII. Id. at 770, 773–74.
Because Congress did not add a knowledge requirement to
the intentional-discrimination provisions in Title VII, the
plaintiff had to prove only that her employer was motivated
by the perceived need for a religious accommodation. Id. at
773–74. Our sister circuits have applied similar reasoning
when considering claims of discrimination concerning other
16 GRABOWSKI V. ARIZONA BOARD OF REGENTS
protected characteristics. See, e.g., EEOC v. WC&M
Enters., Inc., 496 F.3d 393, 401 (5th Cir. 2007) (holding that,
to bring a claim for discrimination because of national
origin, a plaintiff need not show that the “discriminator knew
the particular national origin group to which the complainant
belonged,” because “it is enough to show that the
complainant was treated differently because of his or her
foreign accent, appearance, or physical characteristics”
(alteration omitted) (citation and internal quotation marks
omitted)); Jones v. UPS Ground Freight, 683 F.3d 1283,
1299, 1304 (11th Cir. 2012) (holding that the “use of epithets
associated with a different ethnic or racial minority than the
plaintiff,” paired with other alleged racial harassment, was
sufficient to present a jury question as to whether the
plaintiff endured a hostile work environment).
In sum, we hold that discrimination on the basis of
perceived sexual orientation is actionable under Title IX.
Our holding on that point does not resolve the issues before
us, however. Plaintiff alleges that his teammates harassed
him, but he sued the University Defendants for violating
Title IX.3
2. University Defendants’ Liability
A school that receives federal funding can be liable for
an individual claim of student-on-student harassment, but
3
Before us, Plaintiff argues only that the University Defendants are
liable under Title IX. We therefore have no occasion to address whether
Title IX could give rise to individual liability of school officials. See,
e.g., Gililland v. Sw. Or. Cmty. Coll., No. 6:19-cv-00283-MK, 2021 WL
5760848, at *7 (D. Or. Dec. 3, 2021) (“Although the Ninth Circuit has
not addressed the question, courts have consistently held that Title IX
does not subject school officials to liability in their individual
capacities.” (citation and internal quotation marks omitted)).
GRABOWSKI V. ARIZONA BOARD OF REGENTS 17
only if (1) the school had substantial control over the
harasser and the context of the harassment, Davis v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 645 (1999); (2) the
plaintiff suffered harassment so severe that it deprived the
plaintiff of access to educational opportunities or benefits,
id. at 650; (3) a school official who had authority to address
the issue and institute corrective measures for the school had
actual knowledge of the harassment, Reese v. Jefferson Sch.
Dist. No. 14J, 208 F.3d 736, 739 (9th Cir. 2000); see Davis,
526 U.S. at 650; and (4) the school acted with “deliberate
indifference” to the harassment such that the indifference
“subject[ed the plaintiff] to harassment,” Karasek v. Regents
of Univ. of Cal., 956 F.3d 1093, 1105 (9th Cir. 2020)
(quoting Davis, 526 U.S. at 644 (alterations in original)).
We consider each element in turn.
First, taking as true all plausible allegations in the
operative complaint, Plaintiff sufficiently alleges that the
University Defendants had “substantial control over both the
harasser and the context in which the known harassment
occur[red].” Davis, 526 U.S. at 645. In Davis, the Supreme
Court noted that a school retains “substantial control” when
“student-on-student sexual harassment . . . takes place while
the students are involved in school activities or otherwise
under the supervision of school employees.” Id. at 646(citation and internal quotation marks omitted). Here,
Plaintiff alleges that some harassment occurred at a pre-
season camp, which was a school-sponsored activity.
Plaintiff does not allege a location for the other harassing
incidents, but alleges that the harassment occurred on an
“almost daily” and “regular” basis. It is reasonable to infer
that at least some of those interactions occurred at team
practices or at other school-sponsored activities under
Defendant Coaches’ supervision. Thus, at the motion to
18 GRABOWSKI V. ARIZONA BOARD OF REGENTS
dismiss stage, Plaintiff alleges enough facts to support his
claim that Defendants exercised substantial control over the
circumstances in which the harassment occurred.
The second, and more difficult, question is whether
Plaintiff alleges facts to support an inference that the
harassment was “so severe, pervasive, and objectively
offensive that it can be said to deprive [him] of access to the
educational opportunities or benefits provided by the
school.” Id. at 650. “Whether gender-oriented conduct is
harassment depends on a constellation of surrounding
circumstances, expectations, and relationships . . . including,
but not limited to, the harasser’s and victim’s ages and the
number of persons involved.” Id. at 631 (citing Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998)). We
“must also bear in mind that schoolchildren may regularly
interact in ways that would be unacceptable among adults.”
Id. Here, Plaintiff alleges that the bullying he experienced
from his college-age peers occurred “almost daily” for about
a year, from August 2017 to August 2018. That frequency
is enough to meet the severity standard.
But to state a claim, Plaintiff also must allege facts
plausibly supporting a “potential link between [his]
education and [the alleged] misconduct.” Id. at 652.
Plaintiff has failed to do so. “[O]vert, physical deprivation
of access to school resources” counts as a deprivation of
educational opportunity. Id. at 650–51. For example, a male
student physically threatening female students every day,
such that he prevents the female students from using the
school’s athletic facilities, meets the standard. Id. But the
harassment need not be as overt. Conduct that “undermines
and detracts from the victims’ educational experience,” such
that “the victim-students are effectively denied equal access
to an institution’s resources and opportunities,” qualifies as
GRABOWSKI V. ARIZONA BOARD OF REGENTS 19
well. Id. at 651. In Davis, the plaintiff alleged that persistent
sexual harassment over several months caused her grades to
drop because she could not concentrate on her studies, and
she had written a suicide note because of the conduct. Id. at
634. A simple decline in grades, on its own, is not enough.
Id. at 652. But the plaintiff’s decline in grades, paired with
“persisten[t] and sever[e]” harassment, sufficed to state a
cognizable claim under Title IX. Id.
Unlike the plaintiff in Davis, Plaintiff does not allege that
his grades declined because of the alleged harassment. To
the contrary, his complaint states that his “grades at school
and his relationships with other students that were not in the
running program [were] always exemplary.” Nor does
Plaintiff allege that he stopped attending team practices or
team-sponsored events because of the bullying.
Instead, Plaintiff alleges that his mother asked that
Plaintiff meet with the team’s sports psychologist about the
persistent sexual bullying, which he did. Months later, his
mother contacted the team’s sports psychologist again,
expressing “serious concern about Plaintiff’s increasing
sadness and asking her to speak to Plaintiff as soon as
possible.” Finally, Plaintiff alleges in conclusory fashion:
[H]is educational opportunities at the
University of Arizona were significantly
disrupted by the sexual and homophobic
rants and subsequent discrimination by his
teammates.
Those allegations fail to provide a “potential link”
between the quality of Plaintiff’s education and the alleged
harassment. Plaintiff experienced increasing sadness, but
the operative complaint contains no facts describing how, if
20 GRABOWSKI V. ARIZONA BOARD OF REGENTS
at all, his educational opportunities were diminished.
Therefore, the district court did not err by dismissing this
claim.
During oral argument, when asked what facts support
Plaintiff’s claim that he suffered a loss of educational
opportunities, Plaintiff’s lawyer asserted for the first time
that he knew of additional facts that Plaintiff could add to
support his claim. Because these facts,4 if pleaded, might aid
Plaintiff, we vacate the portion of the district court’s order
denying leave to amend that claim. On remand, if Plaintiff
seeks leave to amend the complaint further, the district court
is free to consider such a request.
Turning to the third element, Plaintiff has sufficiently
alleged that the Defendant Coaches had actual knowledge of
the bullying. Plaintiff’s father notified Coach Li of the
bullying in August 2017 in a telephone call. And Plaintiff
told Coach Harvey about the bullying at a Halloween party
in October 2017.
Finally, at this stage, Plaintiff has sufficiently alleged
deliberate indifference. Deliberate indifference “must, at a
minimum, cause students to undergo harassment, or make
them liable or vulnerable to it.” Davis, 526 U.S. at 645(brackets omitted) (citation and internal quotation marks
omitted). It requires that the officials’ response to the
harassment is “clearly unreasonable in light of the known
circumstances.” Id. at 648. “This is a fairly high standard—
a ‘negligent, lazy, or careless’ response will not suffice. . . .
4
Counsel stated that Plaintiff had to leave the University of Arizona “as
soon as the semester was over” due to the loss of his athletic scholarship,
after which Plaintiff obtained another athletic scholarship at a different
university.
GRABOWSKI V. ARIZONA BOARD OF REGENTS 21
Instead, the plaintiff must demonstrate that the school’s
actions amounted to ‘an official decision . . . not to remedy’
the discrimination.” Karasek, 956 F.3d at 1105 (second
ellipsis in original) (citations omitted). Though an official
need not remedy the harassment to evade a claim of
deliberate indifference, Davis, 526 U.S. at 648–49, Plaintiff
has alleged that Defendants took no meaningful action in
response to his complaints of anti-gay bullying. In fact,
Plaintiff has alleged that, other than meeting with him on two
occasions, the Defendant Coaches ignored the complaints
altogether and, during the second meeting, “lied about their
knowledge of the sexual and homophobic bullying of
Plaintiff.” Those allegations are enough at the motion to
dismiss stage to establish a claim of deliberate indifference.
To summarize, we hold that Plaintiff sufficiently alleges
the first, third, and fourth elements of his Title IX harassment
claim, but not the second element. We affirm the dismissal
of this claim, vacate the portion of the district court’s order
denying leave to amend, and remand to allow the district
court to consider any request for further amendment
concerning the alleged deprivation of Plaintiff’s educational
opportunity.
B. Retaliation Under Title IX
We turn next to Plaintiff’s retaliation claim. To establish
a prima facie claim of retaliation under Title IX, a plaintiff
must allege that (1) the plaintiff participated in a protected
activity, (2) the plaintiff suffered an adverse action, and (3)
there was a causal link between the protected activity and the
adverse action. See Emeldi, 698 F.3d at 725–26. Plaintiff
alleges that the Defendant Coaches dismissed him from the
track team and cancelled his athletic scholarship in
retaliation for reporting sex-based harassment. For the
22 GRABOWSKI V. ARIZONA BOARD OF REGENTS
reasons that follow, we conclude that Plaintiff has stated a
retaliation claim.
First, Plaintiff sufficiently alleges that he participated in
a protected activity when he reported the sex-based bullying
to his coaches. In the Title IX context, speaking out against
sex discrimination is protected activity. Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 176–77 (2005).5
Peer-on-peer sexual harassment at school, “if sufficiently
severe, can . . . rise to the level of [sex-based] discrimination
actionable under [Title IX].” Davis, 526 U.S. at 650. Here,
Plaintiff alleges that his teammates called him homophobic
names almost “daily” over the span of a year. As we have
held above, that alleged harassment is severe enough to rise
to the level of discrimination under Title IX. Accordingly,
Plaintiff’s reporting of that discrimination is a protected
activity. Jackson, 544 U.S. at 176–77.
Second, Plaintiff sufficiently alleges an adverse action
when he claims that his scholarship was cancelled and that
he was kicked off the track team. See Emeldi, 698 F.3d at
726 (noting that an action is adverse when “a reasonable
person would have found the challenged action materially
adverse,” such that it would “dissuade[] a reasonable person
from making or supporting a charge of discrimination”
(quoting Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006)) (internal quotation marks and brackets
omitted)).
5
Plaintiff’s retaliation claim is valid even though his discrimination
claim is insufficiently pleaded. “The protected status of [a plaintiff’s]
alleged statements holds whether or not [the plaintiff] ultimately would
be able to prove [his or her] contentions about discrimination.” Emeldi,
698 F.3d at 725 (citing Moyo v. Gomez, 40 F.3d 983, 984 (9th Cir.
1994)).
GRABOWSKI V. ARIZONA BOARD OF REGENTS 23
Finally, Plaintiff sufficiently alleges a causal link
between his reports of bullying and his removal from the
team. First, his dismissal from the team occurred just a few
weeks after he complained about the bullying to his coaches.
“We construe the causal link element of the retaliation
framework ‘broadly’; a plaintiff ‘merely has to prove that the
protected activity and the adverse action are not completely
unrelated.’” Ollier v. Sweetwater Union High Sch. Dist.,
768 F.3d 843, 869 (9th Cir. 2014) (quoting Emeldi, 698 F.3d
at 726) (brackets omitted). Circumstantial evidence can
establish causation. Emeldi, 698 F.3d at 727. For example,
proximity in time between the protected action and the
alleged retaliatory decision can provide circumstantial
evidence of causation. Id. at 726 (citing Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1035 (9th Cir. 2006)).
According to the complaint, Plaintiff or his parents
complained of the anti-gay bullying on seven occasions
between August 2017 and September 2018. Plaintiff’s
parents raised the issue with either the Defendant Coaches
or the team’s sports psychologists in August and in October
of 2017 and January 2018. Plaintiff himself first raised the
issue to Defendant Harvey on October 31, 2017, at the
team’s Halloween party. Nearly a year later, on August 24,
2018, Plaintiff raised the issue again with Defendant Li. At
that meeting, Plaintiff named the two students who were
bullying him, and Defendant Li replied that Plaintiff “can’t
single out the two top runners on the team.” Plaintiff was
dismissed from the team three weeks after that final
complaint. The short time between Plaintiff’s final report of
bullying to his coaches and his dismissal from the track team
supports a plausible inference that he was removed from the
team in retaliation for complaining about bullying by “the
two top runners on the team.” See, e.g., Ollier, 768 F.3d at24 GRABOWSKI V. ARIZONA BOARD OF REGENTS
869 (holding that there was a sufficient causal link between
the protected activity and an adverse action when the
plaintiffs complained in May and July 2006 of
discrimination that violated Title IX, and the plaintiffs’
softball coach was then fired in July 2006).
Second, Plaintiff alleges that the Defendant Coaches
embarked on a “concerted effort” to “demoralize” him after
he singled out the bullies. Taken together, the allegations
suffice to provide a causal link. We therefore reverse the
judgment on the pleadings with respect to the retaliation
claim and remand for further proceedings.
C. Section 1983 Claim Against the Defendant Coaches
We next turn to Plaintiff’s § 1983 claim against the
Defendant Coaches. Plaintiff alleges that the Defendant
Coaches violated his due process rights when they (1)
removed him from the track team and (2) cancelled his
athletic scholarship.6 The Defendant Coaches contend that
they are entitled to qualified immunity. We agree.
Determining whether officials receive qualified
immunity involves two inquiries: (1) whether, “taken in the
light most favorable to the party asserting the injury,” the
facts alleged show the officer’s conduct violated a
constitutional right; and (2) if so, whether the right was
6
Before the district court, Plaintiff labeled his § 1983 claim as both an
equal protection and a due process claim, but the analysis focused solely
on the alleged due process violation. In other words, Plaintiff failed to
argue an equal protection claim to the district court. To the extent that
Plaintiff attempts to assert an equal protection claim on appeal, that claim
is forfeited. See Kaufmann v. Kijakazi, 32 F.4th 843, 847 (9th Cir. 2022)
(holding that a plaintiff forfeits a constitutional argument by failing to
raise it to the district court).
GRABOWSKI V. ARIZONA BOARD OF REGENTS 25
“‘clearly established’ at the time of the violation.” Tolan v.
Cotton, 572 U.S. 650, 655–56 (per curiam) (brackets
omitted) (citations omitted). To determine whether a
constitutional right has been clearly established, we must
“survey the legal landscape and examine those cases that are
most like the instant case.” Trevino v. Gates, 99 F.3d 911,
917 (9th Cir. 1996) (citation and internal quotation marks
omitted). The contours of the right “must be sufficiently
clear that a reasonable official would understand that what
he is doing violates that right.” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (citation omitted).
We begin our qualified immunity analysis, as we may,
“by considering whether there is a violation of clearly
established law without determining whether a
constitutional violation occurred.” Krainski v. Nevada ex
rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d
963, 969 (9th Cir. 2010) (citing Pearson v. Callahan, 555
U.S. 223, 236 (2009)). A due process violation requires a
deprivation of a constitutionally protected liberty or property
interest. Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir.
2008). Plaintiff maintains that he has a property interest both
in his place on the track team and in the accompanying
athletic scholarship. But the caselaw fails to demonstrate
that either asserted right was clearly established at the time
of the alleged violation.
Plaintiff cites two cases in which we assumed, without
deciding, that a property interest in an athletic scholarship
exists. In Rutledge v. Arizona Board of Regents, 660 F.2d
1345 (9th Cir. 1981), aff’d on other grounds sub nom. Kush
v. Rutledge, 460 U.S. 719 (1983), the plaintiff sued his
university for violations of his civil rights after they demoted
him from a first-string position on the football team and
refused to allow him to “red shirt” or transfer to another
26 GRABOWSKI V. ARIZONA BOARD OF REGENTS
school after an injury. Id. at 1352–53. That refusal
effectively cancelled the plaintiff’s athletic scholarship. Id.
at 1353. We held that the plaintiff did not have a protected
interest in his first-string position on the team. We cabined
our holding to the alleged right to a particular status on a
team and did not rule on general membership on the team.
Id. at 1352 (citing Walsh v. La. High Sch. Athletic Ass’n,
616 F.2d 152, 159–60 (5th Cir. 1980). We also “assume[d],
without deciding,” that NCAA rules prohibiting the
cancellation or revocation of a scholarship except for good
cause “create[] an interest in ‘property’ within the meaning
of the Fourteenth Amendment.” Id. at 1353 (emphasis
added). We made that assumption again in Austin v.
University of Oregon, 925 F.3d 1133 (9th Cir. 2019). See
id. at 1139 (“We assume, without deciding, that the student
athletes have property and liberty interests in their education,
scholarships, and reputation as alleged in the complaint.”).
Neither Rutledge nor Austin established the legal principle
that Plaintiff asserts because they merely assumed the
property interest arguendo. Rutledge, 660 F.3d at 1353;
Austin, 925 F.3d at 1139.
Caselaw from other courts likewise does not support the
proposition that Plaintiff had a clearly established property
interest in his athletic scholarship.7 See Colo. Seminary v.
7
In November 2022, the Second Circuit held that a “one-year athletic
scholarship—because it was for a fixed period and only terminable for
cause, and because [the plaintiff] reasonably expected to retain the
scholarship’s benefits for that set period—created a contractual right that
rose to the level of a constitutionally protected property interest.”
Radwan v. Manuel, 55 F.4th 101, 125 (2d Cir. 2022). But Radwan was
decided well after the conduct in question here, so it cannot affect our
conclusion that Plaintiff’s asserted right was not clearly established at
GRABOWSKI V. ARIZONA BOARD OF REGENTS 27
Nat’l Collegiate Athletic Ass’n, 570 F.2d 320, 322 (10th Cir.
1978) (per curiam) (affirming the trial court’s reasoning in
Colo. Seminary v. Nat’l Collegiate Athletic Ass’n, 417 F.
Supp. 885 (D. Colo. 1976), which stated that “the [contract
interest implied by playing collegiate sports on scholarship]
is . . . too speculative to establish a constitutionally protected
right,” id. at 895 n.5); Justice v. Nat’l Collegiate Athletic
Ass’n, 577 F. Supp. 356, 364, 366–67 (D. Ariz. 1983)
(holding that the NCAA did not infringe upon football
players’ “constitutionally protected contractual property
interests . . . by virtue of their athletic scholarship[s]” when
it excluded them from post-season and televised games).
The Defendant Coaches are therefore entitled to qualified
immunity as to the due process claim under § 1983. The
dismissal of that claim is affirmed.
D. Punitive Damages
Finally, Plaintiff seeks punitive damages from the
Defendant Coaches because they allegedly acted
“maliciously and with intent to falsely harm” him.
The only substantive allegation of liability against the
Defendant Coaches is the § 1983 claim; the harassment and
retaliation claims are brought against the University
Defendants. As we have held, the district court properly
dismissed the § 1983 claim against the individual
defendants. Accordingly, no claim remains against the
Defendant Coaches to which punitive damages could
the time of the alleged violation. Moreover, Plaintiff’s complaint alleges
no facts about the terms of his athletic scholarship. We express no view
on the underlying legal issue.
28 GRABOWSKI V. ARIZONA BOARD OF REGENTS
attach.8 The district court therefore properly dismissed this
claim as well.
CONCLUSION
Harassment on the basis of perceived sexual orientation
is discrimination on the basis of sex under Title IX. But the
operative complaint fails to allege a deprivation of Plaintiff’s
educational opportunity, a required element for holding the
University Defendants liable for the alleged harassment. We
affirm the district court’s dismissal of the discrimination
claim and vacate the portion of the order denying leave to
amend. On remand, the district court may consider any
request for further amendment of the complaint. We reverse
the dismissal of Plaintiff’s retaliation claim. Finally, we
affirm the dismissal of the § 1983 claim and the claim for
punitive damages.
AFFIRMED in part, VACATED in part,
REVERSED in part, and REMANDED for further
proceedings. Each party shall bear its own costs on
appeal.
8
In his opening brief, Plaintiff states that, “[i]f the court permits the
causes of action against the individual defendants to proceed, then
punitive damages should be available.” Here, we are not permitting the
§ 1983 cause of action to proceed, so the claim for punitive damages
necessarily fails. See Papike v. Tambrands Inc., 107 F.3d 737, 744 (9th
Cir. 1997) (holding that because the plaintiff’s claims were properly
dismissed, “[t]he claim for punitive damages obviously fails as well”).