Campus Due Process Litigation Tracker

Schwake v. Arizona Board of Regents, 967 F.3d 940 (9th Cir. 2020)

School type: Public
State: Arizona
Federal Circuit: Ninth
Decision primarily favorable to: Student
Stage of litigation: Motion to dismiss
Keywords: Erroneous outcome, Selective enforcement, Title IX

The Ninth Circuit reversed the district court’s dismissal of Plaintiff’s Title IX claim, finding that Plaintiff had plausibly alleged that the university discriminated against him on the basis of sex in his disciplinary case.

Plaintiff, a graduate student, was in an on-again/off-again relationship with a fellow graduate student researcher from approximately February 2013 until July 2014. Following the end of their relationship, his former girlfriend filed a complaint of sexual misconduct against him. The university utilized a single-investigator process, found Plaintiff responsible, and suspended him. Under university policy, he was entitled to an appeal hearing at which “he could have legal representation, cross-examine witnesses against him, and present evidence and witnesses in his favor.”

Shortly after Plaintiff was found responsible, a professor at the university, Dr. Thomas Seager, “loudly discussed” Plaintiff’s disciplinary case with a group of people in his office, revealing “confidential, graphic details” of the investigation.

Meanwhile, Plaintiff retained an attorney who requested an appeal hearing with the university. Plaintiff’s attorney also negotiated a compromise related to Plaintiff’s sanctions, which involved the university “changing [his] punishment from suspension to certain campus restrictions.” As a result of this compromise, the university told Plaintiff — over his repeated objections — that he was no longer entitled to an appeal hearing on the university’s underlying finding of responsibility.

Plaintiff filed suit alleging Title IX sex discrimination. The Ninth Circuit decided to forego the doctrinal tests (“erroneous outcome” and “selective enforcement”) first set forth by the Second Circuit in Yusuf v. Vassar College in favor of the “far simpler standard” fashioned by the Seventh Circuit in Doe v. Purdue University, which asks “whether ‘the alleged facts, if true, raise a plausible inference that the university discriminated [against the plaintiff] ‘on the basis of sex’?”

Applying the Purdue standard, the court held that Plaintiff’s allegations plausibly set forth a claim of sex discrimination sufficient to survive the university’s motion to dismiss. The court considered both evidence of external pressure, such as the April 2014 investigation initiated by the Department of Education, and evidence pertaining specifically to Plaintiff’s case. In terms of Plaintiff’s case, the court was particularly troubled by the statements of Dr. Seager, which reflected “an atmosphere of bias against [Plaintiff] during the course of the University’s disciplinary case.” The university argued that these statements were not relevant because Dr. Seager was not a decisionmaker, but the court pointed out that statements by any “pertinent university officials,” not just decisionmakers, can constitute evidence of bias. And in this case, because Dr. Seager shared confidential information that he only could have learned from “University officials or other persons involved in the case,” the court found his statements relevant to Plaintiff’s claim of bias. The court was also concerned by the university’s decision to prevent Plaintiff from appealing the disciplinary decision because his attorney had negotiated a compromise on his sanctions; the university’s refusal to allow Plaintiff to file a harassment complaint against the complainant; and the fact that the university conducted a “one-sided investigation.”