David Schwake v. Arizona Board of Regents

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID OTTO SCHWAKE, No. 18-15725

Plaintiff-Appellant,

D.C. No.

v. 2:15-cv-00696-

SPL

ARIZONA BOARD OF REGENTS;

MICHAEL M. CROW; KEVIN COOK;

NOREAN SABLAN; RON HICKS; OPINION

GREGORY CASTLE; THOMAS SEAGER,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted March 5, 2020

San Francisco, California

Filed July 29, 2020

Before: KIM MCLANE WARDLAW, MILAN D.

SMITH, JR., and PATRICK J. BUMATAY,

Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

2 SCHWAKE V. ARIZONA BOARD OF REGENTS

SUMMARY *

Title IX

The panel reversed in part and vacated in part the district

court’s order of dismissal and remanded in an action alleging

that the University of Arizona violated Title IX, 20 U.S.C.

§ 1681(a), by discriminating against plaintiff on the basis of

sex during the course of a sexual misconduct disciplinary

case against him.

The panel held that plaintiff stated a Title IX claim

against the University because he plausibly alleged gender

bias. The panel held that plaintiff first established a

background indicia of sex discrimination relevant to his Title

IX claim by alleging that: (1) the University faced

contemporaneous pressure as a result of a Department of

Education investigation, which affected how it handled

sexual misconduct complaints; and (2) the University had a

pattern of gender-based decisionmaking.

The panel next considered the allegations concerning the

disciplinary case against plaintiff. The panel held that public

statements made by an associate professor at the University

reflected an atmosphere of bias against plaintiff during the

course of the University’s disciplinary case. The panel

further noted that plaintiff alleged that the University

(1) denied plaintiff an opportunity to appeal the punishment

and the underlying findings; (2) refused plaintiff permission

*

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

SCHWAKE V. ARIZONA BOARD OF REGENTS 3

to file a harassment complaint against the complainant; and

(3) conducted a one-sided investigation.

Considering the combination of plaintiff’s allegations of

background indicia of sex discrimination along with the

allegations concerning his particular disciplinary case, the

panel concluded that sex discrimination was a plausible

explanation for the University’s handling of the sexual

misconduct disciplinary case against plaintiff. This was

sufficient for plaintiff’s Title IX claim to proceed beyond the

motion to dismiss stage.

COUNSEL

Aaron K. Block (argued), The Block Firm LLC, Atlanta,

Georgia; Joseph P. Palmisano, Acaia Law Group,

Scottsdale, Arizona; for Plaintiff-Appellant.

Michael K. Goodwin (argued) and Rusty D. Crandell,

Assistant Attorneys General; Dominic E. Draye, Solicitor

General; Mark Brnovich, Attorney General; Office of the

Attorney General, Phoenix, Arizona; for Defendants-

Appellees.

4 SCHWAKE V. ARIZONA BOARD OF REGENTS

OPINION

M. SMITH, Circuit Judge:

This case concerns an Arizona State University (the

University 1) disciplinary case against David Otto Schwake

for alleged violations of the University’s Student Code of

Conduct (the Student Code), triggered by another student’s

complaint that Schwake had engaged in unwanted contact

and sexual misconduct with her. Schwake brought this suit

because of the University’s handling of the disciplinary case

against him. In relevant part, he claimed that the University

violated Title IX, 20 U.S.C. § 1681(a), as a federally funded

educational institution that discriminated against him on the

basis of sex during the course of the disciplinary case. The

district court dismissed this claim because it deemed some

of Schwake’s allegations to be conclusory. The court further

reasoned that a university’s aggressive response to a sexual

misconduct complaint is not evidence of gender bias.

We must decide whether Schwake plausibly alleged that

the University discriminated against him on the basis of sex. 2

His complaint is similar to Title IX claims brought by a

number of men alleging sex discrimination by federally

funded universities and colleges in sexual misconduct

disciplinary cases against them. Although our court has

affirmed the dismissal of some such claims, Austin v. Univ.

of Or., 925 F.3d 1133 (9th Cir. 2019), we have not provided

guidance on what allegations suffice to state a Title IX claim.

1

Unless otherwise indicated, we use the term “the University” to

refer to all Defendants who Schwake sued in their official capacities.

2

Schwake also claimed violations of his constitutional due process

rights pursuant to 42 U.S.C. § 1983. We affirm the dismissal of those

claims in a concurrently filed memorandum disposition.

SCHWAKE V. ARIZONA BOARD OF REGENTS 5

Providing that guidance here, we conclude that Schwake

plausibly alleged that the University discriminated against

him on the basis of sex. We, therefore, reverse the district

court’s dismissal of the Title IX claim.

BACKGROUND

I. Factual Background

In the summer and fall of 2014, Schwake was a

University graduate student pursuing a Ph.D. in

microbiology. For over three years, he worked in a campus

lab as a student researcher alongside other Ph.D. students,

including the student who made the sexual misconduct

complaint against him (the complainant). Schwake and the

complainant “oscillated between being professional

coworkers and dozens of romantic encounters” between

February 2013 and July 2014.

On August 14, 2014, Schwake received a letter from

Norean Sablan, a senior coordinator with the University’s

Office of Student Rights and Responsibility. The letter

notified him of a complaint against him concerning

“multiple instances of inappropriate behaviors and unwanted

verbal and physical contact” with the complainant. 3 The

letter informed Schwake of three pending disciplinary

charges against him for Student Code violations, including

unwanted or repeated significant behavior and sexual

3

The letter directed Schwake to refrain from all contact with the

complainant and indicated that Schwake would face additional

disciplinary action if he failed to do so. Schwake’s lab supervisor set up

a lab sharing schedule to prevent Schwake and the complainant from

being in the lab at the same time. Schwake alleges that although he never

violated the schedule, the complainant violated it over twenty times

between August 14 and October 15, 2014.

6 SCHWAKE V. ARIZONA BOARD OF REGENTS

misconduct. During a meeting the next day, Sablan

suggested that Schwake prepare evidence and witnesses

while the University investigated.

Schwake and Sablan met a second time on August 22,

2014 to discuss the sexual misconduct complaint. A few

days later, Schwake provided, at Sablan’s request, a four-

page written account of the “most serious allegations” that

“he touched [the complainant’s] breasts without her consent

while she was asleep sometime between March 26 and

March 27, 2014.” He included text messages, “which

confirmed the sexual activity of the night of the accusation

was consensual and that the two had a friendly and romantic

relationship for several months afterwards.” Schwake stated

that several students and staff members could corroborate his

“on-again off again” relationship with the complainant and

their consensual intimate contacts. He suggested that the

complainant “may have deliberately provided false

information or left out key details[.]”

On September 5, 2014, Schwake received a letter from

Sablan, which explained that the University had found him

responsible for the disciplinary charges. He was suspended

until Fall 2017 “effective immediately,” unless he requested

a hearing to appeal the decision. University Policy § 5-

403(D), the University’s student disciplinary procedure

policy, would apply to that hearing. He could have legal

representation, cross-examine witnesses against him, and

present evidence and witnesses in his favor.

Shortly thereafter, Dr. Thomas Seager, an associate

professor, “loudly discussed” Schwake’s disciplinary case

with a group in his office with the door open. Dr. Seager

“went into great detail” about the complainant’s

“accusations including privileged information and the

disciplinary process and told them that [the University] had

SCHWAKE V. ARIZONA BOARD OF REGENTS 7

convicted [Schwake] of sexual assault and suspended him.”

Dr. Seager told the group that Schwake was not allowed in

the building, and that any one of them should immediately

call the police if they saw Schwake in the building. Despite

another professor’s complaint about his discussing

Schwake’s disciplinary case, Dr. Seager continued to discuss

the case in his course throughout the semester, using it “as

an example of a real-life scenario and asking students how it

should be handled.” In doing so, Dr. Seager identified

Schwake “while disclosing confidential, graphic details”

about the alleged sexual misconduct.

In early October 2014, a lawyer who Schwake had

retained formally requested an appeal hearing on the

University’s decision. In mid-October, Schwake was

removed from the lab after the complainant obtained a state

court harassment injunction against him. When Schwake

requested lab access, Dr. Ron Hicks, an Associate Dean of

Students, told him that the University’s no-contact directive

remained in effect. During this time, Schwake learned that

the complainant had “harassed a student lab mate,”

attempted to interfere with Schwake’s experiments, and

made false statements to the lab supervisor.

On November 3, 2014, Dr. Hicks notified Schwake that

the University had received a report that he was seen in the

lab, in violation of the lab access restriction and two Student

Code provisions. Dr. Hicks placed Schwake on an

immediate interim suspension. At a mandatory in-person

meeting two days later, Schwake maintained that he did not

enter the lab but had only entered and quickly left the

building where the lab was located. Dr. Hicks explained that

the suspension would remain in place until the evidence

proved no violation. At Schwake’s request, a University

8 SCHWAKE V. ARIZONA BOARD OF REGENTS

security department employee e-mailed Dr. Hicks

surveillance footage corroborating Schwake’s account.

On November 13, 2014, Schwake received notice that

the appeal hearing in his disciplinary case was set for

December 12, 2014. Eight days after receiving that notice,

Dr. Hicks “forcibly withdrew” Schwake’s graduation

application. Thereafter, Schwake learned that the

complainant had “attempted to coerce members” of the lab

to testify for her at the hearing “by falsely telling them that

other labs members had agreed” to do so.

On December 3, 2014, Schwake and his lawyer met with

Dr. Hicks at the University police station. Schwake’s lawyer

and Dr. Hicks “had come up with a ‘mutually beneficial

compromise’” that would allow Schwake to graduate by

changing Schwake’s punishment from suspension to certain

campus restrictions. Dr. Hicks explained that, as a result,

Schwake was not entitled to a hearing. 4 When Schwake

protested, Dr. Hicks stated that the decision was final; the

University had no appeal process available. When Schwake

asked Dr. Hicks whether he could file a complaint against

the complainant, Dr. Hicks denied telling Schwake on

multiple prior occasions that he could not do so until after

the disciplinary hearing because it would be seen as

retaliatory. Dr. Hicks 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

4

University Policy § 5-403 provides a hearing only in cases of

suspension, expulsion, or degree revocation. “[T]he student will not be

permitted to graduate until the hearing process has been concluded.”

SCHWAKE V. ARIZONA BOARD OF REGENTS 9

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. Although Schwake graduated, the disciplinary

case had disrupted his dissertation, interfered with his

research, caused him to lose funding and employment

opportunities, and damaged his personal reputation.

II. Procedural History

Schwake sued in April 2015, seeking $20 million in

damages as well as declaratory and injunctive relief. He

asserted § 1983 claims against Defendants Sablan and

Drs. Hicks, Castle, and Seager for alleged constitutional due

process violations. He asserted a Title IX claim against the

University, suing the foregoing defendants as well the

Arizona Board of Regents, Michael M. Crow (the

University’s President), and Dr. Kevin Cook (the

University’s Dean of Students) in their official capacities.

After the district court dismissed Schwake’s initial

complaint on procedural grounds, Schwake filed the

operative First Amended Complaint (FAC). The court

granted the University’s motion to dismiss the FAC and

dismissed Schwake’s claims with prejudice. Schwake

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo the grant of a motion to dismiss for failure

to state a claim. Metzler Inv. GMBH v. Corinthian Colls.,

Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). We accept as true

all well-pleaded factual allegations and construe them in the

light most favorable to the non-moving party. Id. Dismissal

10 SCHWAKE V. ARIZONA BOARD OF REGENTS

of a claim is appropriate if the plaintiff fails to set forth

sufficient factual allegations that would, if true, entitle the

plaintiff to relief. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

ANALYSIS

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

financial assistance . . . .” 20 U.S.C. § 1681(a). “[S]ubject

to a list of narrow exceptions not at issue here, [Title IX]

broadly prohibits a funding recipient from subjecting any

person to ‘discrimination’ ‘on the basis of sex.’” Jackson v.

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

Title IX is enforceable through an implied right of action

in which monetary damages are available. Gebser v. Lago

Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). To state

a Title IX claim, a plaintiff must plead that: (1) the defendant

educational institutional receives 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. 5 Here, Schwake alleged that the University

receives federal funding. Thus, the issues on appeal concern

the second and third elements. We first identify the relevant

5

Although Title IX uses the term “sex,” we have used that term

interchangeably with “gender.” See, e.g., Emeldi v. Univ. of Oregon,

698 F.3d 715, 723 (9th Cir. 2012) (“Title IX of the Education

Amendments of 1972 bars gender-based discrimination by federally

funded educational institutions.”). We use the terms interchangeably to

mean “sex” under Title IX for the purposes of our analysis.

SCHWAKE V. ARIZONA BOARD OF REGENTS 11

inquiry for us in this context and then turn to Schwake’s

allegations.

I. The Relevant Title IX Inquiry in This Context

Title IX “encompass[es] diverse forms of intentional sex

discrimination.” Jackson, 544 U.S. at 183. In relevant part,

“Title IX bars the imposition of university discipline where

gender is a motivating factor in the decision to discipline.”

Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); see

also Austin, 925 F.3d at 1138–39 (considering allegations of

sex discrimination during disciplinary proceedings for

sexual misconduct charges). The gravamen of Schwake’s

claim is that the University discriminated against him on the

basis of sex during the course of the sexual misconduct

disciplinary case against him.

Two of our sister circuits have fashioned doctrinal tests

for sex discrimination claims in this context. Based on its

view of the claims of “gender bias [to] be expected” in this

context, the Second Circuit articulated the so-called

“erroneous outcome” and “selective enforcement” tests.

Yusuf, 35 F.3d at 715. Pursuant to the “erroneous outcome”

test, the plaintiff “must allege particular facts sufficient to

cast some articulable doubt on the accuracy of the outcome

of the disciplinary proceeding.” Id. In a “selective

enforcement” claim, a plaintiff must allege that “regardless

of the student’s guilt or innocence, the severity of the penalty

and/or the decision to initiate the proceeding was affected by

the student’s gender.” Id. The Sixth Circuit has expressly

adopted these tests as well as the so-called “deliberate

indifference” test. See Doe v. Miami Univ., 882 F.3d 579,

589 (6th Cir. 2018).

Some of our sister circuits have applied these tests

without expressly adopting them. See Doe v. Valencia Coll.,

12 SCHWAKE V. ARIZONA BOARD OF REGENTS

903 F.3d 1220, 1236 (11th Cir. 2018) (“[W]e will assume

for present purposes that a student can show a violation of

Title IX by satisfying the ‘erroneous outcome’ test applied

by the Second Circuit in Yusuf.”); Plummer v. Univ. of

Houston, 860 F.3d 767, 777–78 (5th Cir. 2017) (“McConnell

and Plummer and the University each rely on the theories

adopted in Yusuf, so we need not speculate on any other

possible theories of Title IX liability.”).

In this case, the district court referenced the erroneous

outcome and selective enforcement tests as two “general

categories” of Title IX claims in this context. The parties in

part dispute whether Schwake pleaded an erroneous

outcome theory. The underlying assumption was that

Schwake must meet that test to state a Title IX claim. We

disagree.

Although our court has acknowledged some of the

doctrinal tests that other courts have employed in this

context and assumed their application, see Austin, 925 F.3d

at 1137–38, we have not expressly adopted any of them.

Faced with that antecedent question here, we find persuasive

the Seventh Circuit’s approach to Title IX claims in this

context. The Seventh Circuit has found “no need to

superimpose doctrinal tests on the statute[.]” Doe v. Purdue

Univ., 928 F.3d 652, 667 (7th Cir. 2019). As the Seventh

Circuit has explained, such tests “need not be considered

because, at bottom, they all ask the same question: whether

‘the alleged facts, if true, raise a plausible inference that the

university discriminated [against the plaintiff] ‘on the basis

of sex’?” Doe. v. Columbia Coll. Chi., 933 F.3d 849, 854–

55 (7th Cir. 2019) (quoting Purdue Univ., 928 F.3d at 667–

68). We adopt that far simpler standard for Title IX claims

in this context. See Doe v. Univ. of the Scis., 961 F.3d 203,

209 (3d Cir. 2020) (adopting the Seventh Circuit’s

SCHWAKE V. ARIZONA BOARD OF REGENTS 13

“straightforward pleading standard” as “hew[ing] most

closely to the text of Title IX”). With this standard in mind,

we turn to Schwake’s claim.

II. The Sufficiency of Schwake’s Title IX Claim

To survive a motion to dismiss, a Title IX plaintiff “need

only provide ‘enough facts to state a claim to relief that is

plausible on its face.’” Austin, 925 F.3d at 1137 (emphasis

added) (quoting Twombly, 550 U.S. at 570). In assessing the

sufficiency of a complaint, “[t]he role of the court . . . is not

in any way to evaluate the truth as to what really happened,

but merely to determine whether the plaintiff’s factual

allegations are sufficient to allow the case to proceed.” Doe

v. Columbia Univ., 831 F.3d 46, 59 (2d Cir. 2016). Sex

discrimination need not be the only plausible explanation or

even the most plausible explanation for a Title IX claim to

proceed. See Doe v. Baum, 903 F.3d 575, 586 (6th Cir.

2018).

The district court dismissed Schwake’s Title IX claim

with prejudice by reasoning that a university’s aggressive

response to sexual misconduct allegations “is [not] evidence

of gender discrimination.” In doing so, the court ignored

many of the allegations in Schwake’s complaint that we

think are relevant to the sufficiency of the Title IX claim.

Hewing to our limited role at this stage, we consider first the

allegations of background indicia of sex discrimination,

namely, the pressure that the University faced concerning its

handling of sexual misconduct complaints and gender-based

decisionmaking against men in sexual misconduct

disciplinary cases. We then consider the allegations

concerning the disciplinary case against Schwake.

Considering the combination of these allegations, we

conclude that Schwake plausibly alleged gender bias by the

University.

14 SCHWAKE V. ARIZONA BOARD OF REGENTS

A. Background Indicia of Sex Discrimination

Schwake argues that the University faced significant

pressure that affected how it handled sexual misconduct

complaints around the time of the complaint made against

him. He points to a “Dear Colleague” letter that the

Department of Education (DOE) sent in 2011 to various

colleges and universities across the country regarding the

handling of sexual misconduct complaints. 6 “Other circuits

have treated the Dear Colleague letter as relevant in

evaluating the plausibility of a Title IX claim” in this

context. Purdue Univ., 928 F.3d at 668. Although we do

not disagree that the letter may be relevant, we decline to

consider the letter here because the pleadings did not allege

it.

Schwake also points to his allegation that in April 2014

the DOE initiated an investigation of the University for

possible Title IX violations in the University’s handling of

sexual misconduct complaints. As Schwake argues, it is

reasonable to infer that such a federal investigation placed

tangible pressure on the University. 7 See Baum, 903 F.3d

6

An archived version of the letter is available here:

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-

201104.pdf.

7

We reject the University’s assertion that Schwake waived this

argument. Although we generally treat arguments not raised in an

opening brief as waived, we decline to follow that rule here because the

original counsel who filed the opening brief withdrew from

representation. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.

2009) (“We will not . . . review an issue not raised below unless

necessary to prevent manifest injustice.” (citation omitted)). Our court

appointed pro bono counsel for Schwake, who filed Schwake’s

supplemental brief that raised this argument in light of the complaint’s

allegations.

SCHWAKE V. ARIZONA BOARD OF REGENTS 15

at 586 (recognizing that a defendant university “stood to lose

millions in federal aid if the [d]epartment found it non-

compliant with Title IX.”). It is also “entirely plausible” that

such pressure would affect how the University treated

respondents in sexual misconduct disciplinary proceedings

on the basis of sex. See Columbia Univ., 831 F.3d at 57–58

(finding it “entirely plausible that the University’s decision-

makers and its investigator were motivated to favor the

accusing female over the accused male, so as to protect

themselves and the University from accusations that they

had failed to protect female students from sexual assault”

and “avoid further fanning the criticism” of the university).

Schwake’s allegations of a pattern of gender-based

decisionmaking against male respondents in sexual

misconduct disciplinary proceedings make that inference

plausible. He alleged that “[m]ale respondents in student

disciplinary proceedings involving alleged sexual

harassment and misconduct cases at [the University]” “are

invariably found guilty, regardless of the evidence or lack

thereof.” Schwake further alleged that he was “aware of

recent [University] disciplinary cases against male

respondents in alleged sexual misconduct cases who were all

found guilty regardless of the evidence or lack thereof.” The

district court was not free to ignore this non-conclusory and

relevant factual allegation. See Doe v. Miami University,

882 F.3d 579, 593–94 (6th Cir. 2018) (concluding that a

pattern of gender-based decisionmaking may support a Title

IX claim).

The University contends that the allegations of gender-

based decisionmaking are conclusory because they lack the

detail of the allegations in Doe v. Miami University, 882 F.3d

579 (6th Cir. 2018). The plaintiff’s allegations there

included: (1) “every male student accused of sexual

16 SCHWAKE V. ARIZONA BOARD OF REGENTS

misconduct in the Fall 2013 and Spring 2014 semesters was

found responsible for the alleged violation,” (2) “nearly

ninety percent of students found responsible for sexual

misconduct between 2011 and 2014 have male first-names,”

(3) an affidavit from an attorney who represented “many

students in Miami University’s disciplinary proceedings”

who “describe[d] a pattern of the University pursuing

investigations concerning male students, but not female

students,” and (4) the plaintiff’s allegation that the university

investigated him rather than the complainant. Id. at 593–94.

The absence of this level of detail from Schwake’s

complaint does not render Schwake’s allegation conclusory

or insufficient. There is no heightened pleading standard for

Title IX claims. See Austin, 925 F.3d at 1137 n.4. That point

is particularly apt here. It may be difficult for a plaintiff to

know the full extent of alleged discrimination in

decisionmaking before discovery allows a plaintiff to

unearth information controlled by the defendant. See

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002);

Miami Univ., 882 F.3d at 594. Here, we are satisfied that

Schwake’s allegations of contemporaneous pressure and

gender-based decisionmaking establish background indicia

of sex discrimination relevant to his Title IX claim.

B. Schwake’s Disciplinary Case

Although Schwake has alleged background indicia of

sex discrimination, he “must combine [those allegations]

with facts particular to his case to survive a motion to

dismiss.” Columbia Coll. Chi., 933 F.3d at 855; Purdue

Univ., 928 F.3d at 669; Austin, 925 F.3d at 1138. Schwake

has done so in several respects.

First, Schwake draws our attention to his allegations

concerning Dr. Seager’s statements following the

SCHWAKE V. ARIZONA BOARD OF REGENTS 17

University’s September 5, 2014 decision. Dr. Seager’s

comments that the University had “convicted [Schwake] of

sexual assault” and that individuals “should immediately call

the police” if they saw Schwake in the building layered

criminal overtones onto what was essentially a preliminary

finding made by University officials in a school disciplinary

case. Dr. Seager also divulged confidential and privileged

information about Schwake’s disciplinary case, shared

“graphic” details about the alleged assault with other

students, and used the case as a classroom prompt about how

to handle sexual misconduct complaints. Dr. Seager 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 University argues that Dr. Seager’s statements

cannot show that gender bias affected Schwake’s sexual

misconduct disciplinary case because Dr. Seager was not a

decisionmaker. We disagree. Statements by “pertinent

university officials,” not just decisionmakers, can support an

inference of gender bias. See Yusuf, 35 F.3d at 715.

Dr. Seager’s statements are relevant here precisely because

he knew privileged and confidential information about the

case shortly after the University made a preliminary

decision, despite not being a decisionmaker. As Schwake

alleged, Dr. Seager could only have obtained the information

he knew from University officials or other persons involved

in the case. Like the procedural irregularities some of our

sister circuits have considered when faced with allegations

of pressure, the violation of confidentiality by those involved

in Schwake’s disciplinary case supports an inference of

gender bias when considered along with Schwake’s

18 SCHWAKE V. ARIZONA BOARD OF REGENTS

allegations of background indicia of sex discrimination. See

Menaker v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019)

(“[W]hen combined with clear procedural irregularities in a

university’s response to allegations of sexual misconduct,

even minimal evidence of pressure on the university to act

based on invidious stereotypes will permit a plausible

inference of sex discrimination.” (emphasis in original)); see

also Columbia Univ., 831 F.3d at 56–57 (recognizing that

procedural irregularities in the university’s investigation and

handling of a sexual assault complaint raised an inference of

bias).

Second, Schwake draws our attention to Dr. Hicks’s

treatment of him after Schwake’s lawyer and Dr. Hicks

fashioned a new punishment for Schwake that did not

involve suspension. Despite Schwake’s repeated protests,

Dr. Hicks refused to permit Schwake to appeal the

punishment and the University’s underlying finding of

responsibility on the sexual misconduct Student Code

violations. Contrary to the University’s suggestion that there

can be no showing of gender bias because University policy

foreclosed an appeal, gender bias is a plausible explanation

in light of the background indicia of sex discrimination. 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. See Columbia Univ.,

831 F.3d at 57.

Dr. Hicks’s refusal to permit Schwake to file a

harassment complaint against the complainant is also

probative of gender bias. Dr. Hicks told Schwake that if he

filed a complaint against the complainant, it would result in

SCHWAKE V. ARIZONA BOARD OF REGENTS 19

“further investigations” and “additional sanctions” against

him, including “degree revocation.” Dr. Hicks’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

DOE investigation into the University’s handling of sexual

misconduct complaints. See Miami Univ., 882 F.3d at 594

(inferring gender bias where the plaintiff alleged, in part, that

the university “faced external pressure from the federal

government . . . . to combat vigorously sexual assault on

college campuses,” which “led [the university] to

discriminate against men in its sexual-assault adjudication

process”). Absent the sexual misconduct proceeding and the

alleged pressure that the University faced regarding its

handling of sexual misconduct complaints, the inference

may be drawn that Schwake would have been able to pursue

his own complaint.

Pointing to Austin, the University argues that Dr. Hicks’s

refusal to let Schwake file his own complaint cannot show

gender bias. In Austin, the plaintiffs argued that the

university was biased against men because it disciplined

male students for sexual misconduct but never female

students. 925 F.3d at 1138. Our court rejected that argument

because the complaint did not allege that female students

were accused of sexual misconduct. Id. Our court reasoned

that, without similarly situated female students, there could

be no inference of gender bias. Id. However, Schwake does

not allege the selective enforcement theory that the plaintiffs

there alleged. We have also clarified here that a plaintiff

need not satisfy that test to state a Title IX claim. Thus, this

aspect of Austin is inapposite.

20 SCHWAKE V. ARIZONA BOARD OF REGENTS

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. These

allegations echo some of the irregularities on which our

sister courts have relied to sustain a Title IX claim for sex

discrimination in the context of a sexual misconduct

disciplinary proceeding. See, e.g., Purdue Univ., 928 F.3d

at 669 (finding sex discrimination plausible based in part on

the male plaintiff’s allegations that the university’s Title IX

investigator credited the story of the female accuser over the

accused male student although the investigator had never

spoken with the accuser); Baum, 903 F.3d at 586 (finding

sex discrimination based in part on the male plaintiff’s

allegations that the university appeals board exclusively

credited female testimony and rejected all male testimony

although the initial investigator had credited the accused

male’s account).

Considering the combination of Schwake’s allegations

of background indicia of sex discrimination along with the

allegations concerning his particular disciplinary case, we

conclude that sex discrimination is a plausible explanation

for the University’s handling of the sexual misconduct

disciplinary case against Schwake. This is sufficient for

SCHWAKE V. ARIZONA BOARD OF REGENTS 21

Schwake’s Title IX claim to proceed beyond the motion to

dismiss stage.

CONCLUSION

We conclude that Schwake stated a Title IX claim

against the University because he plausibly alleged gender

bias. Accordingly, we reverse and vacate the district court’s

order and judgment dismissing the claim with prejudice, and

remand for further proceedings.

REVERSED in part, VACATED in part, and

REMANDED. Each side shall bear its own costs.