Michael Grabowski v. Arizona Board of Regents

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 at

24 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”).