*** Update! Victory! *** On June 13, 2023, the Ninth Circuit unanimously held that Michael’s lawsuit can proceed. In reversing the district court’s decision, the Court affirmed that Bostock applies to Title IX, meaning schools must address harassment based on actual or perceived sexual orientation. In addition, the Court held that Michael sufficiently alleged the harassment he faced was severe because it was so frequent, and that he stated a retaliation claim. It also added that when an athletics coach has knowledge of sex-based harassment, the school is considered to have actual notice of the harassment under Title IX. Finally, although the Court affirmed the district court’s dismissal of Michael’s harassment claim because, in the Court’s view, he did not sufficiently alleged that the harassment deprived him of educational opportunities, it allowed him to amend his complaint to allege those facts in more detail.
On August 16, 2022, NWLC joined an amicus brief led by Public Justice on behalf of 19 civil rights organizations to the Ninth Circuit in support of Michael Grabowski, a college track athlete at the University of Arizona, in Grabowski v. Arizona Board of Regents. The case arose because Michael reported to his school that his teammates were harassing him because they thought he was gay. In response, the school dismissed him from the track team and canceled his athletics scholarship. A federal district court incorrectly held that Title IX does not prohibit sexual orientation-based harassment, and that the harassment Michael faced was not sufficiently “severe and pervasive” to constitute actionable harassment. The district court also erroneously held that Michael’s retaliation claim failed because, in the court’s view, the harassment was not sufficiently “severe and pervasive” when he reported it to the school.
The amicus brief explains that the district court greatly erred. Its decision ignored the Supreme Court’s clear statement in Bostock v. Clayton County that sex discrimination includes sexual orientation-based discrimination, a position also held by the Ninth Circuit and the U.S. Departments of Education and Justice. Furthermore, Michael sufficiently alleged that he was subjected to “severe and pervasive” harassment; his teammates taunted him almost daily for a year about seeming gay, posted a homophobic video of him online, and refused to let him sleep in a bed at a pre-season camp. Finally, the amicus brief explains that Title IX prohibits retaliation against people who make good-faith reports of sex-based harassment, regardless of whether their harassment claim ultimately succeeds. Any other rule would lead to absurd results, as student victims would not be able to safely report harassment until it escalates to a point where the victim is deprived of educational opportunities. Therefore, the Ninth Circuit should reverse the district court’s decision.