WIN AT 9th Circuit On TitleIX Gender Bias. ‘Entirely Plausible’ ASU Male Faced Discrimination Due To His Sex
A federal appeals court said it is ‘entirely plausible’ a male student was discriminated against on the basis of sex. David Schwake, the plaintiff in the case and ASU alumnus with a master’s degree in microbiology, was accused by a classmate for inappropriately touching her without her consent. Three weeks after Schwake received notice of the initial complaint, the University ruled that Schwake was “responsible for disciplinary charges.”
Schwake later took the case to a federal court in Arizona on the claim that he was discriminated against based on sex because of the University’s handling of the case against him. A judge at the lower court immediately dismissed the case, saying that Schwake did not have a plausible claim for violation of his rights under Title IX. But the 9th circuit’s opinion reverses the lower court’s decision, saying that Schwake did provide enough evidence to assume gender bias from the University.
According to the opinion, Schwake said the University did not allow him to read written information about the complaint, did not allow him to appeal the decision at the University and “conducted a one-sided investigation.” Judge Milan D. Smith Jr., who wrote the opinion for the unanimous three judge panel, said “the district court dismissed Schwake’s Title IX claim with prejudice by reasoning that a university’s aggressive response to sexual misconduct ‘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.” “Although Schwake graduated, the disciplinary case has disrupted his dissertation, interfered with his research, caused him to lose funding and employment opportunities, and damaged his personal reputation,” the opinion says.
In April 2015, Schwake sought $20 million in damages and injunctive relief. It sued the Arizona Board of Regents, President Michael Crow, the contact from the Office of Student Rights and Responsibility, the associate dean and an associate professor, who “loudly discussed” classified case details with students, for alleged due process violations and discrimination under Title IX. The associate professor also made confidential information public and then used the case to prompt a classroom of students about how to handle sexual assault cases, reflecting an atmosphere of bias against Schwake. This act “layered criminal overtones onto what was essentially a preliminary finding made by University officials in a school disciplinary case,” court documents said. The ninth circuit disagreed with previous court and said, while not a decision maker in discipline, the professor knew privileged information only known by officials involved in the case.
The court writes Schwake was convincing in an argument that the University faced pressure concerning “gender-based decision making against men in sexual misconduct disciplinary cases” due to an Obama/Biden “Dear Colleague” letter the U.S. Department of Education sent to every university in 2011 about their handling of sexual misconduct among students. Read 9th Circuit Ruling: SCHWAKE V. ARIZONA BOARD OF REGENTS statepress.com-P. Hansen collegefix.com-H. Kokkeler
