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Arizona State Title IX Case Allows Male Student to Allege Gender Discrimination

Posted by Joseph D. Lento | Aug 08, 2020 | 0 Comments

Arizona State University may have discriminated against a male student in a 2014 case according to a recent decision from the U.S. Court of Appeals for the 9th Circuit. That year, a classmate accused David Schwake, a graduate of ASU with a master's degree in microbiology, of inappropriately touching her. Three weeks after Schwake first received notice of the Title IX allegations from the school's Office of Student Rights and Responsibilities, the university found him “responsible” for the allegations and suspended him until Fall 2017.

While ASU eventually allowed Schwake to graduate due to a compromise taking away his right to appeal, the case disrupted his dissertation, interfered with his research, and affected his personal and professional reputation. Schwake eventually filed suit against ASU in federal court.

What is Title IX?

Title IX is a federal civil rights law passed by Congress as part of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. §1681 et seq. The law prohibits sex discrimination in federally funded schools for admissions, athletics, funding, and employment decisions. Over the years, case law and guidance from the U.S. Department of Education expanded Title IX to include sexual assault and harassment. The law applies to all federally funded educational institutions, including public K-12 schools, colleges, and universities.

Title IX law obligated Arizona State to investigate the allegations against Schwake. Increasingly over the last decade, colleges shirking this obligation have faced lawsuits from women alleging that a school failed to “prevent, eliminate, and remedy” sex-based discrimination. But the recent case against ASU by Schwake indicates that the tide may be turning to include men as possible victims of sex discrimination.

The University's Gender Discrimination

Schwake then took his case to a federal court in Arizona, arguing that the university discriminated against him based on sex, something prohibited by Title IX. Specifically, he alleged that the University:

  • Didn't allow him to read written information about the complaint;
  • Did not allow him to appeal at the university level; and
  • Conducted a one-sided investigation

While the trial court dismissed Schwake's complaint, stating that he didn't have a plausible Title IX claim for gender discrimination, a three-judge panel for the U.S. Court of Appeals for the 9th Circuit disagreed. See Schwake v. Arizona Board of Regents, et al., Slip Op. No. 18-15725 (9th Cir. July 29, 2020). The appeals court found that Schwake did provide enough evidence for an assumption of gender bias from ASU.

Judge Milan D. Smith, Jr, writing for the court, stated, “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.” The case now heads back to the U.S. District Court for the District of Arizona for reconsideration.

Experienced Title IX Attorney

If you or your child face Title IX allegations, you need an attorney well-versed in Title IX litigation and claims. Attorney Joseph D. Lento has successfully resolved hundreds of Title IX cases across the country through negotiation and the Title IX disciplinary process. Call the Lento Law Firm a call at 888-535-3686 or contact us online.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Joseph D. Lento has more than a decade of experience passionately fighting for the futures of his clients. Mr. Lento represents students and others in disciplinary cases and other proceedings at universities and colleges across the United States while concurrently fighting in criminal courtrooms in Philadelphia, the Pennsylvania counties, and New Jersey. Mr. Lento has helped countless students, professors, and others in academia at more than a thousand universities and colleges across the United States. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide.

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