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Man’s Title IX case against Arizona State University reinstated

Title IX

A federal appeals court has reversed a lower court and reinstated sex discrimination charges filed by a male graduate student charged with sexual misconduct against Arizona State University in connection with its handling of his case.

David Otto Schwake was an Arizona State University graduate student pursuing a Ph.D. in microbiology when he was charged in 2014 with sexual misconduct by a female student, according to Wednesday’s ruling by the 9th U.S. Circuit Court of Appeals in San Francisco in David Otto Schwake v. Arizona Board of Regents et al.

Mr. Schwake was told that if he filed his own complaint against the complainant in his case, it could lead to further investigations and additional disciplinary sanctions, including degree revocation, according to the ruling.

The university’s final decision was that he could graduate but with restrictions including a three-year ban on any paid or volunteer position at the university, which included a post-doctoral position.

The ruling said that although he 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.”

Meanwhile, an associate professor had “loudly discussed” Mr. Schwake’s disciplinary case with a group in his office with the door open, identifying Mr. Schwake, according to the ruling.

Mr. Schwake filed suit against the university in U.S. District Court in Phoenix, seeking $20 million in damages as well as declaratory and injunctive relief, charging violation of Title IX, the federal civil rights law that protects people from discrimination based on sex in education programs that receive federal financial assistance.

The district court dismissed the claim, holding that some of Mr. Schwake’s allegations were conclusory, and that the university’s aggressive response to the sexual misconduct complaint was not evidence of gender bias.

A three-judge appeals court panel unanimously reinstated the case, concluding Mr. Schwake had plausibly alleged the university had discriminated against him on the basis of sex.

“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,” including an alleged April 2014 Department of Education investigation of the university for possible Title IX violations in its handling of sexual misconduct complaints.

“We are satisfied that Schwake’s allegations of contemporaneous pressure and gender-based decision-making establish background indicia of sex discrimination relevant to his Title IX claim,” the ruling said.

The university’s refusal to permit him to file a harassment complaint against the complainant “is also probative of gender bias,” the ruling said.
“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,” the decision said.

 “This is sufficient for Schwake’s Title IX claim to proceed beyond the motion to dismiss stage,” the panel said in remanding the case for further proceedings.

An attorney with the Arizona attorney general’s office, which represented the university, had no comment. Mr. Schwake’s attorney did not respond to a request for comment.