Appeals Court Rules in Favor of College Athlete in Antigay Harassment Case

The Ninth U.S. Circuit Court of Appeals delivered a partial victory for a college athlete who said he was kicked off his college track team and had his scholarship revoked because team members perceived him to be gay.

Michael Grabowski filed suit against the University of Arizona in Tucson in 2018, alleging he was the victim of “sexual and homophobic bullying” from teammates and coaches because they perceived him as gay, and deliberate indifference and retaliation from the university and the Arizona Board of Regents when he reported the abuse. Grabowski was removed from the team after he reported the abuse in a meeting with his coaches, some of whom are also defendants in the case. He left the school after his scholarship was revoked.

In its 28-page ruling, the three-judge panel found that discrimination based on a person’s actual or perceived sexual orientation “is a form of sex-based discrimination under Title IX,” which forbids discrimination in federally funded education programs.

The panel also agreed with Grabowski that the lower court erred in dismissing his claim of retaliation by the university and sent the case back to court to allow him to present evidence in 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 wrote. “The panel therefore reversed the dismissal of Grabowski’s retaliation claim and remanded for further proceedings.”

However, the panel affirmed the lower court’s ruling that Grabowski did not suffer from sufficient educational hardship to file suit under the law.

“Plaintiff experienced increasing sadness, but the operative complaint contains no facts describing how, if at all, his educational opportunities were diminished,” the panel found. “Therefore, the district court did not err by dismissing this claim.”

Also charged in the suit are Frederick Lee Harvey, director of cross country and track and field, and his wife Janet Harvey; associate cross country and distance head coach James L. Li and his wife Jean Wang; and James L. Francis, senior associate director of athletics and track and field.

The court filings describe a hostile and homophobic environment when Grabowski arrived at the university as a freshman in 2017. He said he was immediately called antigay slurs by fellow teammates. When he informally spoke with coaches about the issue, Grabowski said they sided with his teammates, adding Li told him he simply needed to “adjust.” Another time he said he was verbally abused and accused of “faking” by coaches after he vomited twice and “performed poorly in a race,” although a later blood test showed he was suffering from a viral illness.

When he later provided the names of the teammates responsible for the bullying to his coaches, he said 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.” Grabowski said he was so terrified by the incident that he fainted.

Grabowski was removed from the team at the end of that meeting. His scholarship was later revoked, and he left the university in 2018.

The university countered Grabowski’s claims, saying instead that he was kicked off the team for misconduct, including an alleged inappropriate joke about rape and an unidentified racial incident. The school also said he fabricated his claims of abuse. Grabowski’s denied those claims.

“These are awful people, and he was treated terribly here,” Grabowski’s attorney, Bill Walker, told Courthouse News.

The case now returns to the lower court, where Grabowski will be allowed to request to amend his complaint and show how his education was impacted by the abuse.

“And I guaranteed you,” Walker said, “we will be able to prove that they are liars.”