Title IX extends to student-on-student harassment based on real or perceived sexual orientation

Recently the Ninth Circuit Court of Appeals ruled federal anti-discrimination law (known as Title IX) protected a straight male track student at the University of Arizona.

Michale Grabowski, a straight student athlete, was subject to “frequent sexual and homophobic bullying” because his teammates perceived him to be gay.” Grabowski v. Arizona Bd of Regents, 69 F.4th 1110 (9th Cir. 2023).

Grabowski claimed employees of the University of Arizona were “deliberately indifferent” to his pleas for help. And he alleged they retaliated against him for the complaints.

The Court held that Title IX of the Education Amendments of 1972 – barring schools receiving federal funds from tolerating “sex” discrimination – includes harassment based upon “perceived sexual orientation.”

In 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 – barring sex discrimination in employment – applies to all forms of gender discrimination, including sexual orientation and gender identity. Bostock v. Clayton County, 140 S. Ct. 1731 (2020) (finding “sexual orientation” discrimination within Title VII’s purview).

In Grabowski, the Ninth Circuit concluded “the same result applies to Title IX.” The Court then concluded that “perceived sexual orientation” is actionable because the harassers perceived the victim does not conform to traditional gender norms. Id.

The case was remanded so Grabowski could show how the harassment denied him educational benefits.

This case – unlikely to be reversed by the US Supreme Court – sends a clear message to all schools receiving federal funds, which is about all.

The ruling makes clear that in the Western U.S., if not the entire country, public schools (K-College) must protect students from bullying because of gender. School employees cannot be willfully blind to the actions of students occurring on campus or even off campus. See Mahanoy Area Sch. Dist. v. B.L., 141 S. Ct. 2038 (2021) (agreeing with Ninth Circuit schools have a duty to protect students against on-line bullying if there is a nexus between the harasser and the school).

Schools may also have an affirmative duty to identify those students who are being or have been bullied, harassed, hazed, or sexually abused. Suffering often leads to suicide and other forms of self-destructive behavior. Some students don’t tell their parents, given the threat of humiliation, or, in too many cases, removal from the home.

School districts that refuse to do little to protect students from bullying can be liable for significant damages. Simply searching for verdicts and settlements involving bullying, harassment, sexual abuse, and hazing show damage awards (and fees) heading into the multimillions.

The huge damage awards send a loud message. Not just to school districts, but also trial lawyers, many of whom are honored in the Daily Journal – like David M. Ring (of Taylor & Ring), who has specialized in sexual abuse cases.

So persons rallying against including LGBTIQA+ heroes in curriculum, or LGBTIQA+ inclusion in texts, or including LGBTIQA+ books in libraries, should understand the financial liabilities of school districts and taxpayers.

Also they should know who most of the victims really are – often their own children, who are presumably straight.

The majority of students being bullied for being LGBTIQA+, are really just like Michael Grabowski. They are not LGBTIQA+. Numerous studies show the most vulnerable kids are those who fail to conform to gender stereotypes. Rarely is the quarterback of the football team or the head cheerleader bullied or harassed for being LGBTIQA+. The boy in the choir and the girl on the basketball team may suffer different fates.

Studies show a higher percentage of high school students (much higher than the 6% who are LGBTIQA+) experience harassment based upon their perceived sexual orientation.

Recently, New Mexico State University canceled its basketball season after players sexually assaulted a player they perceived to be gay.

Likewise, Northwestern University is being sued by former football players who were subject to sexualized hazing for years.

In addition to Title IX ruling, California case law and statutory law holds school districts liable for failing to curb harassment and student suicides.

The epidemic prompted the U.S. Supreme Court in 2021 that the First Amendment is not a license to severely harass or bully students on or off campus. Mahanoy, 141 S. Ct. 2028, 2057 (Alito, J. concurring). It makes no difference if the students are bullied based on race, religion, national origin, gender, sexual orientation, or gender identity.

School boards that refuse to take affirmative steps to find bullied students, or fail to include LGBTIQA+ history, or remove LGBTIQA+ books, are only reinforcing the view that they are being deliberately indifferent to their students. The actions are not protected by the Constitution. That’s not coming from the liberals in California. That’s from the conservatives on the Supreme Court.