ASU male graduate can use Title IX in sexual misconduct case against him

A federal appeals court said it is 'entirely plausible' a male student was discriminated against on the basis of sex

Sex discrimination is a possible explanation for the University's approach to a sexual misconduct case from late 2014, according to an opinion from the 9th U.S. Circuit Court of Appeals posted Wednesday.

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," court documents said. 

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 Wednesday'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."

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 a "Dear Colleague" letter the U.S. Department of Education sent to a number of universities in 2011 about their handling of sexual misconduct among students. 

In addition, Schwake pointed to a 2014 DOE investigation into the University’s sexual misconduct complaints. 

That letter, the court said, is indicative of "tangible pressure" on universities and could affect how a college deals with sexual misconduct cases.

Schwake's lawyers argued that male respondents involved with sexual harassment and misconduct cases are often found guilty regardless of evidence — and Schwake's situation is an example of the University ruling at the same time. 

The case has been remanded, which means it will now return to a lower court for reconsideration.

Schwake's attorney declined to comment. The University declined to comment, as they do not comment on pending litigation.

Case background

In August 2014, Schwake received a letter from the University's Office of Student Rights and Responsibility, notifying him another student had filed a complaint against him. The letter cited three Student Code of Conduct violations "including unwanted or repeated significant behavior and sexual misconduct," according to the opinion. 

Court documents also said that Schwake and the student who filed the complaint were in a "'on-again off again' relationship."

Schwake provided a written account of the alleged incident days after he received notice of the complaint. Once accounts were reviewed, Schwake received another letter in September 2014 that said the University found him responsible for the disciplinary charges. He was suspended until Fall 2017. 

According to University policy, a student cannot graduate until a hearing process has been concluded. In October 2014, Schwake contacted a lawyer to request an appeal hearing from the University.

By changing punishment, the court infers that "the University sought to show that it took sexual misconduct complaints seriously by punishing Schwake while simultaneously insulating the finding of responsibility from scrutiny in light of the University’s policy limiting the availability of an appeal hearing."

In November 2014, Schwake received notice that an appeal was scheduled for a month later in December. Eight days before the court hearing, the associate dean withdrew Schwake's graduation application. 

The associate dean and Schwake's lawyer made a compromise days before the appeal hearing in December that would change his punishment from suspension to restriction of campus services, resulting in Schwake not being entitled to an appeal process. But, he can graduate.

"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 office of Attorney General Mark Brnovich, who represented the defendants, did not immediately respond to requests for comment. ABOR also did not immediately respond to requests for comment.

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.

Reach the reporter at and follow @piperjhansen on Twitter. 

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