FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID OTTO SCHWAKE,

Plaintiff-Appellant,

v.

ARIZONA BOARD OF REGENTS;

MICHAEL M. CROW; KEVIN COOK;

NOREAN SABLAN; RON HICKS;

GREGORY CASTLE; THOMAS SEAGER,

Defendants-Appellees.

No. 18-15725

D.C. No.

2:15-cv-00696-

SPL

OPINION

Appeal from the United States District Court

for the District of Arizona

Steven Paul Logan, District Judge, Presiding

Argued and Submitted March 5, 2020

San Francisco, California

Filed July 29, 2020

Before: KIM MCLANE WARDLAW, MILAN D. 

SMITH, JR., and PATRICK J. BUMATAY, 

Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.
2 SCHWAKE V. ARIZONA BOARD OF REGENTS

SUMMARY*

Title IX

The panel reversed in part and vacated in part the district 

court’s order of dismissal and remanded in an action alleging 

that the University of Arizona violated Title IX, 20 U.S.C. 

§ 1681(a), by discriminating against plaintiff on the basis of 

sex during the course of a sexual misconduct disciplinary

case against him. 

The panel held that plaintiff stated a Title IX claim 

against the University because he plausibly alleged gender 

bias. The panel held that plaintiff first established a 

background indicia of sex discrimination relevant to his Title 

IX claim by alleging that: (1) the University faced 

contemporaneous pressure as a result of a Department of 

Education investigation, which affected how it handled 

sexual misconduct complaints; and (2) the University had a 

pattern of gender-based decisionmaking.

The panel next considered the allegations concerning the 

disciplinary case against plaintiff. The panel held that public 

statements made by an associate professor at the University 

reflected an atmosphere of bias against plaintiff during the 

course of the University’s disciplinary case. The panel 

further noted that plaintiff alleged that the University 

(1) denied plaintiff an opportunity to appeal the punishment 

and the underlying findings; (2) refused plaintiff permission 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SCHWAKE V. ARIZONA BOARD OF REGENTS 3

to file a harassment complaint against the complainant; and 

(3) conducted a one-sided investigation. 

Considering the combination of plaintiff’s allegations of 

background indicia of sex discrimination along with the 

allegations concerning his particular disciplinary case, the 

panel concluded that sex discrimination was a plausible 

explanation for the University’s handling of the sexual 

misconduct disciplinary case against plaintiff. This was 

sufficient for plaintiff’s Title IX claim to proceed beyond the 

motion to dismiss stage.

COUNSEL

Aaron K. Block (argued), The Block Firm LLC, Atlanta, 

Georgia; Joseph P. Palmisano, Acaia Law Group, 

Scottsdale, Arizona; for Plaintiff-Appellant.

Michael K. Goodwin (argued) and Rusty D. Crandell, 

Assistant Attorneys General; Dominic E. Draye, Solicitor 

General; Mark Brnovich, Attorney General; Office of the 

Attorney General, Phoenix, Arizona; for DefendantsAppellees.
4 SCHWAKE V. ARIZONA BOARD OF REGENTS

OPINION

M. SMITH, Circuit Judge:

This case concerns an Arizona State University (the 

University1) disciplinary case against David Otto Schwake 

for alleged violations of the University’s Student Code of 

Conduct (the Student Code), triggered by another student’s 

complaint that Schwake had engaged in unwanted contact 

and sexual misconduct with her. Schwake brought this suit 

because of the University’s handling of the disciplinary case 

against him. In relevant part, he claimed that the University 

violated Title IX, 20 U.S.C. § 1681(a), as a federally funded 

educational institution that discriminated against him on the 

basis of sex during the course of the disciplinary case. The 

district court dismissed this claim because it deemed some 

of Schwake’s allegations to be conclusory. The court further 

reasoned that a university’s aggressive response to a sexual 

misconduct complaint is not evidence of gender bias.

We must decide whether Schwake plausibly alleged that 

the University discriminated against him on the basis of sex.2 

His complaint is similar to Title IX claims brought by a 

number of men alleging sex discrimination by federally 

funded universities and colleges in sexual misconduct 

disciplinary cases against them. Although our court has 

affirmed the dismissal of some such claims, Austin v. Univ. 

of Or., 925 F.3d 1133 (9th Cir. 2019), we have not provided 

guidance on what allegations suffice to state a Title IX claim. 

1 Unless otherwise indicated, we use the term “the University” to 

refer to all Defendants who Schwake sued in their official capacities.

2 Schwake also claimed violations of his constitutional due process 

rights pursuant to 42 U.S.C. § 1983. We affirm the dismissal of those 

claims in a concurrently filed memorandum disposition.
SCHWAKE V. ARIZONA BOARD OF REGENTS 5

Providing that guidance here, we conclude that Schwake 

plausibly alleged that the University discriminated against 

him on the basis of sex. We, therefore, reverse the district 

court’s dismissal of the Title IX claim.

BACKGROUND

I. Factual Background

In the summer and fall of 2014, Schwake was a 

University graduate student pursuing a Ph.D. in 

microbiology. For over three years, he worked in a campus 

lab as a student researcher alongside other Ph.D. students, 

including the student who made the sexual misconduct 

complaint against him (the complainant). Schwake and the 

complainant “oscillated between being professional 

coworkers and dozens of romantic encounters” between 

February 2013 and July 2014.

On August 14, 2014, Schwake received a letter from 

Norean Sablan, a senior coordinator with the University’s 

Office of Student Rights and Responsibility. The letter 

notified him of a complaint against him concerning 

“multiple instances of inappropriate behaviors and unwanted 

verbal and physical contact” with the complainant.3

 The 

letter informed Schwake of three pending disciplinary 

charges against him for Student Code violations, including 

unwanted or repeated significant behavior and sexual 

3 The letter directed Schwake to refrain from all contact with the 

complainant and indicated that Schwake would face additional 

disciplinary action if he failed to do so. Schwake’s lab supervisor set up 

a lab sharing schedule to prevent Schwake and the complainant from 

being in the lab at the same time. Schwake alleges that although he never 

violated the schedule, the complainant violated it over twenty times 

between August 14 and October 15, 2014.
6 SCHWAKE V. ARIZONA BOARD OF REGENTS

misconduct. During a meeting the next day, Sablan 

suggested that Schwake prepare evidence and witnesses 

while the University investigated.

Schwake and Sablan met a second time on August 22, 

2014 to discuss the sexual misconduct complaint. A few 

days later, Schwake provided, at Sablan’s request, a fourpage written account of the “most serious allegations” that 

“he touched [the complainant’s] breasts without her consent 

while she was asleep sometime between March 26 and 

March 27, 2014.” He included text messages, “which 

confirmed the sexual activity of the night of the accusation 

was consensual and that the two had a friendly and romantic 

relationship for several months afterwards.” Schwake stated 

that several students and staff members could corroborate his 

“on-again off again” relationship with the complainant and 

their consensual intimate contacts. He suggested that the 

complainant “may have deliberately provided false 

information or left out key details[.]”

On September 5, 2014, Schwake received a letter from 

Sablan, which explained that the University had found him 

responsible for the disciplinary charges. He was suspended 

until Fall 2017 “effective immediately,” unless he requested 

a hearing to appeal the decision. University Policy § 5-

403(D), the University’s student disciplinary procedure 

policy, would apply to that hearing. He could have legal 

representation, cross-examine witnesses against him, and 

present evidence and witnesses in his favor.

Shortly thereafter, Dr. Thomas Seager, an associate 

professor, “loudly discussed” Schwake’s disciplinary case 

with a group in his office with the door open. Dr. Seager 

“went into great detail” about the complainant’s 

“accusations including privileged information and the 

disciplinary process and told them that [the University] had 
SCHWAKE V. ARIZONA BOARD OF REGENTS 7

convicted [Schwake] of sexual assault and suspended him.” 

Dr. Seager told the group that Schwake was not allowed in 

the building, and that any one of them should immediately 

call the police if they saw Schwake in the building. Despite 

another professor’s complaint about his discussing 

Schwake’s disciplinary case, Dr. Seager continued to discuss 

the case in his course throughout the semester, using it “as 

an example of a real-life scenario and asking students how it 

should be handled.” In doing so, Dr. Seager identified 

Schwake “while disclosing confidential, graphic details” 

about the alleged sexual misconduct.

In early October 2014, a lawyer who Schwake had 

retained formally requested an appeal hearing on the 

University’s decision. In mid-October, Schwake was 

removed from the lab after the complainant obtained a state 

court harassment injunction against him. When Schwake

requested lab access, Dr. Ron Hicks, an Associate Dean of 

Students, told him that the University’s no-contact directive 

remained in effect. During this time, Schwake learned that 

the complainant had “harassed a student lab mate,” 

attempted to interfere with Schwake’s experiments, and 

made false statements to the lab supervisor.

On November 3, 2014, Dr. Hicks notified Schwake that 

the University had received a report that he was seen in the 

lab, in violation of the lab access restriction and two Student 

Code provisions. Dr. Hicks placed Schwake on an 

immediate interim suspension. At a mandatory in-person 

meeting two days later, Schwake maintained that he did not 

enter the lab but had only entered and quickly left the 

building where the lab was located. Dr. Hicks explained that 

the suspension would remain in place until the evidence 

proved no violation. At Schwake’s request, a University 
8 SCHWAKE V. ARIZONA BOARD OF REGENTS

security department employee e-mailed Dr. Hicks 

surveillance footage corroborating Schwake’s account.

On November 13, 2014, Schwake received notice that 

the appeal hearing in his disciplinary case was set for 

December 12, 2014. Eight days after receiving that notice, 

Dr. Hicks “forcibly withdrew” Schwake’s graduation 

application. Thereafter, Schwake learned that the 

complainant had “attempted to coerce members” of the lab 

to testify for her at the hearing “by falsely telling them that 

other labs members had agreed” to do so.

On December 3, 2014, Schwake and his lawyer met with 

Dr. Hicks at the University police station. Schwake’s lawyer 

and Dr. Hicks “had come up with a ‘mutually beneficial 

compromise’” that would allow Schwake to graduate by 

changing Schwake’s punishment from suspension to certain 

campus restrictions. Dr. Hicks explained that, as a result, 

Schwake was not entitled to a hearing.4

 When Schwake 

protested, Dr. Hicks stated that the decision was final; the 

University had no appeal process available. When Schwake 

asked Dr. Hicks whether he could file a complaint against 

the complainant, Dr. Hicks denied telling Schwake on 

multiple prior occasions that he could not do so until after 

the disciplinary hearing because it would be seen as 

retaliatory. Dr. Hicks then told Schwake that filing his own 

complaint could lead to further investigations and additional 

disciplinary sanctions, including degree revocation.

The following day, Schwake received a letter with the 

University’s final decision, outlining the following 

4 University Policy § 5-403 provides a hearing only in cases of 

suspension, expulsion, or degree revocation. “[T]he student will not be 

permitted to graduate until the hearing process has been concluded.”
SCHWAKE V. ARIZONA BOARD OF REGENTS 9

restrictions: a three-year restriction on accessing certain 

campus buildings, including the lab; a three-year ban on 

holding any paid or volunteer position at the University, 

including a post-doctoral position for Spring 2015; and a 

prohibition on any contact with the complainant with no end 

duration. Although Schwake 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.

II. Procedural History

Schwake sued in April 2015, seeking $20 million in 

damages as well as declaratory and injunctive relief. He 

asserted § 1983 claims against Defendants Sablan and 

Drs. Hicks, Castle, and Seager for alleged constitutional due 

process violations. He asserted a Title IX claim against the 

University, suing the foregoing defendants as well the 

Arizona Board of Regents, Michael M. Crow (the 

University’s President), and Dr. Kevin Cook (the 

University’s Dean of Students) in their official capacities. 

After the district court dismissed Schwake’s initial 

complaint on procedural grounds, Schwake filed the 

operative First Amended Complaint (FAC). The court 

granted the University’s motion to dismiss the FAC and 

dismissed Schwake’s claims with prejudice. Schwake 

timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We 

review de novo the grant of a motion to dismiss for failure 

to state a claim. Metzler Inv. GMBH v. Corinthian Colls., 

Inc., 540 F.3d 1049, 1061 (9th Cir. 2008). We accept as true 

all well-pleaded factual allegations and construe them in the 

light most favorable to the non-moving party. Id. Dismissal 
10 SCHWAKE V. ARIZONA BOARD OF REGENTS

of a claim is appropriate if the plaintiff fails to set forth 

sufficient factual allegations that would, if true, entitle the 

plaintiff to relief. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 555 (2007).

ANALYSIS

Title IX provides that “[n]o person in the United States 

shall, on the basis of sex, be excluded from participation in, 

be denied the benefits of, or be subjected to discrimination 

under any education program or activity receiving Federal 

financial assistance . . . .” 20 U.S.C. § 1681(a). “[S]ubject 

to a list of narrow exceptions not at issue here, [Title IX] 

broadly prohibits a funding recipient from subjecting any 

person to ‘discrimination’ ‘on the basis of sex.’” Jackson v. 

Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005).

Title IX is enforceable through an implied right of action 

in which monetary damages are available. Gebser v. Lago 

Vista Indep. Sch. Dist., 524 U.S. 274, 281 (1998). To state 

a Title IX claim, a plaintiff must plead that: (1) the defendant 

educational institutional receives federal funding; (2) the 

plaintiff was excluded from participation in, denied the 

benefits of, or subjected to discrimination under any 

education program or activity, and (3) the latter occurred on 

the basis of sex.5

 Here, Schwake alleged that the University 

receives federal funding. Thus, the issues on appeal concern 

the second and third elements. We first identify the relevant 

5 Although Title IX uses the term “sex,” we have used that term 

interchangeably with “gender.” See, e.g., Emeldi v. Univ. of Oregon, 

698 F.3d 715, 723 (9th Cir. 2012) (“Title IX of the Education 

Amendments of 1972 bars gender-based discrimination by federally 

funded educational institutions.”). We use the terms interchangeably to 

mean “sex” under Title IX for the purposes of our analysis.
SCHWAKE V. ARIZONA BOARD OF REGENTS 11

inquiry for us in this context and then turn to Schwake’s 

allegations.

I. The Relevant Title IX Inquiry in This Context

Title IX “encompass[es] diverse forms of intentional sex 

discrimination.” Jackson, 544 U.S. at 183. In relevant part, 

“Title IX bars the imposition of university discipline where 

gender is a motivating factor in the decision to discipline.” 

Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994); see 

also Austin, 925 F.3d at 1138–39 (considering allegations of 

sex discrimination during disciplinary proceedings for 

sexual misconduct charges). The gravamen of Schwake’s 

claim is that the University discriminated against him on the 

basis of sex during the course of the sexual misconduct 

disciplinary case against him.

Two of our sister circuits have fashioned doctrinal tests 

for sex discrimination claims in this context. Based on its 

view of the claims of “gender bias [to] be expected” in this 

context, the Second Circuit articulated the so-called 

“erroneous outcome” and “selective enforcement” tests. 

Yusuf, 35 F.3d at 715. Pursuant to the “erroneous outcome” 

test, the plaintiff “must allege particular facts sufficient to 

cast some articulable doubt on the accuracy of the outcome 

of the disciplinary proceeding.” Id. In a “selective 

enforcement” claim, a plaintiff must allege that “regardless 

of the student’s guilt or innocence, the severity of the penalty 

and/or the decision to initiate the proceeding was affected by 

the student’s gender.” Id. The Sixth Circuit has expressly 

adopted these tests as well as the so-called “deliberate 

indifference” test. See Doe v. Miami Univ., 882 F.3d 579, 

589 (6th Cir. 2018).

Some of our sister circuits have applied these tests 

without expressly adopting them. See Doe v. Valencia Coll., 
12 SCHWAKE V. ARIZONA BOARD OF REGENTS

903 F.3d 1220, 1236 (11th Cir. 2018) (“[W]e will assume 

for present purposes that a student can show a violation of 

Title IX by satisfying the ‘erroneous outcome’ test applied 

by the Second Circuit in Yusuf.”); Plummer v. Univ. of 

Houston, 860 F.3d 767, 777–78 (5th Cir. 2017) (“McConnell 

and Plummer and the University each rely on the theories 

adopted in Yusuf, so we need not speculate on any other 

possible theories of Title IX liability.”).

In this case, the district court referenced the erroneous 

outcome and selective enforcement tests as two “general 

categories” of Title IX claims in this context. The parties in 

part dispute whether Schwake pleaded an erroneous 

outcome theory. The underlying assumption was that 

Schwake must meet that test to state a Title IX claim. We 

disagree.

Although our court has acknowledged some of the 

doctrinal tests that other courts have employed in this 

context and assumed their application, see Austin, 925 F.3d 

at 1137–38, we have not expressly adopted any of them. 

Faced with that antecedent question here, we find persuasive 

the Seventh Circuit’s approach to Title IX claims in this 

context. The Seventh Circuit has found “no need to 

superimpose doctrinal tests on the statute[.]” Doe v. Purdue 

Univ., 928 F.3d 652, 667 (7th Cir. 2019). As the Seventh 

Circuit has explained, such tests “need not be considered 

because, at bottom, they all ask the same question: whether 

‘the alleged facts, if true, raise a plausible inference that the 

university discriminated [against the plaintiff] ‘on the basis 

of sex’?” Doe. v. Columbia Coll. Chi., 933 F.3d 849, 854–

55 (7th Cir. 2019) (quoting Purdue Univ., 928 F.3d at 667–

68). We adopt that far simpler standard for Title IX claims 

in this context. See Doe v. Univ. of the Scis., 961 F.3d 203, 

209 (3d Cir. 2020) (adopting the Seventh Circuit’s 
SCHWAKE V. ARIZONA BOARD OF REGENTS 13

“straightforward pleading standard” as “hew[ing] most 

closely to the text of Title IX”). With this standard in mind, 

we turn to Schwake’s claim.

II. The Sufficiency of Schwake’s Title IX Claim

To survive a motion to dismiss, a Title IX plaintiff “need 

only provide ‘enough facts to state a claim to relief that is 

plausible on its face.’” Austin, 925 F.3d at 1137 (emphasis 

added) (quoting Twombly, 550 U.S. at 570). In assessing the 

sufficiency of a complaint, “[t]he role of the court . . . is not 

in any way to evaluate the truth as to what really happened, 

but merely to determine whether the plaintiff’s factual 

allegations are sufficient to allow the case to proceed.” Doe 

v. Columbia Univ., 831 F.3d 46, 59 (2d Cir. 2016). Sex 

discrimination need not be the only plausible explanation or 

even the most plausible explanation for a Title IX claim to 

proceed. See Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 

2018).

The district court dismissed Schwake’s Title IX claim 

with prejudice by reasoning that a university’s aggressive 

response to sexual misconduct allegations “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. 

Hewing to our limited role at this stage, we consider first the 

allegations of background indicia of sex discrimination, 

namely, the pressure that the University faced concerning its 

handling of sexual misconduct complaints and gender-based 

decisionmaking against men in sexual misconduct 

disciplinary cases. We then consider the allegations 

concerning the disciplinary case against Schwake. 

Considering the combination of these allegations, we 

conclude that Schwake plausibly alleged gender bias by the 

University.
14 SCHWAKE V. ARIZONA BOARD OF REGENTS

A. Background Indicia of Sex Discrimination

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. He points to a “Dear Colleague” letter that the 

Department of Education (DOE) sent in 2011 to various 

colleges and universities across the country regarding the 

handling of sexual misconduct complaints.6 “Other circuits 

have treated the Dear Colleague letter as relevant in 

evaluating the plausibility of a Title IX claim” in this 

context. Purdue Univ., 928 F.3d at 668. Although we do 

not disagree that the letter may be relevant, we decline to 

consider the letter here because the pleadings did not allege 

it.

Schwake also points to his allegation that in April 2014 

the DOE initiated an investigation of the University for 

possible Title IX violations in the University’s handling of 

sexual misconduct complaints. As Schwake argues, it is 

reasonable to infer that such a federal investigation placed 

tangible pressure on the University.7

 See Baum, 903 F.3d 

6

An archived version of the letter is available here: 

https://www2.ed.gov/about/offices/list/ocr/letters/colleague201104.pdf.

7 We reject the University’s assertion that Schwake waived this 

argument. Although we generally treat arguments not raised in an 

opening brief as waived, we decline to follow that rule here because the 

original counsel who filed the opening brief withdrew from 

representation. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 

2009) (“We will not . . . review an issue not raised below unless 

necessary to prevent manifest injustice.” (citation omitted)). Our court 

appointed pro bono counsel for Schwake, who filed Schwake’s 

supplemental brief that raised this argument in light of the complaint’s 

allegations.
SCHWAKE V. ARIZONA BOARD OF REGENTS 15

at 586 (recognizing that a defendant university “stood to lose 

millions in federal aid if the [d]epartment found it noncompliant with Title IX.”). It is also “entirely plausible” that 

such pressure would affect how the University treated 

respondents in sexual misconduct disciplinary proceedings 

on the basis of sex. See Columbia Univ., 831 F.3d at 57–58 

(finding it “entirely plausible that the University’s decisionmakers and its investigator were motivated to favor the 

accusing female over the accused male, so as to protect 

themselves and the University from accusations that they 

had failed to protect female students from sexual assault” 

and “avoid further fanning the criticism” of the university).

Schwake’s allegations of a pattern of gender-based 

decisionmaking against male respondents in sexual 

misconduct disciplinary proceedings make that inference 

plausible. He alleged that “[m]ale respondents in student 

disciplinary proceedings involving alleged sexual 

harassment and misconduct cases at [the University]” “are 

invariably found guilty, regardless of the evidence or lack 

thereof.” Schwake further alleged that he was “aware of 

recent [University] disciplinary cases against male 

respondents in alleged sexual misconduct cases who were all 

found guilty regardless of the evidence or lack thereof.” The 

district court was not free to ignore this non-conclusory and 

relevant factual allegation. See Doe v. Miami University, 

882 F.3d 579, 593–94 (6th Cir. 2018) (concluding that a 

pattern of gender-based decisionmaking may support a Title 

IX claim).

The University contends that the allegations of genderbased decisionmaking are conclusory because they lack the 

detail of the allegations in Doe v. Miami University, 882 F.3d 

579 (6th Cir. 2018). The plaintiff’s allegations there 

included: (1) “every male student accused of sexual 
16 SCHWAKE V. ARIZONA BOARD OF REGENTS

misconduct in the Fall 2013 and Spring 2014 semesters was 

found responsible for the alleged violation,” (2) “nearly 

ninety percent of students found responsible for sexual 

misconduct between 2011 and 2014 have male first-names,” 

(3) an affidavit from an attorney who represented “many 

students in Miami University’s disciplinary proceedings” 

who “describe[d] a pattern of the University pursuing 

investigations concerning male students, but not female 

students,” and (4) the plaintiff’s allegation that the university 

investigated him rather than the complainant. Id. at 593–94.

The absence of this level of detail from Schwake’s 

complaint does not render Schwake’s allegation conclusory 

or insufficient. There is no heightened pleading standard for 

Title IX claims. See Austin, 925 F.3d at 1137 n.4. That point 

is particularly apt here. It may be difficult for a plaintiff to 

know the full extent of alleged discrimination in 

decisionmaking before discovery allows a plaintiff to 

unearth information controlled by the defendant. See 

Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002); 

Miami Univ., 882 F.3d at 594. Here, we are satisfied that 

Schwake’s allegations of contemporaneous pressure and 

gender-based decisionmaking establish background indicia 

of sex discrimination relevant to his Title IX claim.

B. Schwake’s Disciplinary Case

Although Schwake has alleged background indicia of 

sex discrimination, he “must combine [those allegations] 

with facts particular to his case to survive a motion to 

dismiss.” Columbia Coll. Chi., 933 F.3d at 855; Purdue 

Univ., 928 F.3d at 669; Austin, 925 F.3d at 1138. Schwake 

has done so in several respects.

First, Schwake draws our attention to his allegations 

concerning Dr. Seager’s statements following the 
SCHWAKE V. ARIZONA BOARD OF REGENTS 17

University’s September 5, 2014 decision. Dr. Seager’s 

comments that the University had “convicted [Schwake] of 

sexual assault” and that individuals “should immediately call 

the police” if they saw Schwake in the building layered 

criminal overtones onto what was essentially a preliminary 

finding made by University officials in a school disciplinary 

case. Dr. Seager also divulged confidential and privileged 

information about Schwake’s disciplinary case, shared 

“graphic” details about the alleged assault with other 

students, and used the case as a classroom prompt about how 

to handle sexual misconduct complaints. Dr. Seager made 

these comments despite the fact that Schwake had the right 

to appeal the University’s decision, thereby ensuring that 

one version of the sexual misconduct disciplinary case 

would be the publicly known version. This alleged conduct 

reflects an atmosphere of bias against Schwake during the 

course of the University’s disciplinary case.

The University argues that Dr. Seager’s statements 

cannot show that gender bias affected Schwake’s sexual 

misconduct disciplinary case because Dr. Seager was not a 

decisionmaker. We disagree. Statements by “pertinent 

university officials,” not just decisionmakers, can support an 

inference of gender bias. See Yusuf, 35 F.3d at 715. 

Dr. Seager’s statements are relevant here precisely because 

he knew privileged and confidential information about the 

case shortly after the University made a preliminary 

decision, despite not being a decisionmaker. As Schwake 

alleged, Dr. Seager could only have obtained the information 

he knew from University officials or other persons involved 

in the case. Like the procedural irregularities some of our 

sister circuits have considered when faced with allegations 

of pressure, the violation of confidentiality by those involved 

in Schwake’s disciplinary case supports an inference of 

gender bias when considered along with Schwake’s 
18 SCHWAKE V. ARIZONA BOARD OF REGENTS

allegations of background indicia of sex discrimination. See 

Menaker v. Hofstra Univ., 935 F.3d 20, 33 (2d Cir. 2019) 

(“[W]hen combined with clear procedural irregularities in a 

university’s response to allegations of sexual misconduct, 

even minimal evidence of pressure on the university to act 

based on invidious stereotypes will permit a plausible 

inference of sex discrimination.” (emphasis in original)); see 

also Columbia Univ., 831 F.3d at 56–57 (recognizing that 

procedural irregularities in the university’s investigation and 

handling of a sexual assault complaint raised an inference of 

bias).

Second, Schwake draws our attention to Dr. Hicks’s 

treatment of him after Schwake’s lawyer and Dr. Hicks 

fashioned a new punishment for Schwake that did not 

involve suspension. Despite Schwake’s repeated protests, 

Dr. Hicks refused to permit Schwake to appeal the 

punishment and the University’s underlying finding of 

responsibility on the sexual misconduct Student Code 

violations. Contrary to the University’s suggestion that there 

can be no showing of gender bias because University policy 

foreclosed an appeal, gender bias is a plausible explanation 

in light of the background indicia of sex discrimination. In 

modifying the punishment, the inference may be drawn 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. See Columbia Univ., 

831 F.3d at 57.

Dr. Hicks’s refusal to permit Schwake to file a 

harassment complaint against the complainant is also 

probative of gender bias. Dr. Hicks told Schwake that if he 

filed a complaint against the complainant, it would result in 
SCHWAKE V. ARIZONA BOARD OF REGENTS 19

“further investigations” and “additional sanctions” against 

him, including “degree revocation.” Dr. Hicks’s refusal to 

permit Schwake to pursue a complaint against the 

complainant is consistent with the allegations that the 

University treated male respondents in sexual misconduct 

disciplinary proceedings differently because of the pending 

DOE investigation into the University’s handling of sexual 

misconduct complaints. See Miami Univ., 882 F.3d at 594 

(inferring gender bias where the plaintiff alleged, in part, that 

the university “faced external pressure from the federal 

government . . . . to combat vigorously sexual assault on 

college campuses,” which “led [the university] to 

discriminate against men in its sexual-assault adjudication 

process”). Absent the sexual misconduct proceeding and the 

alleged pressure that the University faced regarding its 

handling of sexual misconduct complaints, the inference 

may be drawn that Schwake would have been able to pursue 

his own complaint.

Pointing to Austin, the University argues that Dr. Hicks’s 

refusal to let Schwake file his own complaint cannot show 

gender bias. In Austin, the plaintiffs argued that the 

university was biased against men because it disciplined 

male students for sexual misconduct but never female 

students. 925 F.3d at 1138. Our court rejected that argument 

because the complaint did not allege that female students 

were accused of sexual misconduct. Id. Our court reasoned 

that, without similarly situated female students, there could 

be no inference of gender bias. Id. However, Schwake does 

not allege the selective enforcement theory that the plaintiffs 

there alleged. We have also clarified here that a plaintiff 

need not satisfy that test to state a Title IX claim. Thus, this 

aspect of Austin is inapposite.
20 SCHWAKE V. ARIZONA BOARD OF REGENTS

Finally, Schwake’s allegations of the University’s onesided investigation support an inference of gender bias. 

According to Schwake, the University (1) refused to provide 

him with any written information about the complainant’s 

allegations against him and only orally summarized them; 

(2) failed to consider his version of the alleged assault or to 

follow up with the witnesses and evidence he offered in his 

defense; (3) promised him that it would only consider “one 

accusation at a time” but then suspended him based on 

additional violations of the Student Code to which he was 

not given an opportunity to respond; and (4) ultimately 

found him responsible for the charges without any access to 

evidence or considering his exculpatory evidence. These 

allegations echo some of the irregularities on which our 

sister courts have relied to sustain a Title IX claim for sex 

discrimination in the context of a sexual misconduct 

disciplinary proceeding. See, e.g., Purdue Univ., 928 F.3d 

at 669 (finding sex discrimination plausible based in part on 

the male plaintiff’s allegations that the university’s Title IX 

investigator credited the story of the female accuser over the 

accused male student although the investigator had never 

spoken with the accuser); Baum, 903 F.3d at 586 (finding

sex discrimination based in part on the male plaintiff’s 

allegations that the university appeals board exclusively 

credited female testimony and rejected all male testimony 

although the initial investigator had credited the accused 

male’s account).

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. This is sufficient for 
SCHWAKE V. ARIZONA BOARD OF REGENTS 21

Schwake’s Title IX claim to proceed beyond the motion to 

dismiss stage.

CONCLUSION

We conclude that Schwake stated a Title IX claim 

against the University because he plausibly alleged gender 

bias. Accordingly, we reverse and vacate the district court’s 

order and judgment dismissing the claim with prejudice, and 

remand for further proceedings.

REVERSED in part, VACATED in part, and 

REMANDED. Each side shall bear its own costs.