Jeremy Rowles v. Curators of the Univ. of MO

United States Court of Appeals

For the Eighth Circuit

___________________________

No. 19-1946

___________________________

Jeremy A. Rowles

Plaintiff - Appellant

v.

Curators of the University of Missouri; Ellen L. Eardley; Andrea Hayes, Interim

Assistant Vice Chancellor for Civil Rights & Title IX; Salama Gallimore; Cathy

Scroggs

Defendants - Appellees

____________

Appeal from United States District Court

for the Western District of Missouri - Jefferson City

____________

Submitted: September 22, 2020

Filed: December 18, 2020

____________

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.

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SHEPHERD, Circuit Judge.

Jeremy A. Rowles, an African-American male, was a Ph.D. candidate at the

University of Missouri (University) when a white female undergraduate student filed

a Title IX complaint against him. Following an investigation, Rowles was found to

have violated the University’s policies prohibiting sexual harassment and stalking

on the basis of sex, and he was suspended for two years. Rowles filed this action

against the Curators of the University and four individual Title IX investigators

(collectively, Appellees), asserting nine claims. The district court 1 dismissed certain

claims for failure to state a claim, denied Rowles’s motion to compel discovery, and

granted summary judgment in favor of Appellees on the remaining claims. Rowles

now appeals, and having jurisdiction under 28 U.S.C. § 1291, we affirm.

I.

Rowles was a Ph.D. candidate in the University’s cultural anthropology

program. In 2015, while he was working as a teaching assistant, an undergraduate

student filed a sexual harassment complaint against him. The University deemed

the claim unsubstantiated. However, during the investigation, Appellee Salama

Gallimore, one of the University’s Title IX investigators, allegedly told Rowles that

he “looked like someone who might commit sexual assault.” R. Doc. 1-1, at 4.

In September 2016, Rowles met A.B., a white female undergraduate student,

at a dance fitness class that she taught at the University “Rec Center.” Rowles asked

A.B. out on a date, and she declined. Subsequently, Rowles sent A.B. numerous

flirtatious Facebook messages, prompting A.B. to ask him to stop because she said

he had crossed the line and the messages made her feel uncomfortable. Thereafter,

Rowles continued to attend A.B.’s dance classes and attempt to speak with her. He

also asked A.B. for private dance lessons and gave her a three-page letter expressing

his romantic feelings for her. A.B. filed a Title IX complaint, alleging sexual

harassment. The University’s Title IX Office informed Rowles that it was

investigating A.B.’s allegations as “fall[ing] under the sexual harassment and

stalking provisions” of the Standard of Conduct for Students and Student

Organizations. R. Doc. 1-1, at 70. After an investigation, Rowles was found to have

violated the University’s policies prohibiting sexual harassment and stalking on the

1

The Honorable Brian C. Wimes, United States District Judge for the Western

District of Missouri.

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basis of sex. The University suspended Rowles for four years and permanently

banned him from the residence halls and Rec Center. Rowles appealed within the

University process, and his suspension was reduced to two years.

The University’s sexual harassment policy prohibits:

1) Unwelcome sexual advances or requests for sexual activity by a

person or persons in a position of power or authority to another

person, or

2) Other unwelcome verbal or physical conduct of a sexual nature by a

person to another person, when:

a) Submission to or rejection of such conduct is used explicitly

or implicitly as a condition for academic or employment

decisions; or

b) Such conduct creates a hostile environment by being

sufficiently severe or pervasive and objectively offensive that

it interferes with, limits or denies the ability of an individual

to participate in or benefit from educational programs or

activities or employment access, benefits or opportunities.

R. Doc. 1-1, at 70. Additionally, the University’s policy prohibiting stalking on the

basis of sex provides:

Stalking on the basis of sex is following or engaging in a course of

conduct on the basis of sex with no legitimate purpose that puts another

person reasonably in fear for his or her safety or would cause a

reasonable person under the circumstances to be frightened, intimidated

or emotionally distressed.

R. Doc. 1-1, at 70.

Rowles filed this action against the Curators of the University and four

individual Title IX investigators: Cathy Scroggs, Ellen Eardley, Gallimore, and

Andrea Hayes. He asserted nine claims: three alleging First Amendment

violations—substantial overbreadth, void for vagueness, and retaliation—as well as

claims for violations of procedural due process, substantive due process, Title IX’s

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prohibition on sex discrimination in education, Title VI’s prohibition on race

discrimination in federally funded programs, and the Missouri Human Rights Act’s

(MHRA) prohibitions on race and sex discrimination in public accommodations.

Appellees moved for dismissal of all claims, and the district court dismissed the

substantial overbreadth, Title IX, and MHRA claims.

In an effort to obtain evidence in support of his Title VI claim, Rowles sought

information in discovery regarding prior Title IX complaints received by the

University. Appellees provided summary information for 60 complaints, including

the date of the complaint, the race and sex of the accused, the policies which the

accused was found to have violated, and the punishment imposed. Rowles moved

to compel the production of the Title IX complaints, investigations, and findings

pertaining to the 60 complaints. He argued he needed the actual records for two

reasons: (1) to show that the University disproportionately sanctions African-

American students; and (2) because the records would reveal the factual

circumstances underlying each complaint, which were necessary for him to identify

similarly situated comparators. The district court denied the motion. It explained

that a showing of disproportionate sanctions required statistical analysis and that

Rowles had not designated an expert witness for such analysis. It further stated its

belief that the existing discovery was sufficient for Rowles to identify similarly

situated comparators, which it said were graduate students accused by undergraduate

students of sexual harassment and stalking on the basis of sex. Additionally, the

district court reasoned that disclosure of the records would unduly burden Appellees.

Rowles moved for summary judgment on his First Amendment claims, which

the district court denied. Appellees moved for summary judgment on all remaining

claims. In granting Appellees’ motions, the district court held that: (1) on the Title

VI claim, Rowles failed to demonstrate that similarly situated comparators were

disciplined less harshly; (2) the University’s sexual harassment and stalking policies

were not unconstitutionally vague as applied to Rowles; and (3) the record

established that Rowles did not engage in protected speech nor was he punished for

his speech, and even assuming he had engaged in protected speech, he failed to

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demonstrate that he was deprived of a clearly established First Amendment right. 2

Rowles appeals the district court’s dismissal of his substantial overbreadth, Title IX,

and MHRA claims; its denial of his motion to compel discovery; and its grants of

summary judgment on his vagueness, First Amendment retaliation, and Title VI

claims. Due to the nature of the issues, we will begin by addressing the denial of

Rowles’s motion to compel.

II.

Rowles challenges the district court’s denial of his motion to compel, which

is most relevant to his Title VI claim. “A district court has very wide discretion in

handling pretrial discovery and this Court is most unlikely to fault its judgment

unless, in the totality of the circumstances, its rulings are seen to be a gross abuse of

discretion resulting in fundamental unfairness in the trial of the case.” United States

v. One Assortment of 93 NFA Regulated Weapons, 897 F.3d 961, 966 (8th Cir.

2018) (citation omitted). For the reasons discussed below, we conclude that Rowles

has failed to meet his burden of showing a gross abuse of discretion.

We begin by observing that Rowles took a “kitchen sink” approach in his

complaint. In his 58-page, 282-paragraph amended complaint, he asserted nine

different causes of action under both federal and state law. In addition, Rowles

alleged few facts in support of his Title VI claim: (1) Gallimore told him in a prior

investigation that he looked like someone who might commit sexual assault; (2) a

forthcoming law review article posited that the University’s enforcement of Title IX

“likely” discriminates against African-Americans; (3) “[o]n information and belief,

a statistical analysis of Title IX sanctions imposed by the University over the last

several years will show a pattern and practice of selective enforcement against male

students”; and (4) Rowles would have been treated less harshly if he were a white

Ph.D. candidate. R. Doc. 1-1, at 51-52. He did not identify any non-African-

2

The district court also granted summary judgment in favor of Appellees on

Rowles’s procedural and substantive due process claims, neither of which he

challenges on appeal.

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American males who were punished less harshly. However, he urged the district

court not to dismiss the claim on the grounds that information on such comparators

was in the unique possession of the University and that discovery would “bear out”

his assertions. We agree with the district court’s observation that his request

“stretche[d] the confines of Fed. R. Civ. P. 12(b)(6).” R. Doc. 28, at 22. It appears

that Rowles was attempting to “skip” to the discovery process to learn facts that

likely should have been uncovered in a pre-suit investigation and pleaded in his

complaint.

Unfortunately, Rowles’s “kitchen sink” approach carried over to the

discovery process. He sought from Appellees information pertaining to all Title IX

complaints received by the University for the previous five years. In response,

Appellees provided much of the requested information for complaints going back

three years, a time frame the district court ultimately found sufficient. Appellees

provided summary information for a total of 60 complaints. Their responses

revealed that, approximately one year prior to Rowles’s discipline, two white

students were disciplined less harshly for violating the policies prohibiting sexual

harassment and stalking on the basis of sex. To gain more information on potential

similarly situated comparators, Rowles then moved to compel production of the

actual Title IX complaints, investigations, and findings pertaining to all 60 Title IX

complaints, even though he had not expressly requested such records in discovery.

See R. Doc. 57, at 3. During a telephone conference on the motion to compel,

Appellees stated that they would be willing to provide more information regarding

the two white students mentioned above. However, Rowles did not take Appellees

up on their offer: in supplemental briefing following the telephone conference,

Rowles continued to insist upon obtaining records for all 60 complaints.

The district court denied Rowles’s motion, based on its understanding that

Appellees’ existing discovery responses were sufficient for Rowles to identify

similarly situated comparators. Additionally, regarding Rowles’s attempt to show

disparate treatment of African-Americans, the district court observed that such

showing requires a “statistical analysis” and that Rowles had not designated an

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expert witness for such analysis. R. Doc. 57, at 4. On appeal, Rowles argues that

the district court’s denial of the motion prevented him from obtaining evidence

necessary to prove that similarly situated comparators were treated differently.

Further, Rowles points out that the district court ultimately granted summary

judgment to Appellees on the basis that he failed to produce evidence that his

proffered comparators engaged in sufficiently similar conduct, which the discovery

he sought would have revealed.

While we find such a catch-22 concerning, in light of Rowles’s approach to

pleading and discovery, as well as Appellees’ offer to provide more information on

the two white students who committed the same violations, we cannot say that the

district court abused its discretion in denying Rowles’s motion to compel. Cf. Stuart

v. Gen. Motors Corp., 217 F.3d 621, 637 (8th Cir. 2000) (district court did not abuse

its discretion in refusing to compel the discovery of documents in Title VII case

showing that female plaintiff was treated differently than similarly situated male co-

workers); United States v. Hirsch, 360 F.3d 860, 864 (8th Cir. 2004) (district court

did not abuse its discretion in refusing to compel discovery in selective prosecution

case because defendant failed to produce “at least some credible showing of

differential treatment of similarly situated members of other races or a protected

class”). Moreover, as explained in further detail below, see infra Section III.A, we

do not think the district court’s discovery ruling prevented Rowles from adequately

opposing Appellees’ motion for summary judgment.

III.

Rowles next contends that the district court erred in granting summary

judgment in favor of Appellees on his Title VI, vagueness, and First Amendment

retaliation claims. We review de novo a grant of summary judgment. Jenkins v.

Winter, 540 F.3d 742, 748 (8th Cir. 2008). “Viewing the evidence and drawing all

inferences most favorably to the non-moving party,” we affirm “if there is no

genuine issue of material fact and the moving party is entitled to judgment as a matter

of law.” Id.

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A.

Rowles argues that there are genuine issues of material fact as to whether

similarly situated white students were disciplined less harshly, making summary

judgment on his Title VI claim improper. Title VI prohibits discrimination on the

basis of race in federally funded programs. See 42 U.S.C. § 2000d (“No person in

the United States shall, on the ground of race, color, or national origin, be excluded

from participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance.”). It is

undisputed that the University receives federal funding. To prevail on his Title VI

claim, Rowles must show that his race, color, or national origin motivated the

defendant’s discriminatory conduct. See Thompson v. Bd. of Spec. Sch. Dist. No.

1, 144 F.3d 574, 581 (8th Cir. 1998). When there is no direct evidence of

discrimination, the plaintiff may rely upon the three-step burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for Title

VII claims. See Fuller v. Rayburn, 161 F.3d 516, 518 (8th Cir. 1998). On appeal,

Rowles does not argue that there is direct evidence of discrimination, so we will

apply the McDonnell Douglas framework to determine whether the district court

properly granted summary judgment on this claim.

Under the McDonnell Douglas framework, the plaintiff must first establish a

prima facie case of racial discrimination. See 411 U.S. at 802. To establish a prima

facie case, the plaintiff must show: (1) “he is a member of a protected class”; (2) “he

suffered an adverse action at the hands of defendants in pursuit of his education”;

(3) “he was qualified to continue in pursuit of his education”; and (4) he was treated

differently from similarly situated students outside his protected class. Ajiwoju v.

Curators of Univ. of Mo., No. 06-1005-CV-W-FJG, 2009 WL 10705058, at *2

(W.D. Mo. Feb. 11, 2009) (citation omitted), aff’d sub nom. Ajiwoju v. Univ. of

Mo.-Kansas City, 363 F. App’x 420 (8th Cir. 2010) (per curiam). If the plaintiff

establishes a prima facie case, the burden shifts to the defendant to proffer a

legitimate, nondiscriminatory reason for its decision. McDonnell Douglas Corp.,

411 U.S. at 802. If the defendant proffers such a reason, the burden shifts back to

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the plaintiff to show that the proffered reason was mere pretext for discrimination.

Id. at 804.

The district court concluded that Rowles failed to make a prima facie case

because he failed to demonstrate that his proffered comparators—particularly the

two white students also accused of sexual harassment and stalking on the basis of

sex—had engaged in sufficiently similar conduct. However, the district court also

acknowledged that it denied Rowles access to further discovery which could have

revealed such information. We agree with the district court that Rowles failed to

meet his burden regarding similarly situated comparators, albeit for a different

reason.

Summary judgment was appropriate because Rowles failed to present

evidence that his proffered comparators, including the two white students mentioned

above, were graduate students and thus similarly situated to him in all relevant

respects. In his amended complaint, Rowles alleged that Appellees would have

treated him differently if he were a white Ph.D. student. Nonetheless, there is no

indication from the record that Rowles sought to discover from Appellees whether

the students who were the subject of Title IX complaints were graduate students.

Moreover, the district court made clear in its ruling on Rowles’s motion to compel

that the proper comparators were graduate students accused by undergraduate

students of sexual harassment and stalking on the basis of sex. Because it appears

that Rowles never challenged this finding, we will assume without deciding that such

graduate students are similarly situated in all relevant respects, as opposed to a

broader universe of students as urged by Rowles. While the district court was

mistaken in stating that Rowles already had information on the accused students’

status when it ruled on the motion to compel, nothing in the record suggests that

Rowles brought this deficiency to the district court’s attention, even after Appellees

moved for summary judgment. Nor is there any indication that Rowles subsequently

sought such information from Appellees. In sum, Rowles failed to show that

similarly situated comparators were treated differently because he failed to

demonstrate that his proffered comparators were graduate students. Accordingly,

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we affirm the district court’s grant of summary judgment on the Title VI claim. See

Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 851 (8th Cir.

2014) (appellate court may “affirm the district court’s judgment on any basis

supported by the record”).

B.

Next, Rowles argues that genuine issues of material fact exist as to whether

the University’s policies are unconstitutionally vague as applied to him. To survive

a vagueness challenge, a governmental policy must satisfy a two-prong test. “The

[policy] must first provide adequate notice of the proscribed conduct, and second,

not lend itself to arbitrary enforcement.” United States v. Barraza, 576 F.3d 798,

806 (8th Cir. 2009) (discussing vagueness in the context of a criminal statute).

“[F]lexibility and reasonable breadth” are acceptable as long as it is “clear what the

[rule] as a whole prohibits.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972)

(citation omitted). Moreover, “[t]he degree of vagueness that the Constitution

tolerates—as well as the relative importance of fair notice and fair enforcement—

depends in part on the nature of the enactment.” Vill. of Hoffman Estates v. Flipside,

Hoffman Estates, Inc., 455 U.S. 489, 498 (1982). When, as here, an enactment does

not impose criminal penalties, due process tolerates a lesser degree of specificity

than it would from a criminal statute. Id. at 498-99. Still less specificity may be

allowed for public school disciplinary rules. See Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 686 (1986).

We agree with the district court that the policies provide adequate notice of

what conduct is prohibited. To constitute sexual harassment under the University’s

policy, the verbal conduct must be “sufficiently severe or pervasive and objectively

offensive.” Similarly, to constitute stalking, a person must engage in conduct “with

no legitimate purpose that puts another person reasonably in fear for his or her safety

or would cause a reasonable person under the circumstances to be frightened,

intimidated, or emotionally distressed.” These qualifiers, particularly the

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“objective” and “reasonable person” components, provide adequate notice in this

context.

Additionally, we agree that the individual Appellees’ inability to agree on the

exact scope of prohibited conduct or the definition of words in the policies does not

mean the policies are subject to arbitrary enforcement. Enforcement of student

conduct policies requires some degree of judgment. See Tinker v. Des Moines

Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969) (noting the “comprehensive

authority” of school officials to proscribe and control conduct); Grayned, 408 U.S.

at 110-11. We also agree with Appellees that although “borderline conduct may

prompt disagreement about whether the policy applies in a given case, the mere fact

that enforcement requires the exercise of a reasonable degree of judgment does not

make the policy impermissibly vague.” Appellees’ Br. 50 (citing Grayned, 408 U.S.

at 114); see also State v. Vaughn, 366 S.W.3d 513, 521-22 (Mo. 2012) (en banc)

(opining that “emotional distress” are words with common understanding).

Accordingly, we affirm the district court’s grant of summary judgment on Rowles’s

void for vagueness claim.

C.

Rowles next challenges the district court’s grant of summary judgment on his

First Amendment retaliation claim. He argues that his “amorous speech” is

protected under the First Amendment and that genuine issues of fact exist as to

whether he was punished for engaging in protected speech. A plaintiff alleging First

Amendment retaliation must show that (1) he engaged in a protected activity; (2)

defendant took adverse action against him that would chill a person of ordinary

firmness from continuing in the activity; and (3) the adverse action was motivated

in part by plaintiff’s exercise of his constitutional rights. Scheffler v. Molin, 743

F.3d 619, 621 (8th Cir. 2014). Appellees additionally asserted that they are protected

by qualified immunity. To survive Appellees’ qualified immunity defense, Rowles

must show that Appellees deprived him of a constitutional right and that his

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constitutional right was clearly established at the time of Appellees’ alleged

misconduct. See Nord v. Walsh Cnty., 757 F.3d 734, 738 (8th Cir. 2014).

Rowles concedes that summary judgment was properly granted as to

Gallimore. As to Eardley and Scroggs, Rowles argues that there are genuine issues

of material fact concerning whether they took adverse action against him for

engaging in protected “amorous speech.” We agree with the district court that even

if Rowles had shown that he engaged in protected speech and that a causal

connection exists between such speech and his discipline, Eardley and Scroggs are

nonetheless entitled to qualified immunity because Rowles cannot show that he was

deprived of a clearly established constitutional right. See id. Rowles does not point

to any clearly established law showing that a suspension from a University for a

course of conduct found to constitute sexual harassment and stalking on the basis of

sex could give rise to a First Amendment violation. It was reasonable for Eardley

and Scroggs to conclude that it was permissible under the First Amendment to

punish Rowles for violating the University’s policies against harassment and

stalking. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) (“For a constitutional right

to be clearly established, its contours ‘must be sufficiently clear that a reasonable

official would understand that what he is doing violates that right.’” (quoting

Anderson v. Creighton, 483 U.S. 635, 640 (1987))).

Next, we address Rowles’s argument that the district court erroneously held

that the Eleventh Amendment barred the claim against Hayes in her official capacity.

Notwithstanding Eleventh Amendment immunity, Ex parte Young allows suits for

injunctive relief to proceed against a state official sued in her official capacity. See

209 U.S. 123 (1908). Rowles sued Hayes in her official capacity as the current Vice

Chancellor for Civil Rights and Title IX, seeking only an injunction ordering his

reinstatement as a doctoral candidate and prohibiting enforcement of the sexual

harassment and stalking policies to the extent they are void for vagueness or

overbroad. We agree with Appellees that Rowles’s request for reinstatement is moot

because his suspension ended in July 2019. In addition, we agree that Rowles is not

entitled to the requested injunctive relief because he did not suffer a First

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Amendment violation. 3 Accordingly, we affirm the district court’s grant of

summary judgment on the First Amendment retaliation claim in its entirety. See

Loftness, 742 F.3d at 851 (appellate court may “affirm the district court’s judgment

on any basis supported by the record”).

IV.

Rowles further asserts that the district court erred in dismissing his substantial

overbreadth, Title IX, and MHRA claims. “This court reviews de novo the grant of

a motion to dismiss, accepting ‘the allegations contained in the complaint as true and

mak[ing] all reasonable inferences in favor of the nonmoving party.’” Jones v.

Douglas Co. Sheriff’s Dep’t, 915 F.3d 498, 499 (8th Cir. 2019) (alteration in

original) (quoting Martin v. Iowa, 752 F.3d 725, 727 (8th Cir. 2014)).

A.

Rowles argues that the University’s policies against sexual harassment and

stalking on the basis of sex are facially overbroad in their prohibitions against non-

threatening speech. To succeed on his claim that the policies are unconstitutionally

overbroad, Rowles must plead sufficient facts to show that “a substantial number of

[the policies’] applications are unconstitutional[] [when] judged in relation to [their]

plainly legitimate sweep.” United States v. Stevens, 559 U.S. 460, 473 (2010)

(citation omitted) (discussing overbreadth in the context of a criminal statute). He

states a claim only if either of the policies is “not readily subject to a narrowing

construction by the state courts, and its deterrent effect on legitimate expression is

both real and substantial.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 216

(1975) (citation omitted).

3

Rowles did not respond to either of these arguments in his reply brief.

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We agree with the district court that Rowles failed to plausibly allege that the

University’s policies have a real and substantial effect on protected speech. See id.

The policies do not target speech but instead prohibit conduct that is defined and

narrowed using language with common usage and understanding. Cf. Vaughn, 366

S.W.3d at 521-22 (“emotional distress” are words with common understanding).

Moreover, Rowles failed to allege that the University’s policies have ever been

impermissibly applied to protected speech (such as a student protest, a hypothetical

he posed in his opening brief on appeal), let alone that such an application constitutes

a “substantial number” of enforcement actions. See Stevens, 559 U.S. at 473.

Finally, we note that the language of the University’s sexual harassment policy

tracks nearly verbatim with the United States Supreme Court’s definition of

“student-on-student” sexual harassment that may subject an educational institution

to Title IX liability. See Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Ed., 526

U.S. 629, 649-52 (1999) (holding that, if a school is faced with allegations of sexual

harassment that is “so severe, pervasive, and objectively offensive that it denies its

victims equal access to education that Title IX is designed to protect,” the school

may be liable under Title IX if it remains deliberately indifferent to such allegations).

Accordingly, we affirm the district court’s dismissal of Rowles’s substantial

overbreadth claim.

B.

Rowles next contends that he stated a plausible claim of sex discrimination

under Title IX. As relevant here, Title IX provides, “No 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) (emphases added).

Title IX is “understood to ‘bar[] the imposition of university discipline where [sex]

is a motivating factor in the decision to discipline.’” Doe v. Columbia Univ., 831

F.3d 46, 53 (2d Cir. 2016) (first alteration in original) (quoting Yusuf v. Vassar Coll.,

35 F.3d 709, 715 (2d Cir. 1994)). To state a claim, Rowles must “allege adequately

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that the University disciplined him on the basis of sex—that is, because he is a male.”

Doe v. Univ. of Ark. - Fayetteville, 974 F.3d 858, 864 (8th Cir. 2020).

We recently held in Doe v. University of Arkansas - Fayetteville that a male

plaintiff stated a plausible Title IX claim arising out of a university’s investigation

of a reported sexual assault because he pleaded, among other things, facts

demonstrating that the investigation “reached an outcome that was against the

substantial weight of the evidence.” See id. Considered together with allegations

that the university’s decision was inconsistent with ordinary practice and that it faced

external pressure to show it “acted vigorously in response to complaints by female

students,” we concluded that the complaint supported an inference that the university

was biased based on sex. Id. at 865-66.

We conclude that Rowles’s complaint fails to plausibly allege that the

investigation reached an outcome against the weight of the evidence or allege any

additional facts suggesting bias based on his sex. For example, Rowles argues that

the University reached an erroneous outcome because A.B. did not claim that he

intimidated, threatened, or touched her inappropriately, only that his “bizarre”

behavior made her feel “uncomfortable.” But his characterization omits material

and undisputed facts about his conduct that led the University to conclude that he

had violated the sexual harassment and stalking policies. For example, after she

declined his invitation for a date and asked him to stop messaging her, he continued

to attempt to speak with her, requested private lessons from her, and gave her a love

letter.4 Additionally, Rowles argues that Gallimore’s alleged comment during the

prior Title IX investigation that he “looked like someone who might commit sexual

assault” suggests bias towards large men. We do not believe that an investigator’s

stray comment during a prior investigation, when such investigator is not alleged to

have participated in the present investigation, plausibly demonstrates that the

University disciplined Rowles based on his sex. See Doe v. Wash. Univ., 434 F.

4

The entirety of A.B.’s complaint, the investigative report, and disciplinary

findings were attached as exhibits to Rowles’s amended complaint.

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Supp. 3d 735, 760 (E.D. Mo. 2020) (finding that Title IX investigator’s op-ed in

which she expressed support for students who are sexually assaulted did not reveal

bias against men, and also noting that investigator did not participate in the findings

leading to plaintiff’s discipline).

Rowles also advances a “selective enforcement” theory. This theory requires

a male plaintiff to allege that “he received disparate punishment as compared to a

similarly-situated comparator” and that such punishment “was motivated by his

[sex].” Gentry v. Mountain Home Sch. Dist., No. 3:17-CV-3008, 2018 WL

2145011, at *6 (W.D. Ark. May 9, 2018). In support, Rowles alleges that the Title

IX investigators treated A.B. more favorably during the investigation by giving her

more time to decide between informal and formal resolution and also telling her that

she could have an advisor. But allegations regarding the University’s treatment of

Rowles’s accuser do not support his claim that a female in similar circumstances—

i.e., a female accused of sexual harassment or stalking—was treated more favorably.

Therefore, Rowles has failed to plausibly allege that the University disciplined him

because he is a male. See Univ. of Ark. - Fayetteville, 974 F.3d at 864. Accordingly,

we affirm the district court’s dismissal of Rowles’s Title IX claim.

C.

Finally, Rowles challenges the dismissal of his discrimination claims under

the MHRA. To state a claim for discrimination in public accommodations under the

MHRA, a plaintiff must allege that “(1) [he] is a member of a class protected by

section 213.065; (2) [he] was discriminated against in the use of a public

accommodation (as defined by section 213.010); and (3) [his] status as a member of

a protected class was a contributing factor in that discrimination.” R.M.A. by

Appleberry v. Blue Springs R-IV Sch. Dist., 568 S.W.3d 420, 424-25 (Mo. 2019)

(en banc) (footnote omitted).

We conclude that Rowles failed to state a plausible claim for sex

discrimination under the MHRA for reasons similar to those that support our

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conclusion that he failed to state a Title IX claim. Although we recognize that the

MHRA’s “contributing factor” standard is less rigorous than Title IX’s “motivating

factor” standard, see Button v. Dakota, Minn. & E. R.R. Corp., 963 F.3d 824, 831

(8th Cir. 2020), we conclude that Rowles’s allegations fail to meet either.

Ultimately, we reach the same conclusion regarding Rowles’s race

discrimination claim, but we are compelled to provide additional explanation.

Because the district court allowed Rowles’s Title VI race discrimination claim to

survive Appellees’ motion to dismiss, we believe it was error for the court to have

dismissed the state law race discrimination claim. If Rowles’s complaint plausibly

alleged that his race was a motivating factor, it necessarily follows that he plausibly

alleged race was a contributing factor. See id. Nonetheless, we find the error

harmless in light of our conclusion that Appellees were properly granted summary

judgment on Rowles’s Title VI claim. We conclude that the evidence proffered by

Rowles in opposition to summary judgment fails to meet either the “contributing

factor” or “motivating factor” standard.

V.

For the foregoing reasons, we affirm the judgment of the district court.

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