Doe v. Regents of the Univ. of Minn.

999 F.3d 571

John DOES 1-2; John Does 4-11, Plaintiffs - Appellants

v.REGENTS OF THE UNIVERSITY OF MINNESOTA; Eric W. Kaler; Tina Marisam, Defendants - Appellees

No. 19-2552

United States Court of Appeals, Eighth Circuit.

Submitted: November 12, 2020

Filed: June 1, 2021

Douglas E. Klein, Hutton & Madgett, Beverly Hills, CA, David J.S. Madgett, Hutton & Madgett, Minneapolis, MN, for Plaintiffs-Appellants.

Carrie Ryan Gallia, Brian Slovut, University of Minnesota, Office of the General Counsel, Charles Feeney Knapp, Sean R. Somermeyer, Faegre & Drinker, Minneapolis, MN, for Defendants-Appellees.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

LOKEN, Circuit Judge.

Ten former University of Minnesota football players appeal the dismissal of their Amended Complaint against the University and two University officials, asserting a variety of claims arising out of the University's investigation of a complaint of sexual assault and harassment by another student, Jane Doe. The Amended Complaint referred to the plaintiffs as "John Does 1-2; John Does 4-11." Like the parties, we will refer to them collectively as "the Does" and individually as a "JD," for example, "JD1." The Does are African-American males who allege that the University targeted them on the basis of their sex and race and unfairly punished them in response to Jane's accusations. The district court dismissed all claims under Fed. R. Civ. P. 12(b)(6). On appeal, the Does argue their Amended Complaint stated plausible claims of sex discrimination and retaliation in violation of 20 U.S.C. §§ 1681 et seq. ("Title IX"), race discrimination in violation of 42 U.S.C. §§ 2000d et seq. ("Title VI") and the Equal Protection Clause, and violations of their constitutional right to procedural due process. They also argue the district court erred in granting the University Eleventh Amendment immunity from the Does’ state law claims of breach of contract and negligence. We review these issues de novo . See Doe v. Univ. of Ark.-Fayetteville, 974 F.3d 858, 864 (8th Cir. 2020). We conclude the district court correctly dismissed all claims except the Does’ plausible claims of Title IX discrimination on the basis of sex. Accordingly, we affirm in part, reverse in part, and remand for further proceedings.

I. Background

As we are reviewing a Rule 12(b)(6) dismissal, we draw the following facts from the Amended Complaint, accepting all factual allegations as true and in the light most favorable to the Does to determine whether they state facially plausible claims. See Walker v. Barrett, 650 F.3d 1198, 1203 (8th Cir. 2011). Thus, the following narrative is necessarily one-sided and favorable to the Does. We of course do not assume that the Does will be able to prove what they plausibly allege.

In the early morning of September 2, 2016, five University football players including JD1, JD2, JD4, and JD5 and a recruit engaged in consensual sex with Jane, a University cheerleader. The next day, Jane and her mother told Minneapolis Police these men had sexually assaulted her. Investigators opened a formal investigation and interviewed Jane, who told them her recollection was hazy but she recalled being assaulted by a number of players after consensual sex with JD1 and the recruit. The investigators interviewed other witnesses, reviewed Jane's sexual assault exam, and spoke with the accused Does. They collected evidence, including two cell phone videos recorded by JD1 that show him, the recruit, and Jane involved in what the investigators described as consensual group sex. At some point, Minneapolis Police informed University Athletic Director Mark Coyle that Jane had accused four players of sexual assault, prompting the University to suspend the players "because of optics." The suspension was lifted after the Hennepin County Attorney received the investigation's findings and declined to file charges.

Jane's allegations came to the attention of the University's Office of Equal Opportunity and Affirmative Action ("EOAA"), the campus department tasked with investigating complaints of student sexual misconduct. The EOAA opened an investigation. On September 23, Jane met with EOAA Assistant Director Tina Marisam, the investigator assigned to the case. Marisam had investigated complaints of sexual misconduct made against football players in 2015 and concluded the failure to corroborate those accusations was due to a cover-up by team members. At the close of the 2015 investigation, then-EOAA Director Kimberly Hewitt emailed then-Athletic Director Norwood Teague and University President Eric Kaler, warning them of a "concerning pattern" of misconduct among football players which posed a risk of future sexual violence and harassment of women on campus.

During her initial interview with Marisam, Jane presented a more detailed version of the events of September 2 than she had provided the police, including a more concrete description of how the alleged assaults involving JD1-5 occurred. This interview led Marisam to investigate JD6-11 who were in the apartment when the alleged assaults occurred. Jane participated in six total interviews with Marisam, who permitted Jane to refine her accusations in response to the Does’ individual statements. Marisam allowed only Jane to review a draft narrative for accuracy.

On October 11, 2016, Marisam sent emails to JD7-10 requesting they come in for interviews. She did not disclose they were targets of an investigation into suspected misconduct. In contrast with her multiple interactions with Jane, Marisam only met once with each accused Doe for fifteen to thirty minutes. Marisam did not record the Does’ statements, allow them to review or respond to Jane's statements or the statements from other witnesses, or allow them to confirm the accuracy of Marisam's summary of their statements. Marisam also contacted JD10's girlfriend, a white hockey player, because she was staying with JD10 on September 2. When JD10's girlfriend did not respond to Marisam's interview request, Marisam did not pursue this lead further, unlike her treatment of the Does who did not initially respond to interview requests. At the EOAA's behest, athletic department officials warned the Does that their scholarships were at risk if they did not cooperate with the investigation.

Marisam summarized her findings in a report which the EOAA submitted to the Office of Student Conduct and Academic Integrity on December 7. The report recommended (i) expelling JD1-5 for sexually assaulting or harassing Jane; (ii) suspending JD7, 8, 10, and 11 for one year for sexually harassing Jane; and (iii) placing JD9 on probation for providing false statements about his whereabouts on September 2. It concluded JD6 did not violate the Student Conduct Code.

After receiving the EOAA report, President Kaler ordered Coyle to suspend JD1-5 and 7-11 from the football team, preventing them from participating in an upcoming bowl game. Kaler released public statements regarding the suspensions, assuring the public they were based on facts and University values and served the goal of ensuring a safe campus climate for female students. Reacting to the suspensions, the football team boycotted the pending bowl game to protest a perceived lack of due process afforded the accused players. The boycott prompted criticism from all quarters. Some echoed the team's concerns; others argued the University was obligated to take a tough stance against student sexual misconduct. In response, Kaler, Coyle, and University Regents met with team members. Kaler offered to lift the suspensions of JD7-11 if they admitted to the accuracy of the report's findings. The players rejected that offer, but the team ended its boycott based on assurances that the accused Does would receive a fair hearing.

Several weeks later, Kaler issued statements to the Minneapolis Star Tribune and St. Paul Pioneer Press declaring that "[t]here's no due process associated with athletic suspensions," and that the University's increased sexual harassment training "didn't seem to make the point" with the Does. The Amended Complaint alleges that Kaler's statements fostered a "lynch mob" mentality towards the Does and contributed to a campus climate of suspicion and hostility toward African-American males. Contributing to this "poisoned well" was public criticism of the University and top-level administrators for alleged mishandling of prior sexual assault complaints by women against white administrators and coaches, and a 2011 "Dear Colleague" letter from the U.S. Department of Education threatening universities with investigations and lost funding if they deficiently investigate campus sexual assaults.

The Amended Complaint alleges the EOAA report contained several troubling features. It found Jane more credible by emphasizing minor inconsistencies in the Does’ statements, while minimizing or ignoring her inconsistent statements. It did not recommend punishing Jane for having consensual sex with the underage recruit or for falsely accusing JD6 of sexual assault. It attributed statements to JD11, which he alleges he never made. Finally, the report criticized the Does’ purported attempts to conceal evidence from the investigation, while neglecting to mention that Jane withheld evidence from Marisam, including the results of her sexual assault examination and the video of her, JD1, and the recruit engaging in consensual sex.

Dissatisfied with the report's conclusions and their sanctions, the Does invoked the University's due process protections for students accused of sexual misconduct and requested a hearing before the Student Sexual Misconduct Subcommittee ("SSMS"). Comprised of specially trained faculty, academic professionals and students, the SSMS adjudicates sexual misconduct charges involving University students. SSMS panels consist of a non-voting chair and three voting panel members who hear from the accused, consider documentary evidence, and listen to live...