John Does 1-2 v. Regents of the Univ. of MN

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 19-2552
___________________________

John Does 1-2; John Does 4-11

lllllllllllllllllllllPlaintiffs - Appellants

v.

Regents of the University of Minnesota; Eric W. Kaler; Tina Marisam

lllllllllllllllllllllDefendants - Appellees
____________

Appeal from United States District Court
for the District of Minnesota
____________

Submitted: November 12, 2020
Filed: June 1, 2021
____________

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

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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.

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 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.

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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

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(“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 witness
testimony. Panel members and counsel for the accused and the University are
empowered to question witnesses.

After a hearing on January 26 and 27, 2017, the SSMS panel concluded: (i)
JD1-5 (the players who admitted to having sex with Jane) sexually assaulted or
harassed Jane; (ii) there was insufficient evidence JD7-9 and 11 committed sexual
misconduct; and (iii) JD10 sexually harassed Jane. The players found guilty appealed
to the University provost who affirmed the panel findings as to JD1-5 but reversed
the harassment finding against JD10. There were no further appeals within the
University or to the Minnesota Court of Appeals.

In June 2018, the Does filed a nine-count complaint against the University
(through its Board of Regents), Kaler, and Marisam. Regarding the claims at issue
on appeal, the Does asserted Title IX, Title VI, breach of contract, and negligence
claims against the University; and equal protection and due process claims against
Kaler and Marisam in their official and individual capacities. The Does seek
injunctive relief against the University and compensatory damages against the
University and Kaler and Marisam acting in their individual capacities. The district
court concluded the Does failed to state a plausible claim for Title IX, Title VI, equal
protection, and due process relief, and that the University is entitled to Eleventh
Amendment immunity from their breach of contract and negligence claims.

II. Title IX Claims

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

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discrimination under any education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Private parties may enforce Title IX through an
implied right of action. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 281
(1998) (citation omitted). The parties briefed and the district court decided the
sufficiency of the Does’ Title IX claims that the University discriminated “on the
basis of sex” by applying four alternative theories adopted by other federal courts.
See, e.g., Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018). However,
following the lead of the Seventh Circuit in Doe v. Purdue University, 928 F.3d 652,
667-68 (7th Cir. 2019), we recently adopted a simpler, more straightforward pleading
standard for Title IX claims arising from university disciplinary proceedings: “To
state a claim, [a plaintiff] must allege adequately that the University disciplined him
on the basis of sex -- that is, because he is a male.” Univ. of Ark.-Fayetteville, 974
F.3d at 864; see Rossley v. Drake Univ., 979 F.3d 1184, 1192 n.3 (8th Cir. 2020)
(noting the Third and Ninth Circuits have adopted the Seventh Circuit’s pleading
standard), cert. denied, __ S. Ct. __, 2021 WL 1072323 (2021).

A. Discrimination Claims. As in University of Arkansas-Fayetteville, we
conclude the Does’ lengthy Amended Complaint alleges a number of circumstances
which, “taken together, are sufficient to support a plausible claim that the University
discriminated against [the Does] on the basis of sex.” 974 F.3d at 865. In reaching
this conclusion, we must of course assume all factual allegations are true and draw
reasonable inferences in the Does’ favor.

First, the Does allege that the University was biased against them because of
external pressures from the campus community and the federal government over a
perceived lack of diligence in investigating and expelling students accused of sexual
assault. The Does allege that, in response to the football team’s boycott, various
groups on campus urged officials to take a tougher stance against campus sexual
misconduct which pressured University officials to corroborate Jane’s accusations.
President Kaler’s public statements before the SSMS hearing further “poisoned the

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well” and exacerbated biased attitudes towards male African-American athletes.
Additional pressure came from past criticism of President Kaler and the University
for an inept response to former A.D. Teague’s sexual harassment of multiple staff
members. That these pressures influenced the University in this case can be inferred
from A.D. Coyle’s comment that the players should be suspended when initially
accused “because of optics.”

In addition, the Department of Education’s 2011 “Dear Colleague” letter had
criticized federally-funded universities for failing to properly investigate and
adjudicate sexual misconduct allegations and adopted changes affecting misconduct
investigations including: expanding the definition of sexual harassment, requiring
schools to prioritize the investigation of misconduct complaints, and using a “more
likely than not” burden of proof in adjudicating those complaints. Institutions that
failed to comply risked investigations by the Department’s Office of Civil Rights
(“OCR”) and the potential loss of federal funding. See Purdue Univ., 928 F.3d at
668. The Does allege this potential loss of millions of dollars motivated the
University to demonstrate Title IX compliance by skewing investigations against
males accused of sexual assault and harassment.

We agree with other circuits that the “Dear Colleague” letter, standing alone,
“is obviously not enough to get [the Does] over the plausibility line.” Purdue Univ.,
928 F.3d at 669; accord Doe v. Univ. of the Scis., 961 F.3d 203, 210 (3d Cir. 2020);
Doe v. Univ. of Denver, 952 F.3d 1182, 1192-93 (10th Cir. 2020); see Rossley, 979
F.3d at 1196. But external pressure from public attention and the threatened loss of
federal funding “provides a backdrop that, when combined with other circumstantial
evidence of bias in [the Does’] specific proceeding, gives rise to a plausible claim”
of intentional bias when a female student accused male athletes of sexual misconduct.
Doe v. Baum, 903 F.3d 575, 586 (6th Cir. 2018); see Univ. of Ark-Fayetteville, 974
F.3d at 865.

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 Second, the Does allege historical facts that reinforce the inference of bias in
this specific proceeding. In 2014, the OCR investigated the University for potential
Title IX violations after charges were lodged that the University discriminated against
female athletes by denying them equal funding and resources and by tolerating a male
gymnastics coach’s sexual harassment of a female gymnast. The University settled
the harassment charge by paying the female gymnast $250,000. It is “entirely
plausible” that the specter of another federal investigation of potential Title IX
violations could motivate the University to discriminate against male athletes accused
of sexual misconduct to demonstrate ongoing compliance with Title IX. Schwake v.
Ariz. Bd. of Regents, 967 F.3d 940, 948 (9th Cir. 2020).

More specifically, the Amended Complaint alleges internal pressure on
University officials to charge male football players with sexual misconduct. It is
alleged that investigator Marisam believed football players had covered-up sexual
misconduct complaints during a 2015 investigation, motivating her to punish as many
players as possible in response to Jane’s accusations. After the 2015 investigation,
Director Hewitt opined to Kaler and Teague that there was a “concerning pattern” of
behavior among the football team, and warned that the players posed an increased
risk of committing sexual assault or harassment in the future. It is reasonable to infer
that investigator Marisam was aware of and agreed with these sentiments. These
allegations support the inference that the University, and specifically its investigators,
discriminated against the Does on the basis of sex. See Doe v. Columbia Univ., 831
F.3d 46, 57-58 (2d Cir. 2016) (public criticism of a university’s past failure to stop
male athletes from sexually assaulting female students supported a plausible inference
that the university discriminated against an accused male athlete to deflect additional
criticism).

In University of Arkansas-Fayetteville, we concluded that allegations of “a
dubious decision” in the misconduct proceeding at issue “taken against the backdrop
of substantial pressure on the University to demonstrate that it was responsive to

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female complainants” were sufficient to state a discrimination claim under Title IX.
974 F.3d at 865-66. Here, the external pressures were if anything greater, and the
detailed allegations of investigator bias and dubious investigative procedures in these
particular proceedings lend sufficient credence to the inference of discrimination “on
the basis of sex.” Considering as we must the totality of the allegations in the
Amended Complaint, we conclude the Does stated plausible claims that the
University discriminated against them on the basis of sex during the misconduct
investigation and disciplinary proceedings. The district court concluded that a
university’s bias in favor of the victims of sexual assault does not establish a
reasonable inference of bias against male students, citing Doe v. University of St.
Thomas, 240 F. Supp. 3d 984, 991 (D. Minn. 2017). While the circumstances here
also give rise to a plausible inference of bias in favor of sexual assault victims rather
than against males, “[s]ex discrimination need not be the only plausible explanation
or even the most plausible explanation for a Title IX claim to proceed.” Schwake,
967 F.3d at 948; see Columbia Univ., 831 F.3d at 57. Thus, we reverse the district
court’s dismissal of the Does’ Title IX discrimination claims.

B. Retaliation Claims. The Supreme Court held in Jackson v. Birmingham
Board of Education that “when a funding recipient retaliates against a person because
he complains of sex discrimination, this constitutes intentional ‘discrimination’ ‘on
the basis of sex,’ in violation of Title IX.” 544 U.S. 167, 174 (2005) (emphasis in
original). In the Amended Complaint, the Does allege that, when they exercised their
right to a hearing on the EOAA charges, the University retaliated against them by
making public statements falsely portraying them as having violated the University’s
Code of Conduct, and by taking actions during the SMSS hearing that were intended
to impact their “ability to receive a fair and impartial hearing.” The district court
concluded the Does failed to state Title IX claims for retaliation. We agree.

To plead prima facie retaliation claims, the Does must allege they participated
in activity protected by Title IX, and the University took adverse action against them

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because of their participation in that activity. See Du Bois v. Bd. of Regents of the
Univ. of Minn., 987 F.3d 1199, 1203 (8th Cir. 2021); Doe v. Columbia Coll. Chi.,
933 F.3d 849, 857 (7th Cir. 2019). The Does do not plausibly allege that their request
for a SMSS hearing was tantamount to a complaint of sex discrimination. See Du
Bois, 987 F.3d at 1204 (citing Jackson, 544 U.S. at 174). Moreover, even if a request
for a hearing made by a person accused of sexual misconduct could amount to
protected activity, an issue we need not decide, the Amended Complaint does not
plausibly plead prima facie retaliation claims. Alleged adverse public statements do
not satisfy the adverse action element, and the numerous “actions” taken during the
SMSS hearing alleged in paragraph 56 of the Amended Complaint -- most of which
involved rulings by the hearing panel -- do not plausibly support the conclusory
allegation in Count One that the University took actions “that were intended . . . to
have an adverse impact on Plaintiffs’ ability to receive a fair and impartial hearing.”
Thus, the retaliation claims fail as a matter of law.

III. Race Discrimination Claims

The Amended Complaint asserts two claims that the University discriminated
against the Does because of their race, one under the well-established implied private
right of action for alleged violations of Title VI, which prohibits discrimination on
the basis of race in federally-funded programs, and the other under § 1983 for alleged
violations of the Fourteenth Amendment’s equal protection clause. The foundation
for these claims is that the University treats white individuals more favorably in the
investigation of sexual misconduct accusations. Both claims require proof of
intentional or purposeful discrimination. See Alexander v. Sandoval, 532 U.S. 275,
280 (2001) (Title VI); Snowden v. Hughes, 321 U.S. 1, 8 (1944) (denial of equal
protection). The district court concluded that, in this type of case, to prove the
University’s discriminatory intent, the Does must establish “that they were treated
differently from others similarly situated.” Creason v. City of Washington, 435 F.3d
820, 823 (8th Cir. 2006) (equal protection claim); see Rowles v. Curators of the Univ.

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of Mo., 983 F.3d 345, 355 (8th Cir. 2020) (Title VI prima facie case requires showing
that plaintiff was “treated differently from similarly situated students outside his
protected class”). Neither party challenges that conclusion on appeal.

Alleged comparators must be “similarly situated in all relevant aspects.”
Barber v. C1 Truck Driver Training, LLC, 656 F.3d 782, 797 (8th Cir. 2011). “In a
case of alleged discriminatory discipline, such as this, the [Does] must [plausibly
plead] that the acts of other[s] . . . who were not disciplined or were disciplined less
severely were of ‘comparable seriousness’ to [their] infraction.” Russell v. City of
Kan. City, 414 F.3d 863, 868 (8th Cir. 2005) (citation omitted). Count Two of the
Amended Complaint alleges in conclusory fashion that the University “treated
Plaintiffs less favorably in the investigation and discipline than the University had
treated persons of a different race under similar circumstances.” The Amended
Complaint’s nearly forty pages of “Facts” add little of substance to this legal
conclusion. It alleges (i) that the University “turned a blind eye” to allegations in
2014 and 2015 of sexual harassment of women athletes and other women by the white
male Athletic Director, by a white male volunteer coach, and by “another high-
ranking Athletics Department male administrator”; and (ii) that the EOAA did not
investigate Jane, who is white, and “a white male football player” present in the
apartment that morning.

The district court concluded the Amended Complaint did not plausibly allege
a comparator “similarly situated to Plaintiffs in all relevant aspects.” It determined
the white Athletic Director, coach, and Athletic Department administrator are
“fundamentally different than a student” because they are not subject to the Student
Conduct Code, and they were accused of sexual harassment whereas the Does were
accused of sexual assault. Jane was not similarly situated because no one filed a
complaint against her, and the allegation that a white football player “may have been
involved” is not sufficient to show that he engaged in the same behavior and was
therefore similarly situated to the Does.

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 We agree with the district court that in this case, as in Hager v. Arkansas
Department of Health, the Amended Complaint “does not allege facts showing that
similarly situated [alleged comparators] were treated differently.” 735 F.3d 1009,
1015 (8th Cir. 2013). University employees are not similarly situated to students
because employees are “treated according to a different behavioral standard.”
Dartmouth Rev. v. Dartmouth Coll., 889 F.2d 13, 20 (1st Cir. 1989), overruled on
other grounds, Educadores Puertorriqueños En Acción v. Hernandez, 367 F.3d 61, 67
(1st Cir. 2004). Regarding the alleged disparate treatment of Jane, it goes almost
without saying that a sexual assault complainant and those she accuses of sexual
assault are “not similarly situated as complainants.” Haidak v. Univ. of Mass.-
Amherst, 933 F.3d 56, 74 (1st Cir. 2019). As for the white football player, Jane’s
hazy recall that “he may have been involved” in the September 2 incident does not
show that he was similarly situated. The EOAA investigation determined he was not
guilty of sanctionable sexual misconduct and also determined that JD6, an African-
American player, did not violate the Student Conduct Code.

In the district court, the Does argued “that the appropriate comparator is any
non-African-American male accused of sexual assault, regardless of his role in the
University.” Like the district court, we reject this contention. As the First Circuit
said in Dartmouth Review:

if we allow a complaint like this to proceed in the context of student
discipline, every conclusory selective-enforcement claim would lead to
discovery concerning the entire disciplinary history of a college and then
to a confusing, unmanageable and ultimately incoherent retrial of every
disciplinary decision, including decisions not to investigate.

889 F.2d at 20, quoting Albert v. Carovano, 851 F.2d 561, 574 (2d Cir. 1988) (en
banc). Because the Does failed to allege -- beyond legal conclusions couched as
factual statements -- that they were treated less favorably because of their race, we
affirm the district court’s dismissal of their Title VI and equal protection claims.

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 IV. Procedural Due Process Claims

The Does appeal the dismissal of the procedural due process claims alleged in
Count Four of their Amended Complaint against President Kaler and Director
Marisam in their official and individual capacities. These claims turn on “(1) whether
the state actor’s decision impacted a protected liberty or property interest, and if so,
(2) what process was constitutionally ‘due.’” Kroupa v. Nielsen, 731 F.3d 813, 818
(8th Cir. 2013), quoting Mathews v. Eldridge, 424 U.S. 319, 332-33 (1976). The
district court dismissed the due process claims of those found responsible for sexual
assault and/or harassment, JD1, JD2, JD4, JD5, and JD10, because they failed to
exhaust their state remedies. The court dismissed the due process claims of those
found not responsible, JD7, JD8, JD9, and JD11, because even assuming these Does
had constitutionally-protected interests, they failed to allege a deprivation of those
interests because they were absolved of the misconduct charges.1

A. Exhaustion of State Law Remedies. Generally, plaintiffs need not exhaust
state administrative remedies before filing a § 1983 action. Patsy v. Bd. of Regents
of Fla., 457 U.S. 496, 516 (1982). We recognize an exception to this general rule and
require plaintiffs to exhaust state remedies before asserting a § 1983 procedural due
process claim. “A plaintiff cannot complain of a violation of procedural due process
when he has not availed himself of existing procedures.” Raymond v. Bd. of Regents
of the Univ. of Minn., 847 F.3d 585, 590 (8th Cir. 2017) (quotation omitted).
“However, it is not necessary for a litigant to have exhausted available
postdeprivation remedies when the litigant contends that he was entitled to
predeprivation process.” Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th
Cir. 2009) (emphasis in original) (citation omitted). The Amended Complaint alleges

1
The EOAA found that appellant JD6 did not commit sexual misconduct and
imposed no punishment. The parties do not address whether he can assert a
procedural due process claim, an issue we need not consider.

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deprivations of protectable interests occurring both before and after the SMSS
hearing.

Count Four first alleges that the Officials deprived the Does of their protected
property interests in attending college, their scholarship contracts, and participating
in intercollegiate athletics. These are post-hearing deprivations. The claims of those
found not responsible were properly dismissed as they were either exonerated by the
SMSS panel (JD7-9, 11) or by the University provost (JD10). We agree with the
district court that the claims of those held responsible (JD1-2 and 4-5) are barred
because they failed to exhaust the “existing procedures” for appealing the
University’s disciplinary decision by petitioning the Minnesota Court of Appeals for
a writ of certiorari, as state law provides. See Zweber v. Credit River Twp., 882
N.W.2d 605, 611 (Minn. 2016); Raymond, 847 F.3d at 590.

In essence, the Does seek to collaterally attack the merits of the University’s
misconduct findings. “Federal courts are not a forum for general appellate review of
university disciplinary proceedings.” Univ. of Ark.-Fayetteville, 974 F.3d at 864.
Moreover, even if the claims were exhausted, the Does had notice of the SMSS
hearing, and the allegations of imperfect hearing procedures fall far short of plausibly
alleging they were deprived of an opportunity to respond to the misconduct charges
“at a meaningful time and in a meaningful manner.” Mathews, 424 U.S. at 333
(quotation omitted). Students accused of sexual misconduct are not “entitled to a
hearing of one’s own design.” Austin v. Univ. of Or., 925 F.3d 1133, 1139 (9th Cir.
2019).

B. The Alleged Denial of Predeprivation Process. Count Four also alleged pre-
hearing deprivations. Exhaustion principles do not preclude these due process claims.
See Keating, 562 F.3d at 929. First, Count Four alleged that Marisam interviewed
“five of the Plaintiffs” and recommended they be suspended “without having notified
Plaintiffs that they had been accused of sexual misconduct.” Because Count Four

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does not identify the five plaintiffs, allege how long they were suspended, identify
how their ability to register for classes and obtain transcripts was allegedly restricted,
these claims are not plausibly alleged. If these were short suspensions, as seems
likely, the five Does were at most entitled to minimal due process, including notice
of the accusations. See Goss v. Lopez, 419 U.S. 565, 582 (1975).

Second, Count Four alleged that, after receiving the EOAA’s final report,
President Kaler ordered Athletic Director Coyle to immediately suspend JD1-5 and
7-11 from the football team, pre-hearing suspensions that deprived them of their right
to participate in intercollegiate athletics, including the team’s upcoming bowl game,2
and restricted their ability to register for classes and obtain transcripts. We agree with
the district court that Count Four did not plausibly allege that the Does’ rights to
predeprivation process were unconstitutionally denied. Even assuming that
registering for classes and obtaining transcripts are interests which due process
protects, the Does did not identify which of them failed to receive that process.

Count Four also alleged deprivation of the Does’ liberty interest in their
reputations. Although the predeprivation EOAA report and Kaler’s public statements
may have stigmatized the Does and injured their reputations, reputational harm alone

2
Federal courts are split on whether participating in intercollegiate athletics is
a constitutionally-protected property or liberty interest, an issue we have not decided.
See Kroupa, 731 F.3d at 820 and 823 (Bye, J., dissenting). Even if the “ability to
pursue . . . athletic participation” is a protectable interest, an issue we again need not
decide, the right was not clearly established at the time the Does were suspended in
2016 and therefore Kaler and Marisam are entitled to qualified immunity from these
claims. Austin v. Univ. of Or., 205 F. Supp. 3d 1214, 1221-22 (D. Or. 2016), aff’d,
925 F.3d 1133 (9th Cir. 2019). The Does do not cite a Minnesota state court decision
holding that this activity is “recognized and protected by state law.” Paul, 424 U.S.
at 710; see G.H. v. Minn. State High Sch. League, No. C2-02-462, 2002 WL
31165068 at *3 (Minn. App. Oct. 1, 2002).

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does not implicate an interest protected by the Due Process Clause. See Paul v.
Davis, 424 U.S. 693, 711-12 (1976); Kroupa, 731 F.3d at 818.

Accordingly, the district court correctly dismissed the due process claims.

V. The Eleventh Amendment Immunity Issue

The district court dismissed the Does’ state law contract and negligence claims
against the University because the University enjoys Eleventh Amendment immunity
from suit, citing Treleven v. University of Minnesota, 73 F.3d 816 (8th Cir. 1996).
We agree that the court properly applied this binding precedent. The University and
its Board of Regents, the named defendant, are immune from suit in federal court.
See Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Athletics Dep’t, 510 F.3d 681,
695 (7th Cir. 2007). The Does conceded in the district court that the University is not
an entity separate from the State of Minnesota and has not waived its Eleventh
Amendment immunity.3

The Does argue that the district court committed reversible error when it did
not permit them to amend their complaint to assert these claims against Kaler and
Marisam under the Ex parte Young exception to Eleventh Amendment immunity.
This argument is without merit. The Does’ brief in response to the University’s claim
of Eleventh Amendment immunity did not include a request for leave to amend, so
the issue was not preserved for appeal. Moreover, even if preserved, the proposed
amendment would be futile because the Ex parte Young exception is limited to
official-capacity claims against state officials for injunctive relief, and the sole

3
The Does argue Eleventh Amendment immunity is inapplicable because they
are quasi-employees of the University and Congress abrogated state immunity for
Title VII suits against governmental employers. The Does did not argue this theory
to the district court, so we decline to address it on appeal. See Fleck v. Wetch, 937
F.3d 1112, 1116 (8th Cir. 2019), cert. denied, 140 S. Ct. 1294 (2020).

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remedy sought for the Does’ breach of contract and negligence claims is damages.
See Rowles, 983 F.3d at 357.

The Does further argue the University’s athletic department is not entitled to
Eleventh Amendment immunity because it is a distinct commercial enterprise. We
need not address this issue because the athletic department was not named as a
defendant, and Article III does not empower us to offer advisory opinions. The
district court properly dismissed the breach of contract and negligence claims.

VI. Conclusion

For the foregoing reasons, the judgment of the district court is affirmed in part
and reversed in part, and the case is remanded for further proceedings on the Does’
Title IX discrimination claims.
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