Matthew Mungai v. University of Minnesota

United States Court of Appeals
For the Eighth Circuit
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No. 24-1894
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Matthew Mungai
Plaintiff - Appellant
v.
University of Minnesota
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: March 18, 2025
Filed: June 26, 2025
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Before COLLOTON, Chief Judge, ERICKSON and GRASZ, Circuit Judges.
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ERICKSON, Circuit Judge.
Matthew Mungai sued the University of Minnesota claiming that he was
discriminated against while he was a student at the school. In his amended
complaint, Mungai asserted claims under Title VI, Title IX, 42 U.S.C. §§ 1981 and
1983, the Minnesota Human Rights Act (“MHRA”), the Fourteenth Amendment to

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the United States Constitution, and negligence. The district court1 granted the
University’s motion to dismiss. For the following reasons, we affirm.
I. BACKGROUND
Mungai is a Black man of Kenyan origin who began attending the University
in 2019 and eventually graduated. In his amended complaint, Mungai alleged
multiple incidents of racial harassment perpetrated by University students or staff
that occurred over a three-year period. Because this case is at the motion to dismiss
stage, we assume the facts alleged in the amended complaint are true. Collins v.
Metro. Life Ins. Co., 117 F.4th 1010, 1016 n.3 (8th Cir. 2024). We thus recount the
facts as alleged by Mungai.
In February 2020, while Mungai and his white supervisor served food at a
hockey game, the supervisor stated: “Dark people are so out of place at hockey
games. They don’t belong here.” In March 2021, several white students pulled up
to Mungai’s car and made guns with their fingers while making “pew pew pew”
sounds. In April, in business class, a white student called Mungai “nig” and said
that he was “dirty and ugly.” In his computer science class that same month, a white
student discussed “racial events” that “centered around” Mungai “almost daily.”
In July 2021, students called Mungai “dirty, blackie, and monkey” when he
left his on-campus residence. In August, at an unspecified location on campus, a
white student told Mungai “nigga u gon’ die.” In October, at the O’Hare
International Airport while travelling for a University-sponsored event, white
students told Mungai that he had AIDS and was “dirty, a dirty nigger, and ugly.”
From September 2021 through May 2022, Mungai claimed students subjected
him to “daily” racial slurs on campus including calling him a “dirty nigger.” Also
1 The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.

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in the September 2021 through May 2022 period, Mungai alleged students and staff
mimed shooting at him with their fingers.
Mungai alleged that he reported something about these incidents to
“University staff,” “class staff,” or to the Student Conflict Resolution Center
(“SCRC”). In the body of the amended complaint, he did not allege when he
reported the incidents or the content of the reports. In an exhibit to his amended
complaint, a letter from the University (“EO Letter”) stated Mungai filed reports
with its Equal Opportunity & Title IX office between July 26, 2023 and September
7, 2023. Mungai filed this lawsuit on May 1, 2023.
The district court denied Mungai’s multiple motions to amend and granted the
motion to dismiss on all counts after determining that the amended complaint failed
to state a claim. Mungai appealed, and in his pro se opening brief, the only count he
meaningfully argues the district court should not have dismissed is his Title VI
claim. We granted leave for Mungai to file a counseled supplemental brief and for
the University to respond to the counseled brief. Mungai’s counsel reiterated that
the district court should not have dismissed his Title VI claim and challenged the
district court’s decision to dismiss with prejudice his claims under Title VI, the
MHRA, the Fourteenth Amendment, and § 1983. Accordingly, we deem waived
any challenge to the district court’s dismissal of Mungai’s other claims. See Davis
v. City of Little Rock, 122 F.4th 326, 332 n.2 (8th Cir. 2024) (any argument not
raised in the opening brief is waived).
II. DISCUSSION
We review the district court’s grant of a motion to dismiss de novo. Doe v.
Univ. of Ark. – Fayetteville, 974 F.3d 858, 864 (8th Cir. 2020). To survive a motion
to dismiss, the complaint must provide enough facts to state a claim that is plausible
on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff
achieves facial plausibility when the complaint includes “factual content that allows
the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While we
liberally construe a pro se complaint, it must still contain sufficient facts supporting
the claims. Sandknop v. Mo. Dep’t of Corrs., 932 F.3d 739, 741 (8th Cir. 2019).
A. Title VI
Title VI provides that “[n]o 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.” 42 U.S.C. § 2000d. For Title VI claims of intentional
discrimination by the recipient of federal funds, we have borrowed the McDonnell
Douglas paradigm from Title VII. Murguia v. Childers, 81 F.4th 770, 774-75 (8th
Cir. 2023). In this case of harassment by students and staff, the district court applied
the deliberate indifference standard used for third party harassment claims under
Title IX. The standard applicable to Title VI third party harassment claims is a
question of first impression in our circuit.
The Supreme Court has twice considered federal recipient liability for
harassment by third parties under Title IX. See Davis ex rel. LaShonda D. v. Monroe
Cnty. Bd. of Educ., 526 U.S. 629, 633 (1999) (harassment by classmate); Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 277 (1998) (harassment by teacher). The
Court observed that Title IX attaches conditions to the award of federal funds, which
essentially creates a contract between the government and the recipient. Gebser, 524
U.S. at 286. This contractual relationship distinguishes Title IX from Title VII,
which is an outright prohibition on discrimination. Id.
When Congress places conditions on the award of federal funds under the
Spending Clause of the Constitution, private actions for monetary damages based on
noncompliance with any condition are carefully scrutinized. Id. at 287. A recipient
of federal funds must be on notice that it will be liable. Id. (quoting Franklin v.
Gwinnett Cnty. Pub. Schs., 503 U.S. 60, 74 (1992)). The constructive notice
permitted under Title VII is insufficient under Title IX. Id. at 287-88. To address

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this notice concern, the Court adopted the deliberate indifference standard for third
party harassment claims under Title IX. Davis, 526 U.S. at 643; Gebser, 524 U.S.
at 290.
As with Title IX, Congress enacted Title VI under the Spending Clause of the
Constitution. Gebser, 524 U.S. at 287. Indeed, Congress modeled Title IX after
Title VI. Id. at 286. The Supreme Court’s concerns that form the basis for the actual
notice requirement apply equally to claims under Title VI for harassment by third
parties.
Recognizing the similarities between Title IX and Title VI, other circuits to
consider third party harassment under Title VI have adopted the deliberate
indifference standard. Ricketts v. Wake Cnty. Pub. Sch. Sys., 125 F.4th 507, 521
(4th Cir. 2025); Adams v. Demopolis City Schs., 80 F.4th 1259, 1273 (11th Cir.
2023); Fennell v. Marion Indep. Sch. Dist., 804 F.3d 398, 408 (5th Cir. 2015); Doe
v. Galster, 768 F.3d 611, 617 (7th Cir. 2014); Zeno v. Pine Plains Cent. Sch. Dist.,
702 F.3d 655, 665 (2d Cir. 2012); Bryant v. Indep. Sch. Dist No. I-38 of Garvin
Cnty., 334 F.3d 928, 934 (10th Cir. 2003). We find the reasoning in these cases
persuasive and adopt the deliberate indifference standard for claims involving third
party harassment under Title VI.
For the University to incur liability under Title VI, it must be (1) deliberately
indifferent (2) to known acts of harassment (3) that occurred at a location and by an
individual under its control. Davis, 526 U.S. at 646-47. Deliberate indifference is a
high standard. Id. at 643. The harassment must be so severe, pervasive and
objectively offensive that it deprives the victim of “access to the educational
opportunities or benefits provided by the school.” Id. at 650. The plaintiff must
provide notice of the harassment to an “appropriate person,” which means “an
official of the recipient entity with authority to take corrective action to end the
discrimination.” Gebser, 524 U.S. at 290.

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For the majority of the incidents of racial harassment, Mungai alleges that he
reported to “University staff” or “class staff.” His amended complaint fails to allege
the identity of the staff member, whether the staff member was an official with
authority to take corrective action, the content of the report to the staff member,
when he made the report, and any actions taken following the report. While we
liberally construe pro se complaints, Mungai’s references to reports to “staff” in the
amended complaint fail to plausibly allege that he reported incidents of third party
harassment to an appropriate person.
Mungai also alleges he reported one incident of racial harassment to the
SCRC. This allegation similarly fails to allege the content of the report, when he
made the report, and any actions taken following the report. Additionally, the SCRC
and its staff are not officials with authority to take corrective action. See Information
for Students, https://sos.umn.edu/students (last visited Apr. 11, 2025) (“SCRC is a
student services fee-funded organization that operates free from University
interference.”).2 Students are also informed that matters discussed with the SCRC
are not communicated to the University. See id. (“The Student Conflict Resolution
Center is not an office of notice within the University community.”).
As the EO Letter demonstrates, Mungai knows how to submit a report of
alleged racial harassment to the University’s Equal Opportunity & Title IX office.
But he did not submit these complaints until after he filed this lawsuit and after he
graduated. Because Mungai failed to plausibly allege that the University had actual
knowledge of discrimination, his Title VI claim fails. See K.T. v. Culver-Stockton
Coll., 865 F.3d 1054, 1059 (8th Cir. 2017) (finding no Title IX claim under the
deliberate indifference standard when the plaintiff failed to allege the school had
actual knowledge).
2 A court may consider some materials that are part of the public record under
Rule 12(b)(6). Miller v. Redwood Toxicology Lab, Inc., 688 F.3d 928, 931 (8th Cir.
2012) (quoting Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir.
1999)); see also Rynasko v. N.Y. Univ., 63 F.4th 186, 191 n.4 (2d Cir. 2023)
(considering an executive order from a state website).

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Mungai also did not plausibly allege that the University was deliberately
indifferent to the alleged acts of racial hostility. The amended complaint lacks
sufficient facts about the content of the reports made prior to the filing of the lawsuit
and the University’s response. Without enough facts to plausibly establish the
University acted with deliberate indifference, Mungai’s Title VI claim fails. See
Davis, 526 U.S. at 649 (stating that a court can decide as a matter of law on a motion
to dismiss whether a school’s response was “not ‘clearly unreasonable’”).
B. Dismiss with Prejudice
We typically review the decision to dismiss with prejudice, as opposed to
granting leave to amend the complaint, for an abuse of discretion. Mitchell v.
Kirchmeier, 28 F.4th 888, 903 (8th Cir. 2022). However, if the plaintiff has
submitted proposed amendments, and the district court denies the motion to amend
based on futility, then “we review the underlying legal conclusions de novo.”
Walker v. Barrett, 650 F.3d 1198, 1210 (8th Cir. 2011) (quoting Zutz v. Nelson, 601
F.3d 842, 850 (8th Cir. 2010)).
Mungai asserts that the pleading deficiencies for his Title VI, MHRA,
Fourteenth Amendment, and § 1983 claims could be remedied by further
amendments. We address each claim in turn.
1. Title VI
To determine whether Mungai cured the pleading deficiencies of his Title VI
claim, we examined the last-filed proposed amended complaint (“Proposed Fourth
Amended Complaint”), which included amendments from his previous proposed
amended complaints. Regarding the failure to report to an appropriate person, after
the applicable allegations that he reported something to staff, Mungai added the
phrase “and (Ann, Paul, or Katie).” Similarly, with the one incident he initially
alleged he reported something to the SCRC, Mungai added the phrase “and (Ann,
Paul, or Katie).” The Proposed Fourth Amended Complaint alleges that Ann is an

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“Equal Opportunity Associate / Deputy Title IX Coordinator,” Paul is an
“Ombudsperson with the Student Conflict Resolution Center,” and Katie is an
“Associate Director in the Office for Community Standards.”
Two of the named individuals lack authority to take corrective action. As
previously explained, the SCRC is not an office of notice and has no authority to
take corrective action, and Paul worked at the SCRC. The amendments do not allege
that the Office for Community Standards is an office of notice or that Katie, an
employee in that office, had authority to take corrective action. Mungai’s reports to
Paul and Katie fail to qualify as notice to an appropriate person.
Finally, the reports to Ann are described in the EO Letter. Mungai filed these
reports after he commenced the lawsuit and after he graduated. The reports to Ann
do not allege actual knowledge by the University prior to Mungai’s commencement
of this lawsuit.
The proposed amendments also fail to cure other deficiencies in his claim. It
is still unknown when he made other reports and the content of those reports. The
proposed amendments do not adequately plead facts establishing that the
University’s response was clearly unreasonable. Due to the numerous pleading
deficiencies in the proposed amendments, the district court did not err in dismissing
with prejudice the Title VI claim.
2. Minnesota Human Rights Act
The Eleventh Amendment to the United States Constitution prohibits federal
court jurisdiction over state law claims against states or state officials unless the state
has consented to suit. Cooper v. St. Cloud State Univ., 226 F.3d 964, 968 (8th Cir.
2000). As an instrumentality of the state, the University receives Eleventh
Amendment protections. Id. Minnesota has not waived its Eleventh Amendment
immunity to MHRA claims in federal court. Id. at 969. The district court did not
err in dismissing the MHRA claims with prejudice.

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3. Fourteenth Amendment
A plaintiff may not bring a claim directly under the Fourteenth Amendment.
Wax’n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir. 2000). A claim
involving the violation of the Fourteenth Amendment is construed as a claim under
§ 1983. Id. The district court did not err in dismissing with prejudice Mungai’s
direct claim of a violation of the Fourteenth Amendment.
4. Section 1983
To plausibly allege a claim under § 1983, a “person” must have deprived the
plaintiff of their Constitutional rights. A State is not a “person” under § 1983.
Treleven v. Univ. of Minn., 73 F.3d 816, 818 (8th Cir. 1996) (quoting Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 71 (1989)). As an instrumentality of the State,
the University is not subject to liability under § 1983. Id. at 819. The district court
did not err in dismissing with prejudice Mungai’s § 1983 claim.
III. CONCLUSION
The judgment of the district court is affirmed.
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