                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 01-1725
                                    ___________

Ronell Williams,                         *
                                         *
             Appellant,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri
Lindenwood University,                   *
                                         *
             Appellee.                   *
                                    ___________

                              Submitted: November 14, 2001

                                   Filed: May 1, 2002 (Corrected: May 6, 2002)
                                    ___________

Before McMILLIAN, FAGG and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

McMILLIAN, Circuit Judge.

       Ronell Williams (“plaintiff”) is a black male who attended Lindenwood
University before being expelled for disciplinary violations arising out of a party held
in student housing. Plaintiff appeals from a final order entered in the United States
District Court1 for the Eastern District of Missouri granting summary judgment in
favor of Lindenwood University on plaintiff’s claims for breach of contract and racial
discrimination. See Williams v. Lindenwood University, No. 4:00CV00010 (E.D.

      1
      The parties consented to trial before a United States Magistrate Judge,
pursuant to 28 U.S.C. § 636(c), with direct review to this court.
Mo. Feb. 13, 2001) (hereinafter “slip op.”). For reversal, plaintiff argues that the
district court erred in granting summary judgment in favor of the university because
(1) he raised genuine issues of material fact as to whether his expulsion and denial of
readmission was based on his race and (2) he produced evidence that the university’s
proffered explanations for the expulsion and denial of readmission were pretexts for
racial discrimination. For the reasons discussed below, we reverse the grant of
summary judgment and remand the case to the district court for further proceedings.

      Jurisdiction was proper in the district court pursuant to 28 U.S.C. §§ 1331 and
1343. Plaintiff filed a timely notice of appeal pursuant to Fed. R. App. P. 4(a)(1)(A).
This court has jurisdiction pursuant to 28 U.S.C. § 1291.

I. Facts

     The facts herein are presented in the light most favorable to plaintiff, as the
nonmoving party. See Fed. R. Civ. P. 56(c).

       While plaintiff was a student at Lindenwood University, he lived with Chad
Moore, who is also black, in a mobile home used by the university for student
housing (“the trailer”). Lindenwood University students who live in student housing
agree to abide by certain rules, including that alcohol is not allowed on campus (“the
alcohol policy”), visitation by members of the opposite sex is prohibited (“the
visitation rule”), and that students are responsible for the actions of their guests while
on campus.

       On February 16, 1999, plaintiff, Moore, two white female students named
Kristen Bruening and Stephanee Denbow (together, “the students”), and three
unidentified black males who were not students (together, “the nonstudents”)
participated in a party in the trailer. There was alcohol at the party in violation of the
alcohol policy. Denbow’s and Bruening’s presence in the trailer was a violation of

                                           -2-
the visitation rules.2 Williams was responsible for the actions of the nonstudents
while they were on campus.

        Denbow testified in her deposition that she initially went to the trailer that
night on her own accord to do laundry, and that Moore and plaintiff were both present
when she arrived. Bruening testified in her deposition that she accompanied Denbow
to the trailer, and that at approximately 9:00 p.m., both Moore and plaintiff
announced to them that other guests would be coming over. Denbow and Bruening
decided to wait in the trailer to socialize with Moore, plaintiff, and others who would
be arriving later that evening. More than an hour later, the nonstudents arrived at the
trailer. Bruening testified that there was already alcohol present before the
nonstudents arrived. The uncontroverted testimony of the students at the party was
that plaintiff did not ever drink any of the alcohol, while Moore, Denbow,3 Bruening,
and the nonstudents did drink it. The students all testified that the nonstudents did
not misbehave or act inappropriately during the party or ever cause anyone to feel
unsafe. Moore testified that he did not see anyone in danger at the party and that no
one made any sexual or inappropriate remarks. Similarly, Bruening testified that she
never felt threatened during the party. Bruening testified that, at different times, both
Moore and plaintiff left the party for a little while and returned later. Moore testified
that when he returned to the party, he turned on the stereo in his room.

       At approximately 2:00 a.m., campus security officer Byron Steele, who is
black, and another campus security officer heard noise from the trailer, determined

      2
        For the two white students, this was at least their second violation each for
violating the visitation policy under similar circumstances. For example, Denbow
testified that she had previously been in trouble earlier that same year for
unauthorized visits to a male student’s trailer.
      3
        Because Stephanee Denbow was under twenty-one years old at the time of the
party, she violated the law by drinking underage in addition to violating the alcohol
policy. Yet, she was readmitted to Lindenwood University while plaintiff was not.
                                           -3-
that its occupants were in violation of Lindenwood University’s “quiet hours policy,”
and approached the trailer to confront them. Steele testified in his deposition that
when he arrived at the trailer, neither of the women appeared to be in any trouble and
no one asked for any help; rather, everyone was “just partying and running around.”
Steele described the nonstudents’ appearance as “pretty nice.”

       Steele testified that when he and the other campus security officer entered the
front of the trailer, he saw Moore and Bruening trying to run out the back door.
Breuning admitted that she and Moore went out the back door of the trailer when she
saw security coming, and that Steele had to call her at home at 3:00 a.m. to let her
know that he was aware she had been present at the party. Moore, too, testified that
he left with Bruening when the campus security officers arrived, and said that he
found out what happened from plaintiff when he returned to the trailer later, after the
campus security officers had left. Plaintiff testified in his deposition that he was
cooperative with the campus security officers, answered all of their questions, and
told them who the nonstudents were. Steele confirmed that it was plaintiff who spoke
with him and that only plaintiff took responsibility for living in the trailer.

       At approximately 2:20 a.m., Steele wrote out a three-page behavioral incident
report detailing his observations. In the report, Steele did not mention that the
nonstudents acted belligerently or violently, or that they did anything to make Steele
feel unsafe.

       Steele also reported the incident to Joseph Steenbergen, the Lindenwood
University Dean of Students. Dean Steenbergen claimed that he learned from Steele
that the nonstudents were members of a gang, that they said that they were going to
“go through” the campus security officers, and that they were criminals with
outstanding arrest warrants. Dean Steenbergen testified that Steele seemed “pretty
scared” by the incident, that the nonstudents cursed at Steele, that Steele thought they



                                          -4-
were going to fight, and that this was the first time Steele had ever told him anything
like that.

       After speaking with Steele, Dean Steenbergen expelled the students from the
university. Each of the students appealed their expulsion to the Lindenwood
University Dean of Admissions, David Williams. Dean Williams heard all of the
appeals and met individually with each of the four students while the university
investigated the incident. Moore, Bruening, and Denbow were readmitted within
days. Plaintiff was denied readmission ostensibly because he created a dangerous
situation by bringing criminals and gang members to campus and because he
instigated all of the violations of Lindenwood University policy.

      Throughout Lindenwood University’s investigation of the incident, there arose
several instances where (1) university administrators drew conclusions about the
incident which were not corroborated by the students, Steele, or the behavioral
incident report, and (2) university administrators made remarks about plaintiff and the
nonstudents which the students interpreted as racially discriminatory.

A. Disputed Facts about the Incident

       Lindenwood University officials said that Steele identified the nonstudents as
gang members because he saw in the trailer a photograph of them in which they
appeared to be “throwing gang signs.” However, Steele testified that he did not know
whether the nonstudents were members of a gang or even if they were “throwing gang
signs” in plaintiff’s photograph; only that that was “kind of what it looked like.”
Steele also testified that plaintiff was not in the photograph and, when asked whether
the nonstudents were the same individuals that were in the photograph, he answered
“I think maybe one of them.”




                                          -5-
       Steele also said that he did not recall plaintiff telling him that the nonstudents
had outstanding arrest warrants. Dean Williams testified in his deposition that he
found out about the alleged warrants from plaintiff only after plaintiff had already
been expelled. However, plaintiff testified that he did not know one way or the other
whether the nonstudents had outstanding arrest warrants and that he did not ever say
that they did. Moreover, even though plaintiff gave Dean Steenbergen the names of
the nonstudents, none of the university administrators were ever able to verify with
law enforcement officials that the nonstudents had outstanding arrest warrants.

       Another allegation consistently raised by Lindenwood University
administrators is that the nonstudents physically threatened the campus security
officers and that Steele was visibly shaken when the nonstudents bragged that they
would “go through” the campus security officers. However, there is no support for
this allegation in the record. Denbow, who was present throughout the entire
exchange, said that she did not see or hear the nonstudents threaten or confront the
campus security officers. She added that the nonstudents did not act belligerently to
the campus security officers, but were rather quite polite to them, and that Steele did
not appear to be scared at any point. Plaintiff testified that he did not hear the
nonstudents ever say that they were going to “go through” the campus security
guards. Even Steele testified that he did not hear the statement about “running
through these guys,” and assumed that the other campus security officer “apparently”
had heard it.4




      4
        The other campus security officer was not deposed and his testimony was not
part of the record.
                                           -6-
B. Racially Discriminatory Remarks

1. Dean Williams’s comments

       Bruening testified that she twice met with Dean Williams about the incident.
Bruening testified that during the first meeting, Dean Williams asked her what she
was doing hanging around with “all those black guys” and whether her parents knew
that she was hanging around with those black guys. Bruening testified that, at the
second meeting, Dean Williams told her she should not have been hanging around
with all these black guys.

        Similarly, Denbow testified that during her meetings with Dean Williams, he
told her she could have gotten raped because she did not know plaintiff’s guests,
asked her what her father would think of her hanging around with those black guys,
and used the term “gang bangers” to describe plaintiff and the nonstudents. Denbow
testified that Dean Williams otherwise did not ask anything about the party. Denbow
testified that she got the impression from Dean Williams that he wanted to make her
feel like it was wrong for her be there with black men, and that he did not think she
should be hanging out with any black men, as opposed to the particular people at the
party. Denbow testified further that she believed Dean Williams would have been
less concerned if everything was the same except that the nonstudents were white.
Denbow testified that Dean Williams told her somebody was trying to roll a
marijuana joint at the party, but that she did not see that occurring.5


      5
        Steele also testified that no marijuana was found in the trailer. In the days
following the incident, Steele apparently told Bruening that Lindenwood University
had been trying to “catch” plaintiff for a while and that they had been suspicious of
him. Steele told Bruening that she had gotten into a bad situation because plaintiff
might have been involved with drugs. Nonetheless, Steele testified in his deposition
that he was aware of no evidence that plaintiff had ever actually been involved with
drugs.
                                         -7-
       Plaintiff testified that, when he met with Dean Williams, Dean Williams took
only ten minutes to read his letter of appeal before denying it, and that Dean Williams
told him that he was not smart enough to attend Lindenwood University.

2. President Spellmann’s comments

        Bruening testified that President Spellmann told her he was concerned about
her personality because she was hanging around with those black guys. Denbow
testified that she got the impression from President Spellmann that he was saying she
was a “floozy” and a whore because she was hanging out with “a bunch of black
guys.”

3. Dean Steenbergen’s comments

      Denbow testified that, on the way to a meeting with Dean Williams, in the
context of explaining to her why the university did not want to readmit plaintiff, Dean
Steenbergen told her that plaintiff previously had been caught selling drugs.

       Moore testified that Dean Steenbergen told him that he did not care about the
party or the girls, only that plaintiff’s “brothers” were present. Moore testified that
Dean Steenbergen used the term “gang bangers” to describe the nonstudents, and that
Dean Steenbergen told him that the nonstudents could “just leave that shit in St.
Louis.” Moore testified that, when Dean Steenbergen came to the trailer to inform
him that he had been readmitted to Lindenwood University but was on probation,
Dean Steenbergen accused Moore and plaintiff of possessing stolen property. Dean
Steenbergen refused to leave the trailer until he had placed numerous phone calls to
independently verify that Moore and plaintiff had not stolen their appliances and
other belongings.




                                          -8-
      Plaintiff testified that he answered every question Dean Steenbergen asked
throughout the investigation, including the identities of the nonstudents and students
present at the party. Dean Steenbergen admits that plaintiff identified the
nonstudents, but said that plaintiff’s cooperation did not change Lindenwood
University’s decision to expel and not readmit plaintiff.

       On January 4, 2000, plaintiff filed this action against Lindenwood University
in the United States District Court for the Eastern District of Missouri alleging
violations of 42 U.S.C. § 1981. On February 13, 2001, the district court granted
summary judgment in favor of Lindenwood University, holding that there were no
genuine issues of material fact and that Lindenwood University was entitled to
judgment as a matter of law because plaintiff failed to set forth a prima facie case of
racial discrimination. See slip op. at 9 (stating that plaintiff offered no evidence of
intentional discrimination and no evidence that Lindenwood University’s actions
were pretext for discrimination). This appeal followed.

II. Discussion

        We review de novo a district court’s decision to grant summary judgment. See
Scroggins v. University of Minn., 221 F.3d 1042, 1044 (8th Cir. 2000). Summary
judgment is appropriate where, viewing the record in the light most favorable to the
nonmoving party, no genuine issue of material fact exists. See Fed. R. Civ. P. 56.
The moving party bears the burden of proving that the material facts are undisputed.
See Mems v. City of St. Paul, 224 F.3d 735, 738 (8th Cir. 2000). “[T]he evidence
offered by the non-moving party is to be believed and all justifiable inferences
therefrom are to be drawn in the light most favorable to that party.” Raddatz v.
Standard Register Co., 31 F. Supp. 2d 1155, 1157 (D. Minn. 1999). The nonmoving
party “may not rest upon the allegations or denials of its pleadings; rather, the
nonmovant must ‘set forth specific facts showing that there is a genuine issue for
trial.’” Id. The drawing of reasonable inferences from the facts is a function reserved

                                          -9-
for the fact finder. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)
(explaining that district court should not weigh evidence or attempt to determine truth
of matter on motion for summary judgment).

       The purpose of 42 U.S.C. § 1981 is to prohibit discrimination in the
"performance, modification and termination of contracts" and to protect "the
enjoyment of all benefits, privileges, terms and conditions of the contractual
relationship." 42 U.S.C. § 1981(b). Because plaintiff’s discrimination claim is
“based on inferences to be drawn from circumstantial evidence, it is governed by the
familiar burden-shifting analysis.” Carter v. St. Louis Univ., 167 F.3d 398, 401 (8th
Cir. 1999) (Carter). To establish a prima facie claim of racial discrimination under
42 U.S.C. § 1981, the plaintiff must show that (1) he is a member of a racial minority,
(2) the defendant intended to discriminate against him on the basis of race, and (3) the
discrimination concerned an area enumerated by the statute. See Mian v. Donaldson,
Lufkin & Jenrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Once the
plaintiff establishes a prima facie case of racial discrimination, the burden shifts to
the defendant to offer a legitimate, nondiscriminatory reason for its actions to rebut
the presumption of discrimination. See Carter, 167 F.3d at 401. Then, the plaintiff
must demonstrate that the defendant’s proffered reason was a pretext for unlawful
discrimination. See id. The “ultimate question of law [is] whether the evidence is
sufficient to create a genuine issue of fact as to whether the defendant intentionally
discriminated against the plaintiff.” Id., citing Rothmeier v. Investment Advisers,
Inc., 85 F.3d 1328, 1336-37 (8th Cir. 1996). We hold that the district court erred in
granting summary judgment because the evidence is sufficient to create genuine
issues of material fact with respect to plaintiff’s prima facie case and the issue of
pretext.




                                          -10-
A. 42 U.S.C. § 1981 Prima Facie Case
1. First Element of prima facie case

       The first element of the prima facie claim of racial discrimination undisputably
is met because plaintiff, a black male, is a member of a racial minority.

2. Second Element of prima facie case

       Plaintiff alleged that Lindenwood University intentionally expelled him and
then refused to readmit him because of his race. In support of this allegation, plaintiff
offered several specific examples of Lindenwood University officials emphasizing
the race of plaintiff and the nonstudents and showing a discriminatory attitude about
that race in the context of the investigation that led to the university’s decisions to
expel and not readmit plaintiff. See Browning v. President Riverboat Casino-MO,
139 F.3d 631, 635 (8th Cir. 1998) (explaining that evidence of conduct or statements
reflecting discriminatory attitude is sufficient to show that discriminatory attitude was
motivating factor in decision); see also Beshears v. Asbill, 930 F.2d 1348, 1254 (8th
Cir. 1991) (same).

       There is a dispute as to whether reference was made to “black guys” or to
“gang bangers” throughout the investigation. Because the nonmoving party in a
motion for summary judgment is entitled to the benefit of all reasonable inferences,
we assume for these purposes that such comments were made in the course of the
investigation. Consequently, we conclude that the university officials’ repeated use
of racial terms interchangeably with references to criminality, as well as their
accusations that the presence of black people itself created a climate of fear, raises an
inference of a discriminatory attitude. Such evidence of a discriminatory attitude is
sufficient to establish the second element of plaintiff’s prima facie § 1981 case.




                                          -11-
        The district court erroneously reasoned that the university officials’ repeated
references to “gang bangers” and “black guys” throughout the investigation were not
evidence of discrimination because “[o]ne would have to assume that all ‘gang
bangers’ are African-American in order to infer any racial discriminatory intent by
defendant.” Slip op. at 6. We disagree. On the contrary, one could infer racially
discriminatory intent merely by showing that the defendant assumed or implied that
all gang bangers are black, because it is the intent and attitude of the defendant that
is relevant and not the intent and attitude of the population at large. As previously
stated, there is ample evidence from which a reasonable factfinder could conclude
that Lindenwood University officials associated the black race with gang affiliation.
Similarly, the district court’s conclusion that intentional discrimination cannot be
established with evidence that the Lindenwood University officials referred to
African-Americans as “black guys” also misses the point – injecting racial language
at all into the decision-making process creates the inference that race had something
to do with the decision-making process. Throughout the investigation, the
Lindenwood University officials continued to focus on the race and racial stereotypes
of plaintiff and the nonstudents.6

       Lindenwood University argues on appeal that there is no direct or
circumstantial evidence of intent to discriminate against plaintiff because references
to words and phrases such as “gang bangers,” “rape,” and “black guys” during its
investigation of the incident were used in connection with the three nonstudents only,
and were never used in connection with plaintiff or in a manner exhibiting negative
racial connotations. We disagree. Lindenwood University officials interchangeably
used race to describe people who allegedly were criminals and whose presence
supposedly put the safety of the female students at risk. Race was used in a

      6
       The district court also stated that plaintiff’s claim of racial discrimination was
somehow undermined because Moore was readmitted. However, the fact that Moore
was readmitted does not disprove that plaintiff was the victim of racial discrimination
and, therefore, does not influence the outcome of this motion for summary judgment.
                                          -12-
derogatory manner to the extent that gang-banging, criminality, and dangerousness
is derogatory. It does not matter whether the remarks were made in reference to
plaintiff or the nonstudents because the remarks reflected the attitude about race of
the university officials who decided to expel plaintiff. If the university officials were
more concerned with the factors other than race as they claim, they could have
referred to the nonstudents as plaintiff’s friends, the visitors, the nonstudents, or even
“those older guys” or “those guys”, or any number of terms that were not suggestive
of attitudes about race. Race became an issue when the university kept using race in
its investigation, presumably because race encapsulated everything they intended to
convey.7

       Lindenwood University next argues that those statements were at most “stray
remarks,” which do not constitute evidence of racial discrimination because they are
not relevant to the decision-making process. This argument also fails because the
remarks were made by university officials while interviewing the witnesses who it
claims it consulted to decide whether to readmit plaintiff, and in the context of the
investigation of the incident that resulted in plaintiff’s expulsion. Therefore, the
circumstances in which the remarks were made was indistinguishable from the
decision-making process and cannot be said to constitute “stray remarks.”

     Because there is ample evidence from which to infer that the Lindenwood
University officials exhibited a racially discriminatory attitude, we hold that plaintiff

      7
        Lindenwood University also argues that, because it was Steele who assumed
that the nonstudents were gang members and Steele is black, it is “impossible to
equate his conclusion . . . with a negative racial bias towards [plaintiff].” However,
as Lindenwood University itself points out, the decisions to expel and not readmit
plaintiff were made by Lindenwood University based on its own investigation, not
by Steele. Furthermore, assuming for the sake of argument that Lindenwood
University believed that the nonstudents were in fact gang members, its use of the
term “black” as a proxy for “gang member” still reflects a negative attitude about
black people.
                                           -13-
has established the intentional discrimination element of his prima facie case. See
Carter v. Chrysler Corp., 173 F.3d 693, 701 (8th Cir. 1999) (explaining that plaintiff
need only offer evidence creating inference that racial animus surrounded decision
to satisfy intentional discrimination element).

3. Third Element of prima facie case

       Finally, the third element of the prima facie case is met because the parties do
not dispute that a contract existed between plaintiff and Lindenwood University, and
the university’s decision to expel and not readmit plaintiff is tantamount to the
termination of that contract because it deprived plaintiff of the enjoyment of the
“benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C.
§ 1981(b).

B. Proffered Non-discriminatory Explanations and Pretext

       Having concluded that plaintiff has met his initial burden of establishing a
prima facie case of racial discrimination, we turn to the nondiscriminatory
explanations articulated by Lindenwood University to justify its actions, and then ask
whether plaintiff has raised a genuine issue of material fact that Lindenwood
University’s proffered explanations are a pretext for unlawful discrimination.
Lindenwood University argues that there were “substantial differences in the level of
involvement and seriousness of the violations of the different students” which
justified expelling and then refusing to readmit plaintiff, including that plaintiff was
primarily or solely responsible for (1) instigating the violations of the alcohol policy;
(2) instigating the violations of the visitation rule; (3) violating Lindenwood
University’s respect for campus authority rules; (4) bringing “criminals and possible
gang members” onto campus, thereby endangering the other students; and (5) the
conduct of those nonstudents, including their physical threats to the campus security
officers. Lindenwood University contends that because plaintiff was the primary

                                          -14-
active participant – while the other students were mere passive participants drawn
into a situation created by plaintiff – it was entitled to punish plaintiff more severely.

       Reviewing the record in its entirety, we find that there is a genuine dispute in
the facts presented as to whether plaintiff’s conduct was indeed more “active” than
that of the other students with respect to each of the factors listed by Lindenwood
University. Because plaintiff is entitled to the benefit of all reasonable inferences
drawn from the facts, see Fed. R. Civ. P. 56, we conclude that plaintiff has created
sufficient doubt as to whether Lindenwood University’s proffered explanations are
pretextual. Consequently, Lindenwood University is not entitled to judgment as a
matter of law.

       First, a dispute exists as to whether plaintiff’s violation of the alcohol policy
was more serious than that of the other students. Lindenwood University contends
that plaintiff was responsible for the presence of alcohol because the nonstudents
brought it to the trailer. However, the evidence shows that there was alcohol present
before the nonstudents arrived and did not show that plaintiff was otherwise
responsible for the presence of the alcohol. Moreover, the evidence indicates that
plaintiff was the only person at the party who did not consume any alcohol. Hence,
it cannot be said that plaintiff’s conduct with respect to the violation of the alcohol
policy was more serious or active than the students who were readmitted.

       Second, a dispute exists as to whether plaintiff’s violation of the visitation rule
was more serious than that of the other students. The evidence is uncontroverted that
all four of the students involved were in violation of the visitation rule, and that, at
the very least, plaintiff and Moore were equally in violation of the visitation rule
because they both lived in the trailer and they both mutually hosted the party. This
situation was not one where plaintiff instigated a violation of the visitation rule by
inviting female students to the trailer; the female students arrived uninvited and
Moore and plaintiff played an equal role in inviting them to stay for the party.

                                           -15-
Lindenwood University argues at great length that the fact that Moore left the trailer
while the party was going on demonstrates that the party must have been instigated
by plaintiff, but the uncontradicted evidence shows that plaintiff also left the party,
so in this respect plaintiff’s conduct is not distinguishable from that of Moore.
Because there is evidence showing that the two white female students initiated the
violation of the visitation rule and that plaintiff and Moore were equally responsible
for inviting them to stay for the party, it cannot be said that plaintiff’s conduct with
respect to the violation of the visitation rule was more serious or active than the
students who were readmitted.

       Third, a dispute exists as to the extent of plaintiff’s cooperation with university
officials as compared to that of the other students. Because there is evidence showing
that plaintiff remained in the trailer and cooperated fully with the campus security
officers while some of the other students who were readmitted fled from the campus
security officers, and because there is evidence showing that plaintiff provided Dean
Steenbergen with all of the information he requested during the investigation, there
is a genuine dispute about whether plaintiff was less cooperative than the other
students.

       Fourth, a dispute exists as to whether plaintiff created a climate of fear on
campus because of the presence of the nonstudents. All of the students testified that
the nonstudents behaved politely and respectfully at all times, and Steele omitted any
allegation to the contrary from his behavioral incident report and his deposition
testimony. These omissions on the behavioral incident report tend to corroborate
plaintiff’s allegation that Lindenwood University used this factor as a pretext for
unlawful racial discrimination.

       Fifth, a dispute exists as to whether the nonstudents acted dangerously or
threatened either the campus security officers or the students. The record indicates
that the nonstudents did not touch the campus security officers and that no violence

                                           -16-
resulted from the interaction between the nonstudents and the campus security
officers. Moreover, no one – including Steele – testified that they heard the
nonstudents say that they would “go through” the campus security officers or say or
do anything to communicate a violent physical threat.

        Additionally, there exists a dispute about whether it was ever Lindenwood
University’s policy to expel and not readmit students for the same violations plaintiff
allegedly committed. Denbow testified that it was commonly known at Lindenwood
that people routinely violated the alcohol policy and the visitation rule under similar
situations, but that they always were readmitted. For example, Denbow and Bruening
previously had been in trouble for visiting with male students. Steele testified that
people “always” exit the trailer out the back when security comes. Dean Steenbergen
testified that he probably has never expelled anyone for disrespecting authority.
President Spellmann also admitted that it is not typical to expel a student for a guests’
actions while on campus. Dean Williams declined to answer the question posed as
to whether it was typical to expel and not readmit a student for these violations.

       Hence, the evidence is sufficient to create genuine issues of material fact as to
whether Lindenwood University intentionally discriminated against plaintiff on the
basis of race. There is ample evidence to permit a reasonable factfinder to conclude
that racial discrimination was a primary reason that plaintiff was expelled and not
readmitted and that Lindenwood University’s proffered nondiscriminatory
explanations were pretextual. Accordingly, the grant of summary judgment must be
reversed.

III. Conclusion

      For the aforementioned reasons, we reverse the judgment of the district court
and remand the case for further proceedings consistent with this opinion.



                                          -17-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -18-
