              United States Court of Appeals
                          For the Eighth Circuit
                      ___________________________

                              No. 19-1594
                      ___________________________

                                    John Doe

                     lllllllllllllllllllllPlaintiff - Appellant

                                        v.

                           University of St. Thomas

                     lllllllllllllllllllllDefendant - Appellee

                           ------------------------------

                                    Jane Doe

          lllllllllllllllllllllMovant - Amicus on Behalf of Appellee(s)

                     Minnesota Private College Council

               lllllllllllllllllllllAmicus on Behalf of Appellee(s)
                                     ____________

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

                           Submitted: June 16, 2020
                            Filed: August 28, 2020
                                ____________

Before GRUENDER, WOLLMAN, and KOBES, Circuit Judges.
                       ____________
KOBES, Circuit Judge.

        After a fellow student accused Plaintiff John Doe of sexual misconduct, the
University of St. Thomas, a private university, began disciplinary proceedings that
resulted in Doe’s suspension. Doe filed suit asserting Title IX violations and various
state law claims. The only claim that survived to summary judgment was a state law
negligence claim alleging that the University and its agents breached its “duty of care
to Plaintiff and others to conduct [a disciplinary] process in a non-negligent manner
and with due care.” Am. Compl. ¶¶ 210–11. The district court1 granted judgment to
the University, finding that Doe had not shown a genuine issue of fact that the
disciplinary proceedings were biased against him or that any alleged procedural flaws
breached the University’s duty of reasonable care.2 We affirm.

      We review the district court’s grant of summary judgment and its interpretation
of state law de novo, considering the facts in the light most favorable to the
nonmoving party. Chew v. Am. Greetings Corp., 754 F.3d 632, 635 (8th Cir. 2014).
Summary judgment is properly granted when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A material fact is one that “might affect the outcome,” and a dispute is
genuine if “a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      1
       The Honorable John R. Tunheim, Chief United States District Judge for the
District of Minnesota.
      2
         Doe also claims that the magistrate judge erred in denying his motion to
compel the deposition of his accuser. But he failed to file objections with the district
court, and we cannot review the dismissal of a nondispositive pretrial motion. Fed.
R. Civ. P. 72(a) (“A party may not assign as error a defect in the order not timely
objected to.”). The parties did not consent to final disposition by a magistrate judge
under 28 U.S.C. § 636(c), and “we do not have jurisdiction to hear a direct appeal of
a magistrate judge’s order on a nondispositive pretrial matter.” Daley v. Marriott
Int’l, Inc., 415 F.3d 889, 893 n.9 (8th Cir. 2005).

                                          -2-
       Doe argues that material facts show that the disciplinary process unfairly
favored accusers and did not afford the necessary procedural due process protections,
and therefore the University breached its duty of care. Before we can determine what
facts are material to an alleged breach, we must know what duty of care the
University, a private institution, owes its students. Anderson, 477 U.S. at 248 (“[T]he
substantive law will identify which facts are material.”). The parties agree that
Minnesota common law governs, but they hotly contest whether the duty of care
requires private universities investigating non-academic misconduct violations to act
reasonably and in a manner that comports with constitutional due process or just
refrain from acting arbitrarily.3

      “When applying Minnesota law under our diversity jurisdiction, we are bound
by the decisions of the Minnesota Supreme Court.” Badrawi v. Wells Fargo Home
Mortg., Inc., 718 F.3d 756, 758 (8th Cir. 2013). “If the Minnesota Supreme Court has
not spoken on a particular issue, this court must attempt to predict how the Minnesota
Supreme Court would decide an issue and may consider relevant state precedent,
analogous decisions, considered dicta . . . and any other reliable data.” C.S.
McCrossan Inc. v. Fed. Ins. Co., 932 F.3d 1142, 1145 (8th Cir. 2019) (brackets
omitted).

      3
        Doe claims that the University has waived any argument that the district court
applied the incorrect duty of care because it failed to file a cross appeal on that issue.
Reply 20–25. We disagree. We review a district court’s judgments, not its opinions.
Jennings v. Stephens, 574 U.S. 271, 277 (2015). The appellee may “defend a
judgment on any ground consistent with the record, even if rejected or ignored in the
lower court.” Spirtas Co. v. Nautilus Ins. Co., 715 F.3d 667, 671 (8th Cir. 2013).
The University’s claim that the district court applied an incorrect standard of care
does not enlarge its rights or lessen Doe’s: under either theory the University would
only be entitled to release from this claim. See Jennings, 574 U.S. at 276. As a
result, the University only seeks to “sustain the same judgment on a different basis
in the record, [and] a cross-appeal is not required.” Spirtas, 715 F.3d at 671.

                                           -3-
        The Minnesota Supreme Court has not decided what duty of care private
universities owe their students when investigating non-academic misconduct. The
parties agree that Abbariao v. Hamline University School of Law, 258 N.W.2d 108
(Minn. 1977), is the most recent case to address the common law duty universities
owe their students. There, a law student claimed that the university violated his rights
to procedural due process under the federal constitution, as well as a common law
duty of fair treatment, when it expelled him for failing to maintain required grades.
Id. at 111. Because the district court had granted a motion to dismiss, the Minnesota
Supreme Court accepted the allegation that Hamline was a public university and that
the expulsion implicated the student’s due process rights.

       The Minnesota Supreme Court held that an academic expulsion from a state
actor violates due process if it “results from the arbitrary, capricious, or bad-faith
actions of university officials.” Id. at 112. The court noted that “judicial examination
into issues of academic performance may well be different from cases involving
expulsion for alleged misconduct not directly related to academic proficiency.” Id.
at 113. In the event that Hamline was a private university (and not subject to federal
due process requirements), the court explained that under Minnesota common law “a
university may not arbitrarily expel a student.” Id. at 112 (relying on Gleason v.
Univ. of Minn., 116 N.W. 650 (1908)). Notably, in Gleason, the student had been
charged with academic deficiencies and “certain insubordinate acts toward the faculty
of the University of Minnesota and with inciting younger students to insubordinate
acts towards said faculty.” 116 N.W. at 652. Thus, the student’s action in Abbariao
stated a claim for relief if a private or public university had “arbitrarily” expelled him.

       Following Abbariao, the Minnesota Court of Appeals extended the common
law duty “not to expel students in an arbitrary manner” to non-academic misconduct
discipline. Rollins v. Cardinal Stritch Univ., 626 N.W.2d 464, 470 (Minn. Ct. App.
2001). Minnesota courts have also clarified that misconduct expulsions from public
universities only require that the “student must be given notice and some opportunity


                                           -4-
to be heard.” Shuman v. Univ. of Minn. Law Sch., 451 N.W.2d 71, 74 (Minn. Ct.
App. 1990).

       Turning to this case, the district court dismissed the holding in Rollins and
rejected the University’s argument that the Abbariao arbitrary standard applied.
Instead, it adopted Doe’s reasonable care standard that the University “had an
obligation to create and administer a process that was fair and impartial to both [the
accuser and the accused] . . . and [to] provide some measure of due process in the
proceeding to ensure that an accurate outcome was achieved.” D. Ct. Dkt. 296 at 12.
In doing so, the district court explained that Abbariao requires a “panoply of
safeguards designed to ensure the fairness of factfinding” for misconduct expulsions.
Id. (quoting Abbariao, 258 N.W.2d at 112).

       Although federal courts applying Minnesota law must predict how the
Minnesota Supreme Court would rule, C.S. McCrossan Inc., 932 F.3d at 1145, we
respectfully think the district court predicted the wrong standard here. The district
court had no reason to disregard Rollins, the only Minnesota court decision to apply
the common law duty to a private university’s non-academic expulsion. Although
Abbariao cautions that judicial examinations of misconduct expulsions “may well be
different,” it applied the arbitrary standard announced in Gleason, where the student
faced academic and misconduct charges. The district court erred by rejecting Rollins
and formulating a reasonable care standard that no Minnesota court has adopted.

        Even under the district court’s more permissive reasonable care standard, Doe’s
claims did not survive summary judgment. Applying Abbariao’s “arbitrary,
capricious, or bad-faith” standard, we conclude the same. 258 N.W.2d at 112.
Although neither party tells us how Minnesota law applies an “arbitrary” standard of
care, we find reference to Minnesota administrative law and due process precedents
helpful. See Abbariao, 258 N.W.2d at 113 (private university’s duty parallels due
process requirements). The Minnesota Supreme Court has long held that an “action
is arbitrary, oppressive, and unreasonable so that it represents [the agency’s] will and

                                          -5-
not [its] judgment.” Webster v. Marshall, 133 N.W.2d 533, 535 (Minn. 1965). “A
university’s decision may be arbitrary if the university violates its own procedures.”4
Tatro v. Univ. of Minn., 800 N.W.2d 811, 816 (Minn. Ct. App. 2011), aff’d on other
grounds, 816 N.W.2d 509 (Minn. 2012).

       Doe alleges that the University’s training materials “caused the investigators
and adjudicators in this case to manifest a Bias Against Accused Students so strong
that it eliminated [the University]’s ability to satisfy the Negligence Duty.” Doe
Br. 12. Specifically, he claims University staff handling disciplinary matters were
trained to believe that accusing students made false allegations less than 10% of the
time, 51% of college males admitted to at least one sexual assault during college, and
that accusing students that give inconsistent statements or omit details should be
believed. Id. at 24. To further show the University’s bias, he points to the materials
providing a template for finding an accused student responsible for misconduct (but
not one for the opposite result) and other differences in services the University staff
offers accusers versus the accused. Id. at 24–25.

      The district court held that Doe had not overcome the presumption of honesty
and integrity afforded to school administrators. D. Ct. Dkt. 296 at 12 (citing
Richmond v. Fowlkes, 228 F.3d 854, 858 (8th Cir. 2000)). That presumption applies
unless “actual bias, such as personal animosity, illegal prejudice, or a personal or
financial stake in the outcome can be proven.”5 Fowlkes, 228 F.3d at 858. Doe

      4
       Doe does not appear to have raised any procedural irregularities in his briefing
to us. Instead, we gather that he complains that the University staff followed
University policy. We recognize that the district court found, sua sponte, two
deviations that purported to violate its standard of care. The court, however, found
them harmless. In our view, these purported violations do not show the proceedings
were arbitrary.
      5
       Although Fowlkes involved a presumption that federal courts afford
administrators for federal due process claims, it appears that Minnesota law applies
a similar presumption. R.T. v. Univ. of Minn., No. C9-01-1596, 2002 WL 1275663,

                                          -6-
presents no evidence showing any of the University staff were individually biased
against him.

       Even without a presumption, we do not find a genuine dispute of material fact.
Although we are troubled by University training that implicates stereotypes rather
than individualized assessments, there is no evidence that these materials influenced
the University staff’s judgment. No reasonable jury would find bias here because the
investigators did question the accuser about inconsistencies in her story6 and found
her to be credible. Further, no implication of bias arises by asking the accuser to
preserve evidence or by offering her mental health services. None of Doe’s evidence
shows that the University was “out to get [him],” Shuman, 451 N.W.2d at 74, or that
University’s proceedings were the product of will, instead of judgment.

      The judgment of the district court is affirmed.
                             ______________________________




at *3 (Minn. Ct. App. June 11, 2002) (“Administrative proceedings are presumed to
be honest and regular, and the party claiming otherwise has the burden of proof.”).
      6
        For this reason, we reject Doe’s claim that the University process was biased
because it did not let him cross-examine his accuser. Like the district court, we note
that the University’s proceedings do not permit a full-blown criminal trial, and it was
not arbitrary to follow University policy in this manner.

                                          -7-
