                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


BRANDON AUSTIN,                      No. 17-35559
          Plaintiff-Appellant,
                                       D.C. Nos.
              and                  6:15-cv-02257-MC
                                   6:16-cv-00647-MC
DOMINIC ARTIS; DAMYEAN
DOTSON,
                    Plaintiffs,

               v.

UNIVERSITY OF OREGON; SANDY
WEINTRAUB; CHICORA MARTIN;
ROBIN HOLMES; MICHAEL R.
GOTTFREDSON, all in their
individual capacities only,
           Defendants-Appellees.
2         AUSTIN V. UNIVERSITY OF OREGON


DOMINIC ARTIS; DAMYEAN                     No. 17-35560
DOTSON,
          Plaintiffs-Appellants,             D.C. Nos.
                                         6:15-cv-02257-MC
              and                        6:16-cv-00647-MC

BRANDON AUSTIN,
                         Plaintiff,         OPINION

               v.

UNIVERSITY OF OREGON; SANDY
WEINTRAUB; CHICORA MARTIN;
ROBIN HOLMES; MICHAEL R.
GOTTFREDSON, all in their
individual capacities only,
           Defendants-Appellees.



     Appeals from the United States District Court
               for the District of Oregon
     Michael J. McShane, District Judge, Presiding

       Argued and Submitted December 6, 2018
                Seattle, Washington

                    Filed June 4, 2019

    Before: Susan P. Graber, M. Margaret McKeown,
          and Morgan Christen, Circuit Judges.

             Opinion by Judge McKeown
              AUSTIN V. UNIVERSITY OF OREGON                        3

                          SUMMARY *


                           Civil Rights

   The panel affirmed the district court’s dismissal of a
complaint brought by three male student athletes against the
University of Oregon alleging the University discriminated
against them on the basis of their sex in violation of Title IX
and violated their due process rights in connection with the
University’s sexual misconduct proceedings.

    Following the Supreme Court’s guidance in
Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the panel
held that Federal Rule of Civil Procedure 8(a), not the
evidentiary presumption set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), provides the
appropriate standard for reviewing, at the pleading stage, a
motion to dismiss in a Title IX case.

    The panel affirmed the district court’s dismissal of the
Third Amended Complaint because, putting aside mere
conclusory allegations, the complaint failed to make any
claims of discrimination on the basis of sex cognizable under
Title IX. The panel rejected plaintiffs’ three theories under
Title IX: selective enforcement, erroneous outcome, and
deliberate indifference. The panel determined that plaintiffs
failed to sufficiently allege that the decision to discipline
them was grounded in gender bias or that the administration
or outcome of the disciplinary proceedings were flawed due
to the student athletes’ sex. The panel further determined


    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4            AUSTIN V. UNIVERSITY OF OREGON

that plaintiffs waived their “deliberate indifference” theory
of Title IX liability.

    The panel held that the student athletes’ due process
claims failed because they received constitutional due
process through the University’s disciplinary proceedings.
The panel assumed, without deciding, that the student
athletes had property and liberty interests in their education,
scholarships, and reputation as alleged in the complaint.
Nonetheless, the panel held that the student athletes received
the hallmarks of procedural due process: notice and a
meaningful opportunity to be heard.


                         COUNSEL

Alan Carl Milstein (argued), Sherman Silverstein Kohl Rose
& Podolsky P.A., Moorestown, New Jersey; Marianne
Dugan, Eugene, Oregon; for Plaintiff-Appellant Brandon
Austin.

Brian I. Michaels (argued), Eugene, Oregon, for Plaintiffs-
Appellants Dominic Artis and Damyean Dotson.

Kevin Scott Reed (argued), Office of the General Counsel,
University of Oregon, Eugene, Oregon; P.K. Runkles-
Pearson, Miller Nash Graham & Dunn LLP, Portland,
Oregon; for Defendants-Appellees.
               AUSTIN V. UNIVERSITY OF OREGON                   5

                            OPINION

McKEOWN, Circuit Judge:

    These companion cases concerning campus sexual
assault raise an issue of first impression in this circuit—
whether the McDonnell Douglas 1 evidentiary presumption
applies at the pleading stage in a Title IX case. Following
the Supreme Court’s explanation of Title VII’s pleading
requirements in Swierkiewicz v. Sorema N.A., 534 U.S. 506
(2002), we conclude that Federal Rule of Civil
Procedure 8(a), not McDonnell Douglas, applies at the
motion to dismiss stage. On this basis, we affirm the district
court’s dismissal of the Third Amended Complaint because,
putting aside mere conclusory allegations, the complaint
fails to make any claims of discrimination on the basis of sex
cognizable under Title IX. We also affirm the dismissal of
the remaining due process and state law claims.

                        BACKGROUND

    Brandon Austin, Dominic Artis, and Damyean Dotson
(collectively, the “student athletes”) were basketball players
on scholarship at the University of Oregon (the
“University”) in 2014. In March 2014, a female student
accused the men of forcing her to engage in nonconsensual
sex at an off-campus apartment. She reported the alleged
sexual assault to the Eugene police department within a few
days. When details of the alleged assault became public, in
part because the local news published the police report in
full, the campus erupted in protest. Although the Lane
County District Attorney ultimately decided not to prosecute


   1
       McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
6           AUSTIN V. UNIVERSITY OF OREGON

the student athletes, the University proceeded with a formal
disciplinary process.

    Central to this case is the University of Oregon Student
Conduct Code in effect at the time, which defined “sexual
misconduct” to include penetration without explicit consent.
(Other types of sexual activity contemplated by the Code are
not at issue here.) The Code also defined “explicit consent”
as “voluntary, non-coerced and clear communication
indicating a willingness to engage in a particular act,”
including “an affirmative verbal response or voluntary acts
unmistakable in their meaning.” See Or. Admin. R. 571-
021-0105(30), 571-021-0120(3)(h) (2006) (“Student
Conduct Code”), available at http://policies.uoregon.edu/
vol-3-administration-student-affairs/ch-1-conduct/student-
conduct-code.

    The student athletes had the option to choose between
two types of disciplinary hearings: a panel hearing or an
administrative conference. They opted for the simpler, more
streamlined administrative conference. According to the
complaint and the University’s Special Choice of Resolution
Form, the administrative conference procedure included
notice of the character of the accusations against each
student athlete, a summary description of the types of
processes available, and the range of possible penalties;
access to the case file; the opportunity to review and respond
to the investigative report including witness interviews;
representation by an advisor, including counsel; and a
neutral administrator as a hearing officer. See Or. Admin.
R. 571-021-0205(1) (2006). The student athletes claim that
the hearings deprived them of constitutionally required
procedural safeguards.

  The University’s Director of Student Conduct &
Community Standards oversaw the hearing and found the
                AUSTIN V. UNIVERSITY OF OREGON                              7

student athletes responsible for sexual misconduct because
they had violated the Student Conduct Code by “engaging in
penetration without explicit consent.” The University
suspended the student athletes for at least four years and until
the female student is no longer enrolled at the University (but
not longer than ten years). It also declined to renew their
scholarships.

    The student athletes brought this action against the
University and various administrators, alleging several
causes of action, including Title IX claims based on sex
discrimination and due process violations. The district court
dismissed the Third Amended Complaint with prejudice.

                             DISCUSSION

I. Rule 8(a) Pleading Standard in Swierkiewicz

    Despite the parties’ extensive briefing, we need look no
further than the Supreme Court’s guidance in Swierkiewicz
to divine that Rule 8(a) 2 provides the appropriate standard
for reviewing a Rule 12(b)(6) motion to dismiss under
Title IX. Swierkiewicz, 534 U.S. at 510–11. The Sixth
Circuit is in accord. See Doe v. Baum, 903 F.3d 575, 580–
81 (6th Cir. 2018) (applying Rule 8(a) to a Title IX claim
without discussing McDonnell Douglas).

    In Swierkiewicz, the Supreme Court reiterated that “[t]he
prima facie case under McDonnell Douglas . . . is an

       2
         Rule 8(a) provides: “[a] pleading that states a claim for relief must
contain: (1) a short and plain statement of the grounds for the court’s
jurisdiction . . .; (2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and (3) a demand for the relief sought
. . . .”
8             AUSTIN V. UNIVERSITY OF OREGON

evidentiary standard, not a pleading requirement.” 3 534 U.S.
at 510. Under the familiar McDonnell Douglas evidentiary
presumption, once a plaintiff pleads a prima facie case of
discrimination, the burden of proof shifts to the non-moving
party to show non-discriminatory intent. See McDonnell
Douglas, 411 U.S. at 802. The framework “is a tool to assist
plaintiffs at the summary judgment stage so that they may
reach trial.” Costa v. Desert Palace, Inc., 299 F.3d 838, 855
(9th Cir. 2002) (en banc), aff’d, 539 U.S. 90 (2003).

    McDonnell Douglas thus sets out “the order and
allocation of proof” in a Title VII case. 411 U.S. at 800. But,
the

        Court has never indicated that the
        requirements for establishing a prima facie
        case under McDonnell Douglas also apply to
        the pleading standard that plaintiffs must
        satisfy in order to survive a motion to
        dismiss. For instance, we have rejected the
        argument that a Title VII complaint requires
        greater “particularity,” because this would
        “too narrowly constric[t] the role of the
        pleadings.”

Swierkiewicz, 534 U.S. at 511 (alteration in original)
(quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S.
273, 283 n.11 (1976)). The Court went on to explain that,
“[c]onsequently, the ordinary rules for assessing the
    3
      Swierkewicz was a Title VII case. We apply the principles of Title
VII cases to Title IX claims. See, e.g., Franklin v. Gwinnett Cty. Pub.
Sch., 503 U.S. 60, 75 (1992) (relying on a Title VII case to determine
whether sexual harassment qualified as discrimination under Title IX);
Emeldi v. Univ. of Or., 698 F.3d 715, 724 (9th Cir. 2012) (applying the
framework from Title VII cases to a Title IX retaliation claim).
              AUSTIN V. UNIVERSITY OF OREGON                          9

sufficiency of a complaint apply[:] . . . . The liberal notice
pleading of Rule 8(a) is the starting point of a simplified
pleading system, which was adopted to focus litigation on
the merits of a claim.” Id. at 511, 514.

    Without citing Swierkiewicz, the Second Circuit reached
the opposite result in Doe v. Columbia University, 831 F.3d
46, 55–56 (2d Cir. 2016), and applied the McDonnell
Douglas presumption at the motion to dismiss stage in a Title
IX case. The court did reference a previous Title VII case in
which it invoked the McDonnell Douglas presumption at the
pleading stage. Id. at 54–55 (analyzing Littlejohn v. City of
New York, 795 F.3d 297, 310 (2d Cir. 2015)). In Littlejohn,
the Second Circuit recognized that Swierkiewicz eliminated
the possibility of a heightened pleading standard for Title
VII claims, but then construed Swierkiewicz as introducing a
lower pleading standard. See Littlejohn, 795 F.3d at 309
(“Reading Swierkiewicz on its face, it appears to have meant
that a Title VII plaintiff is not required to plead facts
supporting even a minimal inference of discriminatory
intent.”). This led the court to reason that the McDonnell
Douglas presumption informs the application of Ashcroft v.
Iqbal, 556 U.S. 662 (2009), in Title VII cases. See
Littlejohn, 795 F.3d at 310 (“We conclude that Iqbal’s
requirement applies to Title VII complaints of employment
discrimination, but does not affect the benefit to plaintiffs
pronounced in the McDonnell Douglas quartet.”). We read
the Second Circuit’s application of the McDonnell Douglas
presumption at the pleading stage as contrary to Supreme
Court precedent, and we decline to embrace that approach. 4


    4
      We emphasize that Rule 8(a)’s liberal pleading standard is lenient
enough to allow meritorious discrimination claims to proceed while
preserving the gatekeeping function of pleading standards. This opinion
10             AUSTIN V. UNIVERSITY OF OREGON

II. Application of Rule 8(a) to the Student Athletes’ Title
    IX Claims

    It is well established that, under Rule 8(a), a plaintiff
need only provide “enough facts to state a claim to relief that
is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). All factual allegations are
accepted as true, and all reasonable inferences must be
drawn in favor of the plaintiff. See Iqbal, 556 U.S. at 678
(noting that this standard is not a “probability requirement,”
but “asks for more than a sheer possibility that a defendant
has acted unlawfully”). The standard provides for liberal
treatment of a plaintiff’s complaint at the pleading stage.

    Despite three efforts to meet this pleading standard and
state a Title IX claim, 5 the student athletes failed to do so.
What is missing for each theory of liability are sufficient,
nonconclusory allegations plausibly linking the disciplinary
action to discrimination on the basis of sex. See Yusuf v.
Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994) (holding that
a plaintiff can allege multiple theories for his or her claim,
but under any theory “wholly conclusory allegations [will
not] suffice for purposes of Rule 12(b)(6)”).




should in no way be interpreted as requiring a heightened pleading
standard for Title IX claims.

     5
       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 discrimination under any education program or
activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
Title IX applies to “all of the operations of . . . a college, university, or
other postsecondary institution, or a public system of higher education.”
Id. § 1687.
             AUSTIN V. UNIVERSITY OF OREGON                 11

     The student athletes advance three theories under
Title IX: selective enforcement, erroneous outcome, and
deliberate indifference. The essence of the selective
enforcement theory is that the decision to discipline the
student athletes was “grounded” in gender bias. But the
student athletes fail to allege how this is so. The complaint
recites such facts as the content of the University president’s
speech and the campus protests, but does not make any
plausible link connecting these events and the University’s
disciplinary actions to the fact that the student athletes are
male. See Yusuf, 35 F.3d at 715 (“[A selective enforcement]
claim asserts that, regardless of the student’s guilt or
innocence, the severity of the penalty and/or the decision to
initiate the proceeding was affected by the student’s
gender.”).

    Just saying so is not enough. A recitation of facts
without plausible connection to gender is not cured by labels
and conclusory statements about sex discrimination. See
Twombly, 550 U.S. at 556 (“[A] plaintiff’s obligation to
provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do . . . . ” (internal
quotations mark and alterations omitted)).           Compare
Swierkiewicz, 534 U.S. at 514 (detailing specific allegations
in a discrimination case that linked a wrongful termination
to age and national origin).

    The student athletes also allege that, because the
University disciplines male students for sexual misconduct
but never female students, it is biased against men. But this
allegedly disparate impact, even assuming it is true, claims
too much. Significantly, the complaint does not claim that
any female University students have been accused of
comparable misconduct, and thus fails to allege that
12             AUSTIN V. UNIVERSITY OF OREGON

similarly situated students—those accused of sexual
misconduct—are disciplined unequally. 6 The district court
also recognized the lack of parallelism and reasoned
“[s]imply because enforcement is asymmetrical does not
mean that it is selectively so.” We agree. Without
nonconclusory allegations that the male students were
treated any differently than similarly situated female
students based on sex, the selective enforcement theory fails.

    The erroneous outcome theory also fails because the
student athletes do not articulate any basis to discern that the
administration or outcomes of the disciplinary proceedings
were flawed due to the student athletes’ sex. See Yusuf,
35 F.3d at 715. Even if the outcome of the administrative
conference procedure was erroneous, the complaint is
missing any factual allegations that show that sex
discrimination was the source of any error.

    Lastly, the student athletes advance a “deliberate
indifference” theory of Title IX liability, but only make
passing reference to it in one line of a footnote. Without
meaningful briefing on this issue, we consider the argument
waived. See United States v. Kama, 394 F.3d 1236, 1238
(9th Cir. 2005) (“Generally, an issue is waived when the
appellant does not specifically and distinctly argue the issue
in his or her opening brief.”).

    The district court previously dismissed the student
athletes’ Title IX claims with leave to amend and yet, after
two efforts, they still could not allege additional facts to


     6
      We agree with the district court that the only incident cited in the
complaint involving an “accused” female student—threatening another
student with a knife—did not constitute sexual misconduct.
              AUSTIN V. UNIVERSITY OF OREGON                       13

sufficiently plead these claims. We affirm the district court’s
dismissal of the Title IX claims with prejudice.

III.    Claims for Violations of Due Process

    The student athletes’ due process claims fail because
they received constitutional due process through the
University’s disciplinary proceedings. 7 See Mathews v.
Eldridge, 424 U.S. 319, 335 (1976). Under Mathews, we
balance three factors: (1) the private interests subjected to
official action; (2) the risk of an erroneous outcome and the
“probable value, if any, of additional or substitute procedural
safeguards”; and (3) the governmental interest involved,
including fiscal and administrative concerns. See id. at 334–
35. Essentially, “some form of hearing is required before an
individual is finally deprived of a property interest.” Id.
at 333.

    We assume, without deciding, that the student athletes
have property and liberty interests in their education,
scholarships, and reputation as alleged in the complaint.
Nonetheless, they received “the hallmarks of procedural due
process”: notice and a meaningful opportunity to be heard.
Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012)
(quoting Guenther v. Comm’r, 889 F.2d 882, 884 (9th Cir.
1989) (order)). Notice is not an issue here and nothing in the
allegations supports a claim that the student athletes did not
receive a meaningful hearing with the right to be heard.
Importantly, they were represented by counsel and given a
choice of a Special Administrative Conference or a Panel
Hearing with a panel of students, faculty, and staff and the
option to appeal. They signed a Special Choice of

     7
       Because there were no due process violations, we need not reach
the issue of qualified immunity.
14          AUSTIN V. UNIVERSITY OF OREGON

Resolution Form and chose the Special Administrative
Conference. In doing so, they removed the possibility of
expulsion and negotiated away a potential “negative
notation” on their academic record, replacing it with a
“notation of finding of Code violation – unspecified.”
Because the student athletes were represented by counsel
and negotiated the scope of sanctions, they can hardly be
heard to complain about the administrative hearing’s
procedural safeguards. Under Mathews, a hearing need not
include every procedure possible, nor is one entitled to a
hearing of one’s own design. 424 U.S. at 333 (“The
fundamental requirement of due process is the opportunity
to be heard ‘at a meaningful time and in a meaningful
manner.’” (quoting Armstrong v. Manzo, 380 U.S. 545, 552
(1965))). On these facts, the student athletes were not denied
due process.

    Finally, we credit the University’s focus on encouraging
students’ personal integrity and cooperative (rather than
coercive) interpersonal behavior, interest in providing an
environment free of sexual misconduct, and setting up a
disciplinary system that provides students an opportunity to
be heard. We affirm the district court’s dismissal of the due
process claims. We also affirm the dismissal of the state law
claims for the reasons stated in the district court’s orders
dismissing the Third and Second Amended Complaints.

     AFFIRMED.
