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Appeals court to hear University of Missouri discrimination case

Rudi Keller
rkeller@columbiatribune.com
Columbia Daily Tribune

The University of Missouri’s rules governing sexual misconduct, sexual harassment and stalking will come before the Eighth Circuit Court of Appeals on Tuesday in a case involving a Black graduate student and a white undergraduate.

Jeremy Rowles, who was studying for a doctorate in cultural anthropology, was suspended for four years in March 2017 following an investigation by MU’s Title IX office.

The suspension was later reduced to two years, but attorney Andy Hirth, who represents Rowles, said in an interview last week that the term was immaterial because it effectively ended Rowles’ academic career.

In Tuesday’s arguments, Hirth will ask the court to overturn decisions by U.S. District Judge Brian Wimes dismissing some claims and granting the university a judgment in its favor on others.

If the three-judge panel agrees, the result will likely mean continued proceedings and a possible trial. A decision in favor of the university would end the case, unless a further appeal is sought and granted by the U.S. Supreme Court.

The university and the four employees who handled the discipline case against Rowles are represented by Emily Little and Antwaun Smith of the General Counsel’s office. Through spokesman Christian Basi, the university declined to make them available for an interview.

“The university has full confidence in its Title IX process and is committed to maintaining a safe and welcoming environment on campus,” a statement sent by Basi read.

The arguments will be conducted virtually before a three-judge panel. It is the second case on the morning docket for Judges James Loken, appointed by President George H.W. Bush, Bobby Shepherd, appointed by President Barack Obama and Ralph Erickson, appointed by President Donald Trump.

The public can listen in by using a dedicated telephone line.

The basic facts of the case are not in dispute. Rowles first saw the woman involved, identified in federal court documents as A.B., at a coffee shop where she worked. He enrolled in a dance fitness class she taught in the spring semester of 2015 and began sending her messages via Facebook, then asked her for a date after a class.

She declined the date and asked him to stop sending messages and he did so until the fall semester of 2016, when he again enrolled in her classes and sent a message asking for help improving his dance skills.

A.B. responded by suggesting he seek private lessons. When he asked her to provide them and she declined, he wrote her a note with a coffee token from her workplace and the lyrics of a song. He wrote a three-page letter and tried to give it to her a week later.

The issue in the Title IX investigation conducted by the university is whether those actions, taken as a whole, violate rules against sexual harassment and stalking. The issues raised in the lawsuit, initially filed in August 2017 in Boone County, is whether the letters were innocent, protected speech, whether the rules are so vague they do notice of the conduct that is and is not allowed and whether the punishment was out of proportion compared to decisions in similar cases.

The university had the case moved to federal court and in July 2018, Wimes dismissed five counts and partially dismissed another. In April 2019, Wimes followed that decision with a summary judgment order in favor of MU on all the remaining issues.

On the free speech claim, Hirth wrote to the court that “Rowles was suspended for directing amorous — but not threatening — speech toward someone who wasn’t interested in him.”

The university’s rule on stalking prohibits “following or engaging in a course of conduct on the basis of sex with no legitimate purpose that makes another person reasonably concerned for their safety or would cause a reasonable person under the circumstances to be frightened, intimidated or emotionally distressed.”

In her complaint, A.B. wrote that Rowles’ actions made her uncomfortable and she told him so and that the first letter he gave her “was very bizarre.”

In an interview, Hirth said Rowles had no intent to frighten, intimidate or distress A.B.

“Except for attending classes (along with many other students), the alleged harassment and stalking consists solely of speech,” Hirth wrote in his brief to the appeals court. “A.B. never alleged that she felt threatened or intimidated by Rowles, only that his behavior was ’bizarre’ and made her ’uncomfortable.’”

Wimes, in his April 2019 decision, wrote that the employees were protected by qualified immunity, and that they had not only suspended Rowles based on the content of his letters.

“Even with all reasonable inferences drawn in Rowles’ favor, the record establishes that Rowles was punished for his conduct which was found to be unwelcome and hostile and not for engaging in protected speech,” Wimes wrote.

In their brief to the appeals court, Little and Smith wrote that the university’s rules may find that speech is an element of a violation but that they are not directed at speech alone.

“The policies are not specifically addressed to speech and there is no evidence that the policies have a real and substantial deterrent effect on protected speech,” they wrote.

Rowles is also claiming he received a harsh punishment because he is Black and A.B. is white. As part of discovery, Hirth received summaries of 60 cases where discipline was imposed as part of a Title IX process.

He said he found three cases with violations of the rules against stalking and harassment — Rowles and two white students.

One student was sent to counseling and the other, who was also found to have engaged in non-consensual sex and threatening behavior, was suspended for six months.

Wimes ruled against attempts to gain access to the full record in those 60 cases and determined that Hirth had not shown the two other stalking and harassment cases were suitable for comparison.

Wimes ruling should be upheld, Little and Smith wrote, because there was no showing that a statistical analysis was done that would prove disparate punishment. The university provided enough information for that to be done, they wrote.

The university is trying to prevent a true analysis of its Title IX practices, Hirth wrote in his reply brief, the final filing before Tuesday’s hearing.

“Respondents refused to produce evidence uniquely within their custody and control, represented to the court that Rowles didn’t need that evidence to explain the disparate treatment of similarly situated white students, and then cited Rowles’s failure to produce that evidence as grounds for summary judgment against him,” he wrote.