United States Court of Appeals

For the Eighth Circuit 

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No. 22-2340

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Elijah Wells, by and through his mother Suzanne Glover

 Plaintiff - Appellant

v.

Creighton Preparatory School, in its official capacity

 Defendant - Appellee

James Bopp, in his individual capacity; Sterling Brown, in his individual capacity

 Defendants 

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Appeal from United States District Court 

for the District of Nebraska - Omaha

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Submitted: May 10, 2023

Filed: September 20, 2023

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Before SHEPHERD, STRAS, and KOBES, Circuit Judges. 

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STRAS, Circuit Judge.

Creighton Preparatory School expelled Elijah Wells after he made lewd 

remarks about a teacher. We must decide whether he plausibly alleged that the 

school discriminated against him “on the basis of sex,” 20 U.S.C. § 1681(a), and, if 
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not, whether he may sue anyway for its failure to follow Title IX’s administrative 

requirements, see 34 C.F.R. § 106.8. The answer to both questions is no, so we 

affirm the district court’s1 decision to dismiss. 

I. 

Wells attended Creighton, an all-boys Jesuit high school in Omaha. At school

one day, a casual conversation with a friend turned “vulgar” when Wells said “that 

he would not have sex with” a teacher. Unfortunately for him, “staff overheard the 

conversation.” Worse yet, they thought he said he would have sex with the teacher—

behavior that, in their view, was “sexual misconduct.” 

Creighton launched an investigation. Wells thought it was more like an 

inquisition: the Dean of Students “stated from the beginning that he deemed [Wells] 

guilty” and “repeatedly demanded” that he admit “to having said that he would have 

sex with the teacher.” After Wells “succumbed to [the] pressure” by giving “a false 

confession,” the school expelled him. 

Several months later, Wells sued Creighton under Title IX of the Education 

Amendments of 1972 on the theory that the school had discriminated against him by 

failing to perform an “adequate and impartial investigation.” See 20 U.S.C. 

§ 1681(a) (prohibiting federally funded “education program[s]” like Creighton from 

discriminating “on the basis of sex”); 34 C.F.R. § 106.8(c) (requiring funding 

recipients to “adopt and publish grievance procedures that provide for the prompt 

and equitable resolution of student and employee complaints”). Relying on 

Nebraska law, he also alleged breach of contract based on a violation of the school’s

student-parent handbook. 

1

The Honorable Robert F. Rossiter, Jr., Chief Judge, United States District 

Court for the District of Nebraska. 
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The district court granted Creighton’s motion to dismiss. See Fed. R. Civ. P. 

12(b)(6). It first dismissed the Title IX claim because Wells had failed to “allege

[that] his sex played any part in the disciplinary process at all.” Then, with the 

federal question gone, it declined to exercise supplemental jurisdiction over Wells’s

breach-of-contract claim. See 28 U.S.C. § 1367(c)(3). 

II. 

We review the grant of a motion to dismiss de novo. See Rowles v. Curators 

of the Univ. of Mo., 983 F.3d 345, 358 (8th Cir. 2020). Like the district court, we 

must determine whether Wells’s complaint “contain[s] sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face.” Far E. 

Aluminium Works Co. v. Viracon, Inc., 27 F.4th 1361, 1364 (8th Cir. 2022)

(alteration in original) (citation omitted). 

A.

To survive a motion to dismiss on his Title IX claim, Wells must have 

plausibly alleged that Creighton discriminated against him “on the basis of sex.” 20 

U.S.C. § 1681(a). In the end, neither of his two sex-discrimination theories works. 

The first is an “erroneous[-]outcome” theory. Rowles, 983 F.3d at 359; see 

Rossley v. Drake Univ., 979 F.3d 1184, 1191–92 (8th Cir. 2020). The logic behind 

it is simple: a “decision that is against the substantial weight of the evidence and 

inconsistent with ordinary practice on sanctions may give rise to an inference of 

bias.” Doe v. Univ. of Ark. - Fayetteville, 974 F.3d 858, 865 (8th Cir. 2020). 

Although bias “on the basis of sex” is one possible inference to draw from a botched 

finding or a procedural misstep, it is not the only one. 20 U.S.C. § 1681(a); see Univ. 

of Ark., 974 F.3d at 865; see also Doe v. Stonehill Coll., Inc., 55 F.4th 302, 334 (1st 

Cir. 2022) (explaining that “ineptitude, inexperience, and sex-neutral procomplainant bias” can also lead to poor decisions (quoting Doe v. Samford Univ., 29 

F.4th 675, 692 (11th Cir. 2022))); Doe v. Columbia Univ., 831 F.3d 46, 57 (2d Cir. 
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2016) (observing that allegations of bias “do not necessarily relate to bias on account 

of sex”). The complaint must still link the erroneous outcome to sex discrimination 

by alleging “something more.” Doe v. Columbia Coll. Chi., 933 F.3d 849, 856 (7th 

Cir. 2019); see Samford Univ., 29 F.4th at 688–89 (collecting cases). 

The “something more” is missing here. Columbia Coll. Chi., 933 F.3d at 856. 

Wells has identified some potential errors from the investigation. One is the finding 

that he “said he would have sex with his teacher” when, in fact, he said “that he 

would not.” (Emphasis added). The other is that the school assumed “from the 

beginning” that he was guilty and never gave him the chance “to present his 

witnesses, evidence, or even just his version of the events.” Assuming for the 

moment that these allegations “give rise to an inference of bias,”2 nothing “plausibly 

link[s]” the expulsion to the fact he is male. Austin v. Univ. of Or., 925 F.3d 1133, 

1138 (9th Cir. 2019) (“Just saying so is not enough.”). 

The cases Wells relies upon are not to the contrary. See Doe v. Regents of the 

Univ. of Minn., 999 F.3d 571 (8th Cir. 2021); Univ. of Ark., 974 F.3d 858. In each, 

a university made the “dubious decision” to punish male students accused of sexual 

misconduct while under “substantial pressure . . . to demonstrate that it was

responsive to female complainants.” Regents of the Univ. of Minn., 999 F.3d at 579 

(quoting Univ. of Ark., 974 F.3d at 865). We concluded that the allegations, “taken 

2

Any inference of bias here is weak. Creighton relied on the recollections of 

multiple staff members who “overheard” Wells’s conversation before concluding he 

had engaged in sexual misconduct. See Samford Univ., 29 F.4th at 692 (explaining 

that schools are free “to make . . . credibility determinations” in disciplinary 

proceedings). Much of the evidence supported, rather than contradicted, its 

conclusion that he said he would have “sex with his teacher.” See Univ. of Ark., 974 

F.3d at 864 (explaining that an erroneous outcome is one “against the substantial

weight of the evidence” (emphasis added)). Besides, even by Wells’s own account, 

he used “vulgar language” in describing his intentions, which gave the school ample 

reason to investigate the incident and discipline him. Cf. Rowles, 983 F.3d at 359 

(looking to “undisputed facts about [the plaintiff’s] conduct that led the University 

to conclude that he had violated the sexual harassment and stalking policies”). 
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together,” stated a plausible Title IX claim. Id. at 577 (quoting Univ. of Ark., 974 

F.3d at 865). The key, however, was that there was “something more” to connect 

the disciplinary decisions to the plaintiffs’ sex: the “[e]xternal pressure” placed on 

school administrators to act more “vigorously in response to complaints by female 

students.” Univ. of Ark., 974 F.3d at 865. 

Nothing comparable exists here. Wells does not allege that Creighton faced 

external pressure to punish male students, much less gave in by expelling him.

3

 Cf.

Regents of the Univ. of Minn., 999 F.3d at 579 (noting an administrator had let it slip 

that the school should suspend a group of students “because of optics”). Without an 

allegation of that kind, the complaint fails to plausibly allege the sort of “causal 

connection between the flawed outcome and gender bias” required to make an 

erroneous-outcome theory work. Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 

1994). 

Wells’s other argument, which is based on a selective-enforcement theory, 

suffers from a similar flaw. Rowles, 983 F.3d at 360; see Rossley, 979 F.3d at 1191–

92. Treating men and women differently can support an inference of sex 

discrimination, see Yusuf, 35 F.3d at 716, but it requires identifying a similarly 

situated member of the opposite sex who has been “treated more favorably.” Rowles, 

983 F.3d at 360. For Wells, he had to find “a female accused of sexual harassment”

who received better treatment. Id.; see also Sheppard v. Visitors of Va. State Univ., 

993 F.3d 230, 237 (4th Cir. 2021). 

There are no female students at Creighton, an all-boys school, let alone any 

who have faced sexual-misconduct allegations. See Rowles, 983 F.3d at 360; Yusuf, 

35 F.3d at 716 (rejecting a selective-enforcement argument when the plaintiff’s

proposed comparator was, “like [him], . . . a male”). The staff members who 

3

We disregard the conclusory assertion in Wells’s brief that Creighton “was 

under pressure on multiple fronts to find males responsible for sexual harassment” 

because we review only the “allegations in the complaint and materials embraced by 

pleadings.” Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019). 
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“overheard” the conversation do not count because they are not students, no one has 

accused them of sexual misconduct, and there is no allegation that they are female. 

See Sheppard, 993 F.3d at 237. To the extent that Wells argues that believing them 

over him raises an inference of discrimination, there is nothing alleged that the 

school did so because of his sex. See Rowles, 983 F.3d at 360 (explaining that 

“allegations regarding the University’s treatment of [the plaintiff’s] accuser do not 

support his claim that a female in similar circumstances—i.e., a female accused of 

sexual harassment or stalking—was treated more favorably”). 

Wells failed to plausibly allege that Creighton expelled him “because he is a 

male.” Univ. of Ark., 974 F.3d at 864. Counsel recognized as much at oral argument

when he candidly admitted that “[t]here is no discrimination against [Wells] based 

on sex.” After closely reviewing the complaint, we agree. See 20 U.S.C. § 1681(a); 

see also Regents of the Univ. of Minn., 999 F.3d at 577. 

B. 

As an alternative, Wells wants to sue based on Creighton’s failure to “adopt 

and publish grievance procedures that provide for the prompt and equitable 

resolution of student and employee complaints.” 34 C.F.R. § 106.8(c). The only 

problem is that there is no cause of action allowing him to enforce the regulation.

The already existing implied cause of action “in favor of private victims of 

discrimination” does not cover it. Cannon v. Univ. of Chi., 441 U.S. 677, 709 (1979). 

Plaintiffs can sue for sexual harassment and retaliation, both forms of sex 

discrimination, but “the failure to promulgate a grievance procedure does not itself 

constitute ‘discrimination’ under Title IX.” Gebser v. Lago Vista Indep. Sch. Dist., 

524 U.S. 274, 292 (1998) (quoting 20 U.S.C. § 1681(a)); see Samford Univ., 29 F.4th 

at 688 (observing that a “deviation from a Title IX policy is not, in and of itself, a 

violation of Title IX”). One cannot be a “private victim[] of discrimination” without 

experiencing discrimination, so the existing right of action is of no use to Wells. 

Cannon, 441 U.S. at 709; see Gebser, 524 U.S. at 292 (“We have never held, 
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however, that the implied private right of action under Title IX allows recovery in 

damages for violation of those sorts of administrative requirements.”); cf. Alexander 

v. Sandoval, 532 U.S. 275, 285 (2001) (holding that the implied private right of 

action to sue for race discrimination under Title VI of the Civil Rights Act of 1964 

“does not include a private right to enforce” regulations that “forbid conduct [Title 

VI] permits”). 

Nor have the requirements for recognizing a new private right of action been 

satisfied. According to the Supreme Court, the authorization for a private lawsuit to 

enforce a regulation “must come, if at all, from the independent force of” the statute 

that “confers the authority to promulgate” it in the first place. Sandoval, 532 U.S. at 

286 (emphasizing that “private rights of action to enforce federal law must be created 

by Congress”). Here, Congress delegated authority to federal agencies to “issu[e] 

rules, regulations, or orders of general applicability” geared toward “effectuat[ing] 

the provisions” of Title IX’s prohibition on sex discrimination. 20 U.S.C. § 1682. 

Wells must show that this statutory grant of authority both created an individual right 

and gave private plaintiffs the ability to enforce it. See Sandoval, 532 U.S. at 286; 

see also Osher v. City of St. Louis, 903 F.3d 698, 702 (8th Cir. 2018) (asking whether 

a statute “unambiguously confers a private right” and “provide[s] a private 

remedy”). 

It does neither. First, nothing in § 1682 “grants [a] private right[] to any 

identifiable class.” Gonzaga Univ. v. Doe, 536 U.S. 273, 284 (2002) (citation 

omitted). It directs “[f]ederal department[s] and agenc[ies]” to issue regulations, 20 

U.S.C. § 1682, but says nothing about “the individuals protected” by Title IX, 

Sandoval, 532 U.S. at 289. So, in Sandoval’s words, the grant of authority does not 

“create new rights” but rather “limits agencies to ‘effectuat[ing]’ rights already

created.” Id. (quoting 42 U.S.C. § 2000d-1) (alteration in original) (emphasis 

added). 

Second, § 1682 does not create a private remedy. By its terms, it is “phrased 

as a directive to federal agencies engaged in the distribution of public funds.” Id.
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(citation omitted). It tells them what they can do to “effect[]” compliance: terminate 

or refuse funding after a “hearing” and “an express finding [of noncompliance] on 

the record” or take other measures “authorized by law.” 20 U.S.C. § 1682. The

point is that, by having one “express provision of . . . enforc[ement],” § 1682 signals 

“that Congress intended to preclude others,” including a private right of action. 

Sandoval, 532 U.S. at 290; see Karahalios v. Nat’l Fed’n of Fed. Emps., Loc. 1263, 

489 U.S. 527, 533 (1989) (describing the “elemental canon” that, “where a statute 

expressly provides a remedy,” a court should be “reluctant” to imply anything else

(citation omitted)). 

Sandoval itself held as much under a nearly identical provision in Title VI, a 

companion statute to Title IX. See Cannon, 441 U.S. at 694 (noting that “Title IX 

was patterned after Title VI”). There, the Supreme Court concluded that 42 U.S.C. 

§ 2000d-1, which authorizes agencies to issue regulations to “effectuate” 

compliance with Title VI, does not create an implied right of action to enforce them. 

See Sandoval, 532 U.S. at 288–91. If § 2000d-1 does not create a private right of 

action, then neither can § 1682. Compare 20 U.S.C. § 1682, with 42 U.S.C. 

§ 2000d-1. The upshot for Wells is that he cannot sue to enforce the grievanceprocedure requirement in 34 C.F.R. § 106.8(c). See Sandoval, 532 U.S. at 293; see 

also Osher, 903 F.3d at 703. 

III. 

One loose end remains.4

 The district court declined to exercise supplemental 

jurisdiction over Wells’s breach-of-contract claim after it dismissed the sole claim 

4

Less a loose end than a separate argument, Creighton wants us to apply the 

ecclesiastical-abstention doctrine. See Watson v. Jones, 80 U.S. (13 Wall.) 679, 727

(1871). But as it recognizes, the doctrine only applies “where resolution of the 

disputes cannot be made without extensive inquiry . . . into religious law and polity.” 

Serbian E. Orthodox Diocese for U.S. & Can. v. Milivojevich, 426 U.S. 696, 709 

(1976). Just because Creighton is a Jesuit school and Wells spoke in a vulgar manner

does not necessarily mean this case requires an inquiry into religious doctrine, much 

less an “extensive” one. Id.; see Hutterville Hutterian Brethren, Inc. v. Sveen, 776 
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“over which it ha[d] original jurisdiction.” 28 U.S.C. § 1367(c)(3). In these 

circumstances, “judicial economy, convenience, fairness, and comity” normally 

weigh against the exercise of supplemental jurisdiction. McManemy v. Tierney, 970 

F.3d 1034, 1041 (8th Cir. 2020) (citation omitted). “This case is no exception.” Id. 

IV. 

We accordingly affirm the judgment of the district court. 

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F.3d 547, 553 (8th Cir. 2015) (explaining that there is no abstention when we can 

resolve disputes involving religious entities “by applying neutral principles of law” 

(citation omitted)).