Foreman v. Rhodes College

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENENSSEE

WESTERN DIVISION

KENDALL FOREMAN, )

)

Plaintiff, )

)

v. ) Case No. 2:21-cv-02811-JTF-tmp

)

RHODES COLLEGE, DAVID )

CADDLE, AMAKA MgBOH, )

and RICHARD ADAMS, )

)

Defendants. )

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT FOR FAILURE TO STATE A CLAIM

Before the Court is Defendants Rhodes College, David Caddle, Amaka MgBoh, and

Richard Adams’ Motion to Dismiss Plaintiff Kendall Foreman’s Complaint for Failure to State a

Claim, filed on March 10, 2022. (ECF Nos. 39 & 39-1.) On March 31, 2022, Plaintiff filed an

Amended Complaint.1 (ECF No. 40.) On April 14, 2022, Defendants filed a Motion to Dismiss

Plaintiff’s Amended Complaint also for Failure to State a Claim. (ECF Nos. 41 & 41-1.) On

May 23, 2022, Plaintiff responded in opposition, to which Defendants replied on June 10, 2022.

(ECF Nos. 47 & 50.) For the following reasons, Defendants’ Motion to Dismiss Plaintiff’s

Amended Complaint for Failure to State a Claim (ECF Nos. 41 & 41-1.) is GRANTED.

1 Upon the Court’s review of Plaintiff’s original Complaint, the Court notes that Plaintiff has abandoned various

negligence claims such as the Tennessee Human Rights Act, ordinary negligence, gross negligence, promissory

fraud, negligent training and supervision, fraudulent misrepresentation, intentional infliction of emotional distress,

and negligent infliction of emotional distress. However, Plaintiff’s amended Complaint resubmits those negligence

claims as seven breach of contract claims against Rhodes College and the Individual Defendants. (ECF No. 41-1, 2.)

In addition, Plaintiff renews her claim of “false light publicity” against Defendant MgBoh. (ECF No. 40, 11.)

1

FACTUAL BACKGROUND

This case involves Plaintiff Ms. Kendall Foreman,2 (“Ms. Foreman”), a White female,

challenging her suspension from enrollment at Defendant Rhodes College (“Rhodes College”)—

a private, four-year liberal arts college in Memphis, Tennessee. In the early morning hours of

October 3, 2021, a Rhodes College student living off campus was murdered in a home invasion.

(ECF No. 1, 3 ¶ 11.) That evening, Rhodes College issued a Campus Safety Alert informing the

student community that Memphis Police Department identified the suspect in the murder:

Person of Interest

Name: Rainess Holmes

Age: 36

Height: 6’ 2”

Weight: 165 pounds

Race: Black

Additional Note: Holmes is thought to be working with two or three other individuals.

He may be on foot or in a small green Jeep SUV.

(Id., ¶ 12 & ECF No. 19-1, 12.)

At 11:21 p.m. on October 3, 2021, Plaintiff sent a text message to Britney Beaty, a Black student

at Rhodes College who lives off campus. The text message said “Imma be racist: If you see a

Black man in the next 24hrs near your house hit him with your car.” (Id. at 3-4, ¶ 15.) Upon

reading the text, Ms. Beaty forwarded a screenshot of the text message to Defendant Amaka

MgBoh (“Defendant MgBoh”), another Black student at Rhodes College who served as a

Resident Advisor. (Id. at 4, ¶ 16.) Defendant MgBoh posted the text message to Snapchat. (Id.)

After the posting, three Black female students at Rhodes College saw the text message and filed

reports using Rhodes’ Bias Education Reporting System (“BERS”). (Id. at 5, ¶ 23.) The BERS

2 Plaintiff is a Virginia resident and currently a student at Rhodes College having first matriculated in 2019. (ECF

No. 1, 2 ¶ 3.) Plaintiff indicate that she suffers from Attention Deficit Hyperactivity Disorder (“ADHD”) which

causes her to act without thinking and to overlook social cues. (Id.) Plaintiff further indicates that her processing

speed is much lower than one would predict for a young adult with advanced reasoning abilities, and as a result

Plaintiff takes longer to fully demonstrate her knowledge and capability. (Id.)

2

reports were directed to Defendant Richard Adams, Director of Community Standards,

(“Defendant Adams”) for handling as a possible violation of the student conduct standards in

Rhodes’ Student Handbook. (ECF No. 19, 4.) Upon review, Defendant Adams determined that

the matter should be investigated by the Community Standards Council (“CSC”), a student-run

and student-elected adjudicatory body established to deal with violations of Rhodes’ Standards

of Conduct. (Id.)

On October 13, 2021, Defendant David Caddle (“Defendant Caddle”), the student

president of the Rhodes’ CSC sent Plaintiff an email notifying her that she was under

investigation by the CSC for violating the Rhodes’ Standards of Conduct. (Id. at 6, ¶ 30; See

Exhibit 1, Declaration of Defendant Caddle.) In that email notification, Defendant Caddle

advised Plaintiff that she would be contacted by a CSC investigator who would gather further

evidence concerning the report, and that Plaintiff should notify the investigator of any relevant

witnesses or information that she thought might be necessary to the investigation. (Id.)

Defendant Caddle further advised Plaintiff that she was entitled to select a student advisor from a

list of CSC Committee members to serve as Plaintiff’s advisor throughout the process and who

would assist Plaintiff in the investigation. (Id.) Plaintiff selected Madison Bagsby to serve as

her student advisor; they met several times3 in advance of Plaintiff’s hearing.

The CSC Constitution is publicly available on the Rhodes College website, as part of its

Student Handbook.4 (ECF No. 19, 4.) The CSC Constitution expressly states that “[t]he

Advisor’s role is limited to informing the Accused concerning Community Standards Council

procedures and answering any questions about those procedures. The Advisor is foremost a

3 Ms. Bagsby stated that she met four times with Plaintiff prior to the CSC hearing, including one Zoom meeting

with Plaintiff’s parents, and that she answered or found the answer to all of Plaintiff’s questions. (ECF No. 19, 6.)

4 See Community Standards Council Constitution | Rhodes Handbook

3

member of the Community Standards Council and does not represent the Accused.” (Id. at 5; See

CSC Article IV, Section 1.D.) Plaintiff asserts that Ms. Bagsby advised Plaintiff that legal

counsel was not needed in her case since the case did not involve physical violence, sexual

assault, or destruction of property. (Id. at 7.) Plaintiff allegedly relied on this advice and did not

obtain legal counsel. (Id.)

On November 15, 2021, Defendant Caddle sent Plaintiff an email providing her with

notice of the charges against her and a copy of the case packet with interview summaries taken

by the investigators, as well as documentary evidence acquired by or supplied to the

investigators during the course of the investigation. (Id. at 7, ¶ 37; See Exhibit 1-3 and ECF No.

19-1, 95-119.) Three days later, the hearing was held. (Id. at 8, ¶ 39 and ECF No. 27, 3 ¶ 8; See

ECF No. 27-1, Exhibit A, Transcript of the Community Standards Council Hearing on

November 18, 2021.) At the beginning of the hearing, Plaintiff admitted that she was

responsible for Charge Number 1 that involved the endangering, threatening, or causing physical

harm to any person, or causing reasonable apprehension of physical harm. (ECF No. 27-1, 6-7 ¶

1-8.) Plaintiff also admitted that she was responsible for Charge Number 2 that involved

engaging in intimidation, harassment, coercion, verbal abuse and/or conduct that threatens or

endangers the health or safety of any reason. (ECF No. 27-1, 7 ¶ 9-13.) Plaintiff denied

responsibility for Charge 3 that involved interfering with the freedom of expression of others,

which inhibits the ability of students to comfortably contribute and interact with the community.

(ECF No. 27-1, 7 ¶ 14-18.)

The CSC Constitution provides in Section 3(A)(2-4) that “the Council must act with

complete impartiality. The hearing shall be taped, and the Secretary shall keep minutes of the

proceedings. Deliberations of the Council shall be absolutely private, and no record of

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deliberations shall be made. The Accused, and Advisor may be present during the hearing, with

the exception of the Council deliberations. Witnesses other than the Accuser and Accused may

be present only during their own testimony. The Accused may observe all evidence presented

during the hearing.” (ECF No. 41-2, 8; See CSC Constitution, Section 3, Hearing Procedures.)

During the hearing, Plaintiff was not allowed to be in the same room with the three

accusers when they testified, and the three accusers were permitted to testify in each other’s

presence. In addition, the accusers were not present for Plaintiff’s testimony.5 (ECF No. 1, 8 ¶

45.) Also, Plaintiff moved to introduce documentary evidence to demonstrate her public

apology, her apology to the individuals, and instances where the recipient of the text message

and Plaintiff used similar phrasing. (ECF No. 27-1, 8 ¶ 6-11.) Since the documentary evidence

provided by Plaintiff was not provided to the investigator prior to the hearing, it was excluded.

(Id. at ¶ 12-17.) However, Defendant Caddle advised Plaintiff that she could submit any

additional evidence that would help her case, such as her documentary evidence, as part of any

appeal. (ECF No. 27-1, 8-9 ¶ 22-25 and 1-5.)

During the hearing, Plaintiff stated:

“I am prepared to accept the appropriate consequences for my

actions. After realizing how quick this escalated, I published a

public apology on social media within 24 hours. You have a copy of

my apology on page 7 of your packet. I would like to say that I have

learned a great deal about myself and what I admit was a racist

comment to a friend. It was wrong and disrespectful to Black

members of the Rhodes community.”

(ECF No. 27-1, 11 ¶ 7-16.)

5 During Plaintiff’s opening statement and testimony, the accusers were out in the hallway. (ECF No. 1, 8 ¶ 43.)

Plaintiff was escorted out of the hearing room after she completed her testimony. (Id.) The accusers were then

brought in the room together to testify. (Id.)

5

After Plaintiff’s acceptance of responsibility, she testified about her friendship with Ms. Beaty

and how she joked with Ms. Beaty; they would exchange texts using phrases like “hit each other

or others with our car, like I am going to run her over and like run me over, please, like I am

having a crappy day.” (ECF No. 27-1, 24-25 ¶ 20-25 and 1.) Plaintiff further testified about her

personal apology to Ms. Beaty with emphasis on the immediacy of the public apology. (ECF

No. 27-1, 18-19 ¶ 25 and 1-10.) Plaintiff emphasized that her public apology was already

included in the case packet as was her apology to the others. (ECF No. 19-1, 9 and 26; See

Exhibit A). Plaintiff’s public apology that was posted to Instagram stated:

“Fellow students, staff, and faculty, I am so profoundly sorry for my

ignorance and blatant display of racism in response to the tragedy

that affected our campus this weekend. What I said was wrong and

disrespectful to the Black community at Rhodes. I apologize for the

hurt I have caused and am educating myself to provide support rather

than harm. I am so sorry I have let down my friends, peers, and

Rhodes as a whole. I have learned that my actions hurt many people

I love and respect and I sincerely apologize.”

(ECF No. 19-1, 9; See Instagram post at 9:11 p.m.)

Further, during a text exchange with Plaintiff, one response stated, “[a]nyways, you’ve been

reported to BERS. The fact that you feel like the inbox of a Black woman is a safe space to be

racist is already disgusting, but already your excuse for racially profiling doesn’t make me think

much of you.” (ECF No. 19-1, 26.) Plaintiff replied that “you’re right what I did was wrong, and

I know that, and I will except the punishment that comes from my actions. I did not think of the

hurt my words have and how they impact the Black community and I need to educate myself and

change to support my peers of color both locally and globally.” (Id.)

On November 26, 2021, Defendant Adams notified Plaintiff that the CSC found her

responsible for violation of the Rhodes Standards of Conduct as to Charges 1 and 2. (ECF No.

1-5; See Exhibit 3, Formal Outcome Letter from Defendant Adams.) Plaintiff was not held

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responsible for Charge 3. (Id. at 4.) The CSC determined that Plaintiff should be sanctioned by

a one-semester suspension, completion of a five-page reflection paper, and completion of a self-

designed course of study approved by Defendant Adams. (Id.) The outcome letter also advised

Plaintiff of her appeal rights; if she was dissatisfied with the hearing decision, she should submit

a Standards of Conduct Appeals Form within four (4) business days. (Id.)

On December 1, 2021, Plaintiff timely appealed the CSC decision to the Appeals

Committee. The Committee included the Dean of Students, Dr. Alicia Golston, the student

president of the Honor Council, Meg Corley, and the Dean of Faculty Recruitment,

Development, and Diversity, Dr. Justin Rose. (ECF No. 1, 11 ¶¶ 58-59 and ECF No. 1-5, 4.)

Plaintiff’s appeal hearing was held on December 13, 2021, where Plaintiff was allowed to

present the documentary evidence that she was previously prohibited from presenting to the

CSC. (Id. at ¶ 60; ECF No. 19-4 and 19-5; See Exhibits D and E; See also Plaintiff’s Appeal

Submission; Exhibit B, Declaration of Dr. Alicia Golston.) In Plaintiff’s Rebuttal to the

Community Standards Council Findings, Plaintiff stated, “I pled responsible for the first two

charges since the Rhodes community feels I am responsible, and I did send the original text.”

(ECF No. 19-5, 5.) Plaintiff further stated, “my sending of the original text and wording is

consistent with behavior of impulsivity, acting without thinking and overlooking social cues

documented in my testing assessment. This is all heightened in times of stress which is also

documented. Though not an excuse, it puts my actions in context even further.” (Id. at 7.)

Plaintiff indicated that notwithstanding the out-of-context offensiveness of the text message,

there was never any indication that it caused Ms. Beatey to feel abused or harassed, or that she or

any members of the Rhodes community who later saw the message out of context reasonably

feared physical harm. (ECF No. 47, 2.)

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Plaintiff specified in her appeal that, “I am not deflecting blame, I sent an inappropriate

text to my friend out of fear for her life due to the murder that occurred that morning. I have

stepped up to be responsible for my actions. All parties involved should be held responsible for

their actions as well.” (ECF No. 19-5, 10.) Plaintiff further specified, “I prefaced the text with

Imma be racist because I knew I was generalizing about a group, using the description released

by Rhodes’ security of a black male suspect.” (Id. at 12.) Plaintiff commented on the recorded

testimony of the three accusers at the CSC hearing, suggesting that the three accusers did not

take the hearing proceedings seriously because the recording had to be stopped because of

laughter coming from the hallway and the fact they brought cupcakes to the CSC hearing. (ECF

No. 19-5, 6.; See Exhibit E.)

At the conclusion of the Appeals Committee hearing, a written decision was rendered

explaining the outcome of Plaintiff’s appeal. (ECF No. 27-2, 105.) The Appeals Committee held

that “while the Community Standards Council’s decision was based on clear and convincing

evidence according to Section 5.B.2 of the Community Standards Council Constitution, the

actions of the Council could reasonably be considered in conflict with Section 5.B.1 (the

provision that the original hearing was conducted fairly in light of the charges, and in conformity

with prescribed procedures.)” (Id.) The Appeals Committee remanded the case to the CSC to

consider all evidence, including the documentary evidence Plaintiff submitted to the Appeals

Committee, and if necessary, determine if its original decision and sanction should be changed.

(Id.)

At the direction of the Appeals Committee, the CSC reconvened on December 15, 2021.

Upon reconsideration, the CSC upheld its original decision in its entirety after considering all the

evidence from the November 18, 2021 hearing and all submissions to the Appeals Committee,

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including the evidence Plaintiff was prohibited from presenting at the November 18, 2021 CSC

hearing. The CSC concluded the evidence was insufficient to alter the original outcome. (ECF

No. 19-6.) The CSC reconsideration letter of outcome to Plaintiff expressly stated:

Based upon clear and convincing evidence, CSC has determined

you are the responsible party in this incident. You admitted to

sending the message to your friend. We acknowledged that you

have issued an apology on your social media account, attended the

anti-black bias forum, and did personal research on the impact of

your actions. Initially, you shared that you are willing to learn,

grow, and apologize to the students affected and the Rhodes

community.

You have argued that your intent was only to warn a friend of

potential harm. However, the language you chose cannot reasonably

be read to convey that intention, since it merely advised her to hit

the next Black man she sees with her car. Nor can there be any

questions that such advice would be perceived as threatening to a

Black person. Your actions have therefore caused a sense of harm

and endangerment for students on campus and individuals within

the greater Memphis community. Your actions directly violate the

Standards of the Rhodes Community including the Commitment to

Diversity with regards to discrimination and failing to respect

fellow students on campus.

During the appeals process, you demonstrated a lack of

responsibility by blaming others for causing harm to the Rhodes

community when in fact you created the message. The suspension is

intended to allow you the space to focus on the learning and

education you admitted to needing in order to live in a diverse

educational community.

The decision of the CSC is final.

(ECF No. 19-6, 3; See CSC Reconsideration Letter dated December

16, 2021.)

Pursuant to Section 6 of the CSC Constitution at Rhodes College, the second decision of the

CSC is the final decision. (ECF No. 41-2, 10.)

LEGAL STANDARD

9

Defendants seek dismissal pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must

determine whether the complaint contains “sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Keys v. Humana, Inc.,

684 F.3d 605, 608 (6th Cir. 2012) (The court must “construe the complaint in the light most

favorable to the plaintiff and accept all allegations as true.”). A claim is plausible on its face

“when the plaintiff pleads factual content that allows the court to draw a reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In other words,

although the complaint need not contain detailed facts, its factual assertions must be substantial

enough to raise a right to relief above a speculative level. Ass’n of Cleveland Fire Fighters v.

City of Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting Twombly, 550 U.S. at 555).

However, “‘naked assertions devoid of further factual enhancement’ contribute nothing to the

sufficiency of the complaint.” 16630 Southfield Ltd. P’ship v. Flagstar Bank, F.S.B., 727 F.3d

502, 506 (6th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). Determining whether a complaint

states a plausible claim is “context-specific,” requiring the Court to draw upon its experience and

common sense. Iqbal, 556 U.S. at 679. Defendants bear the burden of “proving that no claim

exists.” Total Benefits Planning Agency, Inc. v. Anthem Blue Cross and Blue Shield, 552 F.3d

430, 433 (6th Cir. 2008).

While the Court’s decision to grant or deny a motion to dismiss “rests primarily upon the

allegations of the complaint, ‘matters of public record, orders, items appearing in the record of

the case, and exhibits attached to the complaint [] also may be taken into account.’” Barany-

Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir. 2008) (quoting Amini v. Oberlin Coll., 259 F.3d

10

493, 502 (6th Cir. 2001)). The Court may also consider “exhibits attached to the defendant’s

motion to dismiss so long as they are referred to in the complaint and are central to the claims

contained therein.” Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680–81 (6th Cir. 2011)

(citation omitted).

ANALYSIS

In this case, Tennessee law controls. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496-97, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). For claims based in contract law, “Tennessee

follows the rule of lex loci contractus, meaning it presumes that the claims are governed by the

jurisdiction in which the contract was executed absent a contrary intent.” Town of Smyrna v.

Mun. Gas Auth. of Ga., 723 F.3d 640, 645 (6th Cir. 2013). The relevant contracts in this case are

the Rhodes College’s Community Standards Council Constitution and the Rhodes’ Standards of

Conduct for a private educational institution. The contracts became binding when Plaintiff

enrolled at Rhodes College in Tennessee.

In essence, this matter concerns Plaintiff’s feeling that she was treated unfairly and her

disagreement with the outcome of the disciplinary process at Rhodes College, which is governed

by the CSC constitution.6 (ECF No. 40, ¶¶ 9-12, & 16.) Plaintiff has raised seven breach of

contract claims against Rhodes College, Defendant Adams, Defendant Caddle, and Defendant

MgBoh. Plaintiff also renews her claim of “false light publicity” for invasion of privacy against

Defendant MgBoh. The Court evaluates Plaintiff’s reframed causes of action below.

I. Breach of Contract – Defendant Rhodes College (Count I)

6 Plaintiff raises new allegations about the appellate hearing procedures such as (1) that she was not permitted to

consult with her attorneys before answering certain questions in the Appeals Committee Hearing; (2) that the

Appeals Committee did not let her speak again after Defendant Caddle allegedly lied while answering the Appeals

Committee’s questions; and (3) that “Rhodes’ relevant disciplinary procedures” do not offer a further means to

challenge the decision on appeal and reconsideration outside of filing a lawsuit. (ECF No. 40, ¶¶ 13-15, & 17.)

11

In Tennessee, a breach of contract claimant must provide evidence of (1) the existence of

an enforceable contract, (2) nonperformance amounting to a breach, and (3) damages

proximately resulting from the breach. (Id. at 29.) In the context of a student attending a private

college, “[t]he Tennessee Supreme Court ‘has not…enunciated the standard which should be

applied in a dispute arising out of the university-student relationship.’” Anderson v. Vanderbilt

Univ., 450 F. App’x 500, 502 (6th Cir. 2011) (quoting Doherty v. S. Coll. of Optometry, 862

F.2d. 570, 577 (6th Cir. 1988)). Generally, the relationship between a student and a private

university is contractual in nature. (Id.) However, even though a student-university relationship

is contractual in nature, “courts have rejected a rigid application of contract law in this area.”

Doherty, 862 F.2d at 577. “A student may raise breach of contract claims arising from a

university’s alleged failure to comply with its rules governing disciplinary proceedings.”

Anderson, 450 F. App’x at 502. In this context, the validity of a breach of contract claim is

determined by whether an educational institution “substantially complied” with its own

procedures or rules. See Anderson v. Vanderbilt Univ., No. 3-09-0095, 2010 WL 2196599, at

*13, 2010 U.S. Dist. LEXIS 52381, at *37 (M.D. Tenn, May 27, 2010), aff’d, 480 F. App’x 500

(6th Cir. 2011) (per curiam). In addition, courts must remain mindful that a college or

university’s disciplinary committee is entitled to a presumption of honesty and integrity. See

Anderson, 2010 WL 2196599, at * 38.

Accordingly, “the implied covenant of good faith and fair dealing creates a duty to

provide basic fairness, and that duty can be met by complying with the terms of the Handbook

generally, and the disciplinary process is designed to be fair.” Z.J. v. Vanderbilt Univ, 355 F.

Supp. 3d 646, 699-700 (M.D. Tenn. 2018). To put it differently, an implied covenant of good

faith and fair dealing is imposed on every contract and applies in the context of school

12

disciplinary proceedings. It creates an independent duty to provide basic fairness. Also, courts

have widely recognized that procedural rights in a student-university breach of contract claim

only exist if guaranteed by the school. Z.J., 355 F. Supp. 3d at 697. However, “it is not the role

of the federal courts to set aside decisions of school administrators which the court may view as

lacking in wisdom or compassion.” Wood v. Strickland, 420 U.S. 308, 326 (1975). “[A]

university is not a court of law, and it is neither practical nor desirable for it be one.” Pierre v.

Univ. of Dayton, No. 3:15-CV-362, 2017 WL 1134510, at *8 (S.D. Ohio Mar. 27, 2017) (quoting

Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 635 n.1 (6th Cir. 2005)).

Plaintiff argues that procedural violations committed by Rhodes College breached its

contractual obligations to Plaintiff under the CSC Constitution. More specifically, Plaintiff

alleges that Rhodes College breached the CSC Constitution by “(a) not providing Plaintiff in

advance with a meaningful list of written hearing procedures; (b) denying Plaintiff the

opportunity to hear all evidence against her by sequestering Plaintiff from the CSC hearing

during her accusers’ testimony; (c) denying Plaintiff the opportunity to question the CSC’s

witnesses by sequestering her from the CSC hearing during her accusers’ testimony; (d)

disallowing Plaintiff the right to present documentary evidence in her favor; and (e) finding

Plaintiff responsible for abuse or harassment and causing the apprehension of physical harm

absent a preponderance, let alone clear and convincing evidence.” (ECF No. 40, ¶ 23.) Plaintiff

further alleges that Rhodes College breached its duty of fundamental fairness under the implied

covenant of good faith and fair dealing by “(a) misinforming Plaintiff at an early stage of the

CSC’s investigation that her CSC Advisor was to serve as her advocate; (b) misinforming

Plaintiff that she was not in danger of facing serious sanctions; (c) misinforming Plaintiff,

through her CSC Advisor, that the charges she faced were not serious enough to benefit

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substantially from retaining legal counsel; (d) requiring Plaintiff to enter pleas, without advance

notice, as to each of her alleged violations; (e) allowing Plaintiff’s accusers to testify in each

other’s presence at the CSC hearing; (f) discrepancies in the record between the formal charges

the CSC brought against Plaintiff and what she was convicted of; (g) holding Plaintiff solely and

wholly responsible for the alleged harm that, if it occurred at all, occurred only as the result of

third parties’ independently and maliciously making Plaintiff’s private text message public; (h)

subjecting Plaintiff to sanctions disproportionately harsh compared to what has been imposed in

other cases; (i) disallowing Plaintiff from responding to Defendant Caddle’s dishonest

misrepresentations to the Appeals Committee at the Appeals Committee Hearing; and (j) after a

reconsideration of Plaintiff’s suspension by the CSC that was made summarily, failing to offer

further means of verifying the fairness of the CSC’s decision on reconsideration or a further

means to challenge the decision or sanctions other than by filing a lawsuit.” (ECF No. 40, ¶ 23.)

Rhodes College responds that Plaintiff’s allegations fail to identify a breach of the terms

of the contract at issue. (ECF No. 41-1, 3.) Rhodes College asserts that Plaintiff’s allegations are

a challenge to the outcome of the disciplinary process, not Rhodes College’s failure to follow a

particular rule or process. (Id.) Specifically, Plaintiff fails to identify any procedural errors in

the November hearing, the appellate process and subsequent reconsideration by the CSC that

constitute a breach of the university-student contract. Bose v. De Salud Bea, No. 2:16-cv-02308-

JTF-tmp, 2018 WL 8919932, at *7 (W.D. Tenn. Feb. 27, 2018) (citing Anderson, 450 F. App’x

500 at 502). Rhodes College also argues that Plaintiff’s complaint that she was not given an

appeal after reconsideration by the CSC is nothing more than Plaintiff’s desire for a second

appeal which is not available under the CSC Constitution. (Id.) Rhodes College emphasizes that

Plaintiff’s allegations are only subjective opinions about the fairness of the outcome; but

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subjective opinions are not relevant to any of her breach of contract claim. (Id.) According to

Rhodes College, Plaintiff’s true desire is for this Court to second-guess the outcome of the

process and substitute its judgment for that of the College. (ECF No. 41-1, 4.)

The Court has reviewed the entire record as submitted by the parties and finds that the

disciplinary process at Rhodes College provided basic fairness and that there was substantial

compliance with the terms of the CSC Constitution. There is nothing in the record that suggests

that the CSC or the Appeals Committee was dishonest or acted without integrity. Plaintiff’s

litany of alleged procedural violations of the CSC Constitution and the CSC hearing process, in

large part, only challenge the outcome of the overall disciplinary process at Rhodes College, but

do not identify any instances where Rhodes College did not substantially comply with the CSC

Constitution or Rhodes’ Standards of Conduct for a private educational institution. Plaintiff’s

disappointment with the process, in the Court’s view, is nothing more than her subjective opinion

about the fairness or lack of fairness of the final outcome. The Court agrees with Rhodes College

that a subjective opinion is insufficient to support a claim for breach of contract in Tennessee. As

argued, the implied covenant of good faith and fair dealing creates a duty to provide basic

fairness in the process. That duty was satisfied when the CSC Committee made its initial

decision, and the Appeals Committee remanded the matter back to the CSC Committee for

reconsideration of their initial decision. The CSC considered the evidence a second time, this

time including all of Plaintiff’s submissions. As we know, the additional evidence did not result

in a different decision. In this regard, Plaintiff has failed to plead facts that would allow this

Court to reasonably infer that the Defendant is liable for the alleged misconduct. Iqbal, 556 U.S.

at 678.

15

Although the student-university relationship is contractual in nature, courts have rejected

a rigid application of contract law in this area. The CSC is not a court of law but is a student-run

discipline process. This Court will not set aside the CSC decision to discipline Plaintiff for her

action unless the CSC failed to substantially comply with CSC constitutional rules and

procedures or acted arbitrary or capriciously. The Court finds the CSC’s application of the CSC

Constitution’s terms during its first hearing and the reconsideration hearing exemplified more

than a basic sense of fairness. For example, the CSC sequestered both the Plaintiff and the

individual Defendants during each other’s testimony, even though the CSC Constitution provides

“the Accused may observe all evidence presented during the hearing.” (ECF No. 41-2, 8; See

Section 3(A)(4), Hearing Procedures.) The use of the term “may” provides the CSC flexibility.

It does not mean that observation of testimony was required or was a right under the

circumstances. Also, the Court notes that the hearing was recorded for Plaintiff to review at a

later time, if needed. Additionally, Plaintiff argues the process was unfair because she was not

allowed to present any documentary evidence during the hearing on November 18, 2021, and

that she was not informed that her evidence should have been submitted prior to the hearing.

The Court finds this argument has no merit. In reviewing the entire process, it is true that

Plaintiff’s effort to submit evidence during the hearing was rebuffed. However, this additional

evidence was considered by the Appeals Committee and the CSC upon remand. The CSC

nonetheless affirmed its decision which is final under the CSC’s Constitution. There was no

breach of contract because Rhodes College ultimately complied with the requirements of the

Constitution.

Plaintiff admitted to sending the racist text by stating “Imma be racist: If you see a Black

man in the next 24hrs near your house hit him with your car.” It is true that Plaintiff followed

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that statement with a public apology. However, there is no question that racist rhetoric like this

is a serious issue in the aftermath of hate crimes committed in cities and on college campuses

across the country. All such racist rants are unacceptable even if presented in a joking manner.

As in this case, when such racially insensitive rhetoric is disseminated in any way, even as a

joke, it is difficult to measure the harm and hurt felt by the target or others that received the rant.

Just as important is the realization that dissemination of the kind in this case may inflame others

to act in the way suggested in Plaintiff’s text.

Plaintiff admitted that she was responsible for Charge Number 1 that involved

endangering, threatening, or causing physical harm to any person, or causing reasonable

apprehension of physical harm. (ECF No. 27-1, 6-7 ¶ 1-8.) Plaintiff also admitted that she was

responsible for Charge Number 2 that involved engaging in intimidation, harassment, coercion,

verbal abuse and/or conduct that threatens or endangers the health or safety of any person. (ECF

No. 27-1, 7 ¶ 9-13.) She indicated that she was prepared to accept the consequences. It does not

appear that anyone pressured Plaintiff to accept responsibility for the offenses. The Court

assumes from the record that Plaintiff plead “responsible” because she was, in fact, “responsible”

for the offenses charged against her. The difficulty in understanding Plaintiff is that initially she

assumed responsibility for her actions, but now wants the Court to intervene to reverse the final

decision of the CSC. Her only reason for bringing this lawsuit is because of her personal belief

that the punishment she received was too severe. However, Plaintiff has failed to plausibly

allege concrete evidence to support her claim that Rhodes College failed to substantially comply

with its own rules and procedures. The Court is unable to draw a reasonable inference that

Rhodes College is liable for the misconduct that Plaintiff alleges. Disappointment is not a valid

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basis for a breach of contract claim. Accordingly, the cause of action as to Count I is dismissed

for failure to state a claim.

II. Breach of Contract – Defendant Adams, Defendant Caddle, Defendant MgBoh,

and Defendant Rhodes College (Count II through Count VII)

In her original Complaint, Plaintiff alleged various torts against Defendants Adams,

Caddle, and MgBoh. (ECF No. 1, ¶¶ 19-22.) However, upon filing her Amended Complaint, at

first glance, it appears Plaintiff abandoned all tort claims. In reality, Plaintiff attempts to impute

to the named Defendants her alleged tort claims thru the contractual agreement between Plaintiff

and Rhodes College.7

As stated previously, a breach of contract in Tennessee requires a valid and enforceable

contract with a deficiency in performance amounting to a breach resulting in damages as a

consequence. Alsbrook v. Concorde Career Colleges, Inc., 469 F. Supp. 3d 805, 851 (W.D.

Tenn. 2020) (quoting Fed. Ins. Co. v. Winters, 354 S.W.3d 287, 291 (Tenn. 2011)). For a

contract to be enforceable, it requires “(1) adequate consideration; (2) mutual assent of the

entering parties; and (3) sufficient definition as to be enforceable.” (Id.) (quoting Setzer v. First

Choice Lending Servs., LLC, No. 18-5192, 2018 WL 7500477, at *4 (6th Cir. 2018)). The

obligations must be sufficiently explicit “so that a court can perceive what are the respective

obligations of the parties.” (Id.) However, “[a] court's review under a breach of contract theory

for violations of a university's established disciplinary procedures are limited to whether the

procedures used were arbitrary, capricious, or in bad faith.” Heyman v. Nevada ex rel. Bd. of

Regents of Nevada Sys. of Higher Educ., No. 2:15-CV-1228-APG-GWF, 2019 WL 1177960, at

7 The Court is concerned by Plaintiff’s efforts to restate her negligence or willful misconduct claims in contracts

rather than torts. Such claims are based in tort concepts, which are generally unrelated to breach of contract. See

Globe Ref. Co. v. Landa Cotton Oil Co., 190 U.S. 540, 544, 23 S. Ct. 754, 755 (1903) (“If a contract is broken, the

measure of damages generally is the same, whatever the cause of the breach.”).

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*9 (D. Nev. Mar. 12, 2019). As a result, the Heyman Court found that no contract existed

between the student and individual defendants and that claims based on actions of the

university’s agent were claims against the university. As a result, the Heyman Court dismissed

the breach of contract claims involving defendants in their individual capacity, which is

analogous to the individual Defendants named in the instant case. In following this logic, the

claims against the individually named Defendants should be dismissed.

The Sixth Circuit’s position on abandonment of claims is straight-forward. “A plaintiff

is deemed to have abandoned a claim when a plaintiff fails to address and support it in

response…” (ECF No. 47, 9; See Brown v. VHS of Michigan, Inc., 545 F. App’x 368, 372 (6th

Cir. 2013)). Plaintiff states in her response “the next category of claims is those for emotional

distress based on the way that Mr. Caddle and the CSC treated Ms. Foreman following her CSC

hearing. Unartfully re-pleaded as a species of contract claim in Plaintiff’s Amended Complaint,

these claims properly sound in negligence, as set forth in Plaintiff’s original Complaint.8” (ECF

No. 47, 9.) Defendants argue that Plaintiff concedes in her Response Brief that her remaining

breach of contract claims against Rhodes College, Defendant Caddle, Defendant Adams, and

Defendant MgBoh are materially rooted in negligence and thus not properly pleaded as breach of

contract claims. (ECF No. 50, 6.) Therefore, Defendants contend that Plaintiff’s Response Brief

constitutes abandonment of her tort-based “breach of contract” claims as to Count II through

Count VII.

It appears that Plaintiff abandoned the breach of contract claims that “properly sound in

negligence” because they were not properly addressed in her Response Brief. Plaintiff’s choice

8 The Court notes that Plaintiff did not incorporate her original negligence claim into her Amended Complaint and,

therefore, any claim that appears in negligence is not properly before this Court. (See ECF No. 40, ¶ 8)

(incorporating the factual allegations presented in paragraphs 11-68 of Plaintiff’s Original Complaint).

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of words and phrases is troubling, as even the “unartfully re-pleaded” characterization of the

breach of contract claims still sound in negligence. This attempt to refer back to her original

Complaint’s drafting is unhelpful. Either Plaintiff argues a negligence claim or a breach of

contract claim. However, to plead a breach of contract claim under the guise of a negligence

action ignores basic tort and contract law. These are two different areas of law, with separate

rationales, remedies, and needed support. From the Court’s view, these unartfully re-pleaded

claims that Plaintiff failed to address and provide a supportive basis for are abandoned.

Plaintiff has failed to state a claim regarding the existence of a contract between Plaintiff

and named Defendants Adams, Caddle, and MgBoh. Additionally, the breach of contract claim

against Rhodes College is cast as a negligent infliction of emotional distress claim based solely

on actions taken by Defendant Caddle and the CSC Committee. Even considering this

negligence claim, reframed as a breach of contract claim, against Rhodes College, the Court

finds that Plaintiff failed to state a claim because there is no contractual relationship between

Plaintiff and the individually named Defendants. Moreover, even if there was a contractual

relationship between Plaintiff and the individually named Defendants, Plaintiff has not

sufficiently alleged how Rhodes College’s disciplinary process concerning Plaintiff’s conduct

was arbitrary, capricious, or performed in bad faith. Again, the Court is unable to draw a

reasonable inference that Rhodes College and the individually named Defendants are liable for

the misconduct that Plaintiff alleges.

However, out of an abundance of caution, to the extent these claims were not abandoned

due to Plaintiff’s failure to address or provide support for the claim in her response, the Court

will address the breach of contract claims against the individual Defendants.

1. Defendant Adams (Count II – Breach of Contract) and Defendant Caddle (Count III –

Breach of Contract)

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Count II and Count III claim that Defendant Adams and Defendant Caddle breached their

contractual obligation to make sure the first CSC hearing followed the CSC Constitution. At the

outset, it appears that Plaintiff has failed to sufficiently plead or allege a contractual relationship

with Defendants Caddle or Adams. Next, the Court has already found that the entire disciplinary

process, which includes the original CSC hearing, the subsequent appeal and the CSC’s

reconsideration after remand, did not violate the CSC Constitution. The actions of the CSC and

the Appeal Committee were not found to be arbitrary, capricious, or in bad faith. (ECF No. 41-2,

10; See Section 5, Appeals.) Of note, the CSC Constitution states, “a reconsideration of the

sanctions imposed shall not result in a more severe sanction for the Accused student. The second

decision of the Community Standards Council shall be final.” (Id.; See Section 6,

Reconsideration of Council’s Decision.) Rhodes College, the CSC and the Appeal Committee

substantially complied with all rules and procedures. Therefore, the breach of contract claims in

Count II and Count III are dismissed for failure to state a claim.

2. Rhodes College (Count IV – Breach of Contract)

As stated previously, in Count IV, Plaintiff asserts a breach of contract claim against

Rhodes College arguing that Rhodes College had a contractual obligation to take reasonable

steps to ensure Plaintiff’s safety and her mental and physical well being while attending a

mandatory proceeding on campus. (ECF No. 40, 6 ¶¶ 33-34.) Plaintiff argues that Rhodes

College breached its obligation, which caused Plaintiff to suffer “severe mental anguish as a

result of abandoning her following the devastating news of her suspension.” (Id.) Defendant

responds that Plaintiff does not identify any contractual obligation that was breached by Rhodes

College.

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Mental anguish alone is not a sufficiently certain damage under contract theory. In order

to make out a case of mental anguish or intentional infliction of emotional distress, a plaintiff

must show: (1) intentional or reckless conduct; (2) which is so outrageous that it is not tolerated

by civilized society; and (3) the conduct results in serious mental injury. In re Jenkins, 488 B.R.

601, 617-18 (E.D. Tenn. 2013); see also Bain v. Wells, 936 S.W. 618, 622 (Tenn. 1997). In

addition, a breach of contract is not by itself actionable under the tort of outrageous conduct.

Similarly, actions in negligence or an inadvertent act will not support such a claim. Chandler v.

Prudential Ins. Co., 715 S.W. 2d 615, 623 (Tenn. Ct. App. 1986.) Thus, a claim for a breach of

contract must fail when it is only supported with allegations of mental anguish or other

emotional distress type damages. Damages for breach of contract are found within the contract.

See Kindred v. Nat’l Coll. of Bus. & Tech., Inc., No. W2014-00413-COA-R3-CV, 2015 WL

1296076, at *5-7 (Tenn. Ct. App. Mar. 19, 2015) (“Damages in breach of contract cases are

nothing more than payment in money for actual losses caused by the breach of contract, and that

uncertain, contingent, and speculative damages are not recoverable for breach of contract as a

matter of law.”).

It appears that Plaintiff was speaking with her parents after the CSC hearing concluded.

Given that fact, as well as all surrounding circumstances, there is no evidence in the record that

Defendants intentionally acted in an arbitrary, capricious, or bad faith manner by leaving

Plaintiff in the building with the lights off. Accordingly, Count IV is dismissed for failing to

state a recoverable breach of contract claim.

3. Defendant Caddle (Count V – Breach of Contract)

Similarly, Count V is a restatement of the claim presented in Count IV, but as to

Defendant Caddle. Plaintiff argues that Defendant Caddle had a contractual obligation to ensure

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Ms. Foreman’s “safety and her mental and physical well being [sic]” and he breached that

obligation by the “harsh and insensitive manner” in which the CSC treated her after rendering its

findings. (ECF No. 40, 6 ¶ 33.) Based on the same reasoning in Count IV, the Court finds that

Count V is dismissed for failing to state a breach of contract claim.

4. Defendant MgBoh (Count VI – Breach of Contract)

Count VI involves a breach of contract claim against Defendant MgBoh. As the Court

already established, for a contract claim to survive, Plaintiff must allege facts that establish a

contractual agreement, including mutual assent, with Defendant MgBoh. Alsbrook, 469 F. Supp.

3d at 851. Plaintiff submits that Defendant MgBoh had a contractual obligation to act

“responsibly, reasonably, and non-maliciously” when the recipient of the message approached

her for advice on responding to the subject text message. (ECF No. 40, 10 ¶ 37.) Plaintiff alleges

that Defendant MgBoh violated this obligation by “sharing and posting to social media

incomplete and misleading screenshots of the subject text message, doctored to include her own

slanted commentary” with the end result that Ms. Foreman was “misrepresented as a racist to the

Rhodes community.” (Id. ¶¶ 37-39.) Defendants argue that Plaintiff’s assumption that “it is

more probable than not” that the recipient of the text message approached Ms. MgBoh for advice

because of her status as a resident advisor is unsupported in the Complaint. As Defendants argue,

it is simply not plausible that the message was sent to Ms. MgBoh in order to seek her advice as

a resident advisor, rather than a friend, especially since the original recipient of the text lived off

campus. (ECF No. 41-1, 9.) In addition, Defendant submits that “more probable than not” is not

the correct pleading standard. But even if it were, Plaintiff has still failed to plausibly state a

breach of contract claim against Ms. MgBoh because the CSC Constitution is silent on

obligations of resident advisors. (ECF No. 41-1, 9.) Defendants highlight Plaintiff’s assertions

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that the recipient of Plaintiff’s text message lived off campus, and therefore, would have no

reason to report anything to Ms. MgBoh in her capacity as an on-campus resident advisor. (ECF

No. 41-1, 9.) More importantly, Plaintiff has failed to sufficiently allege that the text message

sent to Ms. MgBoh was because of her position of resident advisor. In essence, Plaintiff asks

this Court to speculate about the reason why the text was forwarded to Ms. MgBoh. As

Defendants assert, Plaintiff was not misrepresented as a racist from a screenshot of her text

message; Plaintiff’s text began with “Imma be racist”. She admitted being racist when she

apologized to the student body, and during CSC hearing. After reviewing and considering what

occurred, the Court is having difficulty understanding how Plaintiff believes that she had been

misrepresented as a racist when she in fact confirmed making the racist statement “if you see a

Black man in the next 24 hours near your house hit him with your car.”

As noted above, a Complaint must state a claim to relief that is plausible and allows a

court to reasonably infer that a defendant is liable for the alleged misconduct. Iqbal, 556 U.S. at

678. The pleading standard of “more probable than not” is not the correct standard.

Consequently, Count VI has failed to plausibly state a breach of contract claim against Ms.

MgBoh. The agreement between Rhodes College and Ms. Foreman was the CSC Constitution,

which was substantially complied with by Rhodes College. There is nothing in the CSC

Constitution that imposes any obligations or duties on Rhodes College’s Resident Advisors.

Simply put, Plaintiff has failed to establish a connection between the CSC Constitution and Ms.

MgBoh. Any contractual obligations were between Plaintiff and Rhodes College. Thus,

Plaintiff has failed to show that a valid and enforceable contract existed between Plaintiff and

Ms. MgBoh. Even if a contractual relationship existed with Ms. MgBoh, Plaintiff admitted that

she was being racist with her text message and that she was not trying to deflect blame.

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Count VI is dismissed for failure to state a claim.

5. Defendant Caddle (Count VII – Breach of Contract)

As to Count VII, Plaintiff alleges that Defendant Caddle, as CSC President and a member

of the Rhodes College community, had a contractual obligation to testify honestly in response to

questions at the Appeals Committee hearing. (ECF No. 40, ¶¶ 14 & 40.) According to Plaintiff,

Defendant Caddle breached that contractual obligation by telling the following “lies”: (1) that

Ms. Foreman was not crying when she was forced to enter pleas of responsible or not responsible

to the charges; (2) that Ms. Foreman was given advance notice that she had to present the CSC

with her evidence in advance of the hearing; and (3) that one of the accuser’s was trembling in

terror of Ms. Foreman while testifying at the hearing. (Id.) Defendants respond that Plaintiff has

again failed to allege any facts to support her claim. Defendants argue that the CSC Constitution

only requires the CSC President to meet with the Appeals Committee when an appeal is filed,

which Defendant Caddle did. (ECF No. 41-1, 10.) Defendants contend that whether Ms.

Foreman was crying or not crying or whether an accuser was trembling or not trembling cannot

have plausibly affected the outcome of the appeals hearing, which Ms. Foreman won. (Id.)

Upon review, besides Plaintiff’s bare and unsupported statement, there is nothing to

suggest that Defendant Caddle acted in bad faith in his testimony to the Appeals Committee as

Plaintiff asserts. Defendant Caddle informed Plaintiff that she could present evidence that would

help her case during the appeal process, which she did. (ECF No. 27-1, 8-9 ¶ 22-25 and 1-2.)

The Appeals Committee agreed with Ms. Foreman that she should have been allowed to

introduce her documentary evidence at the hearing even if she had not submitted it in advance.

That additional documentary evidence ultimately was submitted and considered but did not

change the outcome. Thus, when viewing the factual assertions raised by Plaintiff as to this

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count, the right to relief for any alleged contract claim does not rise above a speculative level.

Therefore, Count VII is dismissed for failure to state a claim

III. False Light Publicity – Defendant MgBoh (Count VIII)

The final claim presented in Plaintiff’s Amended Complaint alleges a claim for false light

invasion of privacy against Defendant MgBoh. Under false light, “one who gives publicity to a

matter concerning another that places the other before the public in a false light” is liable if “(a)

the false light in which the other was placed would be highly offensive to a reasonable person,

and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the

publicized matter and the false light in which the other would be placed.” Roe v. Amazon.com,

714 F. App'x 565, 568–69 (6th Cir. 2017) (citing Welling v. Weinfeld, 113 Ohio St.3d 464, 866

N.E.2d 1051, 1059 (2007)). Only those persons who have been placed in a false light may

recover for invasion of their privacy. Seaton v. TripAdvisor LLC, 728 F.3d 592, 601 (6th Cir.

2013). A false light invasion of privacy claim requires a plaintiff to allege that “the false light in

which the other was placed would be highly offensive to a reasonable person.” Hudik v. Fox

News Network, LLC, 512 F. Supp. 3d 816, 835 (M.D. Tenn. 2021). Literal accuracy of separate

statements will not render a communication true where the implication of the communication as

a whole was false. Eisenstein v. WTVF-TV, News Channel 5 Network, LLC, 389 S.W.3d 313,

317 (Tenn. Ct. App. 2012). In other words, “literal accuracy is not an outright defense to false

light because plaintiff must allege the implication of the communication as a whole was false.”

(Id.)

Plaintiff argues that by “publicly posting certain of Plaintiff’s text messages while

deliberately omitting Plaintiff’s profuse apology in which she stated her words had been

unintentional, Defendant MgBoh intentionally presented her in a false public light.” (ECF No.

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47, 10.) Plaintiff further asserts that she “was portrayed as a White person who would not admit

to having been unintentionally offensive when confronted about her privilege and insensitivity

by a Black person.” (Id.) Defendants respond that Plaintiff did not allege how the omission of

her apology rendered the screenshot as a whole “false”. (ECF No. 50, 7.) Defendants submit

that there are no allegations to plausibly support Plaintiff’s claim that Ms. MgBoh’s social media

post was false, either literally or by implication. (ECF No. 50, 7.) Defendants finally argue that

Ms. Foreman’s initial text which began with “Imma be racist”, combined with her response,

actually validates the accuracy of the screenshot:

“So yes if she sees someone suspicious on her street that matches

the description I think she should report it. Not literally hit him

with her car…But yes, the way I phrased what I said was racist

and I should have thought more before I sent it. I am sorry as I

try to be more respectful and understanding in how I view others

but that was not the case here.”

(ECF No. 1, ¶ 18.)

Plaintiff admitted the text message was racist and that she should have thought more

about it before sending it. Plaintiff issued a public apology acknowledging responsibility for the

racist rhetoric and conceding that her action was nothing short of racist. “I am so profoundly

sorry for my ignorance and blatant display of racism in response to the tragedy that affected our

campus this weekend. What I said was wrong and disrespectful to the Black community at

Rhodes.” (ECF No. 19-1, 9.) On its face, the false light claim is not factually supported in the

Complaint because the communication via text message that was disseminated was created by

Plaintiff. Ms. MgBoh only shared it with others.

Although the text message was sent to Defendant MgBoh, and then further disseminated,

there is no dispute that racist rhetoric is serious and highly offensive to Defendant MgBoh and

the Black community at Rhodes College as a whole. Therefore, given the lack of falsity as to the

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racist text message originally sent by Plaintiff, the Court finds there is no viable claim for false

light invasion of privacy since relief is not plausible on its face. Plaintiff must allege the

implication of the communication as a whole was false. Plaintiff has failed to meet this standard

and Count VIII is dismissed for failure to state a claim.

CONCLUSION

Plaintiff has provided the Court with a complete record of the disciplinary proceedings,

including the Community Standards Council hearing, the outcome of Plaintiff’s appeal to the

Appeals Committee, and the reconsideration of the matter by the Community Standards Council

upon remand from the Appeals Committee. The Committee Standards Council affirmed its

original decision to suspend Plaintiff for one-semester, along with requiring sensitivity training.

As noted above, Rhodes College substantially complied with the Constitution. It is disingenuous

for Plaintiff to say with certainty that her racist text message did not cause Ms. Beatey to feel

abused or harassed or that any Black member of the Rhodes College community did not fear that

some physical harm could result.

Besides Plaintiff’s bare and unsupported allegations, there is nothing in the record that

suggests that the decision to discipline Plaintiff was arbitrary, capricious, or was founded in bad

faith. The Court has reviewed the total disciplinary process and finds that the disciplinary

process at Rhodes College provided basic fairness, and that there was substantial compliance

with the terms of the CSC Constitution. Plaintiff’s disappointment with the outcome of the

disciplinary process is understandable but is not a valid basis to obtain relief. For the reasons

stated above, the Court finds that Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint

for Failure to State a Claim is GRANTED. (ECF Nos. 41 & 41-1.) Accordingly, the outstanding

Motion for Temporary Restraining Order, (ECF No. 20), and Motion for Leave to Submit

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Additional Statement of Facts in Support of Preliminary Injunction, (ECF No. 51), are hereby

DENIED AS MOOT.

IT IS SO ORDERED this 17th day of August, 2022.

s/John T. Fowlkes, Jr.

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE

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