Hamner v. Freedom Preparatory Academy

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TENNESSEE

AT MEMPHIS

______________________________________________________________________________

DABNEY and PAMELA HAMMER, )

Parents and Next Friends of I.H., )

)

Plaintiffs, )

)

v. ) Case No. 2:23-cv-02393-JTF-tmp

)

FREEDOM PREPARATORY )

ACADEMY CHARTER SCHOOL, )

)

Defendant. )

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING

PLAINTIFFS’ MOTION TO AMEND COMPLAINT

______________________________________________________________________________

Before the Court are two Motions. First is Defendant Freedom Preparatory Academy and

Board of Directors’ Motion to Dismiss for Failure to State a Claim, filed on August 29, 2023. (ECF

No. 9.) Plaintiffs Pamela and Dabney Hamner filed their Response on October 11, 2023. (ECF No.

13.) Second is Plaintiffs’ First Motion to Amend Complaint, filed on October 11, 2023. (ECF No.

12.) Defendant filed its Response on October 25, 2023. (ECF No. 19.) For the reasons set forth

below, Defendant’s Motion to Dismiss is GRANTED, and Plaintiffs’ Motion to Amend

Complaint is DENIED as futile. The Court DECLINES to award Defendant fees.

I. FACTUAL BACKGROUND

This case involves claims of violations of the right to an education, the Tennessee Records

Act, and intentional infliction of emotional distress based on a series of events that have resulted

in a high school student being effectively barred from returning to school. Plaintiffs’ son, (“I.H.”)

is a student in the 12th grade who had been attending Freedom Preparatory Academy since 2018.

(ECF No. 1, 4.) Plaintiffs and I.H. live in Southaven Mississippi, but commuted to Memphis,

Tennessee to attend Freedom Preparatory Academy, due to the charter school’s reputation as a

STEM Program geared toward African American students. (Id. at 5.) Up until the events giving

rise to this suit during his junior year, I.H. was a good student and did not have a significant school

disciplinary record. (Id. at 4.)

On February 6, 2023, I.H.’s mother (“Hamner”) received a call from persons claiming to

be from the Southaven Police Department, advising her that I.H. had made terroristic threats

toward his school, and had called a suicide hotline threatening to harm himself. (Id. at 5.)

Accordingly, the caller advised Hamner to return home, and informed her that I.H. would be taken

into custody. (Id.) Hamner was met at her home by three uniformed Southaven Police Officers and

two unmarked cars. (Id.) I.H. was in the back of a marked police vehicle. (Id.) The officers once

again told Hamner that her son had called the suicide hotline and threatened to blow up the school

during the school day. (Id.)

The Officers demanded that Plaintiffs surrender I.H.’s phone, which they ultimately did

after the Officers threatened to get a search warrant to search their home. (Id.) I.H. was then

transported to the Desoto County Juvenile Detention Facility, despite his insistence that he did not

make the calls, and allegation that he had been “swatted.”1 (Id.) The Southaven Police Department

searched I.H.’s phone and found that he made three calls on the day of his arrest, none of which

were to a suicide hotline.2 (Id. at 6.) No call attributable to I.H. has been documented to date. (Id.

at 5.) I.H. left the detention facility after three days. (Id. at 6.)

1 A swatting attack involves a situation where a prank call is made to law enforcement in order to dispatch a large

number of officers to a targeted individual. See, e.g., Kimberlin v. Frey, No. GJH-13-3059, 2017 WL 3141909, at *3

(D. Md. July 21, 2017), aff'd, 714 F. App'x 291 (4th Cir. 2018).

2 Plaintiffs believe that two individuals I.H. had met online made the call after tricking him into divulging personal

details about himself. (Id. at 6-7.)

The Southaven Police Department also contacted I.H.’s school, Freedom Preparatory

Academy and informed the principal of the alleged threats, I.H.’s arrest and detention in a juvenile

detention facility. (Id.) Based on this information, the school prevented I.H. from returning to

campus. (Id.) Plaintiffs met with the Superintendent on February 8, 2023, who informed them that

I.H. could not return unless he presented a statement from a mental health therapist. (Id.) He also

stated that for I.H. to be permitted to resume attending class in person, he would not be able to

drive to campus, bring a telephone, or participate in any after school activities. (Id.) These

restrictions remain despite a determination that I.H. did not make the threatening calls. (Id. at 6.)

I.H. has not returned to Freedom Preparatory Academy since the incident. (Id.)

Plaintiffs have asked for, and been denied, the ability to review or receive a copy of school

records or policies supporting their refusal to permit I.H. to attend the school without the

restrictions. (Id. at 7.) Freedom Preparatory Academy does not have policies concerning Student

Discrimination, Harassment, Bullying, Cyberbullying, and Intimidation published on its website.

(Id.)

II. PROCEDURAL HISTORY

Based on the events described above, Plaintiffs brought this action on June 28, 2023. (ECF

No. 1.) Therein they allege sex discrimination under Title IX of the Education Amendments of

1972 (“Title IX”), 20 U.S.C § 1681, et seq,; violation of the Tennessee Public Records Act, T.C.A.

§49-1-704 et seq, (“Public Records Act”); violation of T.C.A. § 49-1-704, a part of the Data

Accessibility, Transparency and Accountability Act, T.C.A. §§ 49-1-701, et seq. (“DATA Act”);

and intentional infliction of emotional distress under Tennessee state law. (Id. at 7-10.)

Defendant filed its Motion to Dismiss on August 29, 2023. (ECF No. 9.) In their Motion,

Defendant first argues that Plaintiffs do not state a sexual discrimination claim, which is necessary

to sustain a Title IX action. (Id. at 4-5.) Second, they maintain that both of Plaintiffs’ statutory

claims fail because (1) Plaintiffs are Mississippi residents and the Tennessee Public Records Act

only gives Tennessee residents the right to records, and (2) the portion of the Tennessee DATA

Act Plaintiffs invoke does not create a private right of action. (Id. at 5-10.) Third, Defendant asserts

that Plaintiffs’ intentional infliction of emotional distress claim fails because they are either

immune from such claims under the Tennessee Government Tort Liability Act (“GTLA”), T.C.A.

§ 29–20–101 et seq., or in the alternative, Plaintiffs’ allegations are insufficient to state an IIED

claim under Tennessee law. (Id. at 10-14.) Fourth, they argue that injunctive relief and punitive

damages should be denied because the underlying claims are without merit. (Id. at 14.) Fifth,

Defendant contends that it is entitled to an award of fees incurred for the defense against Plaintiffs’

Title IX pursuant to 42 U.S.C. § 1988(b), because the claim is frivolous. (Id. at 14-15.)

Plaintiffs responded to Defendant’s Motion on October 11, 2023. (ECF No. 13.) In their

Response, Plaintiffs argue that they have plausibly pleaded their Title IX and IIED claims. (Id. at

7.) Plaintiffs also concede that their Tennessee Public Records Act and the Tennessee DATA Act

are without merit and seek to withdraw them. (Id. at 1-2.)

Plaintiffs filed a Motion to Amend contemporaneously with their Response. (ECF No. 12.) In

their Motion to Amend, Plaintiffs seek to remove the allegations under the Tennessee Public

Records Act and make minor changes to their Title IX claim. (ECF No. 12-1, 2.) Plaintiffs also

seek to add a § 1983 claim, stating that the “original Complaint already alleged the entire factual

basis for adding the proposed claims under § 1983” and so they are now only “formaliz[ing] [these]

allegations into identifiable causes of action for these violations of the civil rights of I.H.” (Id.) On

October 25, 2023, Defendant responded, arguing that leave to amend should be denied the

proposed amendments are futile. (ECF No. 19.) Defendant contend that the Title IX and IIED

claims are still meritless even with the proposed amendments, and Plaintiffs’ proposed § 1983

claim cannot withstand a Motion to Dismiss. (Id. at 4.)

III. LEGAL STANDARDS

A. Motion to Dismiss

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 the 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).

B. Motion to Amend

In relevant part, Federal Rule of Civil Procedure 15 allows a party to amend a pleading

once as a matter of course within 21 days after service. Fed. R. Civ. P. 15(a)(1)(A). After this first

amendment as of right, a party must receive either the opposing party’s written consent or leave

of court to amend the pleading again. Id. 15(a)(2). Courts should grant leave to amend freely “when

justice so requires,” and the Sixth Circuit has previously listed factors to guide this determination:

Undue delay in filing, lack of notice to the opposing party, bad faith by the moving

party, repeated failure to cure deficiencies by previous amendments, undue

prejudice to the opposing party, and futility of amendment are all factors which

may affect the decision. Delay by itself is not sufficient reason to deny a motion to

amend. Notice and substantial prejudice to the opposing party are critical factors in

determining whether an amendment should be granted.

Wade v. Knoxville Utils. Bd., 259 F.3d 452, 458-59 (6th Cir. 2001) (quoting Head v. Jellico Hous.

Auth., 870 F.2d 1117, 1123 (6th Cir. 1989)). A proposed amendment is futile if it would not

withstand a motion to dismiss. Gooding v. EquityExperts.org, LLC, No. 17-12489, 2020 WL

13441663, at *1 (E.D. Mich. Jan. 9, 2020) (citing Thiokol Corp. v. Dep’t of Treasury, State of

Mich. Revenue Division, 987 F.2d 376 (6th Cir. 1993)).

IV. ANALYSIS

Plaintiffs assert claims for sex discrimination under Title IX, IIED, and a violation of Plaintiffs’

privacy rights under the Family Educational Rights and Privacy Act of 1974 based on Defendant’s

treatment of I.H. after he was mistakenly identified as the caller who made the threat. (See

generally ECF Nos. 1 & 12-3.) Defendant argues that Plaintiffs’ claims are meritless, and demand

fees incurred in the defense of Plaintiffs’ Title IX claim. (ECF Nos. 9-1 & 19.) The Court now

considers whether Plaintiffs’ currently operative complaint or proposed amended complaint can

withstand the motion to dismiss. Because Plaintiffs submit that they have voluntarily withdrawn

their Public Records Act and DATA Act claims, the Court finds that Defendant’s Motion to

Dismiss is MOOT with respect to both.

A. Title IX

i. Title IX Claim as Alleged in the Initial Complaint

Plaintiffs contend that the school’s refusal to allow I.H. to return to school without any

restrictions is a violation of Title IX. (ECF No. 1, 8.) 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). The Sixth Circuit has followed the Second Circuit in

identifying two different theories under which a plaintiff may bring a Title IX action related to

student-disciplinary proceedings: “erroneous outcome” and “selective enforcement.” Doe v.

Cummins, 662 F. App'x 437, 451 (6th Cir. 2016) (citing Yusuf v. Vassar College, 35 F.3d 709, 715

(2d Cir. 1994)). The Court considers the applicability of both theories below because Plaintiffs

have not explicitly pleaded either.

To plead an erroneous outcome claim, a plaintiff must allege facts sufficient to: (1) “cast

some articulable doubt on the accuracy of the outcome of the disciplinary proceeding” and (2)

demonstrate a “particularized . . . causal connection between the flawed outcome and gender bias.”

Doe v. Miami Univ., 882 F.3d 579, 593 (6th Cir. 2018) (alterations in original) (citations and

internal quotations omitted). Causation sufficient to state a Title IX discrimination claim can be

shown via “statements by members of the disciplinary tribunal, statements by pertinent university

officials, or patterns of decision-making that also tend to show the influence of gender.” Cummins,

662 F. App'x 437, 452 (6th Cir. 2016) (quoting Yusuf, 35 F.3d at 715). Under this standard,

“allegations of a procedurally or otherwise flawed proceeding that has led to an adverse and

erroneous outcome combined with a conclusory allegation of gender discrimination is not

sufficient to survive a motion to dismiss.” Id.

Defendant does not appear to be disputing whether Plaintiffs have alleged facts sufficient

to cast articulable doubt on the accuracy of the disciplinary proceedings. For this reason, the Court

focuses on the causation element. Defendant points out that Plaintiffs’ Complaint does not allege

facts establishing a causal connection between the allegedly erroneous decision and gender. (ECF

No. 9-1, 5.) In their Response, Plaintiffs make two claims that could be construed as allegations

of a causal connection. First, they state that “[i]t is well documented that African American

students and particularly males are disciplined more frequently and more harshly than students of

other races or genders.”3 (ECF No. 13, 3.) Second, they aver that “Freedom Prep impeded the

education of I.H., based on his gender (male) and unfounded accusations of terrorism.” (Id. at 4.)

The Court finds that neither of the two assertions, alone or together, allege sufficient factual matter

to establish a causal link between I.H.’s gender and the school’s decision to not let him return to

class without restrictions. The first statement regarding the documented trend of African American

male students being disciplined more harshly than students of other races and genders states a

general conclusion that, if true, would have no bearing on the issue of whether Defendant

discriminated against I.H. based on his gender. The second statement is a conclusory allegation of

gender discrimination. Hence, the Court finds that Plaintiffs have not plausibly pleaded a Title IX

claim that can withstand Defendant’s Motion to Dismiss under this theory.

Next, to make out a Title IX selective enforcement claim, a plaintiff must show that “a

similarly situated member of the opposite sex was treated more favorably than the plaintiff due to

his or her gender.” Cummins, 662 F. App’x at 452. Defendant points out the Complaint does not

allege that similarly situated female students were treated more favorably than I.H. due to his

3 Notably, Plaintiffs’ supporting citation is a public letter from the U.S. Department of Education providing guidance

on how schools can administer student discipline without discriminating based on race, not gender. See, Civil Rights

Div., U.S. Dep’t of Educ. & Office for Civil Rights, U.S. Dep’t of Justice, Dear Colleague Letter on the

Nondiscriminatory Administration of School Discipline, (November 30, 2023),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201401-title-vi.html#note4.

gender. (ECF No. 9-1, 5.) Plaintiffs do not respond to this argument in their Response. The Court

finds that Plaintiffs have failed to state a Title IX claim under the selective enforcement theory.

Because Plaintiffs have failed to state a claim under either applicable theory, their Title IX

claim is DISMISSED.

ii. Proposed Amendments to Title IX Claim

To reiterate, Plaintiffs’ Title IX claim fails as initially pleaded because they did not (1)

allege a causal connection between the school’s allegedly erroneous decision to bar I.H. from

returning to school and his gender; and/or (2) show that a similarly situated female student was

treated more favorably than I.H. due to his gender. See supra IV.A.i. In their proposed First

Amended Complaint, Plaintiffs seek to cure these deficiencies by including the following:

37. Freedom Prep Academy has treated female students in a different manner than it

treats male students accused of the same offense or perceived offenses based on sex.

38. Male students at Freedom Prep Academy are routinely disciplined, suspended or

ultimately dismissed from the school for actions that female students have engaged in.

(ECF No. 12-3, 9.) Turning first to the erroneous outcome theory, Defendant recites Sixth

Circuit precedent that causation sufficient to state a Title IX claim under the erroneous outcome

theory is shown by “statements by members of the disciplinary tribunal, statements by pertinent

university officials, or patterns of decision-making that also tend to show the influence of gender.”

Cummins, 662 F. App'x 437, 452 (6th Cir. 2016) (quoting Yusuf, 35 F.3d at 715). Neither of

Plaintiffs’ proposed amendments sets forth statements by members of the disciplinary tribunal or

by pertinent school officials. While it is true that the amendments do allege patterns of decision-

making that tend to show the influence of gender, they are vague and conclusory. See Z.J. v.

Vanderbilt Univ., 355 F. Supp. 3d 646, 682 (M.D. Tenn. 2018) (“[C]onclusory allegations of

gender bias, unsupported by even minimal data, credible anecdotal references, or the purported

presence of specific external pressures, are insufficient to support a plausible erroneous outcome

claim.”). Plaintiffs’ erroneous outcome claim still fails to state a claim.

The proposed amendments are also insufficient relative to Plaintiffs’ Title IX claim under

the selective enforcement theory. Neither amendment alleges that a similarly situated female

student was punished less harshly than I.H. The Sixth Circuit has made clear that to make this

showing, a plaintiff must identify a comparator of the opposite sex who was treated more favorably

by the same educational institutional when facing similar disciplinary charges. See Cummins, 662

F. App'x at 452. Plaintiffs have not identified any such individual; they instead rely on a general

assertion that male students at Freedom Preparatory Academy are routinely disciplined for actions

that female students have engaged in. (See ECF No. 12-3, 9.) Because Plaintiffs have failed to

allege that the school did not discipline a female student for conduct that was substantially similar

to that which was mistakenly attributed to I.H., they still fail to state a claim under the selective

enforcement theory.

Plaintiffs’ proposed amendments to their Complaint do not save or revive their Title IX

claim under either theory. Granting leave to amend would therefore be futile. For this reason,

Plaintiff’s Motion to Amend their Complaint is DENIED as to their Title IX claim.

B. Intentional Infliction of Emotional Distress

Next, Plaintiffs assert that Defendant’s barring I.H. from returning to school without a basis

in law or fact, requiring a police clearance, and preventing him from attending class amount to

intentional infliction of emotional distress. (ECF No. 1, 9-10.) They contend that the school’s

conduct was so outrageous as to not be tolerated in civilized society, and caused I.H. to suffer

serious emotional injury. (Id. at 10.) In their Motion to Dismiss, Defendant contends that Plaintiffs

have failed to state an IIED claim because: (1) the claim is barred under the Tennessee Government

Tort Liability Act (“GTLA”); or (2) Plaintiffs have failed to allege facts showing the existence of

an IIED. (ECF No. 9-1, 11.) The Court only addresses Defendant’s GTLA argument because it

concludes that this completely forecloses Plaintiffs’ IIED claim, and analysis of the second

argument would likely exceed the scope of its review for a Rule 12(b)(6) motion.

The GTLA removes the immunity of governmental entities for the negligent acts and

omissions of employees acting within the scope of their employment, “except if the alleged injury

arises out of: … [f]alse imprisonment pursuant to a mittimus from a court, false arrest, malicious

prosecution, intentional trespass, abuse of process, libel, slander, deceit, interference with contract

rights, infliction of mental anguish, invasion of right of privacy, or civil rights.” Tenn. Code Ann.

§ 29-20-205(2) (emphasis added). Courts have held that under the GTLA, governmental entities

are immune from suit for intentional infliction of emotional distress. See Cleaborn v. Shelby Cnty.

Bd. of Educ., No. 18-2603-JPM-DKV, 2019 WL 13414488, at *3 (W.D. Tenn. Mar. 26, 2019),

objections overruled sub nom. Cleaborn v. Gentry, No. 2:18-CV-2603-JPM-DKV, 2019 WL

2267312 (W.D. Tenn. May 28, 2019) (collecting cases); see also Sallee v. Barrett, 171 S.W.3d

822, 829 (Tenn. 2005) (holding that “infliction of mental anguish” includes the intentional tort of

IIED); Autry v. Hooker, 304 S.W.3d 356, 364 (Tenn. Ct. App. 2009) (holding that local school

district, school board and other school officials were immune from IIED claims pursuant to

GTLA).

Defendant argues that it is covered by the GTLA—and are therefore immune from suit for

Plaintiffs’ IIED claim—because the school was established pursuant to the Tennessee Public

Charter Schools Act of 2002 T.C.A. §§ 49-13-101 et seq. (ECF No 9-1, 10.) Under the Act, “[t]he

governing body of a charter school shall be subject to the same limits of liability as local school

systems.” Tenn. Code Ann. § 49-13-125. Plaintiffs do not address this argument in their Response

to Defendant’s Motion to Dismiss, and the alterations to this claim in the proposed Amended

Complaint do not set forth any additional facts or case law responsive to Defendant’s GTLA

immunity argument. (See ECF No. 12-3, 10-11.)

The Court finds that Defendant has established that it is covered by the GTLA, and that the

GLTA provides governmental entities with immunity from suit for intentional torts like the IIED

claim alleged here. Accordingly, Plaintiffs’ IIED claim is DISMISSED and leave to amend the

IIED claim is DENIED.

C. Section 1983

In their proposed Amended Complaint, Plaintiffs assert a new cause of action against the

school pursuant to 42 U.S.C. § 1983. (ECF No. 12-3, 9-10.) They allege that the school violated

I.H.’s rights under the Family Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232(g)

(“FERPA”) by providing his personal information to the Southaven Police Department. (Id. at 10.)

Moreover, Plaintiffs state that this violation of FERPA constitutes “an unlawful requirement to

educational access and a denial of the rights of I.H. parents and is in violation of the law.” (Id.)

Defendant argues that granting leave to amend to add this claim would be futile because (1) the

school was not acting under color of state law; and (2) Plaintiffs have failed to plausibly allege a

deprivation of their Constitutional or statutory rights. (ECF No. 19, 7.) The Court considers both

arguments below.

To state a plausible claim for relief under Section 1983, a claimant must allege facts

demonstrating that a defendant both: (1) “violat[ed] a right secured by the Constitution and law of

the United States” (2) while “acting under color of state law.” West v. Atkins, 487 U.S. 42, 48

(1988). In general, “[a] plaintiff may not proceed under § 1983 against a private party ‘no matter

how discriminatory or wrongful’ the party's conduct.” Tahfs v. Proctor, 316 F.3d 584, 591 (6th

Cir. 2003) (citing Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999)). “Nevertheless,

there are circumstances under which private persons may, by their actions, become ‘state actors’

for § 1983 purposes.” Id. To determine whether a private person can be held liable as a state actor

under Section 1983, the Sixth Circuit has recognized three tests: the public function test, the state

compulsion test, and the nexus test. See Memphis, Tenn. Area Local, Am. Postal Workers Union,

AFL-CIO v. City of Memphis, 86 F. App'x 137, 143 (6th Cir. 2004).

i. Family Education Rights Protection Act

Plaintiffs base their § 1983 claim on the school’s alleged violation of the Family

Educational Rights and Privacy Act of 1974, 20 U.S.C. §1232(g) (“FERPA”). (ECF No. 12-3, 10.)

They contend that this provision “allows parents the right to request and review educational

records maintained by the school and prohibits schools from releasing information improperly and

without notice to parents.” (Id.) Plaintiffs allege that Defendant violated this statute by failing to

produce information related to the school’s relationship with “Lakeside/Parkwood Behavioral

Health System,” and by sharing information regarding I.H. to the Southaven Police Department.

(Id.) Defendant argues that Plaintiffs cannot proceed with their § 1983 claim because FERPA does

not set forth a private right of action. (ECF No. 19, 11.)

The Supreme Court addressed this issue in Gonzaga Univ. v. Doe and concluded that “there

is no question that FERPA's nondisclosure provisions fail to confer enforceable rights.” 536 U.S.

273, 287 (2002); see also Bevington v. Ohio Univ., 93 F. App'x 748, 750 (6th Cir. 2004)

(“[Plaintiff’s] FERPA claim was properly dismissed because there is no private right of action

under the FERPA.”). Plaintiffs do not point to any contrary authority, and the Court finds that

existing precedent makes clear that they cannot sue under FERPA.

ii. State Action Doctrine

In lieu of a rigorous state analysis, Plaintiffs submit that “[b]y doing the bidding of the

Southaven Police Department or any judicial entity ordering investigation into I.H., Freedom

[Prep] Academy has become effectively a ‘state actor’ subject to liability under 42 U.S.C. § 1983.”

(ECF No. 12-3, 10.) Defendant indicates that courts across the country, as well as the Sixth Circuit,

have concluded that furnishing information to the police by itself does not make someone a state

actor under § 1983. See Moldowan v. City of Warren, 578 F.3d 351, 399 (6th Cir. 2009)

(“Providing information to the police, responding to questions about a crime, and offering witness

testimony at a criminal trial does not expose a private individual to liability for actions taken “under

color of law.”). Given this precedent, Plaintiffs have not shown that Defendant is a state actors for

the purposes of § 1983.

In conclusion, the Court finds that Plaintiffs cannot enforce FERPA under § 1983, and they

have failed to show that Defendant are state actors.4 Granting leave to amend to add this claim

would therefore be futile. The Motion to Amend Complaint is DENIED as to Plaintiffs’ § 1983

claim.

D. Fees

Defendant seeks an award of fees incurred in the defense of Plaintiffs’ Title IX claim in both

their Motion to Dismiss as well as their Response to Plaintiffs’ Motion to Amend. (ECF Nos. 9-1,

14 & 19, 17.) They contend that fees are warranted under either 42 U.S.C. § 1988(b) or 28 U.S.C.

§ 1927 because the Title IX claim was frivolous as Plaintiffs failed to set forth evidence or an

allegation that the adverse action was “on the basis of sex.” (Id. at 14-16 (quoting 20 U.S.C. §

1681(a).)

4 It appears that the parties’ briefings have generally understated the legal complexities and controversy surrounding

the state action doctrine as applied to charter schools. Compare Caviness v. Horizon Cmty. Learning Ctr., Inc., 590

F.3d 806, 815 (9th Cir. 2010) (holding that a charter school is not a state actor in the context of a due process-related

employment lawsuit) with Peltier v. Charter Day Sch., Inc., 37 F.4th 104, 116-23 (4th Cir. 2022), cert. denied, 143

S. Ct. 2657 (2023) (en banc) (holding that a charter school was a state actor in the context of an equal protection

challenge to a school’s sex-based dress code). The Court finds it unnecessary to wade into this controversy because

it need not do so in order to resolve the issues that the Parties have raised.

Section 1988 of Title 42 provides that “[i]n any action or proceeding to enforce ... Title IX of

Public Law 92–318 ..., the court, in its discretion, may allow the prevailing party, other than the

United States, a reasonable attorney's fee as a part of the costs.” 42 U.S.C. § 1988(b). The Sixth

Circuit previously considered the circumstances under which a prevailing party may recover under

Section 1988 of Title 42 and held that:

An award of attorney’s fees against a losing plaintiff in a civil rights action is an extreme

sanction, and must be limited to truly egregious cases of misconduct. The Supreme Court has

indicated that: a plaintiff should not be assessed his opponent’s attorney’s fees unless a court

finds that his claim was frivolous, unreasonable or groundless ... [a]nd, needless to say, if a

plaintiff is found to have brought or continued such a claim in bad faith, there will be an even

stronger basis for charging him with attorney's fees incurred by the defense.

Jones v. Cont’l Corp., 789 F.2d 1225, 1232 (6th Cir. 1986) (quoting Christiansburg Garment

Co. v. EEOC, 434 U.S. 412, 422 (1978)).

Defendant maintains that Plaintiffs’ Title IX claim was “frivolous, unreasonable or

groundless” insofar as they asserted it without evidence or an allegation of adverse action “on the

basis of sex,” and continued to advance the claim in their proposed Amended Complaint even after

being put on notice of the fatal flaws via Defendant’s Motion to Dismiss. (ECF No. 19, 17-18.)

Plaintiffs aver that Defendant is not entitled to fees because there is no evidence that they brought

this action in bad faith, and they have not demonstrated exceptional circumstances that warrant the

award of fees and costs for the filing of a Motion to Dismiss. (ECF No. 13, 6-7.) They also caution

that an award of fees would put a “chilling effect on their rights to pursue litigation.” (Id. at 6.)

The Court declines to exercise its discretion and impose sanctions in the form of assessing

attorney’s fees or costs. After reviewing the record, it is clear that this litigation does not present a

case of misconduct or vexatious litigation on the part of Plaintiff’s counsel; and there is no

evidence that Plaintiffs brought this claim in bad faith. However, there is concern about the chilling

effect brought on by Defendant’s request for imposition of fees in this case; which factors

prominently in the Court’s decision. Considering the facts, circumstances and nature of this case,

it is no surprise to the Court that legal action resulted. It is true that, in this Court’s view, Plaintiffs

failed to allege sufficient facts to withstand Defendant’s Motion to Dismiss, but this is a common

occurrence in federal district court. A true injustice would occur if fees and costs were assessed in

every case where a motion to dismiss was granted. And even though a considerable amount of

discovery has occurred, ultimately this case was dismissed at the pleadings stage.

The Court DECLINES to award Defendant fees and costs incurred in the defense of Plaintiffs’

Title IX claim.

V. CONCLUSION

Consistent with the foregoing, Defendant’s Motion to Dismiss is GRANTED and

Plaintiffs’ Motion to Amend Complaint is DENIED. The Court does not reach Defendant’s

arguments seeking dismissal of Plaintiffs’ request for injunctive relief and punitive damages, as

any claim for relief is rendered moot by a finding that the Defendant is not liable for the alleged

conduct. Last, the Court DECLINES to award Defendant fees incurred in the defense of Plaintiffs’

Title IX claim.

IT IS SO ORDERED this 11th day of April, 2024.

s/John T. Fowlkes, Jr._

JOHN T. FOWLKES, JR.

UNITED STATES DISTRICT JUDGE