Duncan v. Belmont University

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

CENTRAL DIVISION

NOAH DUNCAN, )

)

Plaintiff, )

)

v. ) No. 2:24-CV-04172-WJE

)

)

BELMONT UNIVERSITY, et al., )

)

Defendants. )

ORDER

Pending before the Court is Belmont University and Janelle Briscoe’s (“Defendants”)

Motion to Dismiss Plaintiff Noah Duncan’s Complaint and suggestions in support. (Docs. 13, 14).

Mr. Duncan, proceeding pro se, has filed a response and suggestions in opposition. (Docs. 16, 18).

Defendants have filed a reply. (Doc. 21). The Court held a hearing on this matter on January 27,

2025. (Doc. 25). The motion is now ripe for consideration. For the reasons set forth below, the

Motion to Dismiss is GRANTED.

I. Background

On August 17, 2020, Mr. Duncan posted a video on the social media platform, TikTok,

depicting himself as former police officer Derek Chauvin, who was convicted of murdering George

Floyd, “kneeling with his fist in the air after realizing George Floyd was [B]lack,” in an attempt,

in Mr. Duncan’s words, “to show solidarity” with the Black Lives Matter movement. (Doc. 3 at 4,

¶¶ 3-4). Two days later, Mr. Duncan began his undergraduate studies at Belmont University

(“Belmont”), a private Christian university in Nashville, Tennessee. (Id. ¶ 5). Once made aware of

the video, Defendants investigated Mr. Duncan and placed him on academic probation on August

28, 2020, for violating Belmont’s Student Code of Conduct. (Id. ¶¶ 7-8; Doc. 14 at 11, 17).

Belmont’s student policies and disciplinary processes are stated in The Bruin Guide, which

includes Belmont’s mission statement, values, and code of conduct, which states in part:

Belmont University’s Code of Conduct applies to student behavior occurring from the time

of admission until the actual awarding of the degree… For entering students, a student’s

violation of the Code of Conduct occurring prior to the opening of residence halls for the

admitted semester may be addressed through reevaluation of the admission offer. In such

cases, the student will receive a written letter stating the decision of the reevaluation. After

the opening of residence halls for the admitted semester, a student’s behavior will be

addressed in accordance with The Bruin Guide’s Accountability Process.

(Doc. 14 at 124). On September 5, 2020, Belmont’s student residence halls opened for the fall

semester. (Doc. 3 at 4, ¶ 10). On November 7, 2020, while on academic probation, Mr. Duncan

posted another TikTok video online. In the video he states, “Her: You must be retarded if you think

we fuckin.” (Doc. 3 at 5, ¶¶ 12-13). From November 29, 2020, to January 5, 2021, Mr. Duncan

posted five additional TikTok videos online. (Id. ¶ 15). First, Mr. Duncan posted a video that used

a clip of sound from the song, “Let’s Get Retarded in Here,” referring to the Black Eyed Peas

sample as “The new TikTok National Anthem.” (Id. ¶ 16). In the second posted video, Mr. Duncan

responds to a viewer comment stating, “I’m straight retard.” (Id. ¶ 17). In the third video post, Mr.

Duncan states that “the concept of slavery should be brought back.” (Id. ¶ 18). In the fourth video,

Mr. Duncan is depicted in a standoff with a “figurative assailant” and states, “Don’t move, or RGB

dies.” (Id. ¶ 19). In the fifth video, a viewer comments, “I’m literally sending this to your college

bud. Schools won’t like this,” to which Mr. Duncan responds by gesturing with his middle finger

at his phone while stating, “Do it pussy, they know already.” (Id. ¶ 20). On June 25, 2021, Mr.

Duncan reposted a viral Instagram meme stating, “3 STAGES OF REAL NIGGA. TRUGGLE,

GRIND, SHINE.” (Id. ¶ 21).

On July 21, 2021, Defendants deemed these online posts to be in violation of the “Self-

Control” and “Individual Worth” policies within Belmont’s Student Code of Conduct and

suspended Mr. Duncan. (Id. at 6, ¶ 23). The self-control provision prohibits “smoking, sexual

conduct, failure to comply with the University officials, infringing on others use or enjoyment of

[Belmont] property or activities, violations of [Belmont] policies regarding alcohol and drugs

and/or acts that elevate individual desires or impulses to the detriment of others.” (Id.). The

individual worth provision prohibits “physical abuse, threats, intimidation (verbal or otherwise),

harassment, hazing, coercion and/or conduct that threatens or endangers the welfare, dignity or

worth of any person.” (Id.).

After being suspended, Mr. Duncan left Belmont and enrolled at the University of Missouri

(“MU”) in Columbia, Missouri. (Doc. 14 at 11). Thereafter, Mr. Duncan signed an “Authorization

to Release Information” form allowing Belmont to release to MU—and discuss with MU—his

student records pursuant to the Family Educational Rights and Privacy Act, 20 U.S.C § 1232(g) et

seq. (“FERPA”). (Doc. 3 at 6, ¶ 26). The form specifically authorized Belmont to “release and

discuss all records related to the conduct process—including charges, evidence, and outcomes or

sanctions [Mr. Duncan] was subject to during [his] enrollment.” (Doc. 14 at 138). Mr. Duncan

alleges MU later considered and relied on this information to expel him. (Doc. 3 at 7, ¶ 30). On

November 20, 2023, Mr. Duncan submitted a formal FERPA request form to Defendants for all

correspondence and communication between Defendants and MU regarding his misconduct cases

and “him as a student.” (Id. ¶¶ 31-32). The Defendants have not provided Mr. Duncan with any

record of their communications with MU. (Id. ¶ 35).

II. Discussion

Following Mr. Duncan’s expulsion from MU because he was found “guilty of physical

abuse, illegal or unauthorized possession or use of a weapon, and threatening behavior,” and after

his unsuccessful attempt to sue MU in this Court, he filed this present action against Defendants

on October 3, 2024. (Doc. 3); Duncan v. Curators of Univ. of Mo., No. 24-CV-04096-SRB, 2024

WL 3520847, at *1-2 (W.D. Mo. July 22, 2024), aff’d, No. 24-2501, 2024 WL 5340677 (8th Cir.

Sept. 27, 2024). Mr. Duncan asserts the following claims: Count I—Repudiatory Breach of

Contract; Count II—Negligence and Negligence Per Se; Count III—Defamation of Character;

Count IV—42 U.S.C. § 1983/Violation of 20 U.S.C. 1232(g) (FERPA); Count V—§

1983/Violation of Free Speech Clause of the First Amendment; and Count VI—§ 1983/Violation

of the Due Process Clause of the Fourteenth Amendment.1 Defendants move to dismiss all claims

against them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).

A. Legal Standard

The Court may dismiss a complaint for “fail[ing] to state a claim upon which relief can be

granted.” Fed. R. Civ. P. 12(b)(6). A complaint survives a Rule 12(b)(6) motion if it 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 Atlantic Corp. v. Twombly, 550 U.S. 544,

570 (2007)). 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.”

Glick v. W. Power Sports, Inc., 944 F.3d 714, 717 (8th Cir. 2019) (quoting Iqbal, 556 U.S. at 678).

“While legal conclusions can provide the framework of a complaint, they must be supported by

factual allegations.” Iqbal, 556 U.S. at 679. The factual allegations “do not need to be ‘detailed,’

but they must be ‘more than labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action.’” In re SuperValue, Inc., 925 F.3d 955, 962 (8th Cir. 2019) (quoting Twombly, 550

1 Mr. Duncan’s opposition brief indicates that Count VI asserts procedural due process rights under the Fourteenth

Amendment, although the Complaint cites to the Sixteenth Amendment. (Doc. 18 at 19-20). “A pro se complaint must

be liberally construed,” and the Court therefore analyzes Count VI as a Fourteenth Amendment claim. Topchian v.

JPMorgan Chase Bank, N.A., 760 F.3d 843, 849 (8th Cir. 2014).

U.S. at 555). Specifically, the standard requires “more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citation omitted). “Determining whether a claim is

plausible is a ‘context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.’” Hamilton v. Palm, 621 F.3d 816, 818 (8th Cir. 2010) (quoting

Iqbal, 556 U.S. at 679). However, the Court must “accept the factual allegations in the complaint

as true and draw all reasonable inferences in the nonmovant’s favor.” Cook v. George’s, Inc., 952

F.3d 935, 938 (8th Cir. 2020) (citing Blankenship v. USA Truck, Inc., 601 F.3d 852, 853 (8th Cir.

2010)).

Additionally, in ruling on a 12(b)(6) motion to dismiss, the Court is not limited to the four

corners of the complaint. Outdoor Cent., Inc. v. GreatLodge.com, Inc., 643 F.3d 1115, 1120 (8th

Cir. 2011). “The court may consider the pleadings themselves, materials embraced by the

pleadings, exhibits attached to the pleadings, and matters of public record.” Mills v. City of Grand

Forks, 614 F.3d 495, 498 (8th Cir. 2010) (citing Porous Media Corp. v. Pall Corp., 186 F.3d 1077,

1079 (8th Cir. 1999)).

B. The Breach of Contract Claims Fail and are Dismissed.

In Count I, Mr. Duncan alleges that Defendants breached their contractual duty to him in

four ways. (Doc. 3 at ¶¶ 4-7, 8-9, 22-23, 26-27, 31-32). The first two claims assert that Defendants

breached the Student Code of Conduct. (Id. at 4-5, ¶¶ 11, 23). The third and fourth claims assert

that Defendants breached the “Authorization to Release Information” form when they released

allegedly defamatory records to MU and the formal FERPA request form submitted by Mr. Duncan

when they failed to provide him with records of their communications with MU. (Id. at 6-7, ¶¶ 26-

29, 35). Defendants argue that Mr. Duncan fails to allege the existence of any contract that was

breached. (Doc. 13 at 2; Doc. 14 at 13-14; Doc. 21 at 4-7). The Court finds that Mr. Duncan has

failed to allege breach of contract claims upon which relief can be granted.

“A federal court exercising supplemental jurisdiction over state law claims in a federal

question lawsuit must follow the choice-of-law rules of the forum state.” American Online, Inc. v.

National Health Care Discount, Inc., 121 F. Supp. 2d 1255, 1268 (N.D. Iowa 2000). “Under

Missouri’s choice-of-law rules, courts apply the substantive law of the state with the “‘most

significant relationship’ to the occurrence and the parties.” Winter v. Novartis Pharms. Corp., 739

F.3d 405, 410 (8th Cir. 2014) (quoting Fuqua Homes, Inc. v. Beattie, 388 F.3d 618, 621 (8th Cir.

2004). Mr. Duncan’s Complaint alleges that the contracting, performance, and subject matters of

each of the alleged contracts took place in Tennessee, where Belmont is located and incorporated.

(Doc. 3 at 4-7). As such, Tennessee law will apply to the breach of contract claims.

Under Tennessee law, the essential elements of a breach of contract claim include “(1) the

existence of an enforceable contract; (2) nonperformance amounting to a breach of the contract;

and (3) damages caused by the breach of the contract.” Tolliver v. Tellico Property Village Property

Owners Association, Inc., 579 S.W.3d 8, 25 (Tenn. Ct. App. 2019) (internal quotations omitted).

The Court addresses each of Mr. Duncan’s breach of contract claims in turn.

a. Mr. Duncan’s claims alleging Defendants’ breaches of the Code of Conduct fail.

Under Tennessee law, a student handbook is not an express contract when it disclaims that

its policies constitute a contract. See Atria v. Vanderbilt Univ., 142 F. App’x. 246, 255 (6th Cir.

2005). However, the Sixth Circuit has analyzed Tennessee law to find that “the student-university

relationship is contractual in nature,” although courts “have rejected a rigid application of contract

law in this area.” Sifuna v. S. Coll. of Tenn., Inc., No. 17-5660, 2018 WL 3005814, at *2 (6th Cir.

Apr. 5, 2018); Atria, 142 F. App’x at 255. Therefore, a contractual student-university relationship

is generally implied and “manuals [and] handbooks… may help define this contractual

relationship.” Atria, 142 F. App’x at 255 (holding that even though Vanderbilt’s Student Handbook

was not an express written contract, its provisions may be enforced in Tennessee if it creates an

implied contract); Anderson v. Vanderbilt Univ., 450 F. App’x 500, 502 (6th Cir. 2011). “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. However, “[c]ontracts

for private education have unique qualities and must be construed to allow the institution’s

governing body to meet its educational and doctrinal responsibilities.” Doe v. Belmont Univ., 334

F. Supp. 3d 877, 890 (M.D. Tenn. 2018) (quoting Valente v. Univ. of Dayton, 438 F. App’x 381,

384 (6th Cir. 2011)).

The parties agree that the Bruin Guide does not create an express contract between them.

(Doc. 14 at 38; Doc. 18 at 7). However, Mr. Duncan has adequately alleged that the student-

university relationship between himself and Defendants created an implied contract, defined by

Belmont’s Student Code of Conduct. See Doe, 334 F. Supp. 3d at 890 (finding an implied

contractual relationship existed between Belmont and a student and the specific provisions of the

Sexual Misconduct Accountability Process Bruin Guide defined the terms of that relationship).

After posting the first TikTok video on August 17, 2020, prior to the opening of the

residence halls, Mr. Duncan was placed on academic probation. Mr. Duncan alleges that the

Defendants were permitted to address his behavior through the Accountability Process only after

residence halls opened. (Doc. 3 at 4-5, ¶¶ 5-11). However, the Bruin Guide does not prohibit

Belmont from applying the Accountability Process to admitted students before the opening of the

residence halls. Mr. Duncan’s dissatisfaction with the result of the investigation leading to his

probation is an insufficient basis for a breach of contract claim. See Doe, 334 F. Supp. 3d at 894

(M.D. Tenn. 2018) (finding plaintiff’s dissatisfaction with the investigation’s outcome was not a

viable basis for breach of contract). Because an express contract does not exist and Mr. Duncan

has failed to allege that Defendants breached the implied contract created by the student-university

relationship, Mr. Duncan fails to state a claim for breach of contract of the Bruin Guide.

Mr. Duncan also argues he did not violate Defendants’ “Self-Control” and “Individual

Worth” policies, alleging his misconduct “was never a detriment to any person” or “never

threatened or endangered the welfare, dignity, or worth of any person.” (Doc. 3 at 6, ¶ 23). He

further argues that these policies are “are entirely vague, non-specific, indefinite, and inapplicable

to [his] alleged misconduct” and that these provisions “are not sufficient to form specific, definite,

or discrete obligations for [him] to abide by.” (Id.). Defendants argue that Mr. Duncan’s “bare,

conclusory allegation—contradicted by his own admitted conduct—fail to articulate any factual

or legal support for these alleged breaches of the Bruin Guide.” (Doc. 14 at 19). The Court finds

that Mr. Duncan’s allegations regarding the “Self-Control” and “Individual Worth” policies fail to

adequately plead a breach of contract claim, namely a breach of the Bruin Guide or any resulting

damages. See Tolliver, 579 S.W.3d at 25 (listing the elements of a breach of contract claim).

b. Mr. Duncan’s claims based on the FERPA release and request forms fail.

Mr. Duncan’s third and fourth breach of contract claim alleges that Defendants violated

their contractual obligations under (1) the FERPA “Authorization to Release Information” form by

releasing records to MU that were “defamatory and not at all related to the Plaintiff’s disciplinary

history” at Belmont and (2) the formal FERPA request form by failing to disclose the requested

records to him. (Doc. 3 at 7, ¶¶ 28-29, 31-35). Defendants argue that FERPA release and request

forms are not contracts enforceable by students. (Doc. 14 at 14-15). The Court finds Mr. Duncan

has failed to plead enforceable contracts exist based on the FERPA release and request forms.

In his suggestions in opposition, Mr. Duncan argues that 20 U.S.C. § 1232(g)(a)(1)(A),

stating “Each educational agency or institution shall establish appropriate procedures for the

granting of a request by parents for access to the education records of their children… in no case

more than forty-five days after the request has been made,” creates a right to review his records.

(See Doc. 18 at 17). However, the Supreme Court has expressly rejected the notion that FERPA, a

law protecting the privacy of student education records, creates a private right of action, which has

been followed by the Sixth Circuit. Gonzaga University v. Doe, 536 U.S. at 290 (“FERPA

“contain[s] no rights-creating language… and therefore create[s] no rights enforceable under §

1983; see also Bevington v. Ohio Univ., 93 F. App’x 748, 750 (6th Cir. 2004) (“… there is no

private right of action under the FERPA”). Accordingly, Count I is dismissed for failure to state a

claim upon which relief can be granted.

C. Negligence and Negligence Per Se Claims Fail and are Dismissed.

In Count II, Mr. Duncan asserts negligence and negligence per se claims, alleging that

Defendants acted “negligently, arbitrarily, capriciously, and maliciously” toward him during and

after his time at Belmont. (Doc. 3 at 8, ¶¶ 5-10). Defendants argue Mr. Duncan has failed to

establish a duty of care for both claims. (Doc. 14 at 19-20, Doc. 21 at 7-8). The Court finds Mr.

Duncan has failed to articulate a duty of care upon which relief can be granted for both claims.

Under Tennessee law, a negligence claim requires five elements: (1) a duty of care owed

by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care

amounting to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or

legal cause. Cotten v. Wilson, 576 S.W.3d 626, 637 (Tenn. 2019) (internal quotations omitted).

Mr. Duncan argues that Defendants have a duty “not to take action against [him] that is

considered arbitrary, capricious, or in bad faith,” citing Ewing v. Board of Regents of University of

Michigan, 742 F.2d 913, 916 (6th Cir. 1984). (See Doc. 3 at 8, ¶ 4). However, the case Mr. Duncan

cites was reversed the following year and no other Tennessee authority establishes that a university

has a duty not to act “arbitrarily, capricious, or in bad faith” toward a student. See Regents of

University of Michigan v. Ewing, 474 U.S. 214, 214 (1985).

Regarding Mr. Duncan’s negligence per se claim, he has to establish that (1) the defendant

violated a statute or ordinance that imposes a duty or prohibition for the benefit of a person or the

public; (2) the injured party is within the class of persons intended to benefit from or be protected

by the statute; (3) the negligence was the proximate cause of the injury. Shaw v. Metro. Gov’t of

Nashville & Davidson Cnty., 596 S.W.3d 726, 734 (Tenn. Ct. App. 2019). However, Mr. Duncan

has failed to identify any statutory or regulatory duty of care which Defendants have violated.

Accordingly, Mr. Duncan has failed to establish a duty of care for both claims and Count II is

dismissed for failure to state a claim upon which relief may be granted.

D. Defamation of Character Claim Fails and is Dismissed.

In Count III, Mr. Duncan argues that the Defendants “intentionally and maliciously

defamed” him when they communicated to MU that he had violated Title IX on two occasions,

which he alleges never occurred. (Doc. 3 at 9, ¶¶ 8-9). Defendants argue Mr. Duncan consented to

the release of the information. (Doc. 14 at 21-23). The Court finds that Mr. Duncan has failed to

allege that Defendants committed defamation.

In defamation cases, Missouri law favors the substantive law of the state where the

defamatory statement was published. Brandenburg v. Life & Health Ins. Co. of Am., No.

4:03CV00565 TCM, 2004 WL 5500119, at *4 (E.D. Mo. May 11, 2004) (internal citation omitted).

Missouri law applies because the statements at issue were made by Defendants to MU in Missouri.

The elements of defamation in Missouri are: 1) publication, 2) of a defamatory statement, 3) that

identifies the plaintiff, 4) that is false, 5) that is published with the requisite degree of fault, and 6)

damages the plaintiff’s reputation.” Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 70 (Mo.

2000). “Consent is a privilege that protects a speaker from liability for making a defamatory

statement.” Overcast v. Billings Mut. Ins. Co., 11 S.W.3d 62, 71 (Mo. banc 2000).

Mr. Duncan consented to Defendants releasing his student records to MU when he signed

the release form. To the extent Mr. Duncan argues he did not consent to Defendants sharing false

information with MU, his claim still fails. (See Doc. 3 at 9, ¶¶ 8-9, Doc.18 at 15-16). In a

defamation claim, the requisite degree of fault for a private figure is negligence. Overcast, 11

S.W.3d at 70. By alleging that Defendants acted “intentionally and maliciously” without further

factual support, Mr. Duncan has failed to provide factual support that Defendants negligently

shared information with MU, much less intentionally and maliciously. See Iqbal, 556 U.S. at 679.

Accordingly, Count III is dismissed for failure to state a claim upon which relief can be granted.

E. § 1983/Violations of FERPA and the First and Fourteenth Amendments Fail and are

Dismissed.

Mr. Duncan’s final three counts assert § 1983 claims under FERPA, the First Amendment,

and the Fourteenth Amendment, respectively. (Doc. 3 at 10-14; Doc. 18 at 19-20). Mr. Duncan

argues Defendants acted “in nexus with” MU to deprive him of his constitutional rights. (Doc. 3

at 12, ¶14, 14 ¶ 14). Defendants argue they are not subject to § 1983 liability because Defendants

are not state actors and have not committed state actions. (Doc. 14 at 23-24). The Court finds that

Defendants are not subject to § 1983.

“To state a claim under 42 U.S.C. § 1983, a plaintiff must show [1] that he was deprived

of a right secured by the Constitution and the laws of the United States and [2] that the deprivation

was committed by a person acting under color of state law.” Alexander v. Hedback, 718 F.3d 762,

765 (8th Cir. 2013). A private actor may be liable under § 1983 if it is a “willful participant in joint

activity with the State,” for which a plaintiff must plausibly allege “a meeting of the minds”

between the two actors. Magee v. Tr. of the Hamline University., Minn., 747 F.3d 532, 536 (8th Cir.

2014) (internal citations omitted).

As discussed above, FERPA does not create a private right of action, and therefore

Defendants cannot be sued.2 Additionally, Defendants are not state actors. See Magee, 747 F.3d at

534 (finding a private university and dean of its law school were not state actors and thus not

subject to liability under § 1983). In a related case, MU was found not to be a “person” liable under

§ 1983. See Duncan, 2024 WL 3520847, at *8. Even assuming MU is a state actor, Mr. Duncan

has failed to plausibly allege a “meeting of the minds” between Defendants and MU to deprive

him of his constitutional rights. See Magee, 747 F.3d at 536. Furthermore, the Eighth Circuit has

held that furnishing information to a state actor is insufficient to constitute state action. See Gibson

v. Regions Financial Corp, 557 F.3d 842, 846 (8th Cir. 2009) (finding “the mere furnishing of

information to a law enforcement officer, even if the information is false, does not constitute joint

activity with state officials.”). Without additional facts, Mr. Duncan has not “‘nudged [his]

[constitutional claim[s]’ across the line from conceivable to plausible.’’ Iqbal, 556 U.S. at 680,

quoting Twombly, 550 U.S. at 570. Accordingly, Counts IV, V, and VI are dismissed for failure to

state a claim upon which relief may be granted.

III. Conclusion

The undersigned finds that Mr. Duncan has failed to state claims upon which relief can be

granted. Accordingly, Defendants’ Motion to Dismiss (Doc. 13) is GRANTED.

2 The Eighth Circuit has also held that FERPA does not create a private right of action. See Missouri Child Care Ass’n

v. Cross, 294 F.3d 1034, 1040 n.8 (8th Cir. 2002) (“[FERPA] . . . does not create any individual rights in students or

parents that are enforceable in private actions under § 1983.”).

All of Mr. Duncan’s claims against Defendants are dismissed with prejudice.

Dated this 31st day of January, 2025, at Jefferson City, Missouri.

Willie J. Epps, Jr.

Willie J. Epps, Jr.

Chief United States Magistrate Judge