                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0821n.06

                                           No. 10-5769                                     FILED
                                                                                      Dec 08, 2011
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk

JAMES ANDERSON,                                      )
                                                     )
       Plaintiff-Appellant,                          )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE MIDDLE
                                                     )       DISTRICT OF TENNESSEE
VANDERBILT UNIVERSITY,                               )
                                                     )
       Defendant-Appellee.                           )
                                                     )




       BEFORE: GUY, KETHLEDGE, and WHITE, Circuit Judges.


       PER CURIAM. Plaintiff James Anderson appeals a district court’s grant of summary

judgment to the defendant, Vanderbilt University, on his claims of breach of contract, negligence,

and promissory and equitable estoppel. For the following reasons, we affirm.

       Anderson was an undergraduate student at the University at the time of the events giving rise

to this lawsuit. On December 12, 2007, Anderson took a test in his Physics laboratory class, taught

by Professor Kenneth Schriver. Anderson answered just one of the fifteen test questions correctly,

and thirteen of his answers were the same as those of the student sitting next to him, who was taking

a different version of the test. Based on the similarity between the test answers and a review of the

notations on Anderson’s test, Schriver reported the matter to the University’s Honor Council. On

January 16, 2008, Anderson appeared before a panel of the Honor Council, which found him guilty

of receiving unauthorized assistance on the test. Because it was Anderson’s second violation of the

University’s Honor Code, the Honor Council sanctioned him with expulsion.
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Anderson v. Vanderbilt Univ.

       The Appellate Review Board (“the Board”) remanded the case for a new hearing, concluding

that Anderson was not given the opportunity to fully present his account of the events in question.

The second hearing panel found Anderson guilty by a unanimous vote, and that decision was

affirmed by the Board. Anderson was expelled at the end of the Fall 2008 semester.

       Anderson then filed the instant action, asserting, inter alia, that the University was negligent

and breached its implied contract of good faith and fair dealing by finding him guilty without clear

and convincing evidence, appointing a presiding officer for the second hearing who was aware of

his prior Honor Code violation and the outcome of the first hearing, and improperly dismissing most

of his second appeal petition. The district court granted summary judgment to the University on all

of Anderson’s claims. Anderson now appeals.

       We review the district court’s grant of summary judgment de novo. Parsons v. City of

Pontiac, 533 F.3d 492, 499 (6th Cir. 2008). Summary judgment is proper “if the movant shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a).

       The Tennessee Supreme Court “has not . . . enunciated the standard which should be applied

in a dispute arising out of the university-student relationship.” Doherty v. S. Coll. of Optometry, 862

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

university “is contractual in nature.” Id. (applying Tennessee law). Accordingly, a student may raise

breach of contract claims arising from a university’s alleged failure to comply with its rules

governing disciplinary proceedings. See Atria v. Vanderbilt Univ., 142 F. App’x 246, 255-56 (6th

Cir. 2005). In construing the terms of the implied contract, however, we have assumed that the

Tennessee courts “would adopt the deferential standard of reasonable expectation – what meaning

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Anderson v. Vanderbilt Univ.

the party making the manifestation, the university, should reasonably expect the other party to give

it.” Doherty, 862 F.2d at 577 (internal quotation marks omitted).

       Anderson first argues that, by finding him guilty after the first hearing, the Honor Council

violated the provision of the Student Handbook that requires “clear and convincing” proof of guilt.

Unlike the plaintiff in Atria, Anderson does not allege a procedural error by the Honor Council; he

simply argues that it reached the wrong result. But the record before the Honor Council contained

ample evidence to support its decision under a “clear and convincing” standard, in particular the fact

that Anderson’s answers were almost identical to another student’s and could not be explained by

the notations he made on his test or his post hoc reasoning. Absent any allegation that the Honor

Council failed to comply with the relevant procedural requirements, we decline to construe the

Student Handbook as requiring a particular outcome. Accordingly, the district court properly granted

summary judgment to the University on this claim, as well as on Anderson’s related claim that the

Board should have reversed the Honor Council’s guilty finding based on insufficient evidence.

       Anderson next raises breach of contract and promissory estoppel claims arising from the fact

that the presiding officer at the second hearing was aware of the result of the first hearing and

Anderson’s prior Honor Code violation. Anderson argues that the presiding officer should not have

received information concerning the first hearing because the Board’s remand order directed that the

second hearing be conducted by a new panel with a new presiding officer. But even if the remand

order had contractual force, there was no breach because the second hearing did have a new

presiding officer and new members. Similarly, Anderson cannot demonstrate that the University

reneged on a promise not to disclose his prior Honor Code violation to the panel during the guilt

phase of the second hearing. Anderson relies on an email sent by a University attorney, John

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Anderson v. Vanderbilt Univ.

Callison, stating that: “References in the investigators’ packet . . . regarding Mr. Anderson’s

disclosure to them about his previous Honor Council conviction will be removed. Information

relative to this previous conviction will be brought forth only if he is convicted at the upcoming

hearing since prior convictions would be relevant in the determination of an appropriate sanction.”

Even if this email could be construed as binding on the University, Anderson has failed to show a

breach because his previous Honor Code violation was not raised during the guilt phase of the

hearing, which is all that was promised. Accordingly, summary judgment was proper on these

claims as well.

        Anderson also argues that, by allowing his professor to testify at the second hearing that

notations made by Anderson on his test were evidence of copying, the University violated a

provision of the Student Handbook that directs the accuser to provide “a general account of the

events in question.” But the handbook neither bars accusers from offering opinion testimony nor

places any other limitation on the type of testimony they may offer. Accordingly, the University did

not violate any of its own rules by allowing this testimony.

        Anderson’s remaining arguments relate to his second appeal. First, Anderson argues that

the Board Chair, Charles Brau, violated Board procedures by not allowing portions of his appeal

petition to proceed to a panel. The relevant provision directs the Chair to review a petition upon

receipt “to determine whether it, when considered in the light most favorable to the Petitioner, sets

forth a basis sufficient to provide the relief sought by the Petitioner. If the Chair determines that the

petition does not set forth a basis sufficient to provide the relief, the Chair will dismiss the petition

(or such parts of the petition that the Chair has determined do not set forth a basis sufficient to

provide relief). The Chair’s decision is final.”

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Anderson v. Vanderbilt Univ.

       In contrast to Anderson’s first appeal, which challenged the Honor Council’s decision on the

grounds of an alleged procedural irregularity, new evidence, and insufficiency of the evidence, the

stated basis for Anderson’s second appeal was that the evidence was insufficient to support a finding

of guilt. The petition, however, included four parts, raising both evidentiary and procedural issues:

Section A, arguing that the presiding officer misled Anderson after the hearing by promising to

answer questions regarding the panel’s decision and its impartiality but then refusing to do so;

Section B, arguing that the panel did not have a proper understanding of the “clear and convincing”

evidentiary standard and improperly shifted the burden of proof; Section C, arguing that the

presiding officer had improper knowledge of his prior Honor Code violation, that the testimony

concerning the notations on his exam was speculative and unduly prejudicial, and that members of

the panel were indifferent or antagonistic toward him during the hearing; and Section D, arguing that

the evidence did not support a finding of guilt. Brau forwarded Section D to a panel for review but

dismissed the remaining sections, reasoning that Section A related to events that occurred after the

Honor Council reached its decision and therefore could not be considered by the Board, that Section

B was not relevant to the Board’s decision because it relied on definitions of the “clear and

convincing” standard that did not govern the Honor Council proceeding, and that Section C related

to procedural matters that were not relevant to the stated basis for the appeal, i.e., insufficient

evidence.

       In Atria, we concluded that there was a genuine issue of fact as to whether the University

violated its own rules by allowing the Board Chair to dismiss a petition unilaterally because, at that

time, the Board’s written procedures required initial review by a panel. See 142 F. App’x at 255-56.

In this case, on the other hand, both the Student Handbook and the Board’s written procedures gave

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Brau the sole discretion to determine whether the arguments raised in Anderson’s petition were

sufficient to provide the relief that he requested, i.e., a reversal of the Honor Council’s decision

based on a lack of evidence. Brau forwarded the portion of the petition that he deemed relevant to

that issue. Thus, unlike the plaintiff in Atria, Anderson has failed to raise a factual issue as to

whether the University violated its own rules by dismissing the remainder of his petition.

       Finally, Anderson argues that Brau violated Board procedures by stating, in his summary of

the evidence, that the “statistical likelihood” of Anderson’s having thirteen of fifteen identical

answers to the student sitting next to him was “less than one in two billion,” a statistic that was not

presented to the Honor Council. According to the Board’s procedures, its review is “based only on

the record,” i.e., “the evidence presented to the original hearing authority.” But, given Anderson’s

own admission that the odds were “extremely low” and testimony in the record that the probability

was “vanishingly small,” Anderson has not presented any evidence from which a jury could find that

Brau’s statement “caused him any damage.” Atria, 142 F. App’x at 256. Accordingly, summary

judgment was appropriate on this claim as well.

       For these reasons, we affirm the district court’s judgment.




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        HELENE N. WHITE, Circuit Judge (concurring in part and dissenting in part). I agree with

the majority that the University was entitled to summary judgment as to Anderson’s claims related

to his original hearing and appeal and his second hearing. I respectfully dissent from the majority’s

determination that the University was entitled to summary judgment as to Anderson’s claims related

to his second appeal.

        The majority concludes that there is no genuine issue of material fact regarding Anderson’s

claim that portions of his second appeal petition were improperly dismissed, reasoning that the

relevant procedural rules give the Board Chair the authority to unilaterally dismiss a petition, or parts

of a petition, without forwarding them to a Board panel. But Anderson does not dispute that Brau,

the Board Chair, was authorized to perform this gatekeeping function. Rather, he argues that Brau

did not apply the proper standard when he did so.

        I would conclude that Anderson has raised an issue of material fact in this regard. The record

reflects that Brau did not simply determine whether the arguments raised in Anderson’s petition “set

forth a basis sufficient to provide the relief sought,” as provided for by the Board’s procedures.

Rather, Brau dismissed portions of the petition for reasons unrelated to their merit, such as

Anderson’s failure to explicitly state that he was challenging the Honor Council’s decision on

procedural grounds. The Board’s procedures, however, do not require petitions to be in a particular

format or to include a statement of issues. Accordingly, as in Atria v. Vanderbilt Univ., 142 F.

App’x 246, 255-56 (6th Cir. 2005), there is an issue of material fact as to whether the University

violated its own rules by dismissing portions of Anderson’s petition on these grounds.

        Similarly, I do not agree that the University is entitled to summary judgment on Anderson’s

claim that Brau violated Board procedures by informing panel members that the statistical likelihood

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Anderson v. Vanderbilt Univ.

of Anderson’s test results was less than one in two billion, a figure that Brau arrived at through his

own calculations and that was not presented to the Honor Council. The relevant procedural

provision prohibits the Board from considering evidence that was not presented to the original

hearing authority. Accordingly, I would conclude that an issue of material fact exists as to whether

the University complied with its own rules in this regard. See id.

       In light of these genuine issues of material fact, I would reverse the grant of summary

judgment on these claims and remand the case to the district court for further proceedings.




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