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No. 122,704

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

JOHN DOE,

Appellant,

v.

KANSAS STATE UNIVERSITY and HEATHER REED,

Appellees.

SYLLABUS BY THE COURT

1.

K.S.A. 2020 Supp. 60-210(a) does not bar anonymous or pseudonymous suits 

where an important privacy interest is recognized. Unwitting Victim v. C.S., 273 Kan. 

937, 944, 47 P.3d 392 (2002). Rather than dismiss an anonymous party's case for failure 

to seek permission to proceed anonymously, the district court must apply a two-part test 

to determine (a) whether an important privacy interest exists (a legal determination), and 

(b) whether the party displayed a privacy interest of a magnitude sufficient to warrant 

anonymous filing (a factual determination).

2.

The first step of the two-step analysis under Kansas' Public Speech Protection Act, 

K.S.A. 2020 Supp. 60-5320, does not delve into the merits of the plaintiff's claim. 

Instead, it only looks at the content of the claim to determine if it concerns the "exercise 

of the right of association," the "exercise of the right of free speech," or the "exercise of 

the right to petition," as those terms are defined by the Act.
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3.

When determining the second step of the two-step analysis under K.S.A. 2020 

Supp. 60-5320, a court is not required to accept the facts alleged in a plaintiff's petition as 

true. Rather, it considers the petition on the same footing as any other pleadings and 

supporting and opposing affidavits stating the facts upon which the liability or defense is 

based.

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed October 1, 2021. 

Affirmed.

John M. Duggan and Deron A. Anliker, of Duggan Shadwick Doerr & Kurlbaum LLC, of 

Overland Park, for appellant. 

M.J. Willoughby, assistant attorney general, and Derek Schmidt, attorney general, for appellees.

Before WARNER, P.J., CLINE,J., and WALKER, S.J.

CLINE,J.: A former student sued Kansas State University and University 

Administrator Heather Reed over Reed's disclosure of information about the student to 

his new college. KSU made a prima facie showing under K.S.A. 2020 Supp. 60-5320—

Kansas' Public Speech Protection Act—that Reed's communication was an exercise of 

rights protected under the Act. The former student failed to show a likelihood of 

prevailing on his claims. Instead, he unsuccessfully attacked KSU and Reed's prima facie 

showing by wrongly claiming KSU and Reed violated his rights under the Family 

Educational Rights and Privacy Act (FERPA) and baldly asserting KSU and Reed 

defamed him. The district court did not err in striking his petition and dismissing his case.

Therefore, we affirm.
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FACTS

John Doe was enrolled at KSU from 2010 to 2012. While he was attending 

another university in 2018, an employee of that university contacted KSU to obtain Doe's

student academic records. That university also asked if there had been any official 

outcomes with complaints against Doe while Doe attended KSU. Reed responded to the 

request by e-mail, stating: (1) Doe had sanctions in Housing and was removed, (2) Doe 

had two stalking complaints at the Office of Institutional Equity and was sanctioned, and 

(3) Doe had Code of Conduct complaints and was ultimately expelled from KSU. Doe 

also alleged Reed provided the other university with an "altered" academic transcript 

which contained a notation that Doe was ineligible to reenroll at KSU and was also 

stamped "'ADMINISTRATIVE DISMISSAL.'"

Doe later sued both KSU and Reed, claiming the information transmitted by Reed 

was false and defamatory and its disclosure violated his rights under FERPA, 20 U.S.C. 

§ 1232g (2018). He asserted various negligence claims as well, all stemming from Reed's

e-mail exchange. KSU and Reed moved to dismiss Doe's petition. Before Doe responded, 

KSU and Reed moved to strike Doe's petition pursuant to K.S.A. 2020 Supp. 60-5320, 

Kansas' Public Speech Protection Act, also known as Kansas' anti-SLAPP statute (the 

Act). They argued Reed's e-mail was an exercise of the right of free speech, the right to 

petition, and the right of association, which are all protected under the Act.

Doe responded to the motions to strike by attacking KSU and Reed's prima facie 

case that the disclosure was a protected exercise of their claimed rights. He asserted they 

had no right to disclose the information in the e-mail because it was confidential 

information protected from disclosure by FERPA. He did not address the merits of his 

claims, claiming it was unnecessary since he alleged KSU and Reed had not made a 

prima facie case that the Act protected the disclosure. 
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At the hearing on the motions to strike, KSU and Reed argued the disclosure was 

authorized under a FERPA exception, 34 C.F.R. § 99.31(a)(2) (2020). Doe did not 

address this exception. Instead, he simply repeated his assertion that the e-mail disclosure 

did not fall within the anti-SLAPP statute's protected rights of free speech, association, or 

petition, and was prohibited by FERPA. He also generically asserted the disclosure was 

defamatory and thus not protected by the Act. The court issued a detailed order granting 

the motions to strike and dismissing the case. Specifically, the court held: 

"5. Upon review of the written submissions and upon hearing the arguments at 

hearing on November 26, 2019, the Court finds that the Defendants have met their initial 

burden of setting forth a prima facie case that Plaintiff's Petition is based upon, relates to 

or is in response to Defendant KSU and Heather Reed's exercise of the right of free 

speech, right to petition or right of association within the meaning of K.S.A. 60-5320 

(2019 Supp.). The Court finds that Defendants' arguments as articulated in the Motions to 

Strike are persuasive and adopts them by reference as though wholly restated herein.

"6. Specifically, the Court finds that the Petition is a 'claim' subject to the Kansas

Public Speech Protection Act, K.S.A. 60-5320 (2019 Supp.) as defined in K.S.A. 60-

5320(c)(1) (2019 Supp.). The Petition relates to and is in response to a party's exercise of 

the right of free speech, right to petition and right of association as per K.S.A. 60-5320(d) 

(2019 Supp.). The Petition is based on the allegation that pursuant to her official duties as 

a KSU official responsible for communicating with other universities, Ms. Reed 

responded to a request for information from another university where Plaintiff was 

enrolled. Ms. Reed's response was in the form of an email sent on or about June 13, 2018. 

. . . Ms. Reed's June 13, 2018 email is a communication as defined in the Act. K.S.A. 60-

5320(c)(2) (2019 Supp.).

"7. The act of a governmental official, a public servant, Ms. Heather Reed, of 

sending the June 13, 2018, email in the course of her official duties in response to a 

request from an official at another university for information about official outcomes 

regarding Complaints regarding Plaintiff was an exercise of the right of free speech as it 

was a communication made in connection with a public issue or issue of public interest, 

defined in the Act to include an issue related to 'health or safety; environmental, 

economic, or community well-being, the government, a public official or public figure, or 

a good, product or service in the marketplace.' K.S.A. 60-5320(c)(7) (2019 Supp.). By 
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communicating with another university official regarding whether Plaintiff had been 

sanctioned by KSU, Ms. Reed was communicating on a public issue and an issue of 

public interest, i.e., health, safety and community well-being of university students and 

more specifically, protection of university students from stalking and other unwanted 

behavior. This was an 'exercise of the right of free speech,' as defined in K.S.A. 60-

5320(c)(4) (2019 Supp.), as it was a communication 'made in connection with a public 

issue or issue of public interest.' Concerns about student safety, including concerns about 

stalking, fall within the subject matter of health or safety and community well-being set 

forth in K.S.A. 60-5320(c)(7) (2019 Supp.).

"8. Ms. Reed was also exercising her right of association in this communication 

as defined in K.S.A. 60-5320(c)(3) (2019 Supp.), as it was a communication 'between 

individuals who join together to collectively express, promote, pursue or defend common 

interests,' i.e., the two university officials' common interest in student safety and welfare. 

According to the Petition, Ms. Reed's responsibilities at KSU include responding to 

communications and releasing information to other universities. . . . The complained of 

email was sent by Ms. Reed in response to an inquiry from a university official at another 

university where Plaintiff was enrolled. . . . Thus, the email in question between 

university officials was protected under the Act as it was a communication 'between 

individuals who join together to collectively express, promote, pursue [or] defend 

common interests,' within the meaning of K.S.A. 60-5320(c)(3)(2019 Supp.).

"9. Ms. Reed's email is also protected as an exercise of the right to petition, 

which is defined under the Act as a communication pertaining to an official proceeding, 

whether at KSU or at the other university. K.S.A. 60-5320(c)(5) (2019 Supp.). An 

'official proceeding' is defined in the Act to mean 'any type of administrative, executive, 

legislative or judicial proceeding that may be conducted before a public servant.' K.S.A. 

60-5320(c)(9) (2019 Supp). 'Public servant' means a person 'elected, selected, appointed, 

employed or otherwise designated as one of the following, . . . an officer, employee or 

agent of the government,' and a 'person who is authorized by law or private written 

agreement to hear or determine a cause or controversy,' among others. K.S.A. 60-

5320(c)(10)(A), (C) (2019 Supp.). The communications protected by the statute include 

communications 'in connection with an issue under consideration or review of an issue by 

a legislative, executive, judicial or other governmental or official proceeding.' K.S.A. 60-

5320(c)(5)(B) (2019 Supp.).
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"10. The communication is within the scope of the statute because it is protected 

activity under the Act—a communication of student information pertaining to an official 

proceeding. K.S.A. 60-5320(c)(5), (c)(9) (2019 Supp.). As an employee of KSU acting 

within the scope of her employment, Ms. Reed qualifies as a public servant under the 

Act. K.S.A. 60-5320(c)(10)(A) (2019 Supp.). . . . Plaintiff's Petition pleads that the 

complained of email by Ms. Reed concerned the results of official proceedings conducted 

at KSU while Plaintiff was a student there. The Petition also pleads that Ms. Reed's June 

13, 2018 communication occurred as a result of her being contacted by an official at the 

university where Plaintiff was enrolled. According to the Petition, the employee at the 

other university was trying to find out information about official outcomes with 

Complaints against the Plaintiff while Plaintiff Doe was a student at KSU. Plaintiff's 

Petition complains that as a result of the communication and official proceeding at the 

other university, a 'loss of status' to Plaintiff resulted. . . .

"11. Both Plaintiff's October 31, 2019, written response to the Motion to Strike 

and Plaintiff's arguments at the hearing were focused on the argument that because the 

June 13, 2018 email communicated student information and invoked the Plaintiff's right

of privacy under FERPA, that Defendants had not established first amendment rights 

with respect to said information and thus K.S.A. 60-5320 was inapplicable. In support of 

the argument that FERPA was violated, Plaintiff cited to 20 U.S.C. 1232g(b)(6)(B) and 

(C). In response to Plaintiff's argument that FERPA was violated, Defendants argued that 

the complained of email was authorized by FERPA, specifically 34 CFR Pt. 99.31(a)(2), 

which authorizes an educational institution to disclose information without consent 

'subject to the requirements of [§]99.34, to officials of another . . . institution of 

postsecondary education where the student seeks or intends to enroll, or where the 

student is already enrolled so long as the disclosure is for purposes related to the student's 

enrollment or transfer.'

"12. Defendants also cited Laker v. Board of Trustees of California State Univ., 

32 Cal App. 5th 745, 761, 244 Cal. Rptr. 238 (2019) for the proposition that a general 

allegation of illegality will not defeat an anti-SLAPP motion.

"12 [sic]. Because Defendants met their initial burden under K.S.A. 60-5320(d) 

(2019 Supp.) of showing that the Petition was a claim based upon, relating to and in 

response to a party's exercise of the right of free speech, right to petition or right of 

association, the burden shifted to Plaintiff to 'establish a likelihood of prevailing on the 
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claim by presenting substantial competent evidence to support a prima facie case' as 

required by K.S.A. 60-5320(d) (2019 Supp.).

"13. The Court finds that Plaintiff has failed to meet his burden under K.S.A. 60-

5320(d) (2019 Supp.) of establishing a likelihood of prevailing on his claim against 

Defendants. Plaintiff did not show how he would overcome the bases for dismissal 

argued in the Defendants' Motions to Dismiss, including but not limited to the bar of the 

statute of limitations, which would apply to all claims asserted in the Petition.

"14. Therefore for the reasons stated herein and as further elaborated upon in the 

Defendants' Motions to Strike which the Court finds persuasive and adopts by reference 

as though fully restated herein, the Court finds that the Motions to Strike filed by 

Defendants Kansas State University and Heather Reed should be and hereby are granted 

by the Court and that Plaintiff's action and all of the claims contained therein are hereby 

dismissed."

ANALYSIS

On appeal, Doe echoes his claims that (a) FERPA prohibits disclosure of the 

information in Reed's e-mail, (b) the e-mail was untrue and defamatory, and (c) the antiSLAPP statute does not protect such communications. We are not persuaded. FERPA 

does not shield Doe from disclosure of this information, nor can he use it as a weapon 

against KSU and Reed. Doe also failed to satisfy his burden to show the information in 

Reed's e-mail and the transcript were untrue and defamatory. We find the district court 

properly struck Doe's claims, which all arose out of the same e-mail exchange.

Doe's use of a pseudonym does not deprive this court of jurisdiction over his appeal.

Before we address the merits of Doe's appeal, we must dispose of KSU and Reed's 

jurisdictional challenge. KSU and Reed claim both the district court and this court lack 

jurisdiction because Doe did not request permission to proceed using the pseudonym, 

"John Doe." KSU and Reed raised this argument in their motions to dismiss but, since the 

district court granted their motions to strike, it never addressed their motions to dismiss. 
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Even so, as KSU and Reed correctly note, a jurisdictional challenge may be raised at any 

time or even on the appellate court's own motion. Mid-Continent Specialists, Inc. v.

Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).

KSU and Reed rely on Unwitting Victim v. C.S., 273 Kan. 937, 47 P.3d 392 

(2002), which affirmed dismissal of an action filed under a pseudonym without leave of 

court. KSU and Reed claim Unwitting Victim supports their argument that Doe's case was 

not properly commenced, meaning we have no jurisdiction over his appeal. But they take 

the holding in Unwitting Victim out of context. Our Supreme Court did not find a party's 

failure to seek permission to proceed anonymously deprives the court of jurisdiction.

Instead, it held that "although K.S.A. 60-210(a) expressly requires the names of the 

parties, that statute does not bar anonymous or pseudonymous suits where an important 

privacy interest is recognized." 273 Kan. at 944. Rather than mandate dismissal when a 

party fails to seek permission to proceed anonymously, the Supreme Court adopted a test 

which requires the district court analyze the reasons why the party seeks to proceed 

anonymously. Under this two-part test, the district court must determine (a) whether an 

important privacy interest exists (a legal determination), and (b) whether the party 

displayed a privacy interest of a magnitude sufficient to warrant anonymous filing (a 

factual determination). 273 Kan. at 940. 

Unwitting Victim does not support KSU and Reed's position, nor does it compel us 

to dismiss Doe's appeal. KSU and Reed's citation to federal authority is similarly 

unavailing since our Supreme Court has chosen a different path for addressing this issue. 

In Kansas, a party may proceed anonymously at the discretion of the district court. 273 

Kan. at 949. Here, the district court struck Doe's petition, rendering the analysis of 

whether Doe could proceed anonymously unnecessary. Since we have no decision to 

review, KSU and Reed's challenge to Doe's anonymous proceeding seeks an 

impermissible advisory opinion, which we will not provide. Gannon v. State, 298 Kan. 

1107, 1119, 319 P.3d 1196 (2014) ("Kansas courts do not render advisory opinions.").
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KSU and Reed's argument on Doe's notice of appeal is similarly unpersuasive. Just 

like K.S.A. 2020 Supp. 60-210(a) requires pleadings to name all the parties, K.S.A. 2020 

Supp. 60-2103(b) requires the notice of appeal to specify the party taking the appeal. 

KSU and Reed argue this means Doe's use of a pseudonym in his notice of appeal renders 

it invalid, meaning we have no jurisdiction over his appeal. Once again, they misconstrue 

both K.S.A. 2020 Supp. 60-2103(b) and the caselaw interpreting it.

KSU and Reed cite Anderson v. Scheffler, 242 Kan. 857, 752 P.2d 667 (1988), for 

the proposition that an appellate court has no jurisdiction to consider an appeal brought 

by a party who was not named in the notice of appeal. Yet, once again, KSU and Reed 

overstate the holding in Anderson. The issue in Anderson was whether a notice of appeal 

listing the plaintiff as "Jacob Anderson" also conferred jurisdiction over Jacob's brother, 

James Anderson. The Kansas Supreme Court held it did not, since the notice of appeal 

did not name or refer to James, and the memorandum decision Jacob appealed from did 

not affect or refer to James. 242 Kan. at 860-61. That is a different question than the one 

before us.

Here, we have only one plaintiff, Doe, and there is no question he is the one taking 

the appeal from the district court decision which directly impacted him. Our Supreme 

Court has interpreted K.S.A. 2020 Supp. 60-2103(b) to require the party taking the appeal 

be "named either directly or by inference in the notice of appeal." Anderson, 242 Kan. at 

861. It has also mandated K.S.A. 2020 Supp. 60-2103(b) must be liberally construed "'to 

assure justice in every proceeding.'" Fuller v. State, 303 Kan. 478, 492, 363 P.3d 373 

(2015). Doe was "named by inference" in the notice of appeal.

Kansas courts addressing whether a notice of appeal could confer jurisdiction 

often focus their analysis, in part, on whether the other party was misled or prejudiced. 

See Associated Wholesale Grocers, Inc. v. Americold Corporation, 293 Kan. 633, 638, 

270 P.3d 1074 (2011) (moving party who sought to dismiss based on flaws in notice of 
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appeal "cannot credibly claim that they were misled as to the matter being appealed"); see 

also Brueck v. Krings, 230 Kan. 466, 467, 638 P.2d 904 (1982) (noting other party was 

not prejudiced). KSU and Reed have not claimed they were misled or prejudiced by 

Doe's notice of appeal. In fact, they took it upon themselves to use Doe's actual name in 

their brief, thereby establishing they were not. KSU and Reed provide no basis to dismiss 

the appeal on jurisdictional grounds.

The district court appropriately dismissed Doe's claims under Kansas' anti-SLAPP 

statute.

Before analyzing the district court's decision, a summary of Kansas' anti-SLAPP 

statute is appropriate. In 2016, Kansas adopted K.S.A. 60-5320, the Public Speech 

Protection Act. L. 2016, ch. 58, § 1. It is what is known as an anti-SLAPP statute—

statutes intended to prevent meritless lawsuits that chill free speech, known as SLAPPs, 

or "'strategic lawsuits against public participation.'" T & T Financial of Kansas City, LLC 

v. Taylor, No. 117,624, 2017 WL 6546634, at *3 (Kan. App. 2017) (unpublished 

opinion). 

The Act "provides a procedural remedy early in the litigation for those parties 

claiming to be harassed by a SLAPP lawsuit." 2017 WL 6546634, at *4. In sum, it allows 

a party to bring a motion to strike a claim if the claim "is based on, relates to or is in 

response to [that] party's exercise of the right of free speech, right to petition or right of 

association." K.S.A. 2020 Supp. 60-5320(d). The Act defines the "exercise" of each of 

these three rights. K.S.A. 2020 Supp. 60-5320(c)(3)-(5). If the moving party makes a 

prima facie case showing that a claim concerns the party's exercise of one of these rights, 

the burden shifts to the other party to establish a likelihood of prevailing on their claim by 

presenting substantial competent evidence to support a prima facie case. K.S.A. 2020 

Supp. 60-5320(d). 
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The stated purpose of the Act is "to encourage and safeguard the constitutional 

rights of a person to petition, and speak freely and associate freely, in connection with a 

public issue or issue of public interest to the maximum extent permitted by law while, at 

the same time, protecting the rights of a person to file meritorious lawsuits for 

demonstrable injury." K.S.A. 2020 Supp. 60-5320(b). The Legislature mandated the Act's 

provisions "shall be applied and construed liberally to effectuate its general purposes."

K.S.A. 2020 Supp. 60-5320(k).

The district court struck Doe's petition, dismissing his case, because the court

found it was based on, related to, or in response to KSU and Heather Reed's exercise of 

their right of free speech, right to petition, and right of association, as those terms are 

defined under the Act. Doe does not challenge this finding on appeal. We therefore 

assume, without deciding, that KSU and Reed have made these showings. Instead, Doe

tries to carve out two exceptions to the Act's protections: (1) he claims the Act does not 

protect the communication of information which is prohibited from disclosure by FERPA

and (2) he claims the Act does not protect the communication of information which is 

untrue and defamatory. 

There are no Kansas cases setting forth a standard for reviewing a district court's 

decision on a motion to strike under Kansas' anti-SLAPP statute. That said, the process in 

K.S.A. 2020 Supp. 60-5320(d) is analogous to a summary judgment procedure in that the 

district court is required to review pleadings and affidavits to determine whether a claim 

is allowed to proceed as a matter of law. We review summary judgment de novo, looking 

anew at whether the pleadings, depositions, answers to interrogatories, and admissions on 

file, together with the affidavits, show that there is no genuine issue as to any material 

fact, and that the moving party is entitled to judgment as a matter of law. See Lehman v. 

City of Topeka, 50 Kan. App. 2d 115, 118, 323 P.3d 867 (2014). Further, the Kansas 

Supreme Court has previously said when matters outside the pleadings are considered, 

the appropriate standard of review is that of summary judgment. Fairfax Portfolio LLC v. 
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Carojoto LLC, 312 Kan. 92, 94, 472 P.3d 53 (2020) (discussing review of motion to 

dismiss in which trial court considered matters outside the pleadings). A de novo standard 

also seems appropriate when reviewing a district court's grant or denial of an anti-SLAPP 

motion since we are in the same position as the district court to answer the legal question 

presented. See Sell v. Dorian, No. 117,199, 2018 WL 3320977, at *4 (Kan. App. 2018) 

(unpublished decision) (noting appellate court is in same position as district court in 

ruling on legal issues presented in summary judgment motion). Thus, we review the 

district court's order granting the anti-SLAPP motions to strike de novo.

Additionally, to the extent that our analysis requires interpretation of K.S.A. 2020 

Supp. 60-5320, the interpretation of a statute is a question of law over which we have 

unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). 

When interpreting a statute, we must first attempt to ascertain legislative intent through 

the statutory language, giving common words their ordinary meanings. When the 

language in the statute is plain and unambiguous, we must give effect to the statute's 

express language rather than determining what the law should be. Further, this court will 

not speculate about legislative intent or read something into the statute that is not readily 

found in it. 309 Kan. at 149-50. 

FERPA does not protect Doe's claims from dismissal.

As noted above, the district court found KSU and Reed made a prima facie case 

that Reed's e-mail was a communication involving their protected exercise of their right 

of free speech under Kansas' anti-SLAPP statute. Doe argues FERPA prohibits disclosure 

of the information in Reed's e-mail and, as such, the Act cannot protect the disclosure as 

an exercise of a right of free speech. The court also found the e-mail constituted an

exercise of KSU and Reed's rights to petition and of association, but Doe does not claim 

FERPA impacts the exercise of those rights. Yet, in addressing KSU and Reed's exercise 
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of the right of free speech, Doe misconstrues the scope and purpose of FERPA as well as

the plain language of its provisions. 

First, FERPA is a federal law enacted under Congress' spending power. It 

conditions the receipt of federal funds on an educational agency or institution's

compliance with certain requirements relating to the access and disclosure of student 

educational records. Gonzaga University v. Doe, 536 U.S. 273, 278, 122 S. Ct. 2268, 153 

L. Ed. 2d 309 (2002). The FERPA statute is found at 20 U.S.C. § 1232g, and the FERPA 

regulations are found at 34 C.F.R. Part 99 (2020). Among other conditions, FERPA 

restricts federal funding for those educational agencies or institutions who disclose 

personally identifiable information from educational records without obtaining parental 

or student consent, unless an exception to consent applies. 20 U.S.C. § 1232g; 34 C.F.R.

Part 99.

FERPA creates no private right of action and does not address individual instances 

of disclosure. Gonzaga University, 536 U.S. at 287-88. Federal courts interpreting 

FERPA have consistently held it does not "absolutely prohibit" the disclosure of 

educational records, nor does it create a privilege against such disclosure. Ellis v.

Cleveland Municipal School Dist., 309 F. Supp. 2d 1019, 1023 (N.D. Ohio 2004); Bauer

v. Kincaid, 759 F. Supp. 575, 589 (W.D. Mo. 1991); Rios v. Read, 73 F.R.D. 589, 598 

(E.D.N.Y. 1977); Bialik v. Huber, No. 1:12-CV-567, 2013 WL 1499051, at *2 (W.D. 

Mich. 2013) (unpublished opinion); Stellwag v. Quinnipiac Univ., No. 3:09-CV1031(AWT), 2010 WL 4823355, at *1 (D. Conn. 2010) (unpublished opinion).

The district court could have dismissed Doe's FERPA argument outright, because

Doe has no private right of action under FERPA, and FERPA does not prohibit disclosure 

of the information in Reed's e-mail. Instead, it chose to point out KSU and Reed did not 

violate FERPA. Either way, Doe's attempt to use FERPA to escape the motions to strike 

fails.
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Doe claims FERPA prohibits disclosure of the information in Reed's e-mail

because KSU and Reed (a) failed to follow FERPA's procedures and (b) KSU and Reed 

cannot satisfy an exception which allows disclosure. But Doe misconstrues FERPA's 

procedures and attacks the applicability of the wrong exception.

The district court held FERPA allows disclosure of the information in Reed's email under the circumstances set forth in 34 C.F.R. § 99.31(a)(2), which it found KSU 

and Reed met. These circumstances are:

"(a) An educational agency or institution may disclose personally identifiable 

information from an education record of a student without the consent required by 

§ 99.30 if the disclosure meets one or more of the following conditions:

. . . .

(2) The disclosure is, subject to the requirements of § 99.34, to officials of 

another school, school system, or institution of postsecondary education where the 

student seeks or intends to enroll, or where the student is already enrolled so long as the 

disclosure is for purposes related to the student's enrollment or transfer." (Emphasis 

added.) 34 C.F.R. § 99.31(a)(2).

The only aspect of the court's ruling which Doe challenges is its finding that KSU 

and Reed satisfied the requirements of 34 C.F.R. § 99.34 (2020) when making the 

disclosure. He does not dispute that KSU and Reed's communication otherwise satisfied

the conditions of this exception.

According to 34 C.F.R. § 99.31(a)(2), the excepted disclosure must also satisfy the 

requirements of 34 C.F.R. § 99.34. These requirements are: 

"(a) An educational agency or institution that discloses an education record under 

§ 99.31(a)(2) shall:

(1) Make a reasonable attempt to notify the parent or eligible student at the last 

known address of the parent or eligible student, unless:
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(i) The disclosure is initiated by the parent or eligible student; or

(ii) The annual notification of the agency or institution under § 99.7 includes a 

notice that the agency or institution forwards education records to other agencies or 

institutions that have requested the records and in which the student seeks or intends to 

enroll or is already enrolled so long as the disclosure is for purposes related to the 

student's enrollment or transfer;

(2) Give the parent or eligible student, upon request, a copy of the record that 

was disclosed; and

(3) Give the parent or eligible student, upon request, an opportunity for a hearing 

under subpart C." 34 C.F.R. § 99.34.

Doe asserts KSU and Reed violated 34 C.F.R. § 99.34(a)(1) because they did not 

try to notify him before making the disclosure and violated 34 C.F.R. § 99.34(a)(3)

because they did not offer him an opportunity for a hearing. Doe is wrong. As the district 

court noted, KSU and Reed did not violate 34 C.F.R. § 99.34(a)(1) because they satisfied 

one of the two exceptions to (a)(1)'s requirements—KSU provides the annual notification 

mentioned in 34 C.F.R. § 99.34(a)(1)(ii). Doe also misconstrues the language of 34 

C.F.R. § 99.34(a)(3). The regulation places the onus on the student or student's parent to 

request a hearing. Doe does not allege he requested a hearing, nor does he allege one of 

his parents did. 

Doe did not address KSU and Reed's defenses to his claim, thus waiving any 

argument he might have raised on this issue. See McCain Foods USA, Inc. v. Central

Processors, Inc., 275 Kan. 1, 15, 61 P.3d 68 (2002) ("'Where the appellant fails to brief 

an issue, that issue is waived or abandoned.'"). 

Doe spends considerable time in his brief arguing that another disclosure 

exception, found in 20 U.S.C. § 1232g(b)(6)(A), does not apply. But since KSU and Reed 

are not sheltering under the protection of this exception, nor did the district court find it 

applicable, we see no need to address Doe's arguments. Whether the exception found in 
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20 U.S.C. § 1232g(b)(6)(A) permitted KSU and Reed to disclose the information in 

Reed's e-mail is immaterial, since KSU and Reed satisfied a different exception 

permitting disclosure, found in 34 C.F.R. § 99.31(a)(2). Similarly, we need not consider 

Doe's argument that FERPA preempts Kansas' anti-SLAPP statute, since we find FERPA 

does not apply and, even if it did, KSU and Reed did not violate it. 

FERPA is not analogous to the privileges against disclosure cited by Doe, such as 

the attorney-client privilege, the doctor-patient privilege, or the federal statutory privilege 

against disclosure of tax returns. See Rios, 73 F.R.D. at 598 (noting FERPA "says 

nothing about the existence of a school-student privilege analogous to a doctor-patient or 

attorney-client privilege" and instead "by threatening financial sanctions, it seeks to deter 

schools from adopting policies of releasing student records"). Rather, it establishes 

procedures for disclosure of confidential student information, which KSU and Reed 

followed. Doe's claim that FERPA somehow precludes the district court's finding that 

KSU and Reed exercised the right of free speech protected by Kansas' anti-SLAPP statute

is unavailing. Further, even if we accepted Doe's erroneous position, the court's decision 

to grant the motions to strike is alternatively supported by its unchallenged finding that 

Reed's e-mail was a protected exercise of KSU and Reed's right to petition and right of 

association.

While the district court might have taken a different path to reach the same result, 

we have no disagreement with its well-reasoned determination that KSU and Reed did 

not violate FERPA, and thus FERPA's provisions do not impact our analysis of the 

motions to strike.
17

KSU and Reed need not defend against Doe's claims to carry their burden under Kansas' 

anti-SLAPP statute.

Doe attacks KSU and Reed's prima facie case under the first step of the district 

court's two-part analysis by mistakenly claiming KSU and Reed must disprove Doe's 

allegations to carry their burden. Specifically, he claims KSU and Reed had to establish 

the information in Reed's e-mail and the notation on the transcript were true. Doe 

impermissibly heightens KSU and Reed's burden beyond what is required under the Act.

Under the Act, "[a] party bringing the motion to strike has the initial burden of 

making a prima facie case showing the claim against which the motion is based concerns 

a party's exercise of the right of free speech, right to petition or right of association."

K.S.A. 2020 Supp. 60-5320(d). The statute defines each of these terms. Once again, Doe 

does not challenge the district court's finding that the e-mail at issue fell within the Act's 

statutory definitions of the exercise of the right of free speech, the right to petition, and 

the right of association. Instead, he argues these statutory rights do not include or protect 

the communication of false statements because defamatory speech is not constitutionally 

protected. Thus, we focus our inquiry on whether (a) KSU and Reed must prove the 

information in Reed's e-mail was true as part of their prima facie case to establish the Act 

applies, and, later, (b) whether Doe has provided substantial competent evidence to 

support a prima facie case that the information in Reed's e-mail was false.

First, the plain language of the Act reveals the inquiry under the first step is simply 

whether the asserted claim "concerns a party's exercise of the right of free speech, right to 

petition or right of association." K.S.A. 2020 Supp. 60-5320(d). The Legislature neutrally 

described what activity falls within the exercise of those rights and mandated that its 

provisions "shall be applied and construed liberally to effectuate its general purposes."

K.S.A. 2020 Supp. 60-5320(k).
18

Under the Act, "'[e]xercise of the right of free speech' means a communication 

made in connection with a public issue or issue of public interest." K.S.A. 2020 Supp. 60-

5320(c)(4). "'Public issue or issue of public interest' includes an issue related to: (A) 

Health or safety; (B) environmental, economic or community well-being; (C) the 

government; (D) a public official or public figure; or (E) a good, product or service in the 

marketplace." K.S.A. 2020 Supp. 60-5320(c)(7).

"Exercise of the right to petition" has over a dozen possible definitions under the 

Act. K.S.A. 2020 Supp. 60-5320(c)(5)(A)-(E). The definitions relevant here are: (1) "A 

communication in or pertaining to: . . . an official proceeding, other than a judicial 

proceeding, to administer the law"; and (2) "a communication in connection with an issue 

under consideration or review by a legislative, executive, judicial or other governmental 

or official proceeding." K.S.A. 2020 Supp. 60-5320(c)(5)(A)(ii), (c)(5)(B). The Act

defines "'[o]fficial proceeding'" as "any type of administrative, executive, legislative or 

judicial proceeding that may be conducted before a public servant." K.S.A. 2020 Supp. 

60-5320(c)(9). "'Public servant'" is defined in the statute as "a person elected, selected, 

appointed, employed or otherwise designated as one of the following, even if the person 

has not yet qualified for office or assumed the person's duties." K.S.A. 2020 Supp. 60-

5320(c)(10). The statute then lists five types of individuals. See K.S.A. 2020 Supp. 60-

5320(c)(10)(A)-(E). Those relevant here are "[a]n officer, employee or agent of the 

government" under (c)(10)(A), and "an arbitrator, mediator or other person who is 

authorized by law or private written agreement to hear or determine a cause or 

controversy" under (c)(10)(C). K.S.A. 2020 Supp. 60-5320(c)(10)(A), (C).

"'Exercise of the right of association' means a communication between individuals 

who join together to collectively express, promote, pursue or defend common interests."

K.S.A. 2020 Supp. 60-5320(c)(3).
19

None of these definitions address the motive or merits of a communication; they 

simply address its content. T & T Financial of Kansas City, LLC, 2017 WL 6546634, at 

*5 (noting "step one of the analysis under K.S.A. 2016 Supp. 60-5320[d] only concerns 

the content of the claims," and interpreting this to mean whether defendant admits or 

denies plaintiff's allegations is not relevant to step one). In T & T Financial of Kansas

City, LLC, another panel of this court addressed a district court's dismissal of an antiSLAPP motion to strike because the defendant denied making some of the

communications set forth in the defamation petition. The district court interpreted the Act

to require an "actual exercise" of the rights protected by the Act and, since the defendant

denied making some of the communications, the court found the defendant did not

actually exercise those rights. 2017 WL 6546634, at *2. In reversing the district court, the

panel was persuaded by how California courts answered this question when interpreting

the California anti-SLAPP statute (which has a similar two-step process). It noted those

courts place the inquiry into the merits of the plaintiff's claim in the second step of the

analysis (which addresses plaintiff's likelihood of prevailing on its claim), holding the

merits are not implicated in the first step. 2017 WL 6546634, at *5 (citing Malin v.

Singer, 217 Cal. App. 4th 1283, 1304, 159 Cal. Rptr. 3d 292 [2013], which held that the 

defendant's assertion that he was innocent of the accused conduct is irrelevant because 

such an assertion is "'more suited to the second step of an anti-SLAPP motion'"); City of

Costa Mesa v. D'Alessio Investments, LLC, 214 Cal. App. 4th 358, 371, 154 Cal. Rptr. 3d 

698 (2013) ("The merits of [plaintiff's] claims should play no part in the first step of the

anti-SLAPP analysis."); Coretronic Corp. v. Cozen O'Connor, 192 Cal. App. 4th 1381, 

1388, 121 Cal. Rptr. 3d 254 (2011) ("Arguments about the merits of the claims are 

irrelevant to the first step of the anti-SLAPP analysis."). We see no reason to depart from 

that panel's analysis.

California courts have routinely rejected arguments much like Doe's by noting that 

if courts reviewed the merits of a plaintiff's claim in step one of the analysis, then step 

two would be rendered meaningless:
20

"Fox argues its suit does not fall within the SLAPP statute because Paladino has 

no First Amendment right to disclose privileged and confidential documents or to refuse 

to return those documents to Fox, their rightful owner. The same argument could be made 

by the plaintiff in a defamation suit—the defendant has no First Amendment right to

engage in libel or slander. Yet, defamation suits are a prime target of SLAPP motions.

"The problem with Fox's argument is that it confuses the threshold question of 

whether the SLAPP statute applies with the question whether Fox has established a 

probability of success on the merits. The Legislature did not intend that in order to invoke 

the special motion to strike the defendant must first establish her actions are 

constitutionally protected under the First Amendment as a matter of law. If this were the 

case then the inquiry as to whether the plaintiff has established a probability of success 

would be superfluous." Fox Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294, 

305, 106 Cal. Rptr. 2d 906 (2001).

See also Scott v. Metabolife Internat., Inc., 115 Cal. App. 4th 404, 419, 9 Cal. Rptr. 3d 

242 (2004) (noting court may not "'read a separate proof-of-validity requirement'" in first 

step of analysis and, instead, "any 'claimed illegitimacy of the defendant's acts is an issue 

which the plaintiff must raise and support in the context of the discharge of the plaintiff's 

[secondary] burden to provide a prima facie showing of the merits of the plaintiff's case'") 

(quoting Navellier v. Sletten, 29 Cal. 4th 82, 94, 124 Cal. Rptr. 2d 530 [2002]); Laker, 32 

Cal. App. 5th at 760 (characterizing first step of analysis as "'nexus' requirement," which 

looks at whether conduct falls within one of the categories set out in California's antiSLAPP statute). Placing the inquiry into the merits of the plaintiff's case in the second 

step of the analysis similarly carries out both the language and purpose of the Kansas Act. 

Our Legislature did not limit the scope of the Kansas anti-SLAPP statute to 

activity protected by constitutional law. Instead, just like in California, the Kansas Act 

"spelled out the kinds of activity it meant to protect," then mandated that its statutory 

language be liberally construed. City of Montebello v. Vasquez, 1 Cal. 5th 409, 421-22, 

205 Cal. Rptr. 3d 499 (2016) (discussing parameters of California anti-SLAPP statute). 

Thus, when examining KSU and Reed's prima facie case, the district court did not need to 
21

address Doe's argument that constitutional rights to free speech, petition, and association 

do not protect defamatory communication. 1 Cal. 5th at 422 (noting "courts determining 

whether conduct is protected under the [California] anti-SLAPP statute look not to First 

Amendment law, but to the statutory definitions in [California's statute]"). It needed only 

address whether Reed's e-mail fell within the statutory definitions of the Act. The district 

court found that it did, and Doe does not challenge that determination. Doe's 

constitutional arguments are just as unavailing on appeal, and he has preserved no

objection to the district court's statutory analysis.

As part of Doe's effort to shift his burden to prove the merits of his claim to KSU 

and Reed, Doe also misinterprets another portion of the Act. He claims it is unfair to 

require him to establish the merits of his claims, since a plaintiff in his situation has no 

ability to discover facts or evidence and is limited to the contentions of fact in his 

petition, citing the generic stay of discovery statutorily imposed once a motion to strike is 

filed. See K.S.A. 2020 Supp. 60-5320(e)(2). Yet, the Act specifically allows for 

discovery relevant to the motion to strike, upon a motion and showing of good cause. 

K.S.A. 2020 Supp. 60-5320(e)(1). It also allows for submitting affidavits to shore up the 

contentions of fact set forth in a petition. See K.S.A. 2020 Supp. 60-5320(d). This 

argument fails as well.

Any argument on the merits of Doe's claims was properly addressed in the second 

step of the court's analysis. We do not find the district court erred in proceeding as such.

Doe failed to present substantial competent evidence to support a prima facie case

establishing a likelihood of prevailing on his claims.

Doe appropriately notes Kansas' anti-SLAPP statute protects "the rights of a 

person to file meritorious lawsuits for demonstrable injury." K.S.A. 2020 Supp. 60-

5320(b). The Act does not, as he proclaims, "abrogate common law defamation suits."
22

Instead, it, like all anti-SLAPP statutes, is intended to prevent meritless lawsuits that chill 

individuals' exercise of their rights of free speech, association, and to petition. See T & T 

Financial of Kansas City, LLC, 2017 WL 6546634, at *3; Dorit v. Noe, 49 Cal. App. 5th 

458, 466, 263 Cal. Rptr. 3d. 98 (2020). What Doe overlooks in his argument is his 

obligation in step two of the court's analysis to establish a prima facie case that his claims 

have merit and that he has suffered a demonstrable injury.

Doe focused his response to the motions to strike on KSU and Reed's prima facie 

showing. Indeed, he even argued below "[t]here is no need to analyze the second prong of 

the two-part analysis, i.e. the merits of Plaintiff's case, because the Defendants have not 

met the first hurdle of making a prima facie case." And in fact, Doe did not argue the 

second prong of the test to the district court. He made no effort to address the merits of 

his claims in his written response, simply making one stray comment about a separate 

letter from KSU regarding his underlying student disciplinary proceedings which was not 

mentioned in his petition or any of his claims. And during the hearing, he seemed to walk 

back the claims asserted in his petition (which only addressed Reed's e-mail and the 

transcript), characterizing the information in Reed's e-mail as "inaccurate and 

misleading" and describing the transcript simply as "different than the transcript that was 

provided to [Doe]."

Doe admits he offered no affidavits to support his claims, instead relying on the 

allegations in his petition. While this is certainly permissible under the statute (which 

requires the court to "consider pleadings and supporting and opposing affidavits stating 

the facts upon which the liability or defense is based"), his bare-bones petition, standing 

alone, does not constitute "substantial competent evidence to support a prima facie case"

that he is likely to prevail on his claims. K.S.A. 2020 Supp. 60-5320(d). Doe's argument 

on appeal, that the district court was (a) required to accept the facts in his petition as true 

and (b) should have found those facts to be substantial competent evidence supporting a 

prima facie case of his likelihood of prevailing on all his claims, lacks merit.
23

First, Doe's argument hinges on his misunderstanding of the standards governing 

the district court's analysis of a motion to strike filed under K.S.A. 2020 Supp. 60-5320. 

He mistakenly claims we must treat K.S.A. 2020 Supp. 60-5320 motions to strike like 

motions to dismiss, meaning we "'must accept the facts alleged by the plaintiff as true, 

along with any inferences that can reasonably be drawn therefrom.'" Doe is wrong on 

both counts.

To begin with, Doe misconstrues the legal authority he cites in support of his 

position, Caranchini v. Peck, 355 F. Supp. 3d 1052 (D. Kan. 2018). Caranchini, a federal 

case interpreting the applicability of a state statute (K.S.A. 2016 Supp. 60-5320) in a 

federal diversity action, does not suggest that we accept the facts alleged in Doe's petition 

as true. Doe also takes the parenthetical he cites out of context. The full context of his 

quoted language is:

"The court therefore finds that [Kansas' anti-SLAPP statute], although procedural 

in nature, applies in federal diversity actions because it 'exist[s] to influence substantive 

outcomes, and . . . is so bound up with the state-created right or remedy that it defines the 

scope of that substantive right or remedy.' Much like the First Circuit found in Godin, [v. 

Schencks, 629 F.3d 79 (2010),] [Kansas' anti-SLAPP statute] does not substitute Rules 12 

and 56 [of the Federal Rules of Civil Procedure], it merely supplements them for a 

narrow category of cases." (Emphasis added.) Caranchini, 355 F. Supp. 3d at 1061. 

The portion Doe quoted in his brief was about the Caranchini court's earlier 

analysis. In its analysis, the court noted a federal court exercising diversity jurisdiction 

should not apply a state law if a Federal Rule of Civil Procedure answers the same 

question as the state law. Caranchini, 355 F. Supp. 3d at 1058. The court then discussed 

how the First Circuit found that Federal Rules of Civil Procedure 12 and 56 do not 

answer the same question as Maine's similar anti-SLAPP statute, and that the anti-SLAPP 

statute was not intended as a substitute to the Federal Rules, but rather "'created a 

supplemental and substantive rule to provide added protections . . . to defendants who are 
24

named as parties because of constitutional petitioning activities.'" Caranchini, 355 F. 

Supp. 3d at 1058-59. The Caranchini court's statement that Kansas' anti-SLAPP statute 

"does not substitute Rules 12 and 56, it merely supplements them for a narrow category 

of cases," meant that Federal Rules of Civil Procedure 12 and 56 did not try to answer the 

same questions as Kansas' anti-SLAPP statute, and thus the federal court could apply the 

state law—the anti-SLAPP statute—in the federal diversity action. 355 F. Supp. 3d at 

1061. It did not mean that a K.S.A. 60-5320 motion to strike is treated as a motion to 

dismiss.

The language of Kansas' anti-SLAPP statute shows the allegations in Doe's 

petition should not be treated as true. Under the Act, once the moving party meets its

burden to establish the Act applies to the plaintiff's claim, "the burden shifts to the

responding party to establish a likelihood of prevailing on the claim by presenting 

substantial competent evidence to support a prima facie case." (Emphasis added.) K.S.A. 

2020 Supp. 60-5320(d). Kansas caselaw provides that "[s]ubstantial competent evidence 

refers to legal and relevant evidence that a reasonable person could accept as being 

adequate to support a conclusion." Fisher v. Kansas Dept. of Revenue, 58 Kan. App. 2d 

421, 423, 471 P.3d 710 (2020). 

The Act specifies that "[i]n making its determination, the court shall consider 

pleadings and supporting and opposing affidavits stating the facts upon which the liability 

or defense is based." K.S.A. 2020 Supp. 60-5320(d); see also Caranchini, 355 F. Supp. 

3d at 1063 (applying Kansas' anti-SLAPP statute and only considering pleadings and 

affidavits in second step, when deciding whether responding party met its burden). While 

the court should examine the pleadings to determine the nature of the claims asserted and 

should also consider well-pled facts in a petition and any answer (along with any written 

instruments attached as an exhibit to those pleadings, per K.S.A. 2020 Supp. 60-210[c]), 

it is not required to accept the facts asserted in the plaintiff's petition as true. Otherwise, 

no defendant could ever prevail on an anti-SLAPP motion. DuPont Merck Pharm. Co. v.
25

Superior Ct., 78 Cal. App. 4th 562, 568, 92 Cal. Rptr. 2d 755 (2000), as modified

(January 25, 2000) ("It would defeat the obvious purposes of the anti-SLAPP statute if 

mere allegations in an unverified complaint would be sufficient to avoid an order to strike 

the complaint. Substantiation requires something more than that.").

Requiring courts to accept the allegations in a plaintiff's petition as true would 

render meaningless the language in the Act which requires a court to consider opposing 

affidavits, as well as its requirement that the party opposing the motion must present 

substantial competent evidence. Such a reading would violate one of our basic canons of 

statutory interpretation. Miller v. Board of Wabaunsee County Comm'rs, 305 Kan. 1056, 

1062, 390 P.3d 504 (2017). Considering the pleadings—which is required—differs from

presuming the allegations in the petition are true—which is not required under the Act.

The district court determined Doe did not meet his burden under the Act because 

he did not show how he could overcome the basis for dismissal argued in KSU and 

Reed's motion to dismiss, which included a statute of limitations defense. We find the 

reason for this determination to be in error since the court improperly considered the 

motions to dismiss. The Act clearly states a court may only consider "pleadings and 

supporting and opposing affidavits" when making its determination. K.S.A. 2020 Supp. 

60-5320(d). A motion to dismiss is not a "pleading" as that term is defined in K.S.A.

2020 Supp. 60-207. However, since we have decided to employ a de novo standard of 

review to K.S.A. 60-5320 motions to strike, we may independently examine Doe's 

petition to determine whether it constituted substantial competent evidence to support a 

prima facie case of his likelihood of prevailing on his claims. We find it does not.

First, as noted above, the only claim Doe argued in response to the motions to 

strike was defamation. This was presumably based on his mistaken assumption that the 

motions to strike only addressed the defamation claim. Indeed, he made this unsupported 

assertion at the hearing and has repeated it in his brief. A plain reading of the motions to 
26

strike reveals they attacked all of Doe's claims, which all arose out of the same e-mail.

Since Doe made no effort to argue the merits of any of his claims other than defamation, 

either to the district court or this court, we only examine the defamation claim on appeal.

The elements of a defamation claim in Kansas include: (1) false and defamatory

words (2) communicated to a third person (3) which result in harm to the reputation of 

the person defamed. Lloyd v. Quorum Health Resources, LLC, 31 Kan. App. 2d 943, 952, 

77 P.3d 993 (2003). Further, our state requires a plaintiff in a defamation action to allege 

and prove actual damages; they can no longer rely on the theory of presumed damage. 

Zoeller v. American Family Mut. Ins. Co., 17 Kan. App. 2d 223, 229, 834 P.2d 391

(1992).

As for the first element, Doe offers nothing other than a conclusory statement that 

the information in Reed's e-mail and the transcript were "false and defamatory." He 

provided no specific facts beyond this conclusory statement. "[A] defamation complaint 

cannot couch allegations of falsity in vague, conclusory terms." Brokers' Choice of

America, Inc. v. NBC Universal, Inc., 861 F.3d 1081, 1105 (10th Cir. 2017). He does not 

specify what information was false and defamatory (seemingly including all the 

information Reed conveyed) nor does he explain what about the transcript notation was 

false and defamatory. He also separately alleges "upon information and belief" that KSU 

and Reed "have engaged in a continued long pattern of defamatory conduct against [Doe] 

since 2010." Once again, he provides no facts to support this generic claim.

While Doe seeks to shelter behind our court's "notice pleading" rules, that is a 

different standard, applied when answering a different question. Kansas' anti-SLAPP 

statute requires substantial competent evidence to establish a likelihood of prevailing on 

his claim. K.S.A. 2020 Supp. 60-5320(d). Allowing Doe to skate by on the theory that 

"'plaintiffs do not have to establish all possible theories in their initial petition,'" as he 
27

claims, would eviscerate the second prong of the court's analysis under K.S.A. 2020 

Supp. 60-5320(d) and turn anti-SLAPP motions to strike into a game of whack-a-mole.

We do not find Doe's generic statement that the information in the e-mail and the 

transcript were false and defamatory constitutes substantial competent evidence to 

provide a prima facie case on the first element of his defamation claim, as required by the 

Act. Doe could have cured his deficient pleading by supplementing it with an affidavit, or 

even sought discovery to search for evidence relevant to the court's determination of the 

motions to strike. K.S.A. 2020 Supp. 60-5320(e)(1). He did not. In fact, he softened the 

allegations at the hearing by calling them simply "inaccurate and misleading," which 

differs from false and defamatory.

Doe also failed to provide substantial competent evidence to support the damages 

element of his defamation claim. While he generally alleged that he suffered reputation 

damages, he offered no factual specifics. He failed to explain how his reputation was 

damaged, nor did he even specify an amount of damages he claimed to have suffered.

"Conclusory allegations that defendants' reputations have been harmed, with no support 

in the pleadings, fail to establish a valid claim for defamation." Rx Savings, LLC v. Besch, 

No. 19-2439-DDC, 2019 WL 8014669, at *4 (D. Kan. 2019); see also Lindemuth v.

Goodyear Tire & Rubber Co., 19 Kan. App. 2d 95, 103, 864 P.2d 744 (1993) ("However, 

injury to one's sensitivities alone is not enough to support a claim for defamation. The 

plaintiff must show how his or her true reputation in the community of his or her 

residence has been affected."); Davis v. Hildyard, 34 Kan. App. 2d 22, 30, 113 P.3d 827 

(2005) ("Broad and factually unsupported allegations of patient cancellations do not 

support a claim for damages for alleged defamation.").

This case is like the situation in Caranchini, 355 F. Supp. 3d at 1063. There, the 

federal court examined a complaint, ultimately finding the plaintiff failed to plead 

sufficient facts to survive a K.S.A. 60-5320 motion to strike. The court noted, for 
28

example, that Caranchini failed to specify what false statements were made about her and 

failed to allege how the statements damaged her reputation. Doe's petition suffers from 

the same flaws.

Doe's petition also contains another fatal defect, like the petition in Caranchini.

There, the court also found that, even if Caranchini had provided substantial competent 

evidence, the communications at issue were privileged under Kansas law since they were 

made during litigation. 355 F. Supp. 3d at 1063. Similarly, Reed's communications would 

be entitled to a qualified privilege as Doe alleges Reed acted in her capacity as an 

employee of KSU and she was communicating with a representative from another 

university where Doe was currently enrolled. Kansas recognizes a qualified privilege 

"with respect to business or employment communications made in good faith and 

between individuals with a corresponding interest or duty in the subject matter of the 

communication." Lloyd, 31 Kan. App. 2d at 952 (citing Turner v. Halliburton Co., 240 

Kan. 1, 8, 722 P.2d 1106 [1986]). And, "'[w]here a defamatory statement is made in a 

situation where there is a qualified privilege the injured party has the burden of proving 

not only that the statements were false, but also that the statements were made with actual 

malice—with actual evil-mindedness or specific intent to injure.'" 31 Kan. App. 2d at 

952. Doe did not allege Reed acted with malice when responding to the e-mail inquiry 

from the other university representative, which he would need to show to prevail.

KSU and Reed established Doe's petition stemmed from activity protected under 

the Act, but Doe failed to produce substantial competent evidence to support his claims. 

While we find the district court incorrectly relied on KSU and Reed's motions to dismiss 

in granting the motions to strike, it reached the right result. Gannon v. State, 302 Kan. 

739, 744, 357 P.3d 873 (2015) ("'If a trial court reaches the right result, its decision will 

be upheld even though the trial court relied upon the wrong ground or assigned erroneous 

reasons for its decision.'"). We find Doe preserved no arguments regarding claims other 
29

than defamation and, in our de novo review of Doe's pleading, we find that he failed to 

properly substantiate that claim. The district court properly granted the motions to strike.

The district court properly dismissed all of Doe's claims.

Doe alleges the district court improperly dismissed all of his claims, "even though 

[Doe] argued that the November 26, 2019, K.S.A. 60-5320(d) Anti-SLAPP Motions 

hearing was 'not a hearing about dismissing all of the claims.'" Yet, simply asserting the 

hearing was not about dismissing all the claims does not make it so. The motions to strike 

clearly indicated KSU and Reed sought to strike all claims, and that is the position they 

took at the hearing. All Doe's claims arose out of the same e-mail, and the district court 

found all the claims, indeed the petition itself, related and reacted to KSU and Reed's 

exercise of the right of free speech, right to petition, and right of association under K.S.A.

2020 Supp. 60-5320(d).

Doe claims he was given short shrift, since he had not yet responded to the 

motions to dismiss. But he misses the point of the second step in the anti-SLAPP 

analysis. Doe needed to establish a prima facie case of the merits of all his claims, which 

he failed to do. He mistakenly argues the dismissal was improper because there was no 

"factual record negating any element of [Doe's] claims." Yet, KSU and Reed did not have

to negate Doe's claims—he needed to provide a prima facie case of their merit. Once 

again, he improperly applies the standard of review for a motion to dismiss, by arguing 

the court was required to accept his allegations as true. As noted above, this is not the 

standard for evaluating claims facing a motion to strike under K.S.A. 60-5320. 

Doe's recurring attempt to rely on our court's notice pleading rules is unavailing

here as well, because, as noted above, notice pleading cannot survive the second step of 

the court's analysis under K.S.A. 2020 Supp. 60-5320. And while he again claims he was 
30

denied discovery, in truth, he failed to avail himself of his statutory right to discovery to 

defend against the anti-SLAPP motions.

Doe's claims that he was improperly denied his right to a jury trial and due process 

also have no merit. Nor did the district court improperly "invade[] the province of the 

jury," as Doe alleges. Under K.S.A. 2020 Supp. 60-5320, Doe needed to substantiate his 

claims. If he had presented the required prima facie case, the court would have had to

deny the motion to strike, and his case could have proceeded. K.S.A. 2020 Supp. 60-

5320(d). He did not carry his burden on any of his claims, and the district court properly 

struck them.

Affirmed.