# FILED

Novemb er 19, 1997

Cecil W. Crowson Ap pellate Cou rt Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTI ON AT NASHVILLE

NANCY C ATHERINE G ERALDO, )

) Plaintiff /Appella nt, ) Dav id son Ch anc ery No . 96 -30 7-II

) v. ) ) Appeal No. 01A01-9610-CH-00467 VANDERBILT UNIVERSITY, ) ) Defendant/Appellee, ) )

APPEAL FROM THE CHANCERY COURT OF DAVI DSON COUNTY AT NASHVIL

LE, TENNESSEE
THE HONORABLE EL

LEN HOBB S LYLE, CHA NCELL OR

For the P laintiff /Appella nt: For the Defendant/Appellee: David E. Danner William N. Ozier Nashville, Tennessee Nashville, Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCURS: ALAN E. HI

GHERS, J. WI LL IA M C. K OCH , JR. , J.1 Among other things, Geraldo told the Honor Council that she could not have copied pages to substitute

on her te sts beca

use she has “a big fear of c opy machines. . . .”She explained that her “hand g ot stuck in

one” an d that “ph

ysi cally , there w as no way ” she cou ld have do ne it. OPINION

This case involves a challenge to a student di sc ip li na ry b oard pro ceeding at a priv ate
un iv er si ty. The stude

nt alleg es, among

other things, that the u

niversity breach ed its con tract with her and viola ted her r ights to due process and fundamental fairness. The tria l court granted summary judgmen t in favor of the university . We affir m. Plaintiff/Appellant

Nancy Cathe

rine G era ldo (“Geraldo”) was a sophomore attending Defend ant/ Appellee Vanderbilt University ( “Vanderbilt”). In Novem ber 1995, Geraldo was enrolled in a class taught by Adjunct Assistant Professor Lori Troxel (“Troxel”). Troxel posted a grade sheet for her class, indicating her students’ gr ades for all tests and assignm

ents through tha

t date. Sho

rtly after the grade sheet was posted, Ger aldo confronted Troxel with two tests on which Geraldo alleged she scored

a gra de higher than the grade indicated on the posted grade sheet. Afte r examining the tests, Troxel became suspicious that the tests had been altered. These alleged alterations included the change of

a grad e from a “57" to a n “87,” th e appea rance t hat the qu ality

of paper of some pages of the tests were different than others, and notations made by a ma rker that the professor did not use. Troxel reported the incident to the Honor Council. Two student members of the Honor Council issued areport (“investigators’ report”) based on a conversation with Troxel. The Honor Council then held a formal hearing on Dec ember 5, 1995. The hearin g and th e relat ed pro ceedin gs
were governed by

the procedures set forth in the Vanderbi lt U nive rsity Student Handbook (“handbook”). Geraldo attende d the Hono r Council h

earing . The re cord doe s not indic ate that s he was represented

by an attorney

at this point. She was sh own the test papers and questioned about the alterations appearing on the tests and the diffe rence in the quality

of paper used for some page s of the tests. 1 After the heari ng, the Honor Council unan

imously concluded that Ger

aldo was guilty

of fals ifying her test scores. After considering the flagrancy , premeditation, and dishonesty of the offense, the Honor Council recommended Gera ldo’s expulsion by a vote of 11-1. On December 14, 1995, Geraldo appea led the Honor Counc il’s acti on to the V anderbi lt Appellat e Review Board

(“ARB”) , in accordance with guidelines in the handbook. Ge raldo was2

represented

by counsel during

the appellate process. Geraldo arg ues that her attorney

was wrongfully

denied access to the original test papers. On January 17, 1996, the ARB me t to consider Gerald o’s appeal. Geraldo’s counsel was notpresent

at the mee

ting. The ARB advised Geraldo the next day that it had unanimously voted to up ho ld th e H on or Co un ci l’ s d ec is io n. Ge ra ld o w as th en ex pe ll ed fr om th e u ni ve rs it y. G eraldo filed a complaint in Davidson County Chance ry Court on January

29, 1996
. Geraldo’s Amended Complaint sought to en join Vanderbilt from expelling Geraldo and sought damage s from Va

nderbilt f or brea ch of con tract, c onversio n, and out rageo us conduct. I n June 1996, b oth partie s moved fo r summary

judgmen t. Geral do also fi led a motio n to amend her complaint

a second time. Geraldo

filed obje

ctions to a

ffidavit s proffe

red by Vander bilt in support of its motion for summary judgment. Af ter hearing these motions, the Chancellor granted Vanderbilt’s motion for

summary judgmen t, denied Geraldo’s motionfor summary judgment, and denied Geraldo’ s motion to a mend her complain t. On appeal, Geraldo raises a host of issues. The issues raised include Geraldo’s contentions that the trial court erred in granting summary

ju dgment in favor o f Vande rbilt sinc e Vande

rbilt breached its contract with Geraldo, violated Geraldo’s rights to due pr ocess and fundam ental fairn ess and because a genuine issue of material fact existed. Geraldo also argues that the trial court erre d by failing to rule on Gera ldo’s obje ctions to th

e entry into evidenc e of aff

idavits fi led by

Vander bilt in support of its motion. In ad dition, Geral do maintains that the trial court erred in deny ing Geraldo ’s motion to

amend he

r compla int. A motion for summary judgment should be granted when themovant demonstrates that there
are no genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. Tenn. R. Civ. P. 56. 03. The party moving for summary judgment bears the burden of demonstrating that no genuine issue of material fact exists. Byrd v . Hall , 847 S.W.2d 208, 211 (Tenn. 1993). On a motion for summary judgment, the court must take the strongest legitimate view of the evid ence in favor of the nonmoving party, allow all reasona ble inferences in favor of that party, and discard all counterva ilin g evidence. Id. at 210-11 . Summary j udgment is only appropr iatewhen the

facts a nd the leg al concl

usions dra

wn from th

e facts reasona

bly permit

only
one conclusion. Carvell v . Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995). Since only questions of law3

are involved, there is no presumption of correctness regarding a tri al court's grant of summary judgment. Id. Therefore, our review of the tr ial court’s grant

of summar

y judgment

is de novo on the record before this Court. Id. Geraldo argues first that Vanderbilt breac hed its contract

withGeraldo. Geraldo asserts that the student handbook created a contract between Geral do and Va nderbilt, and that V anderbi lt breached th is co nt ra ct by: deny

ing her accessto her test papers, deny ing her a right to counsel during the appellate process, deny ing her a presumption of innocence during the Honor Cou

ncil hea rings, ignoring an inacc

urate statement

in the investigators’ report, violating the implied covenant of g ood faith and fair dealing, and conducting the appeals process in an “atmosphere of institutional hostility.” Geraldo also maintains that her e xpulsion was counter

to the punishment meted out by Vander bilt in pre vious insta

nces. Even assuming, without deciding, that a contract existed between G eraldo a

nd Vande rbilt withrespec t to the disc iplinary procee dings, G

eraldo’ s content

ions can o nly

be char acterized as insubstantial and without merit. Geraldo first alleges that

Vanderbilt breached

the contr act sinc e the ARB denied he r acce ss to the Honor Council records, including her orig inal tests. Geraldo argues that the h andbook incorporates by

reference the fede

ral Family Educ ational Rights and Privacy Act (“FERPA”), and that FERPA requires Vanderbilt to pr ovide her with access to her academic w ork. 20 U.S.C.A. § 1232g ( Supp. 1997) . Howeve r, FERPA d

oes not cr eate a p rivate c ause

of action. See, e.g, Tarka
v. Cunn ingh

am, 891 F.2d 102, 104 (5th Cir. 1989); Fay v. South C olonie Central Scho ol Dist. , 802 F.2d 21, 33 (2nd Cir. 1 9 86). Sec ond, Ger aldo was admittedl

y given acc ess to her

origina l tests during the Honor Council proceedings. I n addition, the handbook enumerates the “gro unds for review” that the ARB may c onsider. Exam ples listed include the determination of whether the Honor Council adhered to its procedures, the evidence wa s sufficie nt to support the Honor Council’s rulin g, and the p enalt

y was justified. The ha ndbook also states that, “[o]nly in extraordinary circumstances would the board reconsider the entire case.” Consideration of Geraldo’ s appeal did notconstitute

an “extraordinary

circumst ance” w hich woul d necess itate a r eview of the original test papers in the ARB proceeding. This ar gument is without merit.4

Geraldo next contends that Vanderbilt breached the contract by de nyi ng her a right to be repres ented by

counsel d

uring th e ARB he aring. The hand book state s: An accuse d may

obtain pr

ofession al lega

l repre sentation , advice , and cou nsel. However, an attorney ma

y not participate in or

be prese nt during an Honor Council hearing. . . An attorney r

epresenting an accused is enc ouraged to contact the Office of General Counsel and to work directly with that office. The handbook does not grant the student the right to havecouns el pres ent du ring th e ARB he aring. In fact, the handbo ok does no t grant the stude nt herself the ri ght to be pres ent du ring th is pro ceedin g. Therefore, the handbook

did not create a contractual right for Geraldo’s attorney

to be present during her AR B heari ng. Geraldo next asserts that the Honor Council denied Geraldo her contrac tual r igh t to a presumption of innoce

nce, cit ing the h andbook’ s stateme nt that an accused is presumed innocent until proven guilty. G

eraldo argues that the Honor Council brea ched this provision by

ask ing her to explain the

discrep ancies e

vident in th

e tests. G

eraldo c ontends th at since she was “under t

h e gu n” to pr ov id e a n i nn oc en t j us ti fi ca ti on fo r t he al te ra ti on s, sh e w as pr es um ed gu il ty. Ob vi ou sl y, the original tests and Troxel’s s tatement s were e vidence that Ger aldo was guilty of altering the test s. It is not difficult to imagine Geraldo’s a rgument had she not

been given the opportunity to explain the apparent altera tions. This argument is without merit. Geraldo next

contends that, in light of the “usages of Vanderbilt,” the university violated the contract by expelling her based on a

first offense. Citing various statistics, Geraldo arg ues that since it has bee n extremel

y r are in the past fo

r a stude nt to be expe

lled, Vanderbilt br

eached its contract by expelling her. Geraldo cites no authority for he r argumen t. The hand book states that a student may be expelled for an honor code violation. The Honor Coun cil hears each case individually and determines punishment based on the flagrancy of t he viol ation, premeditation, and the accused’s truthfulness throughout the process. I n this case, the Honor Cou ncil apparently f

ound that Geraldo
was not credible, that the test alteration was flagra nt and premeditated, an d that even after it was detected Geral do c ontinued t

o maintain

an untrut

hful stance. The

Honor Cou

ncil was f

ully warranted in determining that expulsion was the appropriate discipline. Geraldo further alleges that Vanderbilt breached the contract because the investigators’ repor t containeda factu al erro

r. Acco rding to Geraldo , the Hono

r Council reliedon the report’s statement5

that the te sts conta

ined mar ks from tw o differ

ent ty pes of re d writing

utensils ut

ilized to grade the tests, as well

as the report’s “incorrect” stateme nt that Professor Troxel never used a marker to gra de the exams. Be cause th

e Honor Co

uncil relied on the

investig ators’ r

eport, Geraldo ar gues that Va nd er bi lt br ea ch ed it s c on tr ac t b y ov er lo ok in g t he re po rt ’s in ac cu ra cy. Troxel testif

ied that she used a red “flair tip pen” to gr ade tests, but never used a red “marker.” The alte

red testsincluded

marks mad

e with a “marker.” There is no indication that the report is inaccurate. Geraldo’s ar gument is wholly without merit. Geraldo further

contendsthat a let

ter sent f rom Honor

Council Pre sident Co ryHartquis t (“Hartquist”) to the ARB concerning Gera ldo’s appeal violated the “implied covenant of good faith in contract.” This c laim is bas ed on the l etter’sstatemen t that “Pro fessor T

roxel t esti fied [at the Honor Council hearing] that she never used marker in g rading anything.”

Geraldo argues that this allege d inaccu

racy constitute s a “bad f

aith pron ounceme

nt” and a breach of contr act. Geraldo again attempts to manufacture an argument based on use of the term “marker,” as opposed to “flair

tip pen.” Troxel’s te stimony can only be interpre

ted to mea

n that the altered tests containedmarks fr

om a writing instru

ment t hat she did n ot use in g rading tests. There is no indication that the Hartquist letter is inaccurate. This argume nt is completely without merit. Geraldo nex t argues that the ARB’s considera tion of her appeal was “conducted in an atmosphe re of ins titutional

hostility to her contractual right to appeal.” A ccording to Geraldo, the ARB act ed in an “ arbitra

ry and hostil e manner

” by deny ing her accessto her or

iginal te st paper s. As noted above, Geraldo admittedly was given access to the orig inal test paper s in the Honor Council procee ding an d had no r ight tothem inthe ARB proceeding. This arg ument is without merit. Geraldo’s brief on appeal repeats the identical litany of arguments, alleging

they constituted violat ion of Geraldo’s right to “fundamental fa irness.” Geraldo cites cases in other jurisdi ction s which re cognize

this cause of

action independent of an action for breac h of contract. The essence of her contention is that a university ha s a duty to refr ain from expelling a student in an arbitrary

or capricious manner. As discussed above, Geraldo’s arguments are without merit. Indeed, the record establishes that the proceedings aga

inst Geral do were conducted in a fair manner and that the discipline was appropriate to the offense. Geraldo’s a rgument on this legal theory is without merit.6

Geraldo also asse

rts on app eal that s ummary judgmen t w as inappro priate because new affida vits filed before the hear ing cre ated a g enuine is sue of ma terial f act. Geraldo maintains that her filing o f an aff

idavit by N ancy Geraldo , stating

that she d

id not alter

the tests, was suff

icient to create a gene ral issue of mater ial fact
. However, the issues before the trial court, and this Court, do not concern whether Geraldo actually committed the offense. Rather, the trial court was to ex amine wheth er the p roceed ings agains tGeraldo

were ha ndled in a ccorda nce with her legal rights. Gera

ldo’s affidavit, deny

ing that she al tered the tests, do not create a ge nuine issue of material fact as to the issues befor e the tria l court. This argument is without merit. Geraldo also contends that the trial court erred by granting summary

judgment without ruling
on Geraldo’s objectio ns to the a ffidavit s submitted

by V anderbi lt in suppor

t of its motion summary j udgmen t. Geraldo

argue s that thes e affid avits viola te Rules 40 2, 403, an d 801 of the Tenness e e Rules of Evidence , be ca us e t he y ar e i rr el ev an t, pr ej ud ic ia l, an d c on ta in he ar sa y. “Ruli ngs on the introduction of evidence are usually within the discretion of the tr ial j udge and will not be

revers ed except

for an a buse of th at discr etion.” Dockery v. Board of Prof. Responsibility, 937 S.W.2d 863 , 8 66 (Tenn. 1996). In g ranting Vanderbilt’s motion summary judgmen t, the trial court implicitly overruled G eraldo’s objections to the supporting affidavits. Our review of the affidavits indicate no abuse of discretion by the trial court. This argument is without merit. Fina ll y, Geraldo

asserts t hat the tr ial cour t erred by d eny ing her motion to am

e nd he r complain t. Geraldo sought to amend her comp laint “to c onform to the issues developed in discovery and contained in her memorandum in support of her motion for summary judgment.” A trial cou

rt’s den ial of a Rule 15 motion

to amend i s discre

tionary and, on a ppeal, a n abuse of that disc retion must be shown. Wilson v. Ric ciardi, 778 S.W.2d 450, 453 (Tenn. App. 1989). Geraldo does not explain how granting her motion to amen d would have prevented summary judgment from being entered ag ainst her. We find no abuse of discretion by the trial court.7

The decision of the trial court is a ffirmed . Costs on a

ppeal ar e taxed ag ainst

the Appellan

t, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

HOLLY KIRBY LILLARD, J. CONCUR:

ALAN E. HIGHERS
WILLIAM C. KOCH, JR., J.