NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0821n.06 No. 10-5769 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT J AMES ANDERSON, Plaintiff-Appellant,

v. VANDE RBI L T UNI VERSI TY, Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE MI DDL E DI STRI CT OF TEN

NESSEE

BEF ORE: GUY, KETH L EDGE, a nd WHI TE, Circuit J udg es.

PER CURI AM. Plaintiff J ames Ander son appea ls a district co u rt ’s grant of summary judgme nt to the defe ndant, Vande rbilt University , on his c laims of brea ch of c ontrac t, neg lige nce, and promissory

and equitable estoppel. F or the following rea sons, we af firm. Ander son was an undergraduate student at the University at the time of the events g iving rise to this lawsuit. On Dec ember 12, 2007, Ander son took a test in his Phy sics laboratory class, taug ht by Professor Kenne th Schriver. Ander son answe red just one of the fiftee n test questions corr ectly , and thirteen of his answe rs wer e the same as those of the student sitti ng next to him, who was taking

a differ ent version of the test. Ba sed on the simil arity betwee n the test answe rs and a revie w of the notations on Anderson’s te st, Schriver re ported the matter to the University ’s Honor Council. On J anuar y 16, 2008, Ander son appea red befor e a panel of the Honor Council, which found him g uilty of rec eiving unauthorized assistance on the test. Be cause it was Ander son’s second violation of the University ’s Honor Code, the Honor Council sanc tioned him with ex pulsion.No. 10-5769

Anderson v. Vande rbilt Univ. The Appellate Review Boa rd (“the Boa

rd”) rema nded the case for a new hear ing, concluding that Ander son was not g iven the opportunity to fully prese nt his acc ount of the events in question. The second hear ing panel fo u n d An d erson g uilty by a unanimous vote, and that decision was aff irmed by the B oard. A nderson wa s expelled at the end of the Fa ll 2008 semester. Ander son then filed the instant action, asser ting, inter alia , that the University was neg lige nt and brea ched its implied contra ct of g ood faith and fair dealing by finding him g uilty without clea r and convincing evidence , appointing a presiding officer for the second hearing who was aw are of his prior Honor Code violation and the outcome of the first hear ing, and improperly dismiss ing most of his second appea l petition. The district court g rante d summary judgme nt to the University on all of Ande rson’s cla ims. Anderson now a ppeals. We revie w the district court’s g rant o f s u m m ary judgme nt de novo. Parsons v. City of Pontiac , 533 F.3d 492, 499 (6th Cir. 2008). Summary judgme nt is proper “if the movant shows that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P . 56(a)

. The Tenne ssee 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). Gene rally , howeve r, the relationship betwee n a student and a private university “is contra ctual in nature .” Id. (apply ing Tenne ssee law). Acc ording ly , a student may raise brea ch of contra ct claims arising from a university ’s alleg ed failure to comply with its rules g overning disciplinary proce eding s. See Atria v. Vanderbilt Univ. , 142 F. App’x 246, 255-56 (6th Cir. 2005). I n construing the terms of the implied contra ct, howev er, we have assumed that the Tenne ssee courts “would adopt the defe rential standard of rea sonable expectation – what meaning

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Anderson v. Vande rbilt Univ. the party making the manifestation, the university , should rea sonably expect the other party to g ive it.” Doherty , 862 F.2d a

t 577 (internal quotation mar ks omitt ed). Ander son first arg

ues t hat, by finding him g uilty afte r t he first hear ing, the Honor Council violated the provision of the Student Handbook that require s “cle ar and convincing ” proof of g uilt. Unlike the plaintiff in Atria , Ander son does not alleg e a proce dural err or by the Honor Council; he simply argues that it rea ched the wrong result. But the rec ord befor e the Honor Council contained ample evidenc e to support its decision under a “cle ar and convincing ” standard, in particula r the fac t that Ander son’s answe rs were a lmost i dentical to anothe r student’s and c ould not be explained by the not ations he made on his test or hi s post hoc reasoning

. Absent any alleg ation t h at t h e Honor Council failed to comply with the rele vant proce dural require ments, we d ec line to construe the Student Handbook as requiring a particula r outcome. Ac c o r d in g ly , th e d is tr ict court proper ly g rante d summary judgme nt to the University on this claim, as well as on Ander son’s rela ted claim that the Boa rd should have r ever sed the Honor Council’s g uilty

finding based on insuff

icient evidenc e. Ander son next raises brea ch of contra ct and promissory estoppel claims arising from the fac t that the presiding office r at the second hear ing was awa re of the result of the first hear ing and Ander son’s prior Honor Code violation. Ander son argues that the presiding office r should not have

rec eived information conce rning the first hear ing beca use the Boa

rd’s rema nd order direc ted that the second hear ing be conducte d by a new panel with a new presiding office r. B ut e ven if the rema nd

o rder had contra ctual forc e, there was no brea ch beca use the second hear ing did have a new presiding office r and new members. Simi larly , Ander son cannot demonstrate that t h e Un i v er s ity

rene g ed on a promise not to disclose h is prior Honor Code violation to the panel during the g uilt phase of the second hear ing. Ander son relies on an email s en t b y a University attorney , J ohn

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Anderson v. Vande rbilt Univ. Callison, stating that: “Refe renc es in the investigators’ packe t

. . . reg arding Mr. Ander son’s dis cl o s u re t o them about his previous Honor Council conviction will be remove d. I nformation relative to this previous conviction will be broug ht forth only if he is convicted at the upcoming hear ing since prior convictions would be rele vant in the deter mination of an appropr iate sanction.” Even if this email could be construed a s binding on the U niversity , Ander son has failed to show a b re ac h b eca

use his previous Honor Code violation was not raised during the g uilt phase of the hear ing, which is all that was promised. Acc ording ly , summary judgme nt was proper on these claims as we ll. Ander son also argues that, by allowing his profe ssor to testify at th e s econd hear ing that notations made by Ander son on his t es t we re evidenc e of copying, the University violated a provision of the Student Handbook that direc ts the acc user to provide “a g ener al acc ount of the events in question.” But the handbook neither bars accuse rs from offe ring opinion test i m o n y n o r place s any other limit ation on the ty pe of testimony they may offe r. Acc ording ly , the University did not violate any

of its own rules by

allowing this testim ony . Ander son’s rema ining arg uments relate t o his second appea l. First, Anderson arg ues t hat the Boa rd Chair, Charles Br au , v i o lated Boa rd proce dures by not allowing portions of his appea l petition to proce ed to a panel. The rele vant provision di re ct s t h e C h ai r to revie w a petition upon

rec eipt “to deter

mine whether it, when considere d in the light most favor able to the Petitioner, sets forth a basis sufficie nt to provide the relief soug ht by the Petitioner. I f the Chair deter mines that the petition does not set forth a basis sufficie nt to provide the relief , the Chair will dismiss the petition (or such part s o f t h e p etition that the Chair has deter mined do not set forth a basis sufficie nt to provide re lief). The Chair’s dec ision is final.”

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Anderson v. Vande rbilt Univ. I n contra st to Ander son’s first appea l, which challeng ed the Honor Council’s decision on the g rounds of an alleg ed proce dural irregularity , new evidenc e, and insufficienc y of the evidenc e, the stated basis for Ander son’s second appea l was that the evidenc e was insufficient to support a finding of g uilt. The petition, howeve r, included four parts, raising both evidentiar y and proce dural issues: S ection A, arguing that the presiding office r misled Ander son afte r the hear ing by promisi n g t o

answe r question s reg arding the panel’ s decision and its impartiality but then ref using to do so; Section B, arguing that the panel did not have a proper understanding of the “cle ar and convincing ” evidentiar y standard and improperly shi ft ed t he burden of proof; Section C, arguing that the presiding office r had i m p ro p er knowledg e of his prior Honor Code violation, that the testimony

conce rning the notations on his exam was speculative and unduly prejudicia l, and that members of the panel wer e indiffer ent or antag onistic toward him during the hear ing; and Section D, arguing that the evidenc e did not support a finding of g uilt. Br au forwa rded Section D to a panel for revie w but dismiss ed the rema ining sections, rea soning that Section A related to events that occur red afte r the Honor Council rea ched its decision and there fore could not be considere d by the Boa rd, that Section B was not rele vant to the Boa rd’s decision beca

use it relied on definitions of t h e “c l ea r and convincing ” standard that did not g overn the Honor Council proce eding , and that Section C related to proce dural matters that wer e not rele vant to the stated b as i s fo r the appea l, i.e., insufficient evidenc e. I n A t r i a , we conclude d that there was a g enuine issue of fac t as to whether the University violated its own rules by allowing the Boa rd Chair to dismiss a petition unilatera lly beca use, at that time, the Boa

rd’s written proce dures require d initial revie w by a panel. See 142 F. App’x at 255-56. I n this case , on the other hand, both the Student Handbook and the Boa rd’s written proce dures g ave -5-No. 10-5769

Anderson v. Vande rbilt Univ. Br au the sole d i s cretion to deter mine whether the arguments raised in Ander son’s petition wer e sufficie nt to provide the relief that he reque sted, i.e., a reve rsal o f the Honor Council’s decision based on a lack of evidenc e. Br au forwa rded the portion of the petition that he deeme d rele vant to that issue. Thus, unlike the plaintiff i n A t r i a , Anderson has failed to raise a fac tual issue as to whether the Univer sity

violated its own rules by dismiss ing the rema inder of his pe tition. Finally , Ander son argues that Br au violated Boa rd proce dures by stating, in his summary of the ev i dence , that the “statistical likelihood” of Ander son’s having thirteen of fiftee n identical

answe rs to the student sitti ng next to him was “less than one in two billion ,” a statistic that was not prese nted to the Honor Council. Acc ording to the Boa rd’s proce dures, its revie w is “base d only on the rec ord,” i.e., “the evidenc e prese nted to the orig inal hear ing authority .” But, g iven Ander son’s

own admission that the odds wer e “extremely low” and testimony in the rec ord that the probability

was “vanishing ly small,” Ander son has not prese nted any evidenc e from which a jury could find that Br au’s statement “ca

used h im any damag e.” Atria , 142 F. App’x at 256. Acc ording ly , summary judgme nt was appr opriate on this claim as w ell. For these re asons, we a ffirm the district c ourt’s judg ment.

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Anderson v. Vande rbilt Univ. HEL ENE N. WHI TE, Circuit J udg e (conc urring in part and dissenting in part). I ag ree with the majority that the University was entitled to summary judgme nt as to Ander son’s claims related to his orig inal hear ing and appea l and his second hear ing. I respe ctfully dissent from the majority ’s deter mination that the University was entitled to summary judgme nt as to Ander son’s claims related to his second appe al. The majority conclude s that there is no g enuine issue of materia l fac t reg ardingAnder son’s claim that portions of his second appea l petition wer e improperly dismiss ed, rea soning t hat the rele vant proce dural rules g ive the Boa rd Chair the authority to unilatera lly dismiss a petition, or parts of a petition, without forwa rding them to a Boa

rd panel. But Ander son does not dispute that Br au, the Boa rd Chair, was authorized to perf orm this g ateke eping function. Rather, he argues that Br au did not apply

the prope r standar d when he did so. I would conclude that Ander son has raised an issue of materia l fac t in this reg ard. The rec ord ref lects that Br au did not simply deter mine whether the arguments raised in Ander son’s petition “set forth a basis sufficie nt to provide the reli ef soug ht,” as provided for by the Boa rd’s proce dures. Rather, Br au dismiss ed portions of the petition for rea sons unrela ted to their m erit, such as Ander son’s failure to expli citly state that he was challeng ing the Honor Council’s decision on proce dural g rounds. The Boa rd’s proce dures, howeve r, do not require petitions to be in a particula r format o r to include a statement of issues. Acc ording ly , as in Atria v. Vanderbilt Univ. , 142 F. Ap p ’x 246, 255-56 (6th Cir. 2005), there is an issue of materia l fac t as to whether the Uni v er s i t y violated its own rules by

dismiss ing por

tions of Anderson’ s petition on these g rounds. Simi larly , I do not ag ree that the University is entitled to summary judgme nt on Ander son’s claim that Br au violated Boa rd proce dures by informing panel members that the statistical likelihood

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Anderson v. Vande rbilt Univ. of Ander son’s test results was less than one in two billion, a fig ure that Br au arr ived at throug h his

own calc ulations and that was not pres en t ed to the Honor Council. The rele vant proce dural provision prohibi t s t h e Boa rd from considering evidenc e that was not prese nted to the orig inal hear ing authority

. Acc ording ly , I would conclude that an issue of materia l fac t exis ts as to whether the Univer sity

complied with its own rules in this reg ard. See id. I n light of these g enuine issues of materia l fac t, I would reve rse the g rant o f s u m mary judgme nt on these cla ims and remand the case to the district court for further proce eding s.

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