Doe v. Kan. State Univ.

• Decision Date: 01 October 2021
• Docket Number: No. 122,704,122,704
• Citation: 499 P.3d 1136
• Parties: John DOE, Appellant, v. KANSAS STATE UNIVERSITY and Heather Reed, Appellees.
• Court: Kansas Court of Appeals

499 P.3d 1136

John DOE, Appellant,

v.KANSAS STATE UNIVERSITY and Heather Reed, Appellees.

No. 122,704

Court of Appeals of Kansas.

Opinion filed October 1, 2021

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.’

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.

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 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.).

"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 ri

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