Robinson v. Wichita State University et al

Filing 57

MEMORANDUM AND ORDER granting 50 Motion to Dismiss. Plaintiff's claims against the Registry are dismissed. Signed by District Judge Daniel D. Crabtree on 5/31/2017. (hl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

WADE ROBINSON,
Plaintiff,
v.
Case No. 16-cv-2138-DDC-GLR
WICHITA STATE UNIVERSITY, et al.,
Defendants.
____________________________________
MEMORANDUM AND ORDER
This matter comes before the court on defendant The Registry for College and University
Presidents’ (“the Registry”) Motion to Dismiss First Amended Complaint or, in the Alternative,
for Judgment on the Pleadings (Doc. 50). The Registry filed a Motion to Dismiss on April 12,
2016 (Doc. 7), but that motion was moot after the court granted plaintiff’s Motion to Amend the
Complaint (Doc. 47). The Registry filed this Motion on March 28, 2017. Plaintiff filed a
Memorandum in Opposition (Doc. 53) and the Registry replied (Doc. 54). For reasons explained
below, the court grants the Registry’s Motion to Dismiss under Fed. R. Civ. P. 12(b)(6).
I.

Background
The following facts are taken from plaintiff’s First Amended Complaint (Doc. 48) and

viewed in the light most favorable to him. Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1240 (10th
Cir. 2000) (explaining that the court must “accept the well-pleaded allegations of the complaint
as true and construe them in the light most favorable to the plaintiff” (citation omitted)).
Plaintiff worked for Wichita State University (“WSU”) as Vice President for Campus
Life and University Relations from July 2009 to July 2014. In July 2014, he was demoted from
his position as Vice President of Campus Life to Vice President of Student Engagement. Then,
1

in January 2015, WSU informed plaintiff that it was terminating his employment, effective on
June 30, 2015.
On March 2, 2015, the Registry printed an announcement seeking applicants for the Vice
President for Student Affairs position at WSU. The announcement stated that “the incumbent is
aware he is leaving at the end of the academic year or sooner; the incumbent does not fit with the
culture of the executive leadership team,” and the “current operation is too hierarchal and
punishment-centered.” Id.
Plaintiff brings claims against WSU, John Bardo (WSU’s president), and the Registry.
Plaintiff claims WSU violated 20 U.S.C. § 1681 (Title IX) by retaliating against him for
investigating alleged rapes on campus. Plaintiff also brings a 42 U.S.C. § 1983 claim against
Mr. Bardo for violating his Due Process rights under the Fourteenth Amendment. Finally,
plaintiff brings state common law and statutory claims against WSU, Mr. Bardo, and the
Registry.
The Registry moves to dismiss plaintiff’s Kansas common law claims against it. The
court has jurisdiction over plaintiff’s federal claims under 28 U.S.C. § 1331 (“district courts shall
have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of
the United States.”). And, 28 U.S.C. § 1367 provides: “in any civil action of which the district
courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action within such original jurisdiction that they
form part of the same case or controversy under Article III of the United States Constitution.”
See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966) (holding that a district
court has “[p]endent jurisdiction” over state law claims in a case if subject matter jurisdiction
exists over the federal claim and the “state and federal claims [ ] derive from a common nucleus

2

of operative fact.”). Plaintiff’s common law claims against the Registry revolve around the same
operative facts as its federal claims against WSU and Mr. Bardo. The court thus has jurisdiction
over plaintiff’s common law claims against the Registry under § 1367. The court now turns to
the Registry’s Motion to Dismiss.
II.

Legal Standard
The Registry moves to dismiss the case under Fed. R. Civ. P. 12(b)(6) for “failure to state

a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil
Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” Although this Rule “does not require
‘detailed factual allegations,’” it demands more than “[a] pleading that offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). “Under this standard, ‘the complaint must give
the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual
support for these claims.’” Carter v. United States, 667 F. Supp. 2d 1259, 1262 (D. Kan. 2009)
(quoting Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)).
On a motion to dismiss under Rule 12(b)(6)—like this one—the court assumes that a
complaint’s factual allegations are true, but need not accept mere legal conclusions as true. Id. at
1263. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory

3

statements” are not enough to state a claim for relief. Iqbal, 556 U.S. at 678. In addition to the
complaint’s factual allegations, the court also may consider “attached exhibits and documents
incorporated into the complaint by reference.” Smith v. United States, 561 F.3d 1090, 1098 (10th
Cir. 2009) (citations omitted).
The Registry also moves for judgment on the pleadings. A party may move for judgment
on the pleadings under Fed. R. Civ. P. 12(c) after the pleadings are closed but early enough not
to delay trial. Fed. R. Civ. P. 12(c). Courts evaluate a Rule 12(c) motion under the same
standard that governs a Rule 12(b)(6) motion to dismiss. Jacobsen v. Deseret Book Co., 287
F.3d 936, 941 n.2 (10th Cir. 2002) (citing Atl. Richfield Co. v. Farm Credit Bank of Wichita, 226
F.3d 1138, 1160 (10th Cir. 2000)).
III.

Analysis
Kansas law governs plaintiff’s common law claims. The parties do not dispute that

Kansas law governs plaintiff’s common law claims against the Registry. Indeed, the Registry, in
its Motion to Dismiss, and plaintiff, in his Opposition, cite Kansas law. Additionally, choice of
law rules dictate that the court apply Kansas law. “A federal court sitting in diversity
[jurisdiction] applies the substantive law, including choice of law rules, of the forum state.’”
BancOklahoma Mtg. Corp. v. Capital Title Co., Inc., 194 F.3d 1089, 1103 (10th Cir. 1999).
“This rule also applies when a federal court exercises supplemental jurisdiction over state law
claims in a federal question lawsuit”—as is the case here. Id. (quoting Glennon v. Dean Wittter
Reynolds, Inc., 83 F.3d 132, 136 (6th Cir. 1996)). Kansas is the forum state in this case, and
Kansas applies the “law of the ‘place of the wrong’” in tort claims. Atchison v. Casting Corp. v.
Dofasco, Inc., 889 F. Supp. 1445, 1455 (D. Kan. 1995). “The ‘place of the wrong’ is that place
where the last event necessary to impose liability took place.’” Id.

4

The place of the last event necessary to impose liability against the Registry was Kansas.
Plaintiff alleges defamation and invasion of privacy claims against the Registry. Both of these
claims protect against harm to a person. See Gruschus v. Curtis Publ’g Co., 342 F.2d 775, 776
(10th Cir. 1965) (discussing the basis for defamation and invasion of privacy claims). Plaintiff is
a Kansas resident, thus the place of the wrong was Kansas. So, the Kansas law governs
plaintiff’s state law claims.
The Registry asserts that plaintiff fails to state a claim upon which relief can be granted
for each of his claims against it. The court addresses each claim, separately, below.
A. Defamation
An actionable defamation claim under Kansas law requires the plaintiff to allege: (1) the
defendant wrote false and defamatory statements; (2) the defendant communicated these
statements to a third party; and (3) the plaintiff’s reputation was injured as a result of the
statements. See El-Ghori v. Grimes, 23 F. Supp. 2d 1259, 1269 (D. Kan. Sept. 24, 1998); see
also Luttrell v. United Tel. Sys., Inc., 683 P.2d 1292, 1293 (Kan. Ct. App. 1984). Plaintiff
alleges the Registry defamed him when it printed the following three statements: (1) “the
incumbent is aware he is leaving at the end of the academic year or sooner”; (2) “the incumbent
does not fit with the culture of the executive leadership team”; and (3) “the current operation is
too hierarchical and punishment-centered.” Doc. 53 at 5. Specifically, plaintiff claims that the
third statement was defamatory. Plaintiff alleges the Registry published this statement to its
members and his reputation was damaged as a result.
The Registry asserts that plaintiff’s defamation claim fails for two reasons.1 First, the
Registry claims the alleged defamatory statement does not identify plaintiff personally. Second,

1

In its Motion, defendant asserts a third argument—truth as a defense to plaintiff’s defamation claim. The
Registry contends the first two statements in its publication—“the incumbent is aware he is leaving at the end of the

5

the Registry claims the alleged defamatory statement is a statement of opinion, and cannot be
defamatory as a matter of law. The court addresses both arguments, in turn, below.
1. Whether the statement identifies plaintiff
An alleged defamatory statement must concern the lawsuit’s plaintiff, or reasonably be
understood to refer to plaintiff. See Restatement (Second) of Torts § 564 (1977); see also Hale
v. Emporia State Univ., 2016 WL 3277264, at *9 (D. Kan. June 15, 2016) (“To be defamatory, a
statement must be of and concerning the plaintiff.”). Here, the Registry contends no one
reasonably can interpret the statement to refer to plaintiff because the statement refers only to
“the current operation.” Doc. 54 at 2.
The court disagrees. The statement is susceptible to a reasonable interpretation that
references plaintiff. Though plaintiff only alleges that the third statement is defamatory— “the
current operation is too hierarchical and punishment-centered,”— the court reads it in context.
The two statements printed before the alleged defamatory statement identify “the incumbent.”
Doc. 53 at 5. Plaintiff was the only incumbent Vice President of Student Affairs at WSU when
the Registry printed the statements. And, the alleged defamatory statement refers to “the current
operation.” Doc. 53 at 5. Plaintiff, as the incumbent Vice President of Student Affairs, was in
charge of, the “current operation.” Read in context, the alleged defamatory statement that “the
current operation is too hierarchical and punishment-centered” is at least susceptible to an
interpretation that references plaintiff.
The Registry asserts that the third statement has an expressly different subject than the
first two statements because it refers only to “the current operation.” Doc. 54 at 3. The Registry
academic year or sooner” and “the incumbent does not fit with the culture of the executive leadership team”—are
true, and thus cannot provide the basis for a defamation claim. In plaintiff’s Opposition, he concedes that only the
last statement—“the current operation is too hierarchical and punishment-centered”—is defamatory. Because the
parties agree the first two statements are not at issue on plaintiff’s defamation claim, the court addresses only the
third statement.

6

also contends that the purpose of the Registry’s publication was to communicate information to
its members about the Student Affairs environment at WSU—one that was “too hierarchical and
punishment-centered,” and reflected systemic issues within WSU. Doc. 54 at 4. That may be so,
but another reasonable interpretation of the statement is that it refers to plaintiff and the way he
had run the Student Affairs operation. The court thus concludes that the alleged defamatory
statement is susceptible to a reasonable interpretation referencing plaintiff.
2. Whether the statement is of fact or opinion
Statements of personal opinion or hyperbole are not defamatory under Kansas law. See
Byers v. Snyder, 237 P.3d 1258, 1271 (Kan. Ct. App. 2010) (discussing Gatlin v. Hartley,
Nicholson, Hartley & Arnett, P.A., 26 P.3d 1284 (Kan. Ct. App. 2001)). “Whether a given
statement constitutes an assertion of fact or an opinion is a question of law to be determined by
the court.” Rinsley v. Brandt, 700 F.2d 1304, 1309 (10th Cir. 1983). The Registry asserts the
statement that the current operation was “too hierarchical” and “punishment-centered” concerns
“subjective viewpoints” about the “character of the ‘current operation’ at the university,” rather
than objective, verifiable circumstances. Doc. 54 at 6.
Kansas law distinguishes between fact and opinion statements. In Gatlin v. Hartley, the
Kansas Court of Appeals held that the statement, “[The husband] isn’t . . . totally innocent in all
this, there are things about him you don’t know,” was a statement of personal opinion and thus
could not be defamatory. Gatlin, 26 P.3d at 1284, 1287. In Byers v. Snyder, the Kansas Court of
Appeals held that statements describing plaintiff staggering and smelling strongly of alcohol
were a “recounting of objective observations, not opinion and hyperbole,” and thus could be
defamatory. Snyder, 237 P.3d at 1271.

7

Plaintiff contends that the statement that the current operation was “too hierarchical” and
“punishment-centered” is not opinion or hyperbole, and even if it is, it is still actionable as
defamation. Doc. 53 at 6. Plaintiff supports his position by citing Schwartz v. American College
of Emergency Physicians, 215 F.3d 1140, 1145 (10th Cir. 2000) (“Certain expressions of opinion
implicitly contain an assertion of objective fact, and such statements are not exempt from a
defamation claim.” (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18–19 (1990))).
In Schwartz, the Tenth Circuit considered whether the statement that the plaintiff was
“being sued for stock fraud” was capable of being defamatory. Schwartz, 215 F.3d at 1146. The
Tenth Circuit, applying New Mexico’s substantive law, applied the following standard: “To
determine whether the statement is one of fact or opinion, we first inquire whether a reasonable
factfinder could conclude that” the statement impliedly asserted a fact. Schwartz, 215 F.3d at
1146. It also considered “whether the publication of the statement” was “sufficiently factual to
be susceptible of being proved true or false.” Id. The Circuit determined that the statement
implied the plaintiff might have engaged in stock fraud and was “sufficiently factual to be
susceptible of being proved true or false” that it supported a defamation claim. Id.
The court applies Kansas law here, but still, the Schwartz standard is informative. The
statement that WSU’s Student Affairs operation was “too hierarchical” and “punishmentcentered” amounts to an opinion and hyperbole, and not defamation. It is more like the
statement in Gatlin, that the plaintiff was “[not] totally innocent,” than the statement in Snyder
about plaintiff staggering and smelling like alcohol. See Gatlin, 26 P.3d at 1284, 1287; see also
Snyder, 237 P.3d at 1271. The plain language of the statement—that the operation was “too”
hierarchal and “too” punishment-centered—reflects subjective opinion that is not sufficiently
factual to prove it is true or false. No one can verify factually whether the WSU Student Affairs

8

operation under plaintiff’s leadership was “too hierarchal” or “[too] punishment-centered” in the
way one could verify whether plaintiff had staggered and smelled of alcohol like the Snyder
plaintiff. Because the statement consists of opinion and hyperbole—and not fact—the court
concludes that it cannot provide the requisite fact used to support a defamation claim. Plaintiff’s
First Amended Complaint thus fails to state a defamation claim upon which relief can be granted.
B. Invasion of Privacy
Plaintiff also brings an invasion of privacy claim. Kansas law recognizes the invasion of
the right to privacy as “a tort upon which a cause of action may be based.” Froelich v. Adair,
516 P.2d 993, 995 (Kan. 1973). “The invasion of the right to privacy comprises four distinct
kinds of tort” that are “tied together by a common name.” Id. They are: (1) intrusion upon
seclusion; (2) appropriation of name or likeness; (3) publicity given to private life; and, (4)
publicity placing person in false light. Id. at 995–96. In his First Amended Complaint, plaintiff
does not specify which of the four distinct brands of invasion of privacy he asserts. When read
carefully, one can discern that plaintiff’s First Amended Complaint asserts three types of
invasion of privacy claims: (1) publicity given to private life; (2) intrusion upon seclusion; and,
(3) publicity placing person in false light. Specifically, the First Amended Complaint makes
these allegations: (1) “Defendant Registry gave publicity to the private matter described in the
Background Facts,” (2) “Defendant Registry intentionally intruded upon the solitude or seclusion
of Plaintiff or his private affairs or concerns,” (3) “Defendant Registry’s publicity placed
Plaintiff in a false light that would be highly offensive to a reasonable person by misrepresenting
Plaintiff’s character and activities, namely creating the false impression that Plaintiff was too
hierarchical and punishment-centered.” Doc. 48 ¶¶ 147, 149, 151.

9

1. Publicity Given to Private Life
Publicity given to private life recognizes liability for “[o]ne who gives publicity to
matters concerning the private life of another, of a kind highly offensive to a reasonable man.”
Id. at 996. An actionable publicity given to private life claim under Kansas law requires the
plaintiff allege: (1) the defendant gave publicity to a matter concerning his private life; (2) the
matter was such that it would be highly offensive to a reasonable person; and (3) it was not of
legitimate concern to the public. Werner v. Kliewer, 710 P.2d 1250, 1256 (Kan. 1985).
The Registry asserts plaintiff’s publicity invasion of privacy claim fails for three reasons.
First, the Registry asserts plaintiff is a public official, and that public officials have no right to
privacy for the way they conduct themselves in office. Second, the Registry asserts its
publication did not disclose any private facts. Third, the Registry asserts it did not publicize the
information to the public at large. The court addresses each argument, in turn, below.
The Supreme Court of Kansas has held that public officials do not have a right to privacy
for the manner “in which [they] conduct[ ] [themselves] in office.” Rawlins v. Hutchinson Pub.
Co., 218 Kan. 295, 301 (Kan. 1975); see also Rinsley v. Brandt, 446 F. Supp. 850, 857 (D. Kan.
1977) aff’d on other grounds, 700 F.2d 1304 (10th Cir. 1983) (“While plaintiff has not waived
his right to keep private details of his life secret, he cannot shelter from public scrutiny his
administration of a public position in a field of critical public interest.”). The Registry contends
plaintiff was a public official when it printed the statements. The Registry also asserts that
because plaintiff worked as Vice President of Student Affairs at a publically-funded university,
he was a public official and thus had no right to privacy for how he conducted himself in office.
Doc. 51 at 7.

10

a. Public official
The court considers all relevant circumstances to determine whether plaintiff was a public
official when the Registry printed its statements. Rinsley, 446 F. Supp. at 856. In Rinsley, our
court determined that the plaintiff was a public official when he worked as “Director of the
Children’s Section at Topeka State Hospital and Associate Clinical Professor of Psychiatry at the
University of Kansas School of Medicine.” Id. In particular, Rinsley noted plaintiff worked
exclusively at public institutions and conducted research partially funded by the state of Kansas.
Id. Our court determined that, in light of this case law, the plaintiff was a public official. Id. at
856–57 (citing Adey v. United Action for Animals, Inc., 361 F. Supp. 457, 461–62 (S.D.N.Y
1973) (“a research scientist employed by NASA and involved in preparation for a space flight by
a monkey was held to be a public official.”); Hutchinson v. Proxmire, 431 F. Supp. 1311, 1327
(W.D. Wis. 1977) (finding that plaintiff was a public official when he worked as Director of
Kalamazoo State Hospital, his research was funded by federal agencies, and he held himself out
as president of a “nonprofit corporation that purported to act in the public interest.”)).
Like the plaintiff in Rinsley, here, plaintiff served in a leadership position at a state
funded institution. Plaintiff was Vice President of WSU, a large, state funded university in
Kansas. The court thus concludes that plaintiff was a public official at all times relevant to his
claims.
b. Legitimate concern to the public
But the court’s analysis cannot stop here. Though public officials do not have a right to
privacy for the way they conduct themselves in office, Rawlins, 218 Kan. at 301, public officials
maintain privacy rights in their private life, See id. at 300. Because the court determines

11

plaintiff was a public official, the court now must determine whether the printed statement was
of legitimate concern to the public. Werner, 710 P.2d at 1256.
Plaintiff contends his impending termination was a “very private matter” and even he
“was forbidden to speak about to anyone for months.” Doc. 53 at 11. Plaintiff alleges the
information about his impending termination affects his privacy interest in his reputation,
character, and activities. Id. The Restatement (Second) of Torts § 652(D) gives the following
examples of facts that are considered suitably private: “[s]exual relations . . . family quarrels,
many unpleasant or disgraceful or humiliating illnesses, most intimate personal letters, most
details of a man’s life in his home, and some of his past history that he would rather forget.” Id.
The information that plaintiff was “leaving at the end of the academic year or sooner,” is not the
kind of private information entitled to the level of privacy protected by this court, as explained in
the examples outlined by the Second Restatement of Torts (i.e., information about sexual
relations, family quarrels, illnesses, personal letters, or details about home life). The court
concludes as a matter of law that plaintiff’s impending termination was a subject of legitimate
concern to the public, and plaintiff had no privacy rights in the information that the Registry
printed.
Plaintiff’s First Amended Complaint thus fails to state a publicity given to private
life/invasion of privacy tort claim upon which relief can be granted.
2. Intrusion upon Seclusion
The court next considers plaintiff’s theory that the Registry actionably intruded on his
seclusion. An actionable intrusion upon seclusion claim under Kansas law requires the plaintiff
to allege: (1) the defendant intentionally intruded, physically or otherwise, upon plaintiff’s
private affairs or concerns and (2) the intrusion would be highly offensive to a reasonable person.

12

Werner, 710 P.2d at 1254; see also Valadez v. Emmis Commc’ns, 229 P.3d 389, 480 (Kan.
2010). “Generally, the tort of intrusion upon seclusion is based upon the manner in which an
individual obtains information.” Id. at 1256. Examples of intrusion on seclusion include
“installation of an electronic listening device in a tenant’s bedroom,” “taking pictures and
peeking through windows with binoculars,” and “unauthorized prying into the plaintiff’s bank
account.” Id. (first citing Hamberger v. Eastman, 206 A.2d 239 (N.H. 1964); then citing Souder
v. Pendleton Detectives, Inc., 88 So.2d 716 (La. App. 1956); then citing Brex v. Smith, 146 A. 34
(N.J. Eq. 1929)). “The intrusion itself makes the defendant subject to liability, even though there
is no publication or other use of any kind of the . . . information.” Id.
Plaintiff does not allege in his First Amended Complaint, or argue in his Opposition to
the Registry’s Motion to Dismiss, that the Registry intruded on his seclusion to acquire the
information it printed. Instead, he merely alleges “[the] Registry intentionally intruded upon the
solitude or seclusion of plaintiff, or his private affairs or concerns.” Doc. 48 at 19. But nothing
in his First Amended Complaint describes how the Registry acquired the information it printed.
Though plaintiff alleges the Registry’s intrusions “were highly offensive to an ordinary person,”
he does not allege any additional facts about the intrusion. “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements” are not enough to state a claim
for relief. Iqbal, 556 U.S. at 678. Plaintiff thus has not stated a claim for actionable intrusion
upon seclusion which could justify granting him relief.
3. False Light
Finally, the court addresses plaintiff’s claim that the Registry placed him in a false light.
“One who gives to another publicity which places him before the public in a false light of a kind
highly offensive to a reasonable man, is subject to liability to the other for invasion of his

13

privacy.” Dominguez v. Davidson, 974 P.2d 112, 121 (Kan. 1999) (quoting Rinsley v. Frydman,
559 P.2d 334, 339 (Kan. 1977)). Under Kansas law, an actionable false light claim requires
plaintiff to allege: “(1) publication of some kind to a third party; (2) the publication must falsely
represent the person; and (3) the representation must be highly offensive to a reasonable person.”
Dominguez v. Davidson, 974 P.2d 112, 121 (Kan. 1999). Like defamation, truth is an absolute
defense to a false light claim. Id. (citing Castleberry v. Boeing Co., 880 F. Supp. 1435, 1442 (D.
Kan. 1995)).
The Kansas Supreme Court has explained the term “publicity” as it is used for a false
light claim. When used to describe this element of a false light claim, “publicity is different
from the term publication” for a defamation claim. Id. Publication, when it is used as an
element for a defamation claim, “includes any communication by the defendant to a third
person.” Id. (quoting Ali v. Douglas Cable Commc’n, 929 F. Supp. 1362, 1382 (D. Kan. 1996)).
“Publicity, on the other hand, means that the matter is made public, by communicating it to the
public at large, or to so many persons that the matter must be regarded as substantially certain to
become one of public knowledge.” Id. (internal quotation marks omitted). Publications “in a
newspaper or a magazine, even of small circulation . . . or [a] statement made in an address to a
large audience is sufficient to give publicity” for false light purposes. Ali, 929 F.Supp. at 1383.
Plaintiff alleges that defendant published the statements in an announcement to its members, and
that this was sufficient to satisfy the first element of a false light claim. Indeed, the front page of
the Registry’s website represents that its members include over 500 past university presidents,
senior administrators, and deans located in 49 states. See http://www.registryinterim.com/ourmembers/ (last visited May 17, 2017). This suffices to qualify as “publicity” for a false light
claim.

14

But even if plaintiff makes a sufficient showing on the first element, plaintiff has failed to
state a false light claim upon which relief can be granted. Like defamation, “the defense . . . that
the allegedly defamatory statements are opinions, not assertions of fact, is also available in a
false light privacy action.” Rinsley, 700 F.2d at 1307. “This is because ‘[u]nder the First
Amendment there is no such thing as a false idea.’” Id. (quoting Gertz v. Robert Welch, Inc., 418
U.S. 323, 339–40 (1974)). “However pernicious an opinion may seem, we depend for its
correction not on the conscience of judges and juries but on the competition of other ideas.” Id.
As already discussed, the Registry’s statement that the “current operation is too
hierarchal and punishment-centered” is a statement of opinion, and not fact. See Part III.A.2. and
authorities cited in it. Plaintiff thus has not stated a claim for false light upon which relief can be
granted.
VI.

Conclusion
For reasons discussed above, the court grants the Registry’s Motion to Dismiss (Doc. 50).
IT IS THEREFORE ORDERED BY THE COURT THAT defendant The Registry

for College and University Presidents’ Motion to Dismiss First Amended Complaint or, in the
Alternative, for Judgment on the Pleadings (Doc. 50) is granted under Rule 12(b)(6). Plaintiff’s
claims against the Registry are dismissed.
IT IS SO ORDERED.
Dated this 31st day of May, 2017, at Topeka, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

15