April 15, 2019

Matt Gerien
Executive Director of Communications
Rhodes College
2000 North Parkway
Memphis, Tennessee 38112

Sent via Electronic Mail (gerienm@rhodes.edu)

Dear Mr. Gerien:

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending liberty, freedom of speech, due process, academic
freedom, legal equality, and freedom of conscience on America’s college campuses.

FIRE writes today to express our serious concern about Rhodes College’s response to an
article currently under consideration by its independent student newspaper, The Sou’wester,
about litigation brought against the college by a former student. Rhodes’ attorneys appear to
have conveyed legal advice and analysis to a Sou’wester editor without anticipating and
accounting for the significant and immediate conflict of interest between the college and The
Sou’wester. To the extent the college seeks to provide legal advice concerning possible legal
exposure to the student newspaper or its staff, it should provide them with independent
counsel.

I. Statement of Facts

The following is our understanding of the pertinent facts. We appreciate that you may have
additional information to offer and invite you to share it with us.

Rachel Heimann is an undergraduate student at Rhodes, where she is the News Editor of The
Sou’wester, a student publication operating independently of the college. Heimann is in the
process of drafting a story concerning litigation brought against the college by a former
student. That case, Bose v. Bea, remains pending before the United States Court of Appeals for
the Sixth Circuit. No. 18-5936 (6th Cir. filed Sept. 6, 2018).
 2

To briefly summarize Bose, the plaintiff-appellant is a former Rhodes student who was found
responsible, through the college’s disciplinary process, for academic dishonesty with respect
to a particular test. During her closing statement in the campus judicial hearing, the plaintiff-
appellant asserted that she had spurned an advance made by the professor who accused her of
cheating, arguing that the professor’s allegations were retaliatory. After she was expelled, the
student filed suit alleging, inter alia, claims under Title IX and Tennessee’s defamation law.
On summary judgment, the district court granted summary judgment in favor of Rhodes
College as to the Title IX deliberate indifference and retaliation claims. The district court also
dismissed the defamation claim, finding that the professor’s statements were shielded by the
absolute privilege applicable to statements made in connection with quasi-judicial
proceedings.

On April 3, after Heimann drafted an article that quoted liberally from the district court
proceedings and deposition transcripts filed with the court, she sought comment from the
defendant professor and planned to seek comment from Rhodes College. The professor
declined to comment.

On April 4, another Rhodes College professor, who had been invited by The Sou’wester to
participate in a pre-publication review of the article, emailed Heimann and Sou’wester Editor-
in-Chief Alice Berry. The professor wrote that she had “just had a meeting with Matt Gerien,
Chief Communications Officer” and that you had “shared with [her] some information about
this story that I believe is vital for [Heimann and Berry] to hear.” The professor wrote that she
was contacting Heimann and Berry not to “quell the story,” but to “protect [them] and the
College from legal repercussions.”

During a subsequent meeting between you and Berry, you shared a copy of a brief filed by the
plaintiff-appellant in the Sixth Circuit Bose appeal, explaining that the defamation claim had
been dismissed by the district court because the speech at issue had not been “published”
within the meaning of defamation law. You explained that if the article were written, the
student-plaintiff might file suit against Rhodes College or The Sou’wester on the basis that the
statement had now been published.

On April 8, after providing you with a draft of the article, Heimann and Berry met with you for
the purpose of discussing the possibility that the student-plaintiff might pursue a claim
against The Sou’wester. While Rhodes contends that the contents of that meeting are off-the-
record, we understand that you read from a letter or memorandum written by lawyers, which
analyzed possible defamation claims from parties affiliated with Rhodes College and criticized
quotes from the documents filed with the court. During this meeting, you suggested that
Rhodes’ student code of conduct may be utilized to punish a student journalist for making a
false statement.
 3

II. Rhodes College Guarantees Freedom of Expression to its Independent Student

Newspaper

A. Rhodes College guarantees freedom of expression and editorial independence to

The Sou’wester

As a private institution, Rhodes College is not required to recognize students’ expressive

rights by virtue of the First Amendment. It nevertheless makes strong promises that it will do
so, pledging to “safeguard the freedom of expression” and to respect “the rights of” students
“to peaceful and unobstructed expressions of opinion.”1

Rhodes has also committed to the editorial independence of The Sou’wester. In 2004, Rhodes’
Dean of Students pledged that The Sou’wester is “not reviewed by College administrators prior
to distribution” and that Rhodes “assumes no liability for the content of” the newspaper.2 This
editorial independence is important not only because freedom of expression necessarily
requires autonomy; it also shields Rhodes College from liability for the expression of its
independent student media.3

These are strong commitments to students’ expressive rights, including freedom of the
student press. Rhodes College is legally and morally required to adhere to the commitments it
makes.4

B. Rhodes has a conflict of interest with The Sou’wester

There is a fundamental and irreconcilable conflict between the goals of Rhodes College, a
party to the litigation, and The Sou’wester. The former does not want an article repeating
claims it views as false to be published; the latter seeks to cover those claims, which have been
publicly made in a legal proceeding. Even accepting as true that Rhodes College is sincerely

1
RHODES COLLEGE, EXPRESSIVE SPEECH AND ACTIVITY POLICY, https://handbook.rhodes.edu/student-
handbook/campus-policies/expressive-speech-and-activity-policy.
2
RHODES COLLEGE, The Sou’wester, https://www.rhodes.edu/souwester (last visited April 9, 2019).
3
See, e.g., Doe v. New York Univ., 6 Misc. 3d 866 (Sup. Ct. 2004) (while the court imposes a gag order on private
university concerning rape victims, the student newspaper was exempt because the university had no control
over the newspaper’s content); Gallo v. Princeton University, 656 A.2d. 1267 (N.J. Super. A.D. 1995) (allegedly
defamatory statements could not be attributed to private university because they were “not published by
Princeton but rather by independent University newspapers). The greater control Rhodes College is seen to have
over The Sou’wester’s content, the more likely it is that Rhodes College may be held liable in tort for that content,
either vicariously or by ratifying its publication.
4
See, e.g., Centre College v. Trzop, 127 S.W. 3d 562, 568 (Ky. 2003). (“The relationship between a private college
and its students can be characterized as contractual in nature.”). See also Suhail v. Univ. of the Cumberlands, 107
F. Supp. 3d 748, 755 (E.D. Ky. 2015) (“The nature of an implied contract between a University and its students is
determined by looking at the brochures, course offering bulletins, and other official statements, policies and
publications of the institution.”) (internal quotation and citation omitted).
 4

interested only in protecting its students from potential legal liability, the nature of the
conflict of interest understandably makes it difficult for students to trust that the advice is
sincerely offered.

The tension created by this conflict of interest risks imperiling students’ expressive rights.
Student journalists cannot be assured that the legal advice provided to them through the
college’s administration is objective and addresses their specific needs and interests.

For example, it is unclear whether that legal opinion sufficiently accounts for the student
journalists’ rights under Tennessee’s fair report privilege, which would seem to shield many, if
not all, of the statements in the proposed article. As the Tennessee Supreme Court recently
explained, this privilege remains intact even where a plaintiff can demonstrate express or
actual malice. Funk v. Scripps Media, Inc., No. M2017-00256-SC-R11-CV, 2019 Tenn. LEXIS
101, at *24 (Mar. 13, 2019) (“[W]hen a statement is made in a judicial proceeding, the
statement is worthy of public notice, not only as a result of the contents of the statement, but
also because of the context in which the statement was made,” and the “purposes of the
privilege” would be undermined if a “reporter’s knowledge of a statement’s falsity could defeat
the fair report privilege[.]”) So, too, does the privilege remain even if it can be shown that the
reporter secretly harbors animosity toward the subject of the statements and “privately hopes
that the republication of the defamatory statements will cause that person harm.” Id. at 27.

If Rhodes College believes that there are factual inaccuracies in the reporting, it can and
should identify them and explain what it believes to be inaccurate. If Rhodes College believes
that allegations made in a court are false, it can prove them false there. But the court of public
opinion does not have to wait on the court of law,5 and it is the province of journalists to fairly
and accurately convey to their readers what transpires in the courts and on their dockets.

If the college’s goal is to protect its students from possible legal consequences, there are easy
ways to facilitate that goal that do not involve filtering legal advice through administrators.
For example, Rhodes College could retain an independent lawyer for the student journalists
to conduct a pre-publication review of the article. Rhodes College could also share with the
students the full letter or memorandum written by its attorneys, as the college has almost
certainly waived any attorney-client privilege by reading from that letter to students.

5
Notably, Rhodes College acknowledged to the Sixth Circuit that “there exist disputes of fact, including the
nature of Dr. Bea’s alleged comments to Ms. Bose, the purported ‘set-up’ by Dr. Bea, and whether Ms. Bose
confronted Dr. Bea at any point,” but avers that these factual disputes are not “material to the question of
whether Rhodes substantially complied with Title IX.” Appellee’s Brief at 25, fn.6. Likewise, the district court
refused to grant summary judgment to Rhodes College as to the contract claims, finding that the college had a
“contractual obligation to investigate all Title IX retaliation claims when made,” and that it would not be
appropriate to foreclose the plaintiff’s failure to investigate claim. Bose v. Bea, No. 2:16-cv-02308, ECF 149 at
*21–22 (W.D. Tenn. Feb. 27, 2018) (order granting in part and denying in part defendants’ motion for summary
judgment).
 5

III. Conclusion

We ask that Rhodes College honor its promises of free expression to its student journalists,
recognize the chilling effect that vague warnings of legal liability may engender, and, rather
than issue such warnings, take affirmative steps to protect students from legal liability if
appropriate.

We request receipt of a response to this letter no later than the close of business on April 24.
2019.

Sincerely,

Adam Steinbaugh
Director, Individual Rights Defense Program