Brandon Trennepohl, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0437

Brandon Trennepohl,
Appellant,

vs.

DeLaSalle High School, et al.,
Respondents.

Filed November 9, 2020
Affirmed
Reyes, Judge

Hennepin County District Court
File No. 27-CV-19-13542

Philip G. Villaume, Jeffrey D. Schiek, Villaume & Schiek, P.A., Bloomington, Minnesota
(for appellant)

Thomas B. Wieser, Samuel J. Nelson, Meier, Kennedy & Quinn, Chtd., St. Paul, Minnesota
(for respondents)

Considered and decided by Frisch, Presiding Judge; Ross, Judge; and Reyes, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant-student challenges the district court’s dismissal of his three claims under
Minn. R. Civ. P 12.02(e) that (1) no educational contract existed between appellant and
respondent-private high school; (2) there is no common-law due-process claim applicable

to private high schools; and (3) the facts alleged in the complaint do not support a claim
under 42 U.S.C. § 1983. We affirm.
FACTS
Appellant Brandon Trennepohl attended respondent DeLaSalle High School
(DLHS), a private religious high school, from his freshman year until spring semester of
his sophomore year. On February 28, 2017, DLHS received a report indicating that
Trennepohl told another D LHS student not to come to school the next day and then
discussed going to a shooting range with other students. DLHS took this report seriously
as a security threat and, the next day, implemented an online learning day while the
Minneapolis Police Department investigated. The investigation returned no evidence of a
credible threat. However, DLHS told Trennepohl that he could not yet return to school.
On March 2, 2017, two DLHS deans of students questioned Trennepohl at his home
and in his mother’s presence for over an hour, and investigated his social-media accounts.
One dean told Trennepohl that he believed that there had been a number of
misunderstandings between students, that Trennepohl’s next step with DLHS would be to
participate in a hearing with several DLHS faculty and that those faculty members would
make a recommendation to the school’s disciplinary b oard. The following day, DLHS
president, respondent Barry Lieske, expelled Trennepohl based on his answers during his
meeting with the deans. DLHS held no hearing regarding Trennepohl’s expulsion.
Trennepohl brought this action in district court claiming breach of an educational
contract, violation of his common-law due-process rights, and violation of his federal due-
process rights under 42 U.S.C. § 1983 (2018). DLHS, Lieske, and DLHS principal James

Benson (respondents) filed a motion to dismiss under Minn. R. Civ. P. 12.02(e) . The
district court granted the motion, dismissing Trennepohl’s claims with prejudice. This
appeal follows.
D E C I S I O N
On appeal from the dismissal for failure to state a claim under Minn. R. Civ. P.
12.02(e), this c ourt reviews de novo “whether a complaint sets forth a legally sufficient
claim for relief.” Walsh v. U.S. Bank Nat’l Ass’n, 851 N.W.2d 598, 606 (Minn. 2014)
(citation omitted). Reviewing courts must construe the facts alleged in the complaint, and
all reasonable inferences based on those facts, in favor of the nonmoving party. Hansen v.
U.S. Bank Nat’l Ass’ n, 934 N.W.2d 319, 325 (Minn. 2019). We are not bou nd by a
complaint’s legal conclusions. Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn.
2008).
I. The district court did not err in finding that Trennepohl fails to allege in his
complaint a specific promise made by D LHS to support an educational
contract.

Trennepohl argues that his complaint alleges a claim for breach of an educational
contract by respondents sufficient to survive a rule-12 motion to dismiss. We disagree.
Minnesota applies a notice -pleading standard, which generally does not require
absolute specificity. DeRosa v. McKenzie, 936 N.W.2d 342, 346 (Minn. 2019) (quotation
omitted). However, in order to state a claim of breach of an educational contract, a student
must allege that a private institution has not provided “ specifically promised educational
services.” Alsides v. Brown Inst., Ltd., 592 N.W.2d 468, 472 (Minn. App. 1999).

Here, Trennepohl’s complaint states that DLHS “failed to d eliver on specific
promises and representations” made to Trennepohl. But the complaint does not state what
those specific promises or representations are. The complaint does not identify any specific
service DLHS promised to provide to Trennepohl, or where those promises, if made, may
be found. While the fact section of the complaint states that certain unidentified promises
are “inferred and stated” in D LHS’s policies and code of conduct, i f a promise must be
inferred, it cannot have been specifically promised. Nor does the complaint reference or
attach any specific DLHS policies or the code of conduct.
Trennepohl’s second breach-of-an-educational-contract claim is intertwined with
his later due-process claim , alleging a breach when D LHS failed to “follow proper
procedures in reviewing and investigating” the allegations against Trennepohl. Trennepohl
again fails to cite a s pecific promise made by D LHS of required procedures it had to
follow.1 His argument would require this court to infer both that DLHS made an
enforceable promise not to impose discipline on any student until after it determines that
the student violated a school policy or code of conduct and that DLHS specifically
promised to impose discipline only after it conducted a formal investigation beyond what
DLHS conducted. These are not reasonable inferences.

1 At oral argument, Trennepohl stated for the first time that the promise made by a D LHS
dean regarding a due -process hearing created an oral contract that it breached. This
allegation is not found in the complaint and he did not argue it before the district court, so
we do not consider it here. See In re Stoneburner, 882 N.W.2d 200, 203 n.3 (Minn. 2016)
(refusing to address issue raised for first time at oral argument).

Finally, Trennepohl contends that DLHS had a “contractual obligation to offer
[Trennepohl] an education and the educational experience that goes along with high
school.” Trennepohl argues for a legal conclusion by which we are not bound. To
distinguish between non actionable claims of educational malpractice and actionable
breach-of-contract claims, “the essence of the plaintiff's complaint would not be that the
institution failed t o perform adequately a promised educational service, but rather that it
failed to perform that service at all.” Alsides, 592 N.W.2d at 472-73. However, that
promised educational service still must be specific. A promise to provide an education or
a high-school educational experience does not provide the specificity necessary to support
a claim of breach of an educational contract under Alsides. Id. at 473 (analyzing other
courts’ recogni tion of causes of action for: failing to offer month -long rotations in
gynecology as stated in school catalog ; failing to provide contracted -for appropriate
reading instruction, diagnostics, and remediation services; and representing students would
receive degree in paralegal studies when school was not certified to offer the degree). Even
viewing the allegations in Trennepohl’s complaint most favorable to him, he fails to allege
that DLHS made any specific educational promise necessary to sustain a breach -of-an-
educational-contract claim. The district court did not err by granting D LHS’s motion to
dismiss this claim.
II. This court cannot expand Minnesota common law to recognize a due -process
claim against a private high school.

Trennepohl argues that the facts alleged in his complaint support a common -law
due-process claim against a private high school. We are not persuaded.

Trennepohl cites Abbariao v. Hamline Univ. Sch. of Law, a case involving a private
university expelling a student for poor academic performance, as sole support fo r his
common-law due-process claim. 258 N.W.2d 108 (Minn. 1977). In Abbariao, the supreme
court held that private universities have a common -law due -process duty not to expel
students arbitrarily. Abbariao, 258 N.W.2d at 11 2-13. But Trennepoh l fails to cite any
binding Minnesota caselaw concluding that a student has a common-law due-process right
to a private-high-school education.
Because extending the application of a common -law due-process claim to private
high schools would represent an impermissible expansion of the la w by this court, we
decline to do so. While we recognize Trennepohl’s argument that students at private high
schools have no recourse even if expelled in an arbitrary or capricious manner, the task of
expanding causes of action falls to the supreme court or the legislature. Tereault v. Palmer,
413 N.W.2d 283, 286 (Minn. App. 1987), review denied (Minn. Dec. 18, 1987). See, e.g.,
Pupil Fair Dismissal Act, Minn. Stat § 121A.42 (2019) (providing due-process and equal-
protection rights only to public high school students facing expulsion).
III. Trennepohl’s 42 U.S.C. § 1983 claim is barred by United States Supreme Court
precedent.

Trennepohl contends that his complaint sufficien tly alleges a section 1983 state
action to survive a rule-12 motion to dismiss. We disagree.

To sustain a section -1983 claim, Trennepohl must allege both that (1) D LHS
deprived him of a constitutionally protected right 2 and (2) D LHS committed the
deprivation acting under color of state law. Am. Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S.
40, 49-50, 119 S. Ct. 977, 985 (1999). As in Rendell-Baker v. Kohn , the first issue we
consider is not whether D LHS expelled Trennepohl without adequate procedural
protections, but whether D LHS’s action in expelling him “can fairly be seen as sta te
action.” 457 U.S. 830, 838, 102 S. Ct. 2764, 2770 (1982).
Trennepohl again relies on Abbariao as sole support for his section-1983 claim. 258
N.W.2d 108. Trennepohl argues that DLHS is a state actor because it receives financial
support through grants and student loans, is exempt from various taxes, and performs the
“essential governmental function of providing [] education to the public.” Trennepohl
further argues that, because his complaint uses the same language as Abbariao, his
complaint mus t sur vive a r ule-12 motion as Abbariao’s did on appeal. Abbariao, 258
N.W.2d at 111. However, Minnesota’s Abbariao decision predates by five years the United
States Supreme Court’s decision in Rendell-Baker, which Trennepohl fails to cite or
discuss. Rendell-Baker, 457 U.S. at 830, 102 S. Ct. at 2764. Rendell-Baker concluded that
a “school’s receipt of public funds” does not make the decision to discharge one of its
employees the act of the state. Rendell-Baker, 457 U.S. at 840, 102 S. Ct. at 2771. In other
words, the school’s actions could not be attributed to the state . Analogously, even
accepting as true that DLHS receives significant financial support from the state, this alone

2 Because we conclude that Rendell-Baker precludes Trennepohl’s claim, we do not
consider the first prong of the section-1983 inquiry.

is not sufficient to make DLHS’s decision to expel Trennepohl an act made under color of
state law.
Additionally, Trennepohl alleges that the “governmental function” of providing an
education to the public makes D LHS’s disciplinary actions against Trennepohl actions
taken under color of state law. However, “[t]hat a private entity performs a function which
serves the public does not make its acts state action.” Rendell-Baker, 457 U.S. at 842, 102
S. Ct. at 2772 . The relevant question is not whether a private school is serving a public
function, but whether the function i s traditionally the “exclusive prerogative of the state.”
Id. By establishing a general and uniform system of public schools, Minnesota inherently
does not recognize “education” generally as the exclusive prerogative of the state. See
Minn. Const. art. XIII, § 1. As such, providing a private education is not an “exclusive
prerogative” of the state of Minnesota. Even accepting the facts in the complaint as true,
there is no legal basis pleaded to conclude that private, religious high schools are state
actors when expelling students.
Trennepohl failed to allege that DLHS made a specifi c, enforceable promise, and
his breach-of-an-educational-contract claim therefore fails as a matter of law . Minnesota
caselaw has never recognized a common -law due-process claim with respect to a private
high school’s disciplinary procedures, and Trennepohl fails to state a viable 42 U.S.C.
§ 1983 claim. Because Trennepohl has not stated a legally sufficient claim for relief, the
district court did not err by granting DLHS’s rule 12.02(e) motion to dismiss.
Affirmed.