121 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
A PRIVILEGE TO SPEAK WITHOUT
FEAR: DEFAMATION CLAIMS IN
HIGHER EDUCATION
ADAM JACOB WOLKOFF
1*
Abstract
Defamation law has drawn renewed attention in recent years within higher education.
Defamation claims test core principles of academic freedom, including the right to state
unpopular opinions, even those that might oend the listener or reader. These claims also
test the limits of colleges and universities’ authority and discretion, in both informal and
formal settings, to make judgments about the competence and qualications of their faculty,
sta, and students; evaluate whether those community members have engaged in research or
academic misconduct; and determine if they have violated a policy, contract, or code of
conduct. Depending on state law, and the institution type, such judgments may be absolutely
shielded from a defamation lawsuit. More often, courts will grant decision-makers signicant
latitude to make these statements, subject to a qualied privilege that can only be overcome
through evidence of actual malice or, depending on state legal precedent, common law malice.
In most academic settings, without some allegations about the speaker or writer’s disregard
for the truth or retaliatory motivations, assertions of actual or common law malice will rarely
overcome qualied privilege. Increasingly, the exception arises from sexual misconduct
investigations and adjudications. By claiming they were wrongly accused, students and
faculty have overcome privilege on the ground that making a false accusation constitutes
actual or common law malice. These determinations put the parties in the position of
relitigating the merits of a matter ordinarily reserved for the institution. This article urges
expansion of privilege for sexual misconduct proceedings to promote full disclosure without
fear of retaliatory litigation.
* Assistant Director, Student Conduct Institute and Special Assistant Counsel, State University
of New York Oce of General Counsel. B.A., Columbia University; J.D., University of Connecticut;
Ph.D., Rutgers University-New Brunswick. Many thanks to Joseph Storch, whose deep insight and
experience in the Title IX eld was fundamental to this project, to Barbara Lee, Holly Peterson, Nora
Devlin, and the anonymous readers at JC&UL, and to Caroline Vazquez Wolko, Abbey Marr, Gemma
Rineerd, Roma Shah, Justin Simard, and Angela Tylock for their support and assistance. Any errors
or omissions are my own, and the views expressed do not necessarily represent the ocial positions
of the State University of New York or the Student Conduct Institute.
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 122
TABLE OF CONTENTS
INTRODUCTION ....................................................123
I. DEFAMATION DEFINED..........................................125
A. FAlse sTATemenT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .125
B. PuBlicATion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .131
c. FAulT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .132
d. ProoF oF hArm And dAmAGes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .133
II. THRESHOLD ISSUES IN LITIGATION ............................135
A. indemniFicATion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .135
B. sTATuTe oF limiTATions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
c. suPPlemenTAl JurisdicTion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .136
d. minisTeriAl excePTion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .137
III. IMMUNITY FOR PUBLIC OFFICIALS AND EMPLOYEES ...........137
A. immuniTy For sTATemenTs mAde wiThin scoPe oF emPloymenT . . . . . . . . . . .137
B. mAlice And The immuniTy AnAlysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .138
IV. PRIVILEGE.......................................................140
A. ABsoluTe PrivileGe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .140
B. QuAliFied PrivileGe. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142
V. DEFAMATION AND CAMPUS SEXUAL MISCONDUCT CLAIMS ....148
A. The inTersecTion oF TiTle ix And deFAmATion lAw . . . . . . . . . . . . . . . . . . . .148
B. ABsoluTe And QuAliFied PrivileGe in sexuAl misconducT ProceedinGs . . . .150
1. Cases Extending Absolute Privilege ..............................150
2. Cases Maintaining Qualied Privilege ............................153
3. Privilege for Statements Made Outside the Proceeding ...............154
4. Privilege and False Reports .....................................156
c. oTher ProTecTions For PArTies And wiTnesses . . . . . . . . . . . . . . . . . . . . . . . .157
d. AnTireTAliATion Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .158
VI. Conclusion .......................................................161
123 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
INTRODUCTION
Defamation claims highlight the extraordinary tensions in higher education today
between academic freedom and the duty not to harm others with that freedom.
Faculty, administrators, and students have all brought campus disputes to court,
seeking to vindicate their reputations from accusations and ndings of incompetence,
academic and research misconduct, and sexual harassment and violence. Defamation
claims may also arise from a negative tenure review, a failing grade, a poor reference,
or oensive comments posted in university-aliated publications and websites.
1
Still, over decades, academia has carved a signicant zone of legal privilege around
these internal aairs. Only in the exceptional case, where a declarant’s disregard
for the truth is plain to see, will a defamation claim be actionable.
Yet some of the most vulnerable members of the college and university community
do not share this privilege not to fear when they speak out. Studies of sexual and
interpersonal violence on college campuses have found a prevalence ranging between
twenty and twenty-ve percent for undergraduate women and about seven percent
for undergraduate men.
2
And the number of incidents actually reported remains
far lower than the prevalence of this violence, with fear of retaliation playing a
signicant part in the choice not to come forward.
3
Students who report sexual
harassment and violence have been sued or threatened with suit by the accused
for defamation, often putting their names and details of the incidents into public
view and forcing the accusers to defend themselves in state and federal court.
4
“This is one of the greatest challenges survivors will face,” notes one commenter,
“because it requires the survivor to publicly present the details of their traumatic
experience to prove their own truthfulness, when there is often minimal evidence
of the violence other than the survivor’s own testimony.”
5
1 Case law analyzing these scenarios will follow throughout the article. Please note that this
article does not distinguish between “libel” and “slander” case law, but groups all of these cases
under the framework of defamation. Furthermore, in using the broad language of “speech” rights,
all forms of communication are included, verbal, nonverbal, or otherwise. When discussing parties
to a sexual misconduct process, the article will generally use the term “complainant” to refer to the
reporting party and “respondent” to the accused person in conformance with the terms used in the
federal Title IX regulations. 34 C.F.R. § 160.30(a) (2020).
2 Joseph Storch & Andrea Stagg, Missoula: Jon Krakauer's Story of College Sexual Violence That Is
Both Complex and Entirely Common, 42 J.c. & u.l. 451, 474 (2016); David Cantor et al., Westat, Report on the
Association of American Universities Campus Climate Survey on Sexual Assault and Sexual Misconduct (rev.
Jan 17, 2020), https://www.aau.edu/sites/default/les/AAU-Files/Key-Issues/Campus-Safety/
Revised%20Aggregate%20report%20%20and%20appendices%201-7_(01-16-2020_FINAL).pdf;
Christopher Krebs et al., Campus Climate Survey Validation Study Final Technical Report, BureAu oF JusT.
sTAT. 75 (Jan. 2016), https://perma.cc/V7D4-BGXL; Lisa Fedina et al., Campus Sexual Assault: A Systematic
Review of Prevalence Research From 2000 to 2015, 19 TrAumA, violence, & ABuse 76 (2016), https://doi.
org/10.1177/1524838016631129.
3 Kelly Alison Behre, Ensuring Choice and Voice for Campus Sexual Assault Victims: A Call for
Victims' Attorneys, 65 drAke l. rev. 293, 329 (2017).
4 Id. at 314.
5 Shaina Weisbrot, The Impact of the #MeToo Movement on Defamation Claims AgainsT survivors,
23 CUNY L. Rev. 332, 339 (2020).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 124
Even as the threat of defamation liability hovers over these campus adjudications,
the judicial reasoning perpetuating the status quo appears increasingly out-of-
step with developments in case law and regulation. Until recently, courts have
treated campus investigations and adjudications of sexual misconduct dierently
than “quasi-judicial” and judicial proceedings, declining to extend an “absolute
privilege” that would shield statements made in those cases from defamation
liability. They reasoned that campus proceedings would not necessarily have the
due process guarantees, such as the right to question witnesses, available in a
typical administrative hearing.
6
But courts have begun reconsidering the balance at
hand, identifying that without privilege, parties and witnesses will fear retaliation
from making reports and giving statements within those processes.
7
Moreover,
the heightened level of due process aorded to parties within those proceedings
under the developing case law and state and federal regulations limits the risk that
the parties will not have a fair hearing on the merits on campus.
8
After reaching
the end of a rigorous campus investigation, students should not have to put on
their case again in open court in defense of a defamation lawsuit, possibly without
their college or university’s support.
To unpack these tensions, and build a route for greater equity, this article
focuses on state and federal case law from the past twenty years involving students,
faculty, and sta who have brought defamation claims against institutions of higher
education and individual members of the college and university community.
9
This article begins, in Part I, by analyzing the elements of a defamation
complaint, with a focus on several key issues within the higher education context
arising from the substantive question of what makes a statement defamatory
as a matter of law. Neither truthful statements, nor statements of opinion, are
generally actionable, but many cases end up somewhere in the middle, making an
understanding of the subtext of the statement as critical as the text itself.
Next, in Part II, the article examines several threshold issues in evaluating
defamation complaints. Then, in Parts III and IV, the article looks at how
immunity, absolute privilege, and qualied privilege shape defamation claims in
higher education, including where the analysis varies between public and private
institutions and the impact of state tort claims acts on defamation lawsuits. The
article will then address absolute and qualied privilege in a variety of typical
higher education scenarios and their limitations.
Finally, in Part V, this article closely examines an emerging ashpoint in this
area of law: the intersection of defamation law and nonacademic misconduct
claims, particularly those arising from Title IX sexual misconduct charges against
6 See infra Part V.B.2.
7 See infra V.B.1.
8 See infra Part V.A.
9 In highlighting the most recent case law, this article builds on fundamental research by
Francine Tilewick Bazluke & roBerT c. cloThier For The nATionAl AssociATion oF colleGe And universiTy
ATTorneys (nACUA). See FrAncine Tilewick Bazluke and Robert C. Clothier, deFAmATion issues in
hiGher educATion (2004).
125 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
students, faculty, and sta. As these processes become more regulated and take
on the procedural trappings of a courtroom, statements made within them are
beginning to secure greater privilege. This article urges the expansion of absolute
privilege in campus-based sexual misconduct investigations and adjudications
and encourages institutions to take armative steps to address the impact of
defamation claims, both threatened and realized, on their campus Title IX process.
I. Defamation Dened
Defamation claims are meant to protect the subject of a written or verbal
statement from reputational harm.
10
“Libel” generally refers to recorded defamation,
while “slander” is spoken.
11
Though the components of defamation vary by state,
they generally involve a similar analysis:
• Did the speaker or writer make a false statement of fact about another person?
• Was that statement made to a third party?
• Was the publisher at fault, either through negligence or a higher standard?
• Did the publication harm the defamed person’s reputation?
12
Where a plainti can establish these elements, the speaker or writer may
assert that they had a privilege to make the statement. The plainti then has the
burden to establish that the speaker or writer abused that privilege.
13
The issue of
privilege is central to understanding the intersection of defamation law and Title
IX misconduct complaints and will be the focus of Parts IV and V.
A. False Statement
Defamation claims rest on the allegation of a false statement made about another
person. As a result, if statement is true, its declarant cannot be liable for defamation,
even if sharing that statement causes harm.
14
At the same time, to be actionable, the
statement must communicate an assertion of fact, rather than purely an opinion; it
has to be capable of being proven false.
15
The U.S. Supreme Court has declined to create “an articial dichotomy between
‘opinion’ and fact,” and, in practice, opinion and fact will be hard to untangle in
10 50 Am. Jur. 2d liBel And slAnder § 2 (2021).
11 128 Am. Jur. Trials 1 (originally published in 2013).
12 resTATemenT (second) oF TorTs § 558 (Am. l. insT. 1977).
13 BAzluke & cloThier, supra note 9, at 1.
14 E.g., Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991); Averett v. Hardy, No. 3:19-CV-
116-DJH-RSE, 2020 WL 1033543, at *9 (W.D. Ky. Mar. 3, 2020) (university administrators’ statements
that a student accused the defamation-plainti of sexual assault was truthful, as it accurately related
the accusation, and therefore was not actionable as the basis for a defamation claim).
15 Milkovich v. Lorain J. Co., 497 U.S. 1, 16 (1990).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 126
many defamation claims arising from academic life.
16
A defamatory statement is
not protected if it will “imply an assertion of false objective fact.”
17
In other words,
cases will rise and fall on subtext: a message within a statement that listeners or
readers would understand to have a defamatory meaning, even if the statement
itself is, on its face, an opinion.
18
A perennial example of a mixed fact-and-opinion claim is where faculty signal
that another professor or a student is “incompetent.” Generally, such evaluations
are considered opinions, and “the qualied privilege of employment-related
communications often dovetails with the absolute privileges of truth and opinion.”
19
Yet, depending on the context, a statement that a professional is “incompetent”
could be defamatory if it implies that the person making the statement knows facts
undisclosed to the listener that led them to that opinion.
20
The case law on statements regarding competence ranges. In one case, a professor’s
communication to students that their former advisor, who resigned following a
poor performance review, was “incompetent” was potentially defamatory; it was not
simply an opinion, because the communication, which followed the professor’s
resignation, implied facts not disclosed to the students.
21
By contrast, a statement
that an employee was discharged because they were “incompetent” was held to
be nonactionable because it was “too vague” to be anything other than opinion.
22
While courts tend to follow this distinction—“that the vaguer and more generalized
the opinion, the more likely the opinion is nonactionable as a matter of law”—
16 Id. at 19.
17 Kern v. Univ. of S. Cal., No. B173959, 2005 WL 3539792, at *6 (Cal. Ct. App. Dec. 28, 2005)
(internal quotation marks omitted).
18 For example, New York courts outline a four-factor test for determining if a statement is fact
or opinion:
1) an assessment of whether the specic language in issue has a precise meaning which is readily
understood or whether it is indenite and ambiguous; (2) a determination of whether the statement
is capable of being objectively characterized as true or false; (3) an examination of the full context
of the communication in which the statement appears; and (4) a consideration of the broader
social context or setting surrounding the communication including the existence of any applicable
customs or conventions which might signal to readers or listeners that what is being read or heard
is likely to be opinion, not fact.
Donofrio-Ferrezza v. Nier, No. 04 CIV. 1162 (PKC), 2005 WL 2312477, at *6 (S.D.N.Y. Sept. 21, 2005),
a’d, 178 F. App’x 74 (2d Cir. 2006) (internal quotation marks omitted).
19 Id. at *7. On qualied privilege in the employment context, see infra Part IV.B.
20 Gill v. Hughes, 227 Cal. App. 3d 1299, 1309 (Cal. Ct. App. 1991) (statement that plainti was
an “incompetent surgeon and needs more training” was defamatory because it implied “a knowledge
of facts which lead to this conclusion and further is susceptible of being proved true or false,” and the
plainti also faced an evidentiary hearing about his surgical technique and judgment).
21 Kantz v. Univ. of the Virgin Is., No. CV 2008-0047 (WAL), 2016 WL 2997115, at *22 (D.V.I.
May 19, 2016).
22 Roberts v. Columbia Coll. Chic., 102 F. Supp. 3d 994, 1007 (N.D. Ill. 2015), a’d, 821 F.3d 855
(7th Cir. 2016).
127 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
critics note that vague statements may simply “encourage the listener to infer
underlying, veriable facts.”
23
Regardless, it is rmly within the bounds of academic life for faculty to reach
an opinion about a colleague or student’s professional competence based on their
collection of “veriable assertions of fact”: those opinions are “purely subjective
assertions” rooted in facts.
24
A faculty member who has a responsibility to judge
another faculty member’s tness may state their opinion about that faculty
member’s competence and ability to handle situations based on their experience
observing their work.
25
Faculty may express their belief that a colleague has failed
to live up to the institution’s code of professional ethics or that a researcher has
engaged in falsication of data and other forms of research misconduct.
26
A faculty
member may also share with other faculty in a department that a student should
be terminated from a doctoral program on public safety grounds; this was judged an
opinion based on facts already known to the colleagues who received this information.
27
Likewise, a critique is not a declaration of incompetence. “Criticism of the
work of scholars is generally commonplace and acceptable in academic circles.”
28
Academic audiences recognize the “subjective character” of a critique and will
“discount them accordingly.”
29
Statements that may appear defamatory in
isolation—like that a faculty member is “unqualied” to undertake a research
project—fall within the acceptable boundaries of academic criticism, and those
that hear the criticism will not give the statements defamatory meaning.
30
Similarly, a written critique of a graduate student’s preliminary examination was
not actionable, as it contained numerous statements not capable of being proven
or disproven: that the exam lacked “sucient rationale,” was “not clear,” and was
“impractical,” “conceptually awed” and “illogical.”
31
23 Seitz-Partridge v. Loyola Univ. of Chi., 2013 IL App (1st) 113409, ¶ 29, 987 N.E.2d 34 (Ill. Ct.
App. 2013) (internal quotation marks omitted); John B. O’Keefe, Occupational Reputation, Opinion, and
the Law of Defamation in Virginia, 5 APPAlAchiAn J.l. 35, 40 (2006) (contending that listeners will engage
in “reverse-deductive” reasoning when they hear “general and conclusory statements” and “assume
both the existence and truth of supportive facts.”).
24 Hadlock v. Tex. Christian Univ., No. 2-07-290-CV, 2009 WL 485669, at *5 (Tex. App. Ct. Feb. 26,
2009).
25 Owen v. Liberty Univ., No. 6:19-CV-00007 (NKM), 2020 WL 1856798, at *13 (W.D. Va. Apr. 13,
2020).
26 Hadlock, 2009 WL 485669, at, at *4; Croce v. Sanders, 459 F. Supp. 3d 997, 1023 (S.D. Ohio 2020),
a’d, No. 20-3577, 2021 WL 387489 (6th Cir. Feb. 3, 2021) (applying Ohio law, holding that expressions
of opinion are generally accorded absolute immunity from liability under the First Amendment).
27 Mehta v. Fairleigh Dickinson Univ., 530 F. App’x 191, 198 (3d Cir. 2013).
28 Fikes v. Furst, 81 P.3d 545, 551 (N.M. 2003).
29 Freyd v. Whiteld, 972 F. Supp. 940, 946 (D. Md. 1997).
30 Fikes, 81 P.3d at 550–51.
31 Seitz-Partridge v. Loyola Univ. of Chi., 2013 IL App (1st) 113409, ¶ 30, 987 N.E.2d 34 (Ill. Ct.
App. 2013) (internal quotation marks omitted); See also Nigro v. Va. Commonwealth Univ./Med. Coll.
of Va., 492 F. App’x 347, 356 (4th Cir. 2012) (program director’s statements regarding resident’s lack
of progress and apparent lack of interest in rotations were opinion statements about performance
incapable of being proven false).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 128
Similarly, in the context of faculty performance reviews, statements regarding
a faculty member’s lack of professionalism may fall squarely within the realm of
opinion: “What is considered rude or unprofessional diers from person to person.”
32
Statements in a disciplinary letter that a faculty member spoke “disparagingly,”
had a “meltdown,” a “temper tantrum,” or did not “properly contribute” to the
university’s mission were opinion.
33
The same for disclosing that a faculty member
had received several complaints from students about unprofessional behavior;
these complaints need not reect the professor’s lack of professional competence,
but could simply reect that the professor’s approach to teaching did not “mesh”
with the university’s philosophy.
34
Commentary that a professor was “disgruntled”
or “angry” likewise would reect an opinion about his motivations or character,
rather than a statement of objective and disprovable fact.
35
Furthermore, certain statements and conduct, even if “false, abusive, unpleasant,
or objectionable to the plainti,” will not be defamatory in context.
36
For instance,
satirical remarks and jokes, even if painful to hear or read, would not be defamatory
if a reasonable person would not interpret them to be truthful.
37
Hostile gestures,
such as slamming a door on a colleague, are not, on their face, defamatory.
38
But “rhetorical name calling” may move into the realm of actionable statements
where the accusations “convey an air of truth” suggestive of “unknown facts”: an
assertion that someone is a “liar” may simply lead a reasonable listener to believe
the insult was hyperbole, or it may let them believe that undisclosed facts show
the defamation plainti committed perjury.
39
In one example, a federal district
court in Connecticut denied a university’s motion for summary judgment on a
defamation claim where a university dean allegedly stated at an open forum that a
32 Green v. Trinity Int’l Univ., 344 Ill. App. 3d 1079, 1093, 801 N.E.2d 1208, 1220 (Ill. Ct. App. 2003).
33 Dragulescu v. Va. Union Univ., 223 F. Supp. 3d 499, 510 (E.D. Va. 2016) (internal quotation
marks omitted).
34 Green, 344 Ill. App. 3d at 1094.
35 Hascall v. Duquesne Univ. of the Holy Spirit, No. CV 14-1489 (CB), 2016 WL 3521971, at
*2 (W.D. Pa. June 28, 2016) (university’s statement to a newspaper that a faculty member led a
lawsuit following her tenure denial because she was “disgruntled” reected an opinion about her
motives and so was nonactionable opinion); McReady v. O’Malley, 804 F. Supp. 2d 427, 442 (D. Md.
2011), a’d, 468 F. App’x 391 (4th Cir. 2012) (public university ocial’s statements that she perceived
professor as an “angry workplace guy” who was “rabid with bitterness” were opinion statements
based on personal beliefs, not objective facts).
36 Sansing v. Garcia, No. 13-08-00211-CV, 2009 WL 3385247, at *5 (Tex. App. Ct. Oct. 22, 2009)
(internal quotation marks omitted).
37 Yeagle v. Collegiate Times, 497 S.E.2d 136, 138 (Va. 1998) (article calling university ocial
“Director of Butt Licking” was “rhetorical hyperbole” that “cannot reasonably be understood as
stating an actual fact” about her job title, conduct, or commitment of crime of moral turpitude);
Walko v. Kean Coll. of New Jersey, 235 N.J. Super. 139, 148, 561 A.2d 680, 684 (N.J. Law. Div. 1988)
(“spoof” edition of college newspaper stating that college ocial could be reached at “Whoreline”
for “good telephone sex” could not reasonably be understood as factual statement).
38 Hadlock v. Tex. Christian Univ., No. 2-07-290-CV, 2009 WL 485669, at *5 (Tex. App. Ct. Feb. 26,
2009).
39 McNamee v. Clemens, 762 F. Supp. 2d 584, 602 (E.D.N.Y. 2011).
129 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
sexual assault complainant had not suered “legal rape,” which the complainant
contended was a statement “implying that she was lying about the incident.”
40
Courts have also shielded statements that a person is “racist” as nonactionable
opinion not conveying a factual assertion.
41
In a recent example, the chancellor of
a private university in New York’s description of videos of a fraternity’s “roast”
for prospective members as “racist, anti-semitic, homophobic, sexist, and hostile
to people with disabilities” was held nonactionable under New York law, as it
conveyed the chancellor’s opinion about the videos, rather than a factual assertion
about what they depicted.
42
But an accusation of racism may become actionable where it could be
construed to mean that the defamation plainti “was acting in a racist manner” in
performing their duties, which would harm their reputation and be tantamount
to misconduct in oce.
43
Ultimately, the analysis will be contextual, resting on the
common understanding of the readers or listeners to whom the statements were
addressed.
44
Courts may also examine the surrounding context to determine if a purportedly
false statement actually was defamatory.
45
Virginia courts have determined that
even “technically false” statements may not be defamatory if they would not
actually “deter third persons from associating or dealing” with the plainti or
make them “appear odious, infamous, or ridiculous.”
46
Even where a potentially
40 Kelly v. Yale Univ., No. CIV.A. 3:01-CV-1591, 2003 WL 1563424, at *5 (D. Conn. Mar. 26, 2003)
(denying summary judgment on defamation claim regarding whether dean’s statement was false,
defamatory, or a statement of fact).
41 Cummings v. City of New York, No. 19-CV-7723 (CM) (OTW), 2020 WL 882335, at *20
(S.D.N.Y. Feb. 24, 2020). See also Garrard v. Charleston Cty. Sch. Dist., 429 S.C. 170, 200, 838 (S.C.
Ct. App. 2019) (opinion article stating that coach was removed amid allegations that his players
“behaved like racist douchebags” and the coach “condoned” a “racist ritual” were opinions not
actionable under South Carolina law); Stevens v. Tillman, 855 F.2d 394, 402 (7th Cir. 1988) (parent-
teacher organization president’s statement calling school principal “racist” was opinion not
actionable under Illinois law).
42 Doe #1 v. Syracuse Univ., 468 F. Supp. 3d 489, 512 (N.D.N.Y. 2020).
43 MacElree v. Phila. Newspapers, Inc., 544 Pa. 117, 126 (Pa. 1996). See also David A. Elder,
“Hostile Environment” Charges and the ABA/aals Accreditation/Membership Imbroglio, Post-Modernism’s
“No Country for Old Men”: Why Defamed Law Professors Should “Not Go Gentle into That Good Night,” 6
ruTGers J.l. & PuB. Pol’y 434, 468–69 (2009) (“In light of the severe penalties imposable by educational
institutions for such egregious misconduct, the potential for civil liability, possible professional
sanction by the bar, and the extraordinary societal opprobrium, if not ostracism that such charges
entail, it is dicult to imagine any modern court concluding that a law professor is not defamed by
‘pervasive hostile environment’ charges imputed to him or her.”).
44 Klayman v. Segal, 783 A.2d 607, 616 (D.C. 2001).
45 Hannoum v. Simon’s Rock Coll. of Bard, No. CV 06-30064 (KPN), 2008 WL 11409146, at
*2 (D. Mass. May 7, 2008) (while some faculty members appeared to have made false statements
about nonrenewed faculty member, no evidence that defendants or the college communicated those
statements or were vicariously liable for them).
46 Nigro v. Va. Commonwealth Univ./Med. Coll. of Va., 492 F. App’x 347, 356 (4th Cir. 2012)
(program director’s statement that resident “failed” rotation, “while technically false, would not
deter third persons from associating or dealing with resident or make her appear odious, infamous,
or ridiculous”).
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defamatory statement is published, if it remains within a narrow and intended
audience, it may not actually result in defamation; a small audience of reviewers of
a faculty member’s teaching ability, for example, is trained to assess faculty merit,
so that “this audience would not as likely be aected by any derogatory inference
in the letters as might the public at large.”
47
The published statement, in other words,
was not defamatory because the plainti’s reputation was not actually harmed.
Finally, courts may consider investigative determinations to be opinion and
therefore not actionable. In Doe v. Stonehill College, a federal district court in
Massachusetts held that the recommendation of campus investigators that
a student “more likely than not” committed sexual assault was opinion where
this determination followed an investigation and was based on “disclosed, non-
defamatory facts” within the evidentiary le.
48
The investigators’ nding was based
on their evaluation of the gathered evidence and interviews; having provided the
factual basis underlying their conclusions, the investigators oered an opinion
rather than assertion of disprovable fact.
49
But other courts have found that statements of fact incorporated within an
investigative report could be disproven and therefore would be actionable in a
defamation complaint. In one example, Heineke v. Santa Clara University, a campus
investigation of faculty-on-student sexual assault produced a report containing
the complainant’s statements about a faculty member’s misconduct, which the
respondent wholly contested.
50
While the court considered that the report contained
“a range of opinions,” it found that the report “characterized [complainant’s]
allegations as facts and explicitly based its opinions on its nding that [complainant’s]
allegations were credible.”
51
These assertions were enough to meet the element of
demonstrating a false statement of fact, particularly as the university “explicitly
adopted the ndings of the investigation.”
52
Likewise, statements regarding a conduct board’s ndings may also meet the
47 Constantino v. Univ. of Pittsburgh, 201 PA Super. 4, ¶ 17, 766 A.2d 1265, 1270 (Pa. Super. 2001).
48 No. CV 20-10468 (LTS), 2021 WL 706228, at *16 (D. Mass. Feb. 23, 2021) (declining to reach
the issue of privilege because plainti had not established false statement element of defamation
claim). Notably, this decision appears to stem from a “single-investigator” model of adjudication, where
the investigators reached a determination of responsibility without submission of the evidence to a
separate hearing body. This practice would violate present Title IX regulations for “sexual harassment”
falling within Title IX’s regulatory scope. See 34 C.F.R. § 106.45(b) (2020). On the liability of investigators
for defamation, see also Mills v. Iowa, 924 F. Supp. 2d 1016, 1031 (S.D. Iowa 2013) (special counsel hired
to review university’s response to sexual assault incident were not liable for defamatory statements
simply by recounting facts and opinions that witnesses communicated to them and reaching conclusion
that response was “consistent with a culture of a lack of transparency”; investigators’ nding was
opinion protected by First Amendment).
49 Doe v. Stonehill Coll., 2021 WL 706228, at *16. The Stonehill court distinguished the instant
matter from cases where the publisher makes a statement that appears to be opinion but implies the
existence of undisclosed facts, relying on Massachusetts precedent holding that an opinion is not
actionable where it is based on disclosed or assumed nondefamatory facts. E.g., Piccone v. Bartels,
785 F.3d 766, 774 (1st Cir. 2015).
50 No. 17-CV-05285 (LHK), 2017 WL 6026248, at *14 (N.D. Cal. Dec. 5, 2017).
51 Id.
52 Id.
131 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
falsity element where the plainti alleges that they did not commit the violation for
which they were found responsible, and the underlying proceeding was erroneous.
For instance, in Wells v. Xavier University, the university found a student-athlete
responsible for sexual assault, expelled him, and then issued a statement that he
had been found responsible and expelled “for a serious violation of the Code of
Student Conduct” which, according to the plainti, “everyone knew” concerned
an alleged sexual assault.
53
While the court found the case to be a “close call,” it
concluded that this statement could support a libel claim because the proceeding
itself was allegedly “invalid” owing to a variety of alleged due process issues,
including the student’s denial of access to an attorney, inability to cross-examine
his accuser, inability to access character witnesses on equal terms with his accuser,
and the hearing board’s lack of training in handling sexual misconduct cases.
54
Strengthening the libel claim was the student’s position that he was a “scapegoat”
for the university as it responded to investigations from the U.S. Department of
Education’s Oce for Civil Rights for its prior mishandling of sexual assault cases
and that the county prosecutor reached out to campus ocials to communicate his
doubts about the accusations.
55
B. Publication
The second defamation element, publication, refers broadly to the intentional
or negligent sharing of a defamatory statement to at least one other person.
56
People who then reshare the defamatory statement with others, like a campus
newspaper publisher, could be liable for “re-publication” under the theory that the
republisher has adopted the statement, making them equally liable for damages as
the original speaker or writer.
57
While establishing publication is typically straightforward, complexities arise
in the minority of jurisdictions that apply the “intracorporate communications
no-publication” rule, which imputes a lack of publication to statements made
within an enterprise; statements made by one employee to another in the course
of their employment would not be considered published, because the institution is
eectively communicating with itself.
58
53 7 F. Supp. 3d 746, 750 (S.D. Ohio 2014).
54 Id.
55 Id, at 747. Eectively, both the defamation claim in Wells and the accompanying Title IX “erroneous
outcome” claim rested on similar factual allegations of a awed decision-making process combined
with a context suggesting that the accused student’s gender was decisive in the outcome. Id. at 751.
56 resTATemenT (second) oF TorTs § 577 (Am. l. insT. 1977).
57 Id. § 578.
58 Newell v. JDS Holdings, L.L.C., 834 N.W.2d 463, 471 (Iowa Ct. App. 2013) (citing cases);
Doris DelTosto Brogan, Reviving the Intracorporate Communications No-Publication Rule: A Strategy to
Encourage Eective Investigation of Internal Misconduct, 71 BAylor l. rev. 620 (2019) (reviewing conict
among jurisdictions about validity of the no-publication rule, and noting its continued application in
Alabama, Missouri, Oklahoma, Tennessee, and Washington State). The no-publication intracorporate
communications doctrine is a distinct defense from the qualied privilege, but courts may conate
them. See also Anthony W. Kraus, Absolute ProTecTion For Intracorporate Personnel Communications Under
Defamation Law: A Philosophical Reappraisal of the Nonpublication Doctrine, 25 U. Mem. L. Rev. 155 (1994).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 132
Another minority rule to consider, depending on jurisdiction, is “compelled
self-publication,” wherein a defamation suit against a former employer can satisfy
the publication element because its former employee (who is the person being
defamed) is forced to tell a prospective employer about issues with their past job
performance or the reasons they were dismissed from employment.
59
Under such
circumstances, some state courts may apply a “foreseeability” exception to the
publication rule, even where the statements are not disclosed to an identiable third
person; if the defamatory statements remain in a personnel le, and it is likely that
the employee will have to explain the statements to subsequent employers who
investigate their background, then it will be considered published for purposes of
satisfying this element.
60
C. Fault
Along with establishing the falsity of the statement and its publication to a
third party, a defamation plainti must also allege the requisite degree of fault on
the maker of the statement.
For public ocials and public gures, the U.S. Supreme Court requires proof
by clear and convincing evidence of “actual malice” in making the statement.
61
But it is a dierent story with “private” persons; the U.S. Supreme Court has since
distinguished the “reduced constitutional value of speech involving no matters
of public concern” and therefore has permitted courts to award presumed and
punitive damages without a showing of “actual malice.”
62
State courts typically
only require a showing of negligence in cases involving “private” plaintis.
63
What is “actual malice”? In New York Times Co. v. Sullivan, the Court held that
a public ocial could not recover damages from a defamatory statement about
his ocial conduct unless the ocial proved “actual malice,” meaning that the
statement was made with the knowledge that it was false or with reckless disregard
of whether it was false.
64
“Actual malice” does not require proof that the speaker
or writer harbored any particular animus toward the defamed person but focuses
only on the speaker or writer’s attitude toward the truth in making the statement.
65
The U.S. Supreme Court has subsequently extended this fault requirement more
59 Lewis v. Equitable Life Assur. Soc‘y of the U.S., 389 N.W.2d 876, 886 (Minn. 1986). The
Connecticut Supreme Court, reviewing the state of the law in 2004, concluded that most jurisdictions
have either not recognized compelled self-publication or expressly rejected it. Cweklinsky v. Mobil
Chem. Co., 267 Conn. 210, 219, 837 A.2d 759, 765 (Conn. 2004).
60 Heineke v. Santa Clara Univ., No. 17-CV-05285 (LHK), 2017 WL 6026248, at *13 (N.D. Cal.
Dec. 5, 2017) (nding foreseeable publication in evidence collected in faculty sexual misconduct
investigation and saved in a personnel le).
61 New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Gertz v. Robert Welch, Inc., 418 U.S. 323
(1974).
62 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 761 (1985).
63 E.g., Am. Future Sys., Inc. v. Better Bus. Bureau of E. Pennsylvania, 592 Pa. 66, 84, (Pa. 2007);
WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998).
64 376 U.S. 254.
65 Masson v. New Yorker Mag., Inc., 501 U.S. 496, 510 (1991).
133 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
broadly to “public gures,” who may be either general-purpose public gures or
limited-purpose public gures (who are only public gures for a limited set of
issues surrounding a public issue).
66
Courts have considered a variety of university ocials and community
members to be “public ocials” or “public gures” who cannot recover without
showing “actual malice” in the making of the statement regarding that plainti’s
ocial conduct.
67
No “bright line” rule exists here:
Persons held to be “public ocials,” for example, include a vice president of
external aairs, university purchasing agent, police ocial, law professor
and vice chancellor for research, and state college director of nancial
aid. “Public gures” have included protestors, a college, an institute, a
research scientist, coaches, law school dean, college dean, vice president
of external aairs, state college accounting professor, a group of junior
college professors, a state university athletic director, and a former college
football player; but not a former head community college basketball coach,
assistant basketball coach, behavioral scientist, department chair or certain
university professors.
68
Given this diversity of opinion, it may be dicult to predict if a defendant is a
public gure, with courts often drawing distinctions according to the individual’s
“access to the media” (and consequent ability to respond publicly to accusations)
and “assumption of risk” in engaging in public life.
69
D. Proof of Harm and Damages
The last element in a defamation claim is proof of reputational harm and
damages. A web of state law rules overlay whether a plainti’s damages will be
presumed from the statement itself or whether the plainti will have to prove
“special damages” stemming from the statement.
70
Initially, consider the plainti’s status as a public ocial or gure; as described
above, reputation harm and damages are not presumed in cases involving public
ocials and gures, who must prove “actual malice” by clear and convincing
evidence to recover damages.
71
In turn, proof of harm in cases involving “private” gures may hinge on
whether they involve statements that are defamatory per quod, meaning that they
require extrinsic facts to explain what made them defamatory, or defamatory per
66 Gertz, 418 U.S. at 351.
67 Who Is a ‘Public Figure’ for Purposes of a DefamaTion Action, 19 A.L.R.5th 1 (originally published
in 1994) (noting university ocials falling within this category).
68 Bazluke and Clothier, supra note 9, at 7–8.
69 Id. at 7.
70 For an overview of state laws regarding damages, see 128 Am. Jur. TriAls 1, Litigating
Defamation Claims § 12 (originally published in 2013).
71 Milkovich v. Lorain J. Co., 497 U.S. 1, 16 (1990).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 134
se, meaning “obviously and naturally harmful to a person.”
72
Where a statement
falls within the categorical denitions of defamatory per se, the plainti does not
need to allege damages, as the remark is considered actionable without regard to
harm.
73
Put another way, there is no need to prove a “context indicating malice” for
a statement that is per se defamatory.
74
There is no situation where the words could
possibly have an “innocent” meaning.
75
As with the public gure analysis, it can be challenging to determine which
statements are defamatory per se under state law. Accusations that a faculty or
student committed sexual misconduct will generally fall into this category, as they
implicate a criminal or moral oense.
76
Statements that a person engaged in racial
discrimination may also be defamatory per se.
77
Less certain are statements that an
individual committed a civil wrong, like claiming the plainti entered a contract
without authorization, which would not be a criminal oense or an attack on one’s
moral standing.
78
Case law also varies about what statements tend to harm a person in their
profession to the point that they constitute defamation per se. Most states consider
attacks on a person’s professional competence to fall within that category.
79
But
a minority of states, including Michigan, specically exclude “disparagement of
one’s profession” under this framework, yet retain crimes of moral turpitude as
a per se ground.
80
Accusations of academic or research misconduct may also be
72 Kyung Hye Yano v. City Colls. of Chi., No. 08 CV 4492, 2013 WL 842644, at *6 (N.D. Ill. Mar.
6, 2013), a’d sub nom. Kyung Hye Yano v. El-Maazawi, 651 F. App’x 543 (7th Cir. 2016) (applying
Illinois law).
73 Kantz v. Univ. of the Virgin Is., No. CV 2008-0047 (WAL), 2016 WL 2997115, at *22 (D.V.I.
May 19, 2016).
74 Harstad v. Whiteman, 338 S.W.3d 804, 810 (Ky. Ct. App. 2011). As will be discussed infra
Part IV.B, while the law presumes malice where a statement is defamatory per se, if the statement is
subject to a qualied privilege, the statement “is relieved of that presumption and the burden is on
the plainti to prove actual malice.” Id.
75 Woods v. Capital Univ., 2009-Ohio-5672, ¶ 29, 2009 WL 3465827 (10th Dist. 2009).
76 Fox v. Parker, 98 S.W.3d 713, 726 (Tex. App. Ct. 2003) (statements by student who testied
against a professor in a sexual harassment hearing were defamatory per se).
77 Goodwin v. Kennedy, 347 S.C. 30, 38, 552 S.E.2d 319, 324 (S.C. Ct. App. 2001) (statement that
assistant principal disciplined students in a racially discriminatory way was defamatory per se).
78 Nehls v. Hillsdale Coll., 65 F. App’x 984, 990 (6th Cir. 2003) (college ocials’ statement
to journalists that a student was expelled for entering a contract without authorization was not
actionable as defamation per se). Michigan law requires allegations of a crime of moral turpitude for
the statement to be actionable, making, for example, a claim of intellectual property theft outside
the denition of defamation per se because it is not a crime and would not subject the accused to “an
infamous punishment.” Daneshvar v. Kipke, 266 F. Supp. 3d 1031, 1058 (E.D. Mich. 2017), a’d, 749 F.
App’x 986 (Fed. Cir. 2018).
79 E.g., Wilson v. New York, No. 15-CV-23 (CBA) (VMS), 2018 WL 1466770, at *4 (E.D.N.Y. Mar.
26, 2018); Seitz-Partridge v. Loyola Univ. of Chi., 2013 IL App (1st) 113409, ¶ 36, 987 N.E.2d 34 (Ill. Ct.
App. 2013); Owen v. Liberty Univ., No. 6:19-CV-00007 (NKM), 2020 WL 1856798, at *11 (W.D. Va. Apr.
13, 2020); Kantz v. Univ. of the Virgin Is., No. CV 2008-0047 (WAL), 2016 WL 2997115, at *21 (D.V.I.
May 19, 2016).
80 Daneshvar, 266 F. Supp. 3d at 1058.
135 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
considered defamatory per se, given their grave impact on an academic or student’s
professional career.
81
Yet a faculty member’s evaluation of a student’s professional
competence based on coursework and tests is likely not defamatory per se, “as
one critical purpose of evaluating and grading students is to specically determine
which students are t for the practice.”
82
Now that we have discussed the prima facie elements of a defamation claim,
we will cover some threshold issues in litigation and then review immunity laws
and “absolute” and “qualied” privileges.
II. Threshold Issues in Litigation
When a college or university is served with a complaint containing defamation
claims, several issues may be considered before engaging with elements of the claim
itself. These may include indemnication, statute of limitations, and jurisdiction.
A. Indemnication
Defamation claims often name both the institutional defendant and specic
employees or students who made the defamatory statements. While employees
are generally indemnied for discretionary acts taken during their employment,
intentional torts may fall outside the scope of coverage. Moreover, where an
employee acts against their employer’s interest by committing an intentional tort,
their interests may not align as codefendants, raising ethical concerns when the
employee is represented by institutional counsel.
These ethical issues may be more acute when both students and employees are
named as codefendants such as in a Title IX lawsuit arising from student discipline.
For example, public institutions and public employees are often entitled to state
tort claim law protections (see Part III), while student defendants generally are not,
leaving the codefendants in very dierent positions when evaluating the strength
of the complaint and interest in settlement.
83
Courts may evaluate the defamation claims against specic employees before
inquiring into the institution’s liability; as Virginia courts hold, defamation claims
81 Castelino v. Rose-Hulman Inst. of Tech., No. 2:17-CV-139 (WTL) (MJD), 2019 WL 367623, at *16
(S.D. Ind. Jan. 30, 2019), appeal dismissed, No. 19-1719, 2019 WL 5212232 (7th Cir. May 20, 2019) (in dictum).
82 Zwick v. Regents of the Univ. of Mich., No. CV 06-12639 (MOB), 2008 WL 11356797, at *2
(E.D. Mich. June 9, 2008) (emphasis in original). See also Hodge v. Coll. of S. Maryland, 121 F. Supp.
3d 486, 504 (D. Md. 2015) (receipt of unwanted grade on a transcript was not defamatory, as it was
unlikely that any grade could “engender hate or ridicule” and no harm shown because student was
accepted for transfer to another institution); Kyung Hye Yano v. City Colls. of Chi., No. 08 CV 4492,
2013 WL 842644, at *6 (N.D. Ill. Mar. 6, 2013), a’d sub nom. Kyung Hye Yano v. El-Maazawi, 651 F.
App’x 543 (7th Cir. 2016) (a full-time student is “by denition not engaged in a trade, profession, or
business” and therefore statements regarding student performance would not fall within defamation
per se denition of a statement regarding a person’s professional competence).
83 E.g., Ali v. Univ. of Louisville, No. 3:17-CV-00638 (RGJ), 2019 WL 539098, at *9 (W.D. Ky.
Feb. 11, 2019) (dismissing claims against ocials on sovereign immunity grounds, while remanding
claims against student to state court).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 136
against the institutional employer are “derivative” of any claims against individual
faculty acting in their ocial capacity.
84
But if the employee is acting outside the
scope of employment, the court may dismiss the defamation claims against the
employer, even should the claims stand against the individual employee. As a
result, an individual’s liability may also depend on how narrowly state law and
judicial precedent construes the concept of scope of employment, as discussed in
Part III.
B. Statute of Limitations
Often, defamation claims are dismissed in the pleading stage based on the age
of the statement itself. Statutes of limitations for defamation claims are generally
short (often one year from publication) under most state laws, and will be even
more curtailed for public institutions subject to notice of claim requirements.
85
Moreover, under the “single publication rule,” the clock on defamation claims will
not restart every time the allegedly false statement is republished; counsel may
expect issues of fact to arise regarding when the act of publication occurred (i.e.,
at intake of the misconduct report versus in the nal determination). But if the
statement was made in the campus proceeding, and then repeated a year later to
dierent parties, the statute of limitations might restart.
86
C. Supplemental Jurisdiction
Where the case is led in federal court, counsel may also consider their legal
strategy for addressing state-based tort claims, such as defamation, which are
attached to a federal civil rights and discrimination complaint. If the federal
claims appear unlikely to survive scrutiny through the pleadings phase, then
counsel may anticipate that the court will decline to exercise jurisdiction over
the remaining state-law claims.
87
In turn, counsel may seek to dismiss the federal
claims, and have the suit dismissed from federal court, before answering the state-
law defamation claims and entering into the potentially prolonged discovery and
fact-nding process necessitated by fact-specic defenses and rebuttals inherent in
a defamation case.
84 Owen v. Liberty Univ., No. 6:19-CV-00007 (NKM), 2020 WL 1856798, at *16 (W.D. Va. Apr.
13, 2020); Dragulescu v. Va. Union Univ., 223 F. Supp. 3d 499, 509 (E.D. Va. 2016)
85 Unknown Party v. Ariz. Bd. of Regents, No. CV-18-01623 (PHX) (DWL), 2019 WL 7282027,
at *17 (D. Ariz. Dec. 27, 2019) (defamation claim against public university subject to 180-day notice
of claim had to be led within 180 days after defamatory statements made within the proceeding;
as such, only timely statement within notice of claim period was the nal decision itself nding him
responsible). See also Harrick v. Bd. of Regents of the Univ. Sys. of Ga., No. 1:04-CV-0541 (RWS), 2005
WL 8154395, at *5 (N.D. Ga. Aug. 1, 2005) (defamation claims dismissed where plainti failed to le
a timely notice of claim under Georgia Tort Claims Act).
86 Schaumleel v. Muskingum Univ., No. 2:17-CV-463 (GCS), 2018 WL 1173043, at *7 (S.D.
Ohio Mar. 6, 2018).
87 E.g., Seals v. Miss., 998 F. Supp. 2d 509, 526 (N.D. Miss. 2014); Ali, 2019 WL 539098, at *9;
Roe v. St. John’s Univ., No. 19-CV-4694 (PKC) (RER), 2021 WL 1224895, at *23 (E.D.N.Y. Mar. 31, 2021)
(declining to exercise supplemental jurisdiction over state law defamation claims brought against
student-complainant as co-defendant).
137 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
D. Ministerial Exception
Finally, some academic defamation claims arise from disputes within religious
orders about a faculty, sta, or students’ false understanding or application of
doctrine. Courts roundly hold that they simply lack competence to handle such
disputes as a matter of law and will dismiss them under the ministerial exception.
88
III. Immunity for Public Ocials and Employees
Counsel representing public colleges and universities and any individually
named members of the college or university community should determine if the
defamation allegations arise from actions taken within the scope of employment.
State tort claims acts and judicial precedent may shield government entities from
liability for discretionary actions taken by public ocers and employees acting
within the scope of their duties.
A. Immunity for Statements Made Within Scope of Employment
The scope of state sovereign immunity will vary by jurisdiction, and not all
state colleges and universities will have immunity to the same extent as other state
entities. And even where state law waives sovereign immunity for tort claims, it
may restrict recovery for intentional torts, which are generally considered outside
the scope of employment. Some state tort claims acts specically prohibit claims
arising from libel or slander.
89
Where those torts are not specically named in
the statute, but state law otherwise prohibits lawsuits against the state based on
intentional torts, courts have identied defamation as an intentional tort for which
the state has not waived sovereign immunity.
90
As such, courts have held that if an employee is required, as a part of their
ocial duties, to give statements in an administrative grievance process, then
state law may absolutely shield them from civil liability from defamation.
91
For
example, a faculty member at a public college serving as a witness during a faculty
disciplinary grievance was considered a public ocial under Florida law and
therefore absolutely immune from suit.
92
Likewise, university ocials required
to give public statements about the outcome of a faculty disciplinary case were
immune from a defamation action under Indiana’s Tort Claims Act.
93
University ocials engaged in performance reviews of faculty may also enjoy
88 Sumner v. Simpson Univ., 27 Cal. App. 5th 577, 596 (Cal. Ct. App. 2018).
89 AlAskA sTAT. § 09.50.250 (2021); GA. code Ann. § 50-21-24 (West 2021); miss. code Ann. §
11–46–5(2) (West 2021).
90 Leatherwood v. Prairie View A & M Univ., No. 01-02-01334-CV, 2004 WL 253275, at *3 (Tex.
App. Ct. Feb. 12, 2004), applying Tex. civ. PrAc. & rem. code Ann. § 101.057(2) (2021).
91 del Pino Allen v. Santelises, 271 So. 3d 1112, 1116 (Fla. Dist. Ct. App. 2019), reh'g denied (Mar. 22,
2019), review denied sub nom. Allen v. Santelises, No. SC19-496, 2019 WL 2428454 (Fla. June 11, 2019).
92 Id. at 1116, applying FlA. sTAT. Ann § 1004.65 (West 2021).
93 Bull v. Bd. oF TrusTees of Ball State Univ., No. 1:10-CV-00878 (JMS), 2012 WL 1564061, at *9
(S.D. Ind. May 2, 2012), applying Ind. Code Ann. § 34–13–3–3(6)–(7) (West 2021).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 138
immunity.
94
A Mississippi professor was absolutely immune from a defamation suit
under that state’s Tort Claims Act, as she was acting in the scope of her duties when
making employment decisions about a faculty member. Even if she exercised poor
judgment in that discretionary function, she remained absolutely immune.
95
A
faculty supervisor was likewise immunized from a Texas defamation lawsuit arising
from statements made in a faculty meeting as this conduct occurred within the scope
of employment.
96
Pennsylvania courts similarly nd that public university faculty
are acting within their scope of employment in reviewing tenure candidates; as such,
even if “personal animosity” drove the evaluation’s outcome, the faculty were protected
by sovereign immunity from a defamation claim arising from the review.
97
While some state laws will bar recovery against the state or public university
for defamatory statements made within an appropriate employment context
regardless of fault, not all states will extend this immunity to individual employees.
For example, Florida has not waived sovereign immunity for “intentional or
malicious torts” committed by state employees, making a state university immune
from a defamation suit based on an “intentionally malicious” evaluation of an
instructor.
98
But a similar claim rooted in bad faith could be brought against that
public employee individually.
99
By contrast, Georgia shields both the state entity
and its employees from tort liability for actions taken within their ocial duties
“without regard to their intent or malice”; as such, comments made by a faculty
member during a tenure revocation process were immunized, as the allegedly
defamatory statements about a professor’s private behavior and domestic abuse
were made in the course of the faculty member’s ocial duties.
100
B. Malice and the Immunity Analysis
In states without such blanket protections, however, statute and judicial
precedent may limit a state actor’s immunity where the statement is made with
94 White v. Trew, 366 N.C. 360, 364, 736 S.E.2d 166, 169 (N.C. 2013) (holding that North Carolina
Tort Claims Act bars claims for intentional torts, which would include libel, making a suit against a
faculty member for a performance review in their ocial capacity barred by sovereign immunity; in
dictum, holding that even if the faculty member were sued in their personal capacity, the suit would
be barred for public policy reasons).
95 DePree v. Saunders, No. 207-CV-185 (KS) (MTP), 2008 WL 4457796, at *9 (S.D. Miss. Sept. 30,
2008), a'd, 588 F.3d 282 (5th Cir. 2009).
96 Wetherbe v. Laverie, No. 07-17-00306-CV, 2019 WL 3756911, at *3 (Tex. App. Ct. Aug. 8, 2019)
(noting that “[t]he scope-of-employment inquiry under section 101.106(f) is not concerned with the
reasons motivating the complained-of conduct but whether the conduct fell within the general scope
of the employee’s employment.”)
97 Kull v. Guisse, 81 A.3d 148, 158 (Pa. Commw. Ct. 2013).
98 Beaulieu v. Bd. of Trustees of Univ. of W. Fla., No. 3:07 CV-30 (RV) (EMT), 2007 WL 2900332,
at *4 (N.D. Fla. Oct. 2, 2007).
99 Fla. Stat. Ann. § 768.28(9)(a) (West 2021) (public ocers and employees may be held
personally liable in tort for actions taken within the scope of employment when acting “in bad faith
or with malicious purpose”).
100 Brown v. Bd. of Regents of the Univ. Sys. of Ga., No. 1:14-CV-0365 (LMM) (LTW), 2015 WL
12591794, at *4 (N.D. Ga. Jan. 12, 2015), report and recommendation adopted, No. 1:14-CV-0365 (LMM)
(LTW), 2015 WL 12600344 (N.D. Ga. Feb. 3, 2015).
139 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
malicious intent.
101
For example, Ohio law extends “personal immunity” to state
employees acting in the scope of their employment and without “malicious
purpose, in bad faith, or in a wanton or reckless manner”; under this statute, a
faculty member who drafted a negative recommendation for a student was
immunized from liability because there was no evidence that the faculty wrote the
letter in bad faith.
102
But where the declarant is acting outside the scope of their employment,
immunity would not apply. So, under Arizona’s Tort Claims Act, a faculty member
who wrote comments to a newspaper article posted on the Internet that allegedly
defamed a former faculty member would not necessarily have immunity, as that
posting was not within the scope of employment.
103
And where the state tort claims act makes an exception for malicious conduct,
courts may decline to apply immunity for defamatory remarks allegedly made
with improper intent. Compare two Maryland cases applying the state’s Tort
Claims Act. In one, faculty members who exchanged e-mails about a professor’s
hostile behavior and insubordination enjoyed statutory immunity because any
remarks they made in those e-mails were within the scope of their employment.
104
But in another, a faculty member’s e-mail to various university ocials about a
student’s alleged misappropriation of funds from a prelaw organization, which
the faculty member admitted she did not think the student actually committed,
would not be shielded by Maryland’s Tort Claims Act immunity.
105
The dierence was context. In the latter case, the court identied that the
faculty member and accused student had “at the very least, an unusual student-
professor relationship” that included the professor asking the student for two
loans, discussing her personal life and sexual history with him, leaving “lewd”
messages on his voicemail, and wanting sex from him—conduct that led the
student to resign from the organization.
106
While the professor’s issuance of the
accusatory e-mail, standing alone, would not be outside the scope of employment,
even if it violated university policy, the surrounding circumstances, including
that the professor was subject to a disciplinary grievance for her conduct toward
the student, pointed to an improper motive other than an interest in correcting
nancial issues.
107
Ultimately, a jury awarded the student $50,000 in compensatory
101 Slack v. Stream, 988 So. 2d 516, 530 (Ala. 2008) (state-agency immunity not applied where
professor acted beyond authority as department chair to disseminate plainti’s letter of reprimand
for plagiarism to various institutions, and chair stated in phone call “that he was going to see to it
that [plainti] never worked in academia again”).
102 Ostasz v. Med. Coll. of Ohio, 114 Ohio App.3d 391 (10th Dist. 1996), applying ohio rev. code
§ 9.86 (2021).
103 Rodriguez v. Serna, No. 1:17-CV-01147 (WJ) (LF), 2019 WL 2340958, at *10 (D.N.M. June 3, 2019).
104 McReady v. O’Malley, 804 F. Supp. 2d 427, 444 (D. Md. 2011), a’d, 468 F. App’x 391 (4th Cir.
2012) (applying md. code Ann., cTs. & Judic. Proc. § 5–522(b) (West 2021)).
105 Brown v. Brockett, No. CIV. JFM-11-240, 2012 WL 1552783, at *5–6 (D. Md. Apr. 27, 2012).
106 Id. at *5, 1.
107 Id. at *5.
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damages and $150,000 in punitive damages, which the court lowered to $20,000
in compensatory damages and $20,000 in punitive damages because the student
“suered virtually no damage.”
108
Similarly, where the statutory immunity is limited to statements made in good
faith, courts may nd a waiver of immunity. So, allegedly bad faith omissions within
a faculty review committee were sucient to overcome immunity provided under
Washington State law.
109
Likewise, even where the Utah Governmental Immunity
Act barred libel and slander suits for negligent acts or omissions, a faculty advisor
would not be immune from injuries stemming from “fraud or willful misconduct”
in statements about a doctoral student’s purported research misconduct where
those statements resulted from a serious conict of interest.
110
According to the
complaint, the advisor recommended that the student use a device for recording
seizure information in mice that the advisor had a nancial and scientic stake in
promoting; when the student found negative results from using that device, the
advisor told her to revise her results, removed her from his laboratory, and informed
the dissertation committee that she falsied data, resulting in her dismissal.
111
IV. Privilege
Where state sovereign immunity does not otherwise bar a defamation claim
for statements made within the scope of employment, the statements may still be
privileged from suit under the doctrines of absolute or qualied privilege.
A. Absolute Privilege
Traditionally, statements made in judicial and “quasi-judicial” proceedings,
like administrative hearings, enjoy “absolute” privilege from liability to encourage
open reporting.
112
As will be discussed in Part IV.B, most campus decision-making
does not enjoy such encompassing privilege from liability. Still, in what appears
108 Specically, the student was unharmed because he was accepted to law school and could
not suer any reasonable fear that he would not be admitted to the bar from the incident, as the
university investigated the incident and issued a written nding that he was not responsible for
misappropriating organizational funds. Brown v. Brockett, No. CIV. JFM-11-240, 2013 WL 8705901, at
*1 (D. Md. Sept. 12, 2013), a’d, 585 F. App’x 133 (4th Cir. 2014).
109 Davidson v. Glenny, 14 Wash. App. 2d 370, 386, 470 P.3d 549, 559 (Wash. Ct. App. 2020).
Washington law confers civil immunity upon “[e]mployees, agents, or students of institutions of
higher education serving on peer review committees which recommend or decide on appointment,
reappointment, tenure, promotion, merit raises, dismissal, or other disciplinary measures for employees
of the institution” so long as their performance on the committee was in good faith. The same
provision also shields “[i]ndividuals who provide written or oral statements in support of or against
a person reviewed ... if their statements are made in good faith.” wAsh. rev. code Ann. § 28B.10.648
(West 2021).
110 Rossi v. Univ. of Utah, No. 2:15-CV-00767, 2016 WL 3570620, at *7 (D. Utah June 24, 2016).
111 Id. at *4.
112 Briscoe v. LaHue, 460 U.S. 325, 332 (1983). Note that allegedly defamatory statements made
during litigation would similarly enjoy absolute privilege, even if they desc]ribed statements that
would enjoy a lesser privilege if uttered in a nonjudicial campus forum. Hascall v. Duquesne Univ.
of the Holy Spirit, No. CV 14-1489 (CB), 2016 WL 3521971, at *2 (W.D. Pa. June 28, 2016).
141 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
to signal an emerging trend, judicial precedent in several states has declared
some college and university grievance processes to be quasi-judicial proceedings
entitled to absolute privilege.
113
For one, some state appellate courts have declared statements made within
campus sexual misconduct proceedings, including Title IX investigations and
adjudications, to be covered under the absolute privilege. In 2008, Indiana’s Supreme
Court applied absolute privilege to the complaints of two public university
students of sexual harassment against a professor.
114
But this precedent remains
limited to student-reported misconduct; in 2011, Indiana’s intermediate appellate
court stopped short of applying absolute privilege to sexual harassment complaints
brought by faculty members against fellow faculty, reasoning that a qualied
privilege adequately protects the interests of an employee bringing a complaint.
115
Illinois appellate courts have also moved in the direction of widening
absolute privilege for reports of sexual misconduct. In the 2016 and 2018 Razavi
decisions, the Illinois Appellate Court, First District, applied absolute privilege
to a complainant’s statements to campus security and college ocials at a private
college made during the initiation, investigation, and adjudication of a campus
sexual assault complaint.
116
Along with sexual misconduct investigations and hearings, courts have held in
a scattering of decisions that statements made within certain research misconduct
proceedings may be subject to absolute privilege. In a decision later armed by
the New York Appellate Division, First Department, a New York trial court applied
absolute privilege to a private college’s faculty advisory committee, a research
misconduct board that it considered a quasi-judicial proceeding.
117
Underlying the
court’s determination was evidence that the misconduct board was requested by
the plainti, allowed for the submission of evidence and cross-examination, and
provided for review of its outcomes through petition to the state trial courts.
118
113 The developing state of the law regarding privilege in reporting sexual harassment and
sexual violence will be discussed in detail infra Part V.
114 Hartman v. Keri, 883 N.E.2d 774, 778 (Ind. 2008).
115 Haegert v. McMullan, 953 N.E.2d 1223, 1231 (Ind. Ct. App. 2011).
116 Razavi v. Walkuski, 2016 IL App (1st) 151435, ¶ 11, 55 N.E.3d 252, 255 (Ill. Ct. App. 2016)
(“absolute privilege extends to statements made by alleged campus crime victims to campus
security”); Razavi v. Sch. of the Art Inst. of Chi., 2018 IL App (1st) 171409, ¶ 36, 122 N.E.3d 361,
374 (Ill. Ct. App. 2018), case dismissed sub nom. Razavi v. Sch. of Art Inst. of Chi., 124 N.E.3d 475 (Ill.
2019) (complainant’s statements made in a campus adjudication of sexual violence were absolutely
privileged); See also Murauskas v. Rosa, 2019 IL App (1st) 190480-U, ¶ 28, 2019 WL 6050008 (Ill. Ct.
App. 2019) (employee’s statements made to university law enforcement requesting an investigation
of her complaint against a police sergeant for sexual harassment and retaliation were absolutely
privileged from defamation lawsuit).
117 Constantine v. Teachers Coll., 29 Misc. 3d 1214(A), 918 N.Y.S.2d 397 (Sup. Ct. 2010), a’d, 93
A.D.3d 493, 940 N.Y.S.2d 75 (N.Y. App. Div. 2012).
118 Id. But see Tacka v. Georgetown Univ., 193 F. Supp. 2d 43, 52 (D.D.C. 2001) (applying
qualied privilege where department chair allegedly published accusations of plagiarism to tenure
committee, but stating in dictum that absolute privilege might be appropriately applied where
plaintis explicitly consent to a disclosure, such as by voluntarily submitting their work to a research
integrity committee charged with evaluating plagiarism); Hengjun Chao v. Mount Sinai Hosp., 476 F.
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 142
A federal district court applying New Jersey law also extended absolute
privilege to a public university’s academic misconduct proceedings.
119
It found that
its due process guarantees, including notice of charges and hearing and a two-day
inquiry attended by a court reporter that included cross-examination of adverse
witnesses, were sucient to establish the hearing as a “quasi-judicial” process.
120
But absent some clear statute or precedent, courts have often declined to extend
absolute privilege to colleges and university investigations on their own authority,
particularly at private universities. As Justice Samuel Alito, then sitting on the
Third Circuit Court of Appeals, wrote of an attempt to extend absolute privilege
to a private university’s discrimination grievance process in Pennsylvania, “the
present case involves an entirely private grievance procedure. No state or federal
statute authorized it, and no public ocials presided over it. Nor was it the product
of a collective bargaining agreement.”
121
The lack of public oversight, due process
guarantees, and judicial precedent suggesting its applicability in a private setting
was determinative. Similarly, California courts have declined to apply the state’s
litigation privilege under California Code section 47(b) for judicial or quasi-judicial
proceedings to a private university’s internal sexual harassment investigations
because they were not a government proceeding subject to mandamus review.
122
As will be discussed in Part V, the distinction between absolute and qualied
privilege ends up having critical ramications in sexual misconduct proceedings
brought under Title IX of the Education Amendments of 1972. In turn, as colleges
and universities increasingly converge on rigorous due process requirements for
these cases, courts may prove willing to extend absolute privilege to statements
made within a campus sexual harassment proceeding.
B. Qualied Privilege
While courts have generally declined to grant postsecondary institutions and
members of the college and university community absolute privilege from defamation
claims, they more often aord a “qualied,” “conditional,” or “common interest”
privilege to communications among people who have some interest or duty in
sharing that information amongst themselves. When this type of privilege attaches,
the defamation plainti’s fault requirement generally raises from negligence to
“actual malice,” although in some jurisdictions, common law malice (consideration
of the speaker or writer’s ill intent) may also form a separate ground for overcoming
qualied or conditional privilege.
App’x 892, 895 (2d Cir. 2012) (“common interest” qualied privilege applied to research misconduct
proceeding).
119 Le v. Univ. of Med. & Dentistry, No. CIV.A. 08-991 (SRC), 2009 WL 1209233, at *6 (D.N.J.
May 4, 2009), a'd sub nom. Phat Van Le v. Univ. of Med. & Dentistry of N.J., 379 F. App’x 171 (3d Cir. 2010).
120 Id.
121 Overall v. Univ. of Pa., 412 F.3d 492, 498 (3d Cir. 2005).
122 Heineke v. Santa Clara Univ., No. 17-CV-05285 (LHK), 2017 WL 6026248, at *12 (N.D. Cal.
Dec. 5, 2017).
143 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
As discussed above, “actual malice” means that the statement was made with
the knowledge it was false or with reckless disregard of the truth.
123
Some states
courts also permit plaintis to assert a common law theory of malice, which is
that “spite or ill will” was “the one and only cause for the publication” of the
statement.
124
Simply put, “[a]ctual malice focuses on the defendant’s attitude
towards the truth, whereas common law malice focuses on a defendant’s attitude
towards the plainti.”
125
Where state courts recognize both types of malice,
plausibly alleging either type of malice suces to overcome qualied privilege.
126
A broad range of campus situations may fall within the qualied privilege:
• Communications among members of a faculty search committee.
127
• Communications among interested parties about a faculty
member’s tness for duty examination.
128
• Departmental communications about faculty members’
performance and suitability for rehiring or tenure.
129
• Department chair’s annual faculty performance evaluations.
130
123 Ludlow v. Nw. Univ., 79 F. Supp. 3d 824, 845 (N.D. Ill. 2015).
124 Chandok v. Klessig, 632 F.3d 803, 815 (2d Cir. 2011).
125 DeMary v. Latrobe Printing & Pub. Co., 2000 PA Super 339, ¶ 13, 762 A.2d 758, 764 (Pa.
Super. Ct. 2000).
126 Aslin v. Univ. of Rochester, No. 6:17-CV-06847 (LJV), 2019 WL 4112130, at *20 (W.D.N.Y.
Aug. 28, 2019).
127 Pratt v. Univ. of Cincinnati, 2018-Ohio-2162, ¶ 18, 2018 WL 2715377, at *3 (10th Dist. 2018)
(qualied interest privilege applied, and no actual malice shown in faculty discussion).
128 Kao v. Univ. of San Francisco, 229 Cal. App. 4th 437, 453 (Cal. Ct. App. 2014) (state law “qualied
common interest privilege” applied, and no “malice” shown in faculty or institution’s reporting).
129 Oller v. Roussel, No. CIV.A. 11-02207 (RTH), 2014 WL 4204834, at *5 (W.D. La. Aug. 22,
2014), a’d, 609 F. App’x 770 (5th Cir. 2015) (applying conditional privilege and nding no showing
“the defendants knew the matter to be false or acted in reckless disregard as to its truth or falsity”);
Saha v. Ohio State Univ., 2011-Ohio-3824, ¶ 66, 2011 WL 3359704 (10th Dist. 2011) (applying qualied
privilege and nding insucient allegations of “actual malice”); Donofrio-Ferrezza v. Nier, No. 04
CIV. 1162 (PKC), 2005 WL 2312477, at *1 (S.D.N.Y. Sept. 21, 2005), a’d, 178 F. App’x 74 (2d Cir. 2006)
(applying qualied privilege and nding insucient allegations of actual or common law malice);
Larimore v. Blaylock, 528 S.E.2d 119, 121 (Va. 2000) (applying qualied privilege, and rejecting
theory of absolute “intracorporate immunity”). Note that Missouri law applies an “intra-corporate”
privilege to communications made as part of an institution’s evaluative process, as long as the
comments are received by an “ocer” responsible for making performance determinations, under
the theory that communications made within an organization are not published to a third-party. Rice
v. St. Louis Univ., No. 4:19-CV-03166 (SEP), 2020 WL 3000431, at *6 (E.D. Mo. June 4, 2020). On the
intracorporate communications “no publication” rule, see Brogan, supra note 58.
130 Mbarika v. Bd. of Sup’rs of La. State Univ., 992 So. 2d 551, 565 (La. App. 1 Cir. 2008), writ
denied sub nom. Mbarika v. Bd. of Supervisors of La. State Univ., 992 So. 2d 1019 (La. 2008) (applying
conditional privilege and nding support in the record that statements were made in “good faith”
because the reviewer “had a reasonable basis for believing them to be true”).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 144
• Communications among interested faculty members regarding a
student’s academic progress.
131
• Faculty research misconduct proceedings.
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• Faculty member’s reporting of a student’s plagiarism to appropriate
authorities.
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• Faculty member’s statements to a student academic integrity
proceeding.
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• Faculty or administrator’s statements to other faculty members
about an employee’s sexual misconduct with a student.
<?>
• Faculty or administrator’s statements to appropriate ocials
asking them to investigate a physical assault.
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• Faculty or administrator’s statements used within a faculty
disciplinary proceeding.
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131 Lipsky v. Gonzalez, 39 Misc. 3d 1202(A), 969 N.Y.S.2d 804 (N.Y. Sup. Ct. 2013) (applying
common interest privilege and nding insucient allegations of actual malice); Leitner v. Liberty
Univ., Inc., No. 6:19-CV-00029 (NKM), 2020 WL 7128972, at *12 (W.D. Va. Dec. 4, 2020) (applying
qualied privilege and nding insucient allegations of “malice”).
132 Mauvais-Jarvis v. Wong, 2013 IL App (1st) 120070, ¶ 78, 987 N.E.2d 864, 884 (Ill. Ct. App.
2013) (applying qualied privilege and nding sucient allegations that statements were made with
“malice or a reckless disregard for their truth” to overcome dismissal); Hengjun Chao v. Mount
Sinai Hosp., 476 F. App’x 892, 895 (2d Cir. 2012) (applying common interest privilege and nding
insucient allegations of common law or actual malice); Cf. Constantine v. Teachers Coll., 29 Misc.
3d 1214(A), 918 N.Y.S.2d 397 (Sup. Ct. 2010), a’d, 93 A.D.3d 493, 940 N.Y.S.2d 75 (N.Y. App. Div.
2012) (applying absolute privilege under New York law to research misconduct proceeding).
133 Beauchene v. Miss. Coll., 986 F. Supp. 2d 755, 767 (S.D. Miss. 2013) (qualied privilege
applied because it was faculty and dean’s “duty to report, investigate and impose discipline for
the violations. Universities have the highest obligation to ferret out such conduct because when an
academic institution confers a degree, it is certifying to other academic institutions, the private and
public sector and the world at large that a student has met the academic standards of the institution.”
Statement was made “without malice and in good faith.”).
134 Castelino v. Rose-Hulman Inst. of Tech., No. 2:17-CV-139 (WTL) (MJD), 2019 WL 367623, at
*17 (S.D. Ind. Jan. 30, 2019), appeal dismissed, No. 19-1719, 2019 WL 5212232 (7th Cir. May 20, 2019)
(applying qualied privilege and nding insucient allegations that the “letter was written and
published without belief or grounds for belief in its truth.”).
135 Harstad v. Whiteman, 338 S.W.3d 804, 811 (Ky. Ct. App. 2011). (applying qualied privilege
and nding insucient evidence to create a genuine issue of material fact concerning the existence
of actual malice).
136 Izadifar v. Loyola Univ., No. 03 C 2550, 2005 WL 1563170, at *6 (N.D. Ill. June 7, 2005)
(Qualied privilege “is accorded to statements made by an employer in attempting to investigate
and correct misconduct on behalf of its employees” and its abuse was not shown through evidence
of “a direct intention to injure her or a reckless disregard of her rights” such as through “the failure
to engage in a proper pre-publication investigation of the truth of a statement.”).
137 Owen v. Liberty Univ., No. 6:19-CV-00007 (NKM), 2020 WL 1856798, at *13 (W.D. Va. Apr.
13, 2020). (applying qualied privilege and nding insucient allegations of “actual, common-
law malice”); Fischer v. Kent State Univ., 2015-Ohio-3569, ¶ 26, 41 N.E.3d 840, 846 (10th Dist. 2015)
145 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
• Hearing board’s discussion of statements made by accusers who
did not appear to testify at a faculty disciplinary proceeding.
138
• Statements made within an investigation of student sexual
misconduct
139
(which, in some jurisdictions, will also be aorded
absolute privilege
140
).
• Faculty or administrator’s statements used within a student
disciplinary proceeding.
141
• Public statements that a student was found responsible and
sanctioned for committing sexual violence.
<?>
• Public statements regarding a faculty or sta member’s dismissal
for sexual misconduct.
<?>
(applying qualied privilege and nding insucient allegations of actual malice).
138 Guarino v. MGH Inst. of Health Professions, Inc., No. 1784CV0055 (BLS), 2019 WL 1141308,
at *13 (Mass. Super. Jan. 16, 2019) (hearing board had conditional privilege to discuss these statements,
and no malice was shown, as there was no evidence that faculty presenting statements would know
if they were false; no evidence the statements were disseminated beyond the hearing board; and no
evidence that they recklessly conveyed those allegations).
139 Childers v. Fla. Gulf Coast Univ. Bd. of Trustees, No. 2:15-CV-722 (FTM) (MRM), 2017
WL 1196575, at *6 (M.D. Fla. Mar. 31, 2017) (applying conditional privilege and nding insucient
allegations of “express malice,” meaning “ill will, hostility and an evil intention to defame and
injure”); Doe v. Erskine Coll., No. CIV.A. 8:04-23001 (RBH), 2006 WL 1473853, at *15 (D.S.C. May 25,
2006) (applying qualied privilege and nding no evidence that administrator’s statements made in
connection with hearing “inaccurately or falsely recounted” the substance of her communications
with complainant or that her actions were “malicious or reckless”).
140 Razavi v. Sch. of the Art Inst. of Chi., 2018 IL App (1st) 171409, ¶ 36, 122 N.E.3d 361, 374
(Ill. Ct. App. 2018), case dismissed sub nom. Razavi v. Sch. of Art Inst. of Chi., 124 N.E.3d 475 (Ill. 2019)
(“Absolute privilege in this context encourages victims to report crimes and misconduct promptly
without fear of explicating the facts and circumstances surrounding any attack as the investigation
unfolds.”).
141 Wertz v. Allen, 721 S.E.2d 122, 126 (Ga. Ct. App. 2011), adopted, Ga. Super. Jan. 11, 2012
(applying conditional privilege and nding insucient allegations of actual or express malice).
142 Doe v. Amherst Coll., 238 F. Supp. 3d 195, 226–27 (D. Mass. 2017) (statements within e-mail
notication about unnamed respondent were “objectively true”: that a hearing was held, that
respondent was found in violation, and that he was expelled based on that nding; no implication
that other, defamatory facts existed in the statement); Gomes v. Univ. of Me. Sys., 365 F. Supp. 2d 6,
44 (D. Me. 2005) (conditional privilege applied and no evidence that statements about respondents
by dean to a local newspaper or by university’s attorney to the NCAA were made knowing they were
false, in reckless disregard of their truth or falsity, or made with ill will or spite). But see Mallory v.
Ohio Univ., 2001-Ohio-8762 (10th Dist. 2001) (campus administrator’s statement to newspaper that
student who had been expelled for sexual assault, but was not convicted at a criminal trial, “denitely
committed a sexual battery” was not protected by qualied privilege because it was unnecessary to
protect the university’s interest and exceeded the scope of the interest to be upheld; the administrator
could have explained her position and the university’s position “without slandering plainti.”).
143 Naca v. Macalester Coll., No. 16-CV-3263 (PJS) (BRT), 2017 WL 4122601, at *3 (D. Minn. Sept.
18, 2017) (college president’s statement to college newspaper that professor was terminated based on
serious Title IX violation following a student’s accusation was subject to qualied privilege and that
privilege was not abused; his motive was appropriate, and the comments “succinctly, accurately, and
in a non-inammatory manner summarized the college’s position”).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 146
• A “crime alert” issued pursuant to the Clery Act, 20 U.S.C. section
1092(f).
144
• Public safety warnings to avoid contact with a faculty member who
had been barred from campus following an arrest.
145
• Notation of a disciplinary expulsion on a student transcript.
146
• Communication among colleges or universities regarding a student’s
disciplinary history.
147
• Communications between a postsecondary institution and an
accreditation or licensing board.
148
These cases suggest a general unwillingness among courts to second-guess
the intentions of faculty and sta sharing information as part of their institutional
responsibilities, including as members of faculty or student review committees
and disciplinary bodies. The exceptional cases will usually involve allegations of
retaliation or false accusations underlying the defamatory statement. Retaliation
is usually the distinguishing element where malice can be shown. As such, in the
higher education context, successful assertions of actual malice often arise from
purported backlash against faculty or sta for speaking out, whether in support of
controversial political views or in defense of those accused of misconduct.
149
Actual
144 Havlik v. Johnson & Wales Univ., 509 F.3d 25, 33 (1st Cir. 2007) (qualied privilege applied
to “crime alert” that contained a respondent’s name and fraternity aliation, and no malice, ill will,
or spite shown where campus counsel had a “reasonable” belief that this information was necessary
to preventing future incidents and retaliation).
145 Collins v. Univ. of N.H., 746 F. Supp. 2d 358, 374 (D.N.H. 2010), a’d, 664 F.3d 8 (1st Cir. 2011)
(conditional privilege applied and no evidence in the record of actual malice). Cf. Williams v. Mass.
Coll. of Pharmacy & Allied Health Scis., No. CIV.A. 12-10313-DJC, 2013 WL 1308621, at *7 (D. Mass.
Mar. 31, 2013) (common interest privilege may not extend to photograph of plainti posted by an
“unidentied faculty member” in plain view of any passerby in the campus security oce).
146 Amherst Coll., 238 F. Supp. 3d at , 227. The court noted, without deciding, that the transcript
notation likely would also not satisfy the publication element of a defamation claim, as Massachusetts
state courts do not recognize “self-publication” as an alternative route for establishing publication,
and “[c]olleges prepare and disseminate academic transcripts in connection with their core educational
functions and Massachusetts courts have recognized that a person may possess a conditional privilege to
publish defamatory material if the p ublication is reasonably necessary to the protection or furtherance of a
legitimate business interest.” Id. at 227 n.7 (internal quotation marks omitted). On “self-publication,”
see Lewis Lewis v. Equitable Life Assur. Soc’y of the U.S., 389 N.W.2d 876, 886 (Minn. 1986).
147 Oirya v. Brigham Young Univ., No. 2:16-CV-01121-BSJ, 2020 WL 110280, at *8 (D. Utah Jan. 9,
2020), a’d, No. 20-4052, 2021 WL 1904863 (10th Cir. May 12, 2021) (“It is simply a question of sharing
disciplinary les school-to-school, as permitted by law. This kind of candor must be permitted or
universities will have to remain silent even when a transferring student may pose a danger.”).
148 Eiland v. Blagburn, No. 305-CV-459 (WKW), 2007 WL 2926863, at *13 (M.D. Ala. Oct. 5, 2007)
(applying Alabama law regarding disclosures to a “Wellness Committee,” holding that reporter
“made a conditionally privileged communication, which by denition is not defamation” under
Alabama Code section 34-29-111(f)).
149 E.g., Porter v. Sergent, No. CV 5:19-455 (KKC), 2020 WL 4495465 (E.D. Ky. Aug. 4, 2020). On
potential defamation claims arising from “hostile environment” charges against faculty, see generally
Elder, supra note 43.
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malice assertions have also overcome qualied privilege where plaintis allege
retaliation for complaining about misconduct by faculty and sta.
150
In a recent example, a federal district court in Kentucky allowed a professor’s
defamation claim against his employer to proceed despite the college’s assertion
of qualied privilege, holding that statements made in e-mails regarding the
professor were sucient to allege actual malice.
151
There, the professor, Porter,
had served as faculty advisor to a fellow faculty member, Messer, who was found
responsible for creating a hostile work environment. Porter, upset about the
college’s “extreme political correctness,” subsequently distributed a survey to the
student body and faculty to assess “attitudes about academic freedom, freedom
of speech, and hostile work environments under civil rights law.” A college dean
allegedly demanded that the professor pull the survey and apologize, and charges
of incompetence were brought to a faculty status committee, which resulted in
Porter’s suspension. Nevertheless, the student government association gave
Porter an award. In reaction, Porter alleged that a fellow professor, Sergent (named
as a codefendant in the defamation lawsuit) e-mailed the student government
association to disparage Porter’s tness for the award. Porter asserted that Sergent
knew the statements in the e-mail were false, and the publication was done in
retaliation for Porter’s representation of Messer; Sergent’s spouse was one of the
professors who accused Messer of discrimination. Porter also claimed that Sergent
published the defamatory e-mail in retaliation for the survey. Although Sergent
had a qualied privilege to send the e-mail, these allegations were enough to
demonstrate actual malice.
Tied in with retaliation-focused arguments are assertions of actual or common
law malice rooted in allegedly false accusations. In several recent cases, respondents
in campus sexual misconduct investigations have successfully overcome qualied
privilege in suits against their accusers by asserting that those complainants
were untruthful in bringing the complaint.
152
This article now turns to a close
examination of these cases.
150 E.g., Aslin v. Univ. of Rochester, No. 6:17-CV-06847 (LJV), 2019 WL 4112130, at *20 (W.D.N.Y.
Aug. 28, 2019).
151 The facts in this paragraph are those pleaded in Porter, 2020 WL 4495465.
152 See Heineke v. Santa Clara Univ., No. 17-CV-05285 (LHK), 2017 WL 6026248, at *14 (N.D.
Cal. Dec. 5, 2017). (faculty sexual harassment investigation; student-accuser’s knowledge of the
falsity of her allegations was sucient to overcome privilege under both common law and actual
malice standards); Doe v. Roe, 295 F. Supp. 3d 664, 677 (E.D. Va. 2018) (student sexual misconduct
investigation; applying “qualied immunity” and nding sucient allegations that student “had no
good faith reason for reporting a sexual assault and that instead, she was motivated by personal spite
or ill will”); Doe v. Coll. of Wooster, No. 5:16-CV-979, 2018 WL 838630, at *9 (N.D. Ohio Feb. 13, 2018)
(student sexual misconduct investigation; establishing false accusations by clear and convincing
evidence would show actual malice sucient to overcome qualied privilege); Jackson v. Liberty
Univ., No. 6:17-CV-00041, 2017 WL 3326972, at *14 (W.D. Va. Aug. 3, 2017) (student sexual misconduct
investigation; false accusations sucient to plausibly show “actual, common-law malice” meaning
“behavior actuated by motives of personal spite, or ill-will, independent of the occasion on which
the communication was made”); Routh v. Univ. of Rochester, 981 F. Supp. 2d 184, 213–14 (W.D.N.Y.
2013) (student sexual misconduct investigation; establishing false accusation would defeat “common
interest” privilege under actual and common law malice standards).
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 148
V. Defamation and Campus Sexual Misconduct Claims
Perhaps the most contested aspect of defamation law in academic life surrounds
statements made within sexual misconduct proceedings.
153
The nal section of
this article will closely examine the rapid changes in this area of law, including a
reshaping of the nature of legal privilege in sexual misconduct proceedings.
A. The Intersection of Title IX and Defamation Law
In a growing trend, courts across the country have heard defamation cases
brought by individuals accused of sexual misconduct (“respondents”) against
those that brought forth the accusation (“complainants”), along with the college
or university itself and faculty and sta involved in the investigation and
adjudication.
154
These cases test several structural issues within proceedings governed by Title
IX of the Educational Amendments of 1972. In May 2020, the U.S. Department of
Education issued nal regulations (“Title IX Final Rules”) governing how both
public and private educational institutions respond to “sexual harassment,” including
sexual violence.
155
Among their most controversial provisions, the Title IX Final
Rules mandate that oenses falling within its scope (including crimes of sexual
violence dened in the 2013 Violence Against Women Act amendments to the
Clery Act
156
) be investigated and adjudicated according to a grievance process that
includes live cross-examination by advisors for the complainant and respondent.
157
No hearsay exceptions appear to apply within this forum; if a party or witness
gives a statement to investigators, parties, or witnesses before hearing, they
must submit to cross-examination at a live hearing to be questioned about that
statement.
158
Otherwise, the statement cannot be considered in the decision-maker’s
153 Some sexual misconduct allegations will be brought under an institution’s Title IX process,
while others, if falling outside the institution’s Title IX jurisdiction, may constitute policy violations
adjudicated according to a code of conduct or handbook. 34 C.F.R. § 106.45 (b)(3)(i) (2020) (institution
may apply code of conduct to adjudicate complaints falling outside Title IX education program or activity
or outside United States). This distinction may be relevant to whether a court will apply absolute or
qualied privilege depending on the procedures applied in the investigation and adjudication.
154 E.g., Cuba v. Pylant, 814 F.3d 701 (5th Cir. 2016); Razavi v. Sch. of the Art Inst. of Chi., 2018
IL App (1st) 171409, ¶ 36, 122 N.E.3d 361, 374 (Ill. Ct. App. 2018), case dismissed sub nom. Razavi v.
Sch. of Art Inst. of Chi., 124 N.E.3d 475 (Ill. 2019); Doe v. Univ. of Dayton, No. 3:17-CV-134, 2018 WL
1393894, at *3 (S.D. Ohio Mar. 20, 2018), a’d, 766 F. App’x 275 (6th Cir. 2019). Witnesses have also been
subject to defamation suit by the accused individual. E.g., Lozier v. Quincy Univ. Corp., No. 18-CV-
3077, 2021 WL 981278, at *1 (C.D. Ill. Mar. 16, 2021) (student-athlete who gave testimony in ongoing
sexual misconduct investigation of coach sued for defamation). Notably, courts have considered,
and rejected, the theory that Title IX preempts state defamation law claims. Coll. of Wooster, 2018 WL
838630, at *8.
155 85 Fed. Reg. 30026 (May 19, 2020).
156 34 C.F.R. § 668.46 (2015).
157 34 C.F.R. § 106.45(b) (2020).
158 See 34 C.F.R. § 106.45(b)(6)(i) (“If a party or witness does not submit to cross-examination
at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in
reaching a determination regarding responsibility.”).
149 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
determination regarding responsibility.
159
In an eort to maintain an “education”
process free of “complicated rules of evidence, the Department has mandated due
process protections exceeding those even present in civil and criminal trials.
160
Courts applying defamation law may grapple with whether these heightened
protections merit application of absolute privilege for statements made within the
Title IX process.
Also potentially at issue in defamation suits is Title IX’s prohibition against
retaliation. Title IX has long been interpreted to require colleges and universities to
protect students from retaliation for exercising rights under the statute, including
when they participate in a disciplinary process. The challenge of protecting students
from retaliation heightens when parties introduce defamation claims. Parties may
seek to protect their reputations through the threat, or actual ling, of state-law
defamation claims during or after the campus process. Parties or fact witnesses
may recant their statements or avoid participating in the campus process, knowing
that they might have to defend themselves in courtroom litigation, which could
expose their identities and traumatic experiences.
In turn, Title IX disciplinary cases are pushing courts to reconsider the line
between judicial and nonjudicial proceedings. As discussed in Part IV, the absolute
privilege for statements made in judicial proceedings is usually not available for
statements made in a conduct proceeding; such statements are aorded a more
limited qualied privilege. But as campus proceedings increasingly acquire
the formalities of a judicial process, including cross-examination, the absolute
privilege may expand.
This trend is likely to continue, even if the Title IX Final Rules are modied
or rescinded.
161
Courts evaluating sexual misconduct adjudications have elevated
the standards of due process or fair process in these proceedings, for example, by
expecting access to adversarial questioning, either indirectly through a decision-
maker or through direct cross-examination of the witness by the parties or their
representatives, as a minimal requirement.
162
159 In the Preamble to the Title IX Final Rules, the U.S. Department of Education wrote that it
“believes that in the context of sexual harassment allegations under Title IX, a rule of non-reliance
on untested statements is more likely to lead to reliable outcomes than a rule of reliance on untested
statements. If statements untested by cross-examination may still be considered and relied on, the
benets of cross-examination as a truth-seeking device will largely be lost in the Title IX grievance
process.” 85 Fed. Reg. at 30347.
160 Id.
161 In April 2021, the U.S. Department of Education’s Oce for Civil Rights announced it will
issue a notice of proposed rulemaking to amend the Title IX regulations under Executive Order
14021. See U.S. Dep't of Educ., Oce for Civil Rights, Letter to Students, Educators, and other
Stakeholders re Executive Order 14021 (Apr. 6, 2021), https://www2.ed.gov/about/oces/list/
ocr/correspondence/stakeholders/20210406-titleix-eo-14021.pdf.
162 While federal circuit courts of appeal remain split about whether sexual misconduct
proceedings must include live cross-examination by the parties or their representatives, most have
concluded that “some” form of questioning among the parties is a due process minimum, such as by
questions posed to parties and witnesses through a hearing panel. Compare Doe v. Univ. of Scis., 961
F.3d 203, 215 (3d Cir. 2020) (“fair process” at private university would require “the modest procedural
protections of a live, meaningful, and adversarial hearing and the chance to test witnesses’ credibility
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 150
Ultimately, the outcome of this judicial boundary-making may have a signicant
impact on the future of Title IX and the risks that campus community members
take when they seek a formal resolution of a sexual misconduct complaint.
The treatment of statements made in misconduct complaints and any resulting
proceedings as entitled to absolute privilege promotes a college or university’s
ability to conduct an eective investigatory and hearing procedure, encouraging
the free and open disclosure of information related to an accusation and ensuring
that parties and witnesses can come forward without fear of legal retaliation. Some
courts continue to apply qualied privilege in these cases, reasoning that “because
a plainti bears the burden proving the privilege was lost or abused, there is
a presumption that the reports of victims of sexual assault are truthful.”
163
But
that presumption may require prolonged, expensive, and traumatic litigation to
vindicate; securing absolute privilege may mean the dierence between the early
dismissal of vexatious claims, and a long discovery process, and even trial, on the
truth of the underlying misconduct allegations.
B. Absolute and Qualied Privilege in Sexual Misconduct Proceedings
1. Cases Extending Absolute Privilege
Beginning with the Indiana Supreme Court in 2008, courts in Connecticut,
Illinois, and Indiana have published decisions extending absolute privilege
to campus sexual misconduct proceedings involving student complainants.
164
Pennsylvania courts have also applied absolute privilege in certain private and
public university conduct proceedings but not in a consistent way.
165
And Ohio
through some method of cross-examination”) and Doe v. Baum, 903 F.3d 575, 581 (6th Cir. 2018) (due
process would require some form of live cross-examination in “credibility” cases) with Haidak v.
Univ. of Massachusetts-Amherst, 933 F.3d 56, 68 (1st Cir. 2019) (indirect questioning through hearing
panel satisfactory for “critical administrative decisions” such as expulsion); Doe v. Colgate Univ., 760
F. App’x 22, 33 (2d Cir. 2019) (indirect questioning through hearing panel and use of hearsay evidence
was not violative of Title IX); Doe v. Loh, No. CV PX-16-3314, 2018 WL 1535495, at *7 (D. Md. Mar. 29,
2018), a’d, 767 Fed. App’x 489 (4th Cir. 2019) (due process in sexual misconduct adjudication did not
require cross-examination); Walsh v. Hodge, 975 F.3d 475, 485 (5th Cir. 2020) (due process satised by
“some” opportunity to question, such as through a hearing panel, but direct cross-examination not
necessary); Doe v. Purdue Univ., 928 F.3d 652, 663 (7th Cir. 2019) (holding that hearing body’s failure
to question complainant or provide respondent with opportunity to review evidence or submit
impeachment evidence was due process violation, and declining to address if due process required
live cross-examination); Doe v. Univ. of Arkansas—Fayetteville, 974 F.3d 858, 867 (8th Cir. 2020)
(indirect questioning through panel was not a due process violation); and, Nash v. Auburn Univ.,
812 F.2d 655, 664 (11th Cir. 1987) (adversarial questioning not a due process requirement in academic
dishonesty hearing). California state appellate courts also require some form of cross-examination
“directly or indirectly, at a hearing in which the witnesses appear in person or by other means” in
campus sexual misconduct investigations involving “credibility.” Doe v. Allee, 30 Cal. App. 5th 1036,
1069 (Cal. Ct. App. 2019).
163 Doe v. Roe, 295 F. Supp. 3d 664, 677 (E.D. Va. 2018).
164 Hartman v. Keri, 883 N.E.2d 774, 778 (Ind. 2008); Razavi v. Sch. of the Art Inst. of Chi., 2018
IL App (1st) 171409, ¶ 36, 122 N.E.3d 361, 374 (Ill. Ct. App. 2018), case dismissed sub nom. Razavi v. Sch.
of Art Inst. of Chi., 124 N.E.3d 475 (Ill. 2019); Khan v. Yale Univ., No. 3:19-CV-01966 (KAD), 2021 WL
66458, at *8 (D. Conn. Jan. 7, 2021).
165 The Pennsylvania Supreme Court has held that absolute privilege would not apply to a
151 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
courts have extended absolute privilege where the conduct proceeding “requires
notice, a hearing, and provides the student with an opportunity to present evidence.”
166
In 2008, Indiana’s Supreme Court applied absolute privilege to the complaints
of two public university students of sexual harassment against a professor that
were led under the university’s antiharassment policy and processed through
the appropriate institutional oce.
167
The court drew on public policy grounds
for extending absolute privilege to sexual misconduct proceedings, reasoning that
“Protecting their complaints with anything less than an absolute privilege could
chill some legitimate complaints for fear of retaliatory litigation.”
168
Then, in Razavi v. School of the Art Institute of Chicago, the Appellate Court
of Illinois, First District, held that a student’s statements to college ocials at a
private college made during the initiation, investigation, and adjudication of a
campus sexual assault complaint were absolutely privileged against a defamation
action.
169
The court reasoned that the campus code of conduct, which encouraged
victims to report sexual assault to police or university ocials, was based on the
federal Campus SaVE Act (enacted into law through the Clery Act amendments to
the 2013 reauthorization of the Violence Against Women Act), and permitted those
university ocials to investigate the violation and question anyone, including
the victim and accused. As the university was “legally required” to investigate
the report under federal law, any statements made during that investigation were
absolutely privileged.
In 2019, the Sixth Circuit Court of Appeals, applying Ohio law, held that a Title
IX complainant’s “statements made in preparation for and during the disciplinary
hearing are entitled to absolute immunity.”
170
But the court engaged in little
former student’s allegations of sexual misconduct against a teacher where that student does not intend
to initiate a judicial or quasi-judicial proceeding against the teacher. Schanne v. Addis, 632 Pa. 545, 562
(Pa. 2015) The court expressly declined to reach the issue of whether absolute privilege would apply for
statements made in furtherance of a quasi-judicial proceeding. Id. at 560 n.7. For cases applying (or
declining to apply) absolute privilege in the postsecondary disciplinary context, compare Harris v. Saint
Joseph’s University, No. CIV.A. 13-3937, 2014 WL 1910242, at *9 (E.D. Pa. May 13, 2014) (government
involvement is necessary to make a private university’s disciplinary procedures quasi-judicial and
therefore eligible for absolute privilege), with Fogel v. University of the Arts, No. CV 18-5137, 2019 WL
1384577, at *11 (E.D. Pa. Mar. 27, 2019) (at private university, holding that complainant’s statements to
Title IX ocials initiating investigation of faculty member were absolutely privileged), and Dempsey
v. Bucknell University, No. 4:11-CV-1679, 2012 WL 1569826, at *15 (M.D. Pa. May 3, 2012) (holding that
a statement made outside a private university’s disciplinary proceeding was not covered under the
absolute privilege aorded to judicial proceedings).
166 Savoy v. Univ. of Akron, 15 N.E.3d 430, 435 n.3 (Ohio Ct. App. 2014).
167 Hartman, 883 N.E.2d at 778.
168 Id.
169 2018 IL App (1st) 171409, at ¶ 29 This decision was preceded by a 2016 opinion holding that
a student complainant’s reports to campus security about sexual violence were absolutely privileged.
Razavi v. Walkuski, 2016 IL App (1st) 151435, ¶ 11, 55 N.E.3d 252, 255 (Ill. Ct. App. 2016).
170 Doe v. Univ. of Dayton, 766 F. App’x 275, 290 (6th Cir. 2019) (citing Savoy, 15 N.E.3d at
435 n.3). See also Schaumleel v. Muskingum Univ., No. 2:17-CV-463 (GCS), 2018 WL 1173043, at
*86 (S.D. Ohio Mar. 6, 2018). (in dictum, holding that conduct proceeding was quasi-judicial under
Savoy). A 2018 decision by a federal court of the Northern District of Ohio, however, did not nd that
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 152
discussion about the policy balance underlying this immunity, as the defamation-
plainti (the respondent in the underlying Title IX case) did not dispute that
absolute immunity applied.
171
The Sixth Circuit did carve out a distinction for
statements made outside the proceeding to friends and roommates about the
assault, and held that only qualied privilege would apply to statements that did
not have a “reasonable relation” to the disciplinary proceedings.
172
More recently, in Khan v. Yale University, a federal district court in Connecticut,
considering state judicial precedent and the reasoning from Razavi, applied
“absolute immunity” to statements made within a private university’s sexual
misconduct proceeding, determining that the same policy grounds supporting
immunity in an ordinary judicial process to encourage testimony without fear of
defamation suits “applies equally in the circumstances presented here—an alleged
sexual assault or sexual harassment victim testifying before a university fact-nding
body at a proceeding convened pursuant to Title IX or comparable state statute.”
173
While the Khan court wrote that it was “reluctant” to modify Connecticut’s law
regarding absolute immunity, particularly when addressing a private university’s
grievance process, it found support for extending privilege in state court precedent
declaring a private university’s judicial board procedures to be quasi-judicial,
and state appellate court pronouncements that the absolute immunity analysis
should not rest solely on the public-private distinction.
174
The court noted that
the private university’s misconduct proceeding “was one authorized by federal
law” that applied equally to private and public institutions, and the plainti (a
student-respondent) could identify “no substantive dierence” between the Title
IX proceedings held at a public or private university that would justify applying
absolute immunity only in public institutions.
175
Savoy would absolutely privilege statements made in a private university’s conduct proceedings.
Doe v. Coll. of Wooster, No. 5:16-CV-979, 2018 WL 838630, at *8 (N.D. Ohio Feb. 13, 2018) (nding it
“unlikely” that Ohio Supreme Court would extend absolute immunity to statements made in private
university disciplinary proceedings).
171 Univ. of Dayton, 766 F. App’x at 290. Notably, the Sixth Circuit Court of Appeals requires a higher
level of due process for conduct proceedings held at public colleges and universities than demanded
by other circuit courts of appeal, including “some form of cross-examination” in the case “when the
university’s determination turns on the credibility of the accuser, the accused, or witnesses.” Doe v. Baum,
903 F.3d 575, 581 (6th Cir. 2018). Consequently, even without the present Title IX mandates imposed
under the nal rule, conduct proceedings held at public institutions under Sixth Circuit precedent
would likely satisfy the expectations of a “quasi-judicial” hearing. See discussion supra note 162.
172 Univ. of Dayton, 766 F. App’x at 290. For further discussion of privilege for statements made
outside the investigation and hearing, see infra Part V.B.3.
173 No. 3:19-CV-01966 (KAD), 2021 WL 66458, at *8 (D. Conn. Jan. 7, 2021).
174 Id. at *7–8, citing Rom v. Faireld University, No. CV020391512S, 2006 WL 390448, at *5
(Conn. Super. Ct. Jan. 30, 2006) (holding that private university’s judicial hearing board was quasi-
judicial but declining to extend absolute privilege to statements made in that proceeding) and Preston
v. O’Rourke, 74 Conn. App. 301, 313–14 (Conn. App. Ct. 2002) (holding that labor arbitration was
quasi-judicial proceeding entitled to absolute immunity, and declining to draw distinction “between
purely private labor arbitration and the actions of public administrative ocers or bodies”). The
Khan court, of course, did not follow the Superior Court’s decision in Rom to apply only qualied
immunity to a quasi-judicial proceeding, and applied absolute immunity. Id. at *7 n.11.
175 Id. at *8. The Khan court also noted that the private university was bound by state law
153 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
As these cases suggest, the central policy question driving the analysis is
whether the campus process is suciently “judicial” in nature to allow the
respondent to dispute the accuracy of any statements. If it is not, courts reason,
then a defamation claim may be appropriate to clear the accused student’s name.
2. Cases Maintaining Qualied Privilege
In turn, courts have oered two theories about why the campus disciplinary
process is not “quasi-judicial,” meaning that witnesses would only have qualied
privilege in their statements.
One theory is that, at least for private institutions, there is no governmental
involvement in the disciplinary process. Courts reason that without this oversight
the proceedings may lack due process safeguards that would attach in a state-
supervised administrative hearing.
176
For example, in Bose v. Bea, the Sixth Circuit Court of Appeals, applying
Tennessee law, held that the absolute privilege did not apply to allegedly
defamatory statements made about a student accused of honor code violations by
a faculty member in a private college’s campus disciplinary proceeding.
177
Even
though the process contained certain “procedural safeguards,” the court reasoned
that Tennessee law did not intend to “cloak” a private entity with the privilege,
but only judicial or quasi-judicial proceedings held by public entities. Therefore,
a disciplinary proceeding held at a private college would not enjoy that privilege
without a clear signal from the legislature. Both the Third Circuit and Fifth Circuit
Courts of Appeals have also applied this governmental involvement theory to
defamation claims arising from campus disciplinary proceedings.
178
It is unclear whether the Title IX Final Rules will moot the governmental
involvement analysis; as the reasoning in Razavi and Khan suggests, the expansive
scope of the regulations may collapse any meaningful public-private distinction
should courts view the Final Rules as establishing government-mandated
procedural safeguards for both public and private institutions handling the types
of misconduct and locations falling within Title IX’s scope.
179
mandating a series of due process protections for both private and public postsecondary institutions
hearing sexual misconduct proceedings. See conn. Gen. sTAT. § 10a-55m (b)(6) (2021).
176 Bose v. Bea, 947 F.3d 983, 996 (6th Cir. 2020); Doe v. Coll. of Wooster, No. 5:16-CV-979, 2018
WL 838630, at *7 (N.D. Ohio Feb. 13, 2018) (“existence of governmental presence is a common thread”
under Ohio law of absolute immunity and other jurisdictions).
177 947 F.3d at 996.
178 See Cuba v. Pylant, 814 F.3d 701, 716 (5th Cir. 2016) (applying Texas law, holding that
Southern Methodist University, “a private institution that does not have any law enforcement or
law interpreting authority,” cannot hold quasi-judicial proceedings, and therefore statements made
by complainant were not shielded by absolute immunity); Overall v. Univ. of Pa., 412 F.3d 492, 497–
98 (3d Cir. 2005) (holding private institution’s proceedings were not quasi-judicial, so no absolute
immunity, as Pennsylvania law requires governmental involvement in the proceeding; policy reasons
include that private proceedings may lack “basic procedural safeguards”).
179 See generally 85 Fed. Reg. 30026 (May 19, 2020); Razavi v. Sch. of the Art Inst. of Chi., 2018 IL
App (1st) 171409, ¶ 24, 122 N.E.3d 361, 374 (Ill. Ct. App. 2018), case dismissed sub nom. Razavi v. Sch.
2021] A PRIVILEGE TO SPEAK WITHOUT FEAR 154
A related approach focuses less on formal state involvement but on the specic
due process protections applied to the parties. Eectively, the more trial-like the
proceedings, the more likely that absolute privilege will apply.
For instance, a federal district court of the Eastern District of Virginia held that
a private university’s disciplinary process did not have sucient guarantees of
due process, so it was not “quasi-judicial” so as to allow a complainant to claim
“absolute immunity” from a respondent’s defamation claim; instead, the court applied
“qualied immunity” to the students’ statements in the Title IX proceeding, and
denied a motion to dismiss based on allegations that the complainant’s statements
were driven by malice.
180
As examples of insucient due process, the court noted
the respondent’s inability to have an in-person hearing, to present exculpatory or
documentary evidence, to call witnesses, or to cross-examine his accuser.
181
Likewise, courts that otherwise might extend absolute privilege under state
law have declined to do so where the statements are not in furtherance of the
investigation itself. For example, a report made to a private university’s Title IX
oce was absolutely privileged under Pennsylvania law, but statements about
that misconduct made before the report, to attendees at a conference, were not.
182
And if a statement was made in a disciplinary proceeding, and then repeated a year
later to dierent parties, then it might not be protected, even if shielded by Ohio’s
absolute privilege during the proceeding itself.
183
The takeaway is that due process for the respondent and absolute privilege for
the reporting party are mutually reinforcing: as institutions increasingly converge
on similar standards of due process in cases arising from sexual and interpersonal
violence, we may see more courts apply absolute privilege for statements made
within those proceedings.
3. Privilege for Statements Made Outside the Proceeding
Even where a court recognizes absolute privilege within the Title IX or conduct
of Art Inst. of Chi., 124 N.E.3d 475 (Ill. 2019) (statements made in private university’s investigation
and adjudication of sexual misconduct proceeding “were made as part of communications required
by law”); Khan, 2021 WL 66458, at *8 (“the fact that Title IX applies equally to private and public
institutions would tend to undermine such a claim” that public and private institutions should be
subject to dierent standards of privilege).
180 Doe v. Roe, 295 F. Supp. 3d 664, 675 (E.D. Va. 2018). Other cases from courts within the Fourth
Circuit include Jackson v. Liberty Univ., No. 6:17-CV-00041, 2017 WL 3326972, at *13 (W.D. Va. Aug.
3, 2017) (holding that a private institution’s Title IX grievance process was not a “legal proceeding”
suited for a claim of malicious abuse of the legal process under Virginia law, and assuming without
deciding that defamation claim arising from allegedly false accusation was subject to qualied
privilege); and Doe v. Erskine Coll., No. CIV.A. 8:04-23001 (RBH), 2006 WL 1473853, at *15 (D.S.C.
May 25, 2006) (assuming, without deciding, that qualied privileged attached to private college’s
Title IX disciplinary proceeding under South Carolina law).
181 Doe v. Roe, 295 F. Supp. 3d at 674–75 (noting that “it is questionable” whether a private
university’s grievance process could ever be considered “quasi-judicial”).
182 Fogel v. Univ. of the Arts, No. CV 18-5137, 2019 WL 1384577, at *11 (E.D. Pa. Mar. 27, 2019).
183 Schaumleel v. Muskingum Univ., No. 2:17-CV-463 (GCS), 2018 WL 1173043, at *7 (S.D.
Ohio Mar. 6, 2018).
155 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
proceeding, it may not apply this privilege to statements made outside of it. Rather
than extend absolute privilege, courts may apply qualied privilege to statements
made by a complainant to a small circle of friends and colleagues about the
underlying sexual misconduct.
In a decision later armed by the Sixth Circuit Court of Appeals, a federal
judge in Ohio reasoned that it was not “in the public interest” to subject a reporting
party to a defamation claim when “speaking privately about their experiences”
with a roommate or close friend, particularly where the respondent had admitted
to much of the misconduct.
184
Dismissal was appropriate on qualied privilege
grounds, “even in the absence of certainty with regard to good faith” to facilitate
the ability of victims of sexual assault to speak privately about their experience or
seek necessary medical treatment or counseling.
185
The Sixth Circuit armed that qualied privilege provided the appropriate
level of protection for these conversations, considering that “[p]rivate statements
to friends are not the type of utterances commonly thought of as giving rise to
defamation claims.”
186
The court acknowledged “the risk that victims of sexual
assault could be dissuaded from sharing their experiences—and so from seeking
support, justice, and treatment—by looming defamation suits.”
187
But it declined to
extend absolute immunity to private conversations and armed the lower court’s
application of qualied privilege, holding that a complainant’s statements made
outside the disciplinary proceeding to friends and roommates about the assault
did not have a “reasonable relation” to the disciplinary proceedings to encompass
them under absolute immunity.
188
184 Doe v. Univ. of Dayton, No. 3:17-CV-134, 2018 WL 1393894, at *5 (S.D. Ohio Mar. 20, 2018),
a’d, 766 F. App’x 275 (6th Cir. 2019) (“It cannot be that when someone is involved in sexual activity,
which arguably turns into unwanted sexual contact, discussing this with a roommate or close friend
would open them to a defamation claim. It cannot be in the public interest that when a student brings
a claim of sexual assault in a proper college disciplinary proceeding and has her claim vindicated,
she becomes a ripe target for a retaliatory defamation lawsuit.”).
185 Id. See also Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 758–59 (D. Md. 2015) (recognizing
Maryland’s “conditional privilege” and noting, in dictum, that statements were likely privileged
because “probably made in furtherance of her legitimate interest in personal safety and the safety
of those closest to her.” These statements were not made “to a broad public forum such as the
school newspaper or a social media network” but to “close friends and family” who were “rightly
understood” to be part of her support system). But see Schaumleel, 2018 WL 1173043, at *9. (a
complainant’s statements “made to her friends immediately prior to her traveling to a hospital to
have a rape kit taken and receive the ‘morning after’ pill” were not shielded by absolute or qualied
privilege) and Doe v. Washington Univ., No. 16SL-CC04392 (Cir. Ct., St. Louis Cty., Sept. 25, 2017)
(unreported) (allowing defamation claims against complainant to overcome dismissal, without
consideration of absolute or qualied privilege, based on text messages sent to a friend saying
plainti had raped her). For a link to the Washington University opinion and further discussion,
see Tyler Kingkade, As More College Students Say “Me Too,” Accused Men Are Suing for Defamation,
BuzzFeed (Dec. 5, 2017), https://www.buzzfeednews.com/article/tylerkingkade/as-more-college-
students-say-me-too-accused-men-are-suing [https://perma.cc/3BLX-F55E].
186 Univ. of Dayton, 766 F. App’x at 290.
187 Id.
188 Id.
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While qualied privilege may apply to statements made to a small circle of
friends in connection with the proceeding, it is unlikely to extend more broadly to
statements made in public and on social media.
189
Indeed, even where a respondent
is found in violation of campus policy, the complainant may risk defamation
liability by identifying that respondent as a “rapist” through social media and
other public communications.
190
In Goldman v. Reddington, a federal district court for the Eastern District of New
York held that a complainant could potentially be sued for defamation per se under
New York law for posting social media posts and text messages describing the
respondent as a “violent rapist,” “rapist,” and “monster,” and sending disparaging
messages to an employer. The respondent was previously expelled by a private
university for sexual assault of the complainant, but criminal charges had been
dropped. The complainant allegedly “published numerous statements, viewed
by hundreds or thousands of people,” accusing the respondent of rape; if that
accusation was untrue, the complainant could be liable for defamation because
rape is a suciently “serious” crime to support a defamation per se claim.
191
Notably, the Goldman court did not consider the campus’ nding of
responsibility to be enough to establish “truth” and dismissed the complaint on the
ground that the plainti had not pleaded the existence of a false statement of fact:
the allegation that the county district attorney found no corroborating evidence or
physical evidence of “any sexual contact,” consensual or nonconsensual, created
an issue of fact about the truthfulness of the allegations sucient to overcome a
motion to dismiss the defamation per se claim. Because the parties were “worlds
apart” in their positions on the facts, the court allowed the case to go forward.
192
4. Privilege and False Reports
As described in Part IV.B, qualied privilege will be overcome where the
defamation plainti plausibly asserts the statements were made with “actual
malice” or, in some states, “common law malice,” which considers the speaker
or writer’s ill intent, rather than their regard for the truth.
193
In several published
189 For a broader discussion of defamation claims arising from survivors sharing stories in
public forums including the Internet, rather than in civil or criminal litigation, see Weisbrot, supra
note 5. See also Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 367 (S.D.N.Y. 2016) (dismissing Title
IX claim brought by student against university after he was publicly identied as a “rapist” by his
accuser, and noting, in dictum, that the defamation tort provides a remedy for “a student who is the
victim of sexually charged slander”).
190 Goldman v. Reddington, 417 F. Supp. 3d 163, 169, 173 (E.D.N.Y. 2019).
191 Id.
192 Id. The facts alleged suggest that the nding of responsibility was made through a “single-
investigator” model: The Title IX investigator “concluded that Goldman had violated the Student
Code of Conduct, and he was expelled.” Id. at 168. But the court did not discuss what level of
privilege would apply to statements made through such a process where the investigator also reaches
the determination of responsibility. The issue of absolute or qualied privilege within the campus
investigation was not decided in the Goldman case, perhaps because the allegedly defamatory
statements were not made within the investigation, but only afterward in a public forum.
193 Front, Inc. v. Khalil, 24 N.Y.3d 713, 718 (N.Y. 2015).
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decisions, defamation plaintis who claim to have been falsely accused of sexual
misconduct in campus disciplinary proceedings have overcome privilege this
way.
194
A false accusation of a serious crime is defamatory; in turn, a claim that the
complainant falsely accused the plainti of sexual assault may result in a court
allowing the case to proceed forward.
In one example, a federal district court in Virginia allowed a respondent to
proceed on a defamation claim against a complainant based on the allegation that
the complainant made false accusations to punish him and other members of the
football team.
195
The respondent also alleged that the complainant specically
asked university ocials whether she should say she was raped before making the
accusations. Under these allegations, the court declined to dismiss the defamation
claim.
196
C. Other Protections for Parties and Witnesses
At the state level, lawmakers have expanded certain protections for parties
and witnesses from defamation lawsuits. For example, campus disciplinary
proceedings (at least those arising at public institutions) may be covered under
Anti-SLAPP (“Strategic Lawsuit Against Public Participation”) legislation, which
would provide students with an expedited procedure for dismissing vexatious
claims and the potential for recovery of attorney’s fees, costs, and sanctions.
California and Texas courts, in fact, have allowed reporting parties to apply their
Anti-SLAPP statutes against defamation claims arising from the reporting of
sexual misconduct at public universities.
197
Another approach, adopted by New York under its 2015 “Enough is Enough”
campus sexual assault response and prevention law, is to reduce the risk of
retaliation by making the condentiality of student information the default in any
194 Doe v. Coll. of Wooster, No. 5:16-CV-979, 2018 WL 838630, at *9 (N.D. Ohio Feb. 13, 2018);
Routh v. Univ. of Rochester, 981 F. Supp. 2d 184, 213–14 (W.D.N.Y. 2013). But see Doe v. Univ. of
Dayton, 766 F. App’x 275, 290 (6th Cir. 2019) (legal conclusions dressed as factual allegations cannot
be the basis for a showing of malice sucient to overcome a motion to dismiss a defamation claim).
195 Jackson v. Liberty Univ., No. 6:17-CV-00041, 2017 WL 3326972, at *14 (W.D. Va. Aug. 3, 2017).
196 For other examples, see the cases cited supra note 152.
197 Vander-Plas v. May, No. 07-15-00454-CV, 2016 WL 5851913, at *1 (Tex. App. Ct. Oct. 4, 2016),
reh’g denied Tex. App. Ct. Nov. 14, 2016, and review denied Tex. Feb. 24, 2017; Laker v. Bd. of Trustees
of Cal. State Univ., 32 Cal. App. 5th 745, 765 (Cal. Ct. App. 2019) (internal investigations by schools
into claims of sexual and racial discrimination qualify as “ocial proceedings authorized by law”
that receive the protections of the anti-SLAPP statute); Doe v. Roe, No. G057780, 2021 WL 118820,
at *1 (Cal. Ct. App. Jan. 13, 2021) (statements to campus police and to university administrators
at public university charged with investigating sexual misconduct fell within petitioning activity
protected by the anti-SLAPP statute). See Alyssa R. Leader, A “SLAPP” in the Face of Free Speech:
Protecting Survivors' Rights to Speak Up in the “Me Too” Era, 17 FirsT Amend. l. rev. 441 (2019). Scholars
have also proposed expansion of federal and state whistleblower protections “to protect individuals
who publicly disclose, either to their employer’s internal corporate HR department, their college
or university’s Title IX oce, or to the public, that they have experienced sexual violence.” Kendra
Doty, “Girl Riot, Not Gonna Be Quiet”—Riot Grrrl, #MeToo, and the Possibility of Blowing the Whistle on
Sexual Harassment, 31 hAsTinGs women's l.J. 41, 65 (2020).
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legal “proceeding” arising from campus discipline.
198
In building such protections,
however, lawmakers should be careful to include defamation actions within the
“proceedings” covered under the condentiality law.
199
State court judges and lawmakers may also consider revisiting the intracorporate
communications no-publication rule, which has been raised as an alternative to
the qualied privilege for shielding statements made within a campus sexual
assault grievance process. As Doris DelTosto Brogan writes, even if a defendant
is entitled to invoke the privilege, they must expose themselves to the hazards
of a trial: “Too risky for the entity, and even more daunting for the individual
within the organization.”
200
By covering statements made within the investigation
and adjudication under the no-publication rule, the defamation plainti cannot
use them to plead a prima facie case because there is no publication; as a result,
parties and witnesses may be less afraid of retaliation and concern they will not
be believed.
201
Ultimately, the strongest defense colleges and universities can oer to parties
and witnesses from defamation lawsuits is an investigation and hearing that
provides the respondent a meaningful opportunity to be heard. Due process and
absolute privilege go hand in hand. As institutions adopt heightened due process
or fair process protections in compliance with federal and state regulations, courts
may correspondingly expand absolute privilege to the reporting parties and
witnesses to those proceedings. This approach should benet all parties, balancing
the right of witnesses to be free of retaliation and fear of litigation, with a single,
but full and meaningful, opportunity to be heard.
D. Antiretaliation Policies
Finally, postsecondary institutions should consider whether their existing
antiretaliation policies protect parties and witnesses from potential defamation
liability. Antiretaliation protections have been part of the Department of Education’s
Title IX guidance for decades and have been expanded and claried under the
2020 Title IX Final Rule.
202
Various forms of potentially retaliatory conduct could
198 New York Education Law section 6448 shields personally identifying information from
disclosure “in any proceeding brought against an institution which seeks to vacate or modify
a nding that a student was responsible for violating an institution’s rules” regarding a sexual
misconduct violation. In comparison, Federal Rule of Civil Procedure 10(a) requires that “[t]he title
of the complaint must name all parties.” Parties must specically request (and, in cases involving
student-on-student sexual misconduct, are usually granted) anonymity.
199 While most would interpret it as within the spirit of the law, New York Education Law
section 6448 does not specically prevent the naming of parties in court proceedings not seeking to
vacate or modify a nding of responsibility.
200 Brogan, supra note 58, at 651.
201 Id. at 664–65. Brogan describes this rule as a kind of necessary legal ction by which “there
is no publication as dened in defamation law.” On balance, liability is foreclosed “because the
important social interest of empowering organizations to discover and address internal wrongdoing
outweighs the interest in providing a means to protect reputation.” Id. at 666.
202 u.s deP’T oF educ., revised sexuAl hArAssmenT GuidAnce 17, 20 (2001); U.S. Dep’t of Educ.,
Oce for Civil Rights, Questions and Answers on Title IX and Sexual Violence 42–43 (Apr. 29, 2014);
159 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
foster defamation claims. Foreseeable examples include respondents or their
advisors threatening complainants or witnesses with defamation lawsuits for any
statements made during any investigation or adjudication process in advance
of their participation. Likewise, reporting parties or their peers may “name and
shame” those accused of harassment and violence publicly outside of the process.
And, all sides may threaten to, or actually, release condential information obtained
through the investigatory or hearing process.
Considering these possibilities, a student may decide they do not want to
face the risk of exposure, if not legal liability, through their involvement, and a
campus cannot compel participation without violating Title IX’s antiretaliation
prohibition. But an institution can address these fears by developing clear and
consistent policies for handling retaliation within its Title IX process.
From the start of the process, parties and witnesses should be informed of
their right to be free from intimidation, threats, or coercion from anyone, including
the institution, “because the individual has made a report or complaint, testied,
assisted, or participated or refused to participate in any manner in an investigation,
proceeding, or hearing” under Title IX.
203
Within this broad prohibition, campuses
may dene specic examples of these rights, and the parties’ responsibilities
toward one another, in their Title IX policies. Because retaliation policies must be
applied equally to the parties, any examples used to educate students should be
balanced to reect potential misconduct by both respondents and complainants.
In these discussions, parties and witnesses can be alerted to applicable
retaliation policies, and the broader risks present from disseminating condential
and private information. For instance, while these conversations may be dicult,
students may benet from guidance on their potential legal exposure from
“unocial reporting.”
204
Institutional policy may cover certain behavior in this
sphere through retaliation provisions, likewise addressed in section 106.71 of
the Title IX Final Rule. But respondents may be able to bring a private cause of
action for defamation against such posters, be they parties, witnesses, or friends,
independent of any college process. As described above, such civil proceedings are
generally outside the scope of college jurisdiction or responsibility, but students
participating from all sides may benet from education (ideally before the content
is posted) for parties to understand the ramications of such actions.
Plainly, a campus cannot impose a blanket prohibition on the threat or actual
ling of defamation litigation—that would chill First Amendment rights protected
under the Final Rule
205
—but the campus can make clear that such threats or
34 C.F.R. § 106.71 (2020).
203 34 C.F.R. § 106.71(a).
204 Deborah Tuerkheimer, Unocial Reporting in the #MeToo erA, 2019 u. chi. Legal F. 273, 297
(2019) (“In an ironic twist, a survivor who eschewed formal reporting channels may ultimately nd
herself in a courtroom, telling her story under the most formal conditions possible, having expended
enormous resources along the way in exclusive service of beating back a claim that she lied about her
abuse.”).
205 34 C.F.R. § 106.6(d) (2020).
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lings could be grounds for conduct charges if they tend to show an intention to
intimidate a party or witness seeking to participate in the process.
206
Likewise, a
campus would not be engaging in retaliation if it brought conduct charges against a
student for making a “materially false statement in bad faith” during the grievance
proceeding.
207
But the simple fact that a student was found not responsible would
not, on its own, be sucient to conclude that any party made a materially false
statement in bad faith.
208
Another issue to address from the start is condentiality, which is guaranteed
under Title IX, subject to the various exceptions described in the Final Rule.
209
An
institution can set reasonable rules applied to all parties regarding the protection of
condentiality, including asking parties and advisors not to disclose any relevant
information directly related to the allegations obtained through the investigatory
process.
210
The parties’ advisors may also be notied regarding the scope of their
responsibilities, including the antiretaliation rules, when they enter the process.
Advisors can be advised that, even if they are attorneys, no duty of “zealous
advocacy” is inferred or enforced within their role in this context, and the
institution’s grievance procedure prohibits the treatment of parties and witnesses
“in an abusive, intimidating, or disrespectful manner.”
211
The Department of
Education allows campuses to enforce rules of decorum regarding advisor
behavior, including through the removal of advisors from their role.
212
Advisors who are attorneys may also be notied that the institution expects
advisors to understand their ethical obligations under the American Bar
206 85 Fed. Reg. 30026, 30296 n.1161 (May 19, 2020) (noting that “abuse of speech unprotected
by the First Amendment, when such speech amounts to intimidation, threats, or coercion for the
purpose of chilling exercise of a person’s Title IX rights, is prohibited retaliation.”).
207 34 C.F.R. § 106.71(b)(2).
208 85 Fed. Reg. at 30537.
209 34 C.F.R. § 106.71(a).
210 In the Preamble to the Title IX Final Rules, the Department of Education indicates
that the parties, advisors, and the institution may enter an agreement not to discuss
information that does not consist of the allegations under investigation, including evidence
related to the allegations that has been collected and exchanged between the parties and
their advisors during the investigation, or the investigative report summarizing relevant
evidence sent to the parties and their advisors. 85 Fed. Reg. at 30295. Any such agreements
should be entered voluntarily, and parties cannot be compelled to enter them as a condition
of receiving the evidence gathered or investigative report. Whether such agreements, in
turn, would amount to “prior restraint” when imposed by a state institution remains an
open question; as the Sixth Circuit Court of Appeals has recently written, it cannot identify
“any cases holding that a non-disclosure agreement alone (as opposed to an injunction
enforcing one) amounts to a prior restraint.” Ostergren v. Frick, No. 20-1285, 2021 WL
1307433, at *6 (6th Cir. Apr. 8, 2021). An agreement entered voluntarily (that is, without “a
unilateral command”) is more likely to survive constitutional scrutiny. Id.
211 85 Fed. Reg. at 30319.
212 Id. at 30320.
161 JOURNAL OF COLLEGE AND UNIVERSITY LAW [Vol. 46, No. 1
Association’s Model Rule of Professional Conduct 2.1, which states that attorneys,
in giving advice, “may refer not only to law but to other considerations such as
moral, economic, social and political factors, that may be relevant to the client’s
situation.”
213
Such considerations would include a responsibility not to use the
conduct or legal process to advance vexatious claims and litigation but more
broadly would promote the institution’s educational mission and the goals of the
grievance process of ensuring equal access to education without discrimination on
the basis of sex.
In sum, institutions of higher education should take armative steps to address
the impact of defamation claims, both threatened and realized, on their campus
Title IX process. They must balance the rights of accused persons to clear their
name and participate in a fair and equitable process while ensuring that no party or
witness suers retaliation for giving testimony or evidence in the investigation or
hearing. Such strategies include the adoption of rigorous due process standards to
bolster the “quasi-judicial” nature of the campus proceeding; the implementation
of clear retaliation policies and condentiality expectations; and education on the
scope of these policies for parties, witnesses, and advisors of choice.
VI. Conclusion
This article has explored several decades of case law surrounding defamation
claims brought against colleges, universities, and members of their communities,
and come to two major conclusions. The rst is that the various privileges and
immunities aorded to postsecondary institutions, whether through state tort
claim immunity acts or common law privileges, have largely taken the sting out
of the defamation tort within the higher education context. Some of these make
the declarant absolutely shielded from liability, and others place a hard burden on
plaintis to show actual malice in the making of the statement.
The second point, however, is that the current state of the law insuciently
protects the interests of participants in sexual misconduct investigations and
adjudications regulated by Title IX and other federal and state laws. This article
has proposed that statements made within those processes should be treated the
same as those made within other “quasi-judicial” and judicial proceedings and be
shielded from defamation suit. The rationale, as adopted in courts in Connecticut,
Indiana, Illinois, Ohio, and Pennsylvania, is that without this privilege, participants
will justiably fear retaliation from making reports and giving statements within
those processes. Moreover, the heightened level of due process aorded to parties
within those proceedings mitigates the risk that the parties will not have a fair
hearing on the merits on campus. Courts should not require a student to put on
their case again in open court, possibly without their institution’s support, after
undergoing the rigors of a campus investigation.
213 ABA Model Rule of Prof. Conduct 2.1: Advisor, https://www.americanbar.org/groups/
professional_responsibility/publications/model_rules_of_professional_conduct/rule_2_1_
advisor/.
