ILNews

Court: Student complaints are absolute privilege

Jennifer Nelson
January 1, 2008
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In a case of first impression, the Indiana Supreme Court held complaints made by current students under a university's anti-harassment policy are protected by absolute privilege.

The Supreme Court granted transfer to Virginia Hartman and Suzanne Swinehart v. Dr. Gabe Keri, No. 02S03-0706-CV-233, to determine whether Hartman and Swinehart's statements alleging sexual harassment against professor Keri were granted absolute privilege or qualified privilege.

Keri was a professor in the education department at Indiana University-Purdue University at Fort Wayne (IPFW), and Hartman and Swinehart were students who had taken courses Keri taught. In April 2003, Keri was informed his contract would not be renewed because of unsatisfactory teaching performance. The next month, Hartman and Swinehart filed formal complaints with Purdue's Affirmative Action Office at IPFW alleging sexual harassment by Keri.

The university assigned an investigator to interview Keri, Hartman, Swinehart, Keri's colleagues, and current and former students of Keri. The investigator concluded that statements from other students found Keri created a hostile environment, other students had wanted to come forward but were scared to make a report, and that Keri had harassed Hartman. The investigator recommended Keri be removed from teaching and away from contact of students.

The report's findings were reviewed and approved; Keri appealed to Purdue University's president, who upheld the decision. Keri then filed suit in the Northern District of Indiana against Purdue, alleging state tort claims and violations of the Civil Rights Act of 1964. The District Court granted summary judgment in favor of Purdue, and the 7th Circuit Court of Appeals affirmed the District Court's ruling.

Keri then filed suit in Allen Superior Court against Hartman and Swinehart, alleging libel, slander, and malicious interference with his employment contract. The two students moved for summary judgment, which the court granted on the malicious interference count; but it denied summary judgment on the libel and slander claims.

The students appealed and the Court of Appeals reversed the trial court, deciding Hartman and Swinehart's statements were protected by an absolute privilege.

The Indiana Supreme Court today affirmed the Court of Appeals ruling, finding many courts have described the processes of educational institutions as quasi-judicial, wrote Justice Theodore Boehm. Even though Purdue's anti-harassment procedures don't have such formal apparatus as subpoena power, discovery, and proceedings under oath, as long as the process is reasonably transparent and fair, and allows the subject an opportunity to respond, it qualifies as quasi-judicial and allows for absolute privilege.

"Although Purdue's procedure may lack the trappings of a traditional court proceeding, it is orderly and reasonably fair, requires 'appropriate discipline' for those who file knowingly false or malicious complaints, and promises reasonable efforts to restore the reputation of anyone charged with discrimination or harassment that proves unsubstantiated," wrote Justice Boehm.

Absolute privilege is necessary for students like Hartman and Swinehart who file complaints according to university policy, or else it could have a chilling effect on legitimate complaints for fear of retaliation. To try to curb false or malicious reports by students, students who are found to have lied will be punished academically, which should curb false reporting, he wrote.

In a separate but concurring in result opinion, Justice Robert Rucker further explored what makes the university's procedures for addressing harassment complaints quasi-judicial in nature. Keri had argued he should have been allowed to subpoena witnesses and cross-examine witnesses for it to be a quasi-judicial process. Justice Rucker wrote based on the facts of the case, it's clear the university's administrative procedure is quasi-judicial because the school exercised judgment and discretion, determined facts to make a decision, made binding orders, affected Keri's property rights, examined witnesses, and enforced its decision. As such, the students' communications made pursuant to the anti-harassment policy are entitled to absolute privilege, he wrote.

The Supreme Court remanded to the trial court with instructions to grant Hartman and Swinehart's motion for summary judgment.
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  1. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  2. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  3. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

  4. I am the mother of the child in this case. My silence on the matter was due to the fact that I filed, both in Illinois and Indiana, child support cases. I even filed supporting documentation with the Indiana family law court. Not sure whether this information was provided to the court of appeals or not. Wish the case was done before moving to Indiana, because no matter what, there is NO WAY the state of Illinois would have allowed an appeal on a child support case!

  5. "No one is safe when the Legislature is in session."

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