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. From his recent appearance on WRTV to this story here, Frank is everywhere. Couldn't happen to a nicer guy, although he should stop using Eric Schnauffer for his 7th Circuit briefs. They're not THAT hard.

  2. They learn our language prior to coming here. My grandparents who came over on the boat, had to learn English and become familiarize with Americas customs and culture. They are in our land now, speak ENGLISH!!

  3. @ Rebecca D Fell, I am very sorry for your loss. I think it gives the family solace and a bit of closure to go to a road side memorial. Those that oppose them probably did not experience the loss of a child or a loved one.

  4. If it were your child that died maybe you'd be more understanding. Most of us don't have graves to visit. My son was killed on a state road and I will be putting up a memorial where he died. It gives us a sense of peace to be at the location he took his last breath. Some people should be more understanding of that.

  5. Can we please take notice of the connection between the declining state of families across the United States and the RISE OF CPS INVOLVEMENT??? They call themselves "advocates" for "children's rights", however, statistics show those children whom are taken from, even NEGLIGENT homes are LESS likely to become successful, independent adults!!! Not to mention the undeniable lack of respect and lack of responsibility of the children being raised today vs the way we were raised 20 years ago, when families still existed. I was born in 1981 and I didn't even ever hear the term "CPS", in fact, I didn't even know they existed until about ten years ago... Now our children have disagreements between friends and they actually THREATEN EACH OTHER WITH, "I'll call CPS" or "I'll have [my parent] (usually singular) call CPS"!!!! And the truth is, no parent is perfect and we all have flaws and make mistakes, but it is RIGHTFULLY OURS - BY THE CONSTITUTION OF THIS GREAT NATION - to be imperfect. Let's take a good look at what kind of parenting those that are stealing our children are doing, what kind of adults are they producing? WHAT ACTUALLY HAPPENS TO THE CHILDREN THAT HAVE BEEN RIPPED FROM THEIR FAMILY AND THAT CHILD'S SUCCESS - or otherwise - AS AN ADULT.....

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