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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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