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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues