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. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  2. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

  3. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  4. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  5. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

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