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Students' Harassment Complaints Enjoy Absolute Privilege

Student complaints filed under a university's antiharassment policy are protected by an absolute privilege and cannot be the basis for a slander lawsuit by the alleged harasser, the Indiana Supreme Court has ruled.

The justices said complaints to school authorities against educators enjoy the same protection the law accords to statements in judicial proceedings.

"Protecting students' complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation," the court said.

It noted that a student may be subject to academic discipline for abuse of process, which is a substantial deterrent to false reporting.

According to the opinion, Virginia Hartman and Suzanne Swinehart were graduate students at Indiana University-Purdue University at Fort Wayne's School of Education during the 2002-2003 academic year. The women, who took courses with professor Gabe Keri, filed formal complaints accusing him of sexual harassment.

They claimed that classroom discussion focused too much on sexuality and accused Keri of "disrespectful or hostile treatment" of students in class.

Although the university's complaint procedures emphasize that they are "not those of a court of law," they do have a number of similar elements, the state high court noted. Among other things, there is a time limit for filing complaints, the subject of the complaint is notified and given a chance to respond, and an investigator conducts a "thorough fact-finding investigation," the court said.

In this case, the school found evidence that Keri faced multiple sexual harassment accusations and recommended that he be removed from his teaching position and from "any supervisory contact with students."

A three-person panel and the senior official at the Fort Wayne campus approved the finding.

Keri appealed, and the president of IPFW upheld the decision.

After his contract expired, Keri sued Hartman and Swinehart in the Allen County Superior Court, alleging libel, slander and malicious interference with his employment contract.

The court dismissed the malicious-interference claim, noting that the school decided not to renew Keri's contract before the plaintiffs filed their complaints. However, it denied summary judgment for the plaintiffs on the libel and slander claims, finding that their complaints enjoyed only a qualified privilege.

The Indiana Court of Appeals reversed, holding that the complaints were protected by an absolute privilege.

The state Supreme Court then granted transfer of the case to address the issue of first impression.

Affirming the appeals court, the justices remanded the case to the Superior Court with instructions to grant summary judgment to Hartman and Swinehart.

The need for the absolute privilege is greater in the educational setting than in a civilian setting because of the authority an educator has over students, the Supreme Court noted. In that environment the fear of retaliation presents a possible barrier to an open airing of grievances, it said.

In this case, IPFW's antiharassment procedure lacks the trappings of a traditional court proceeding, but it is reasonably fair, requires "appropriate discipline" for those who file false or malicious complaints, and promises reasonable efforts to restore the reputation of anyone facing a harassment claim that turns out to be unsubstantiated, the court said.

Because the procedure can reasonably be considered quasi-judicial, absolute privilege is appropriate, the justices concluded.

To comment, ask questions or contribute articles, contact West.Andrews.Editor@Thomson.com.

The plaintiffs are represented by Karen Orr in Lafayette, Ind.Counsel for Keri is Swaray Conteh in Indianapolis.