Lead Opinion
We hold complaints made by a current student pursuant to a university anti-harassment policy are protected by an absolute privilege and cannot serve as the basis for civil liability to a person who is the subject of the complaint.
Facts and Procedural History
Indiana University — Purdue University at Fort Wayne (“IPFW”) is managed by Purdue University. In August 2000, Dr. Gabe Keri was appointed an Assistant Professor of Education in the IPFW School of Education. Keri initially served under a one-year contract which was renewed annually in the succeeding three academic years. On April 3, 2003, Keri received notice that his contract would not be renewed for the 2004-2005 academic year because of unsatisfactory teaching performance.
Virginia Hartman and Suzanne Swine-hart were graduate students in the School of Education during the 2002-2003 academic year. Both took courses in the Counselor Education Program from Keri and also worked as Graduate Aides. Apparently without knowledge of the administration’s action, on May 12, 2003, Hartman and Swinehart filed formal complaints with Purdue’s Affirmative Action Office at IPFW alleging sexual harassment by Keri. The students’ complaints were filed pursuant to Purdue’s antiharassment policy and procedures, designed “to prevent harassment within the Purdue University Community.” Although the procedures expressly state they are “not those of a court of law,” they do contain many familiar elements. Complaints must be filed within 120 days of the incident. The respondent must be notified of the complaint and permitted to respond. An investigator is to conduct a “thorough fact-finding investigation,” including interviewing the complainant, the respondent, and pertinent witnesses. The parties are given an opportunity to appeal the investigator’s determination to the President of Purdue. The policy “encourage[s] faculty, staff, and students to report and address incidents of harassment” but also provides that “appropriate discipline will result” in the event of “knowingly false or malicious charges.” If a charge is not substantiated by the investigation, “reasonable efforts will be taken to restore the reputation of the Respondent.”
Upon receipt of Hartman’s and Swine-hart’s complaints, IPFW initiated an investigation. Keri was notified of the complaints on May 20, 2003, and responded by requesting that they be dismissed without further action. Chancellor Michael War-tell advised Keri that he could not dismiss complaints without investigation, and that Dr. Elaine Blakemore, Chair of the Department of Psychology, had been assigned to investigate.
Blakemore interviewed Keri, Hartman, Swinehart, Keri’s supervisor, some of Keri’s colleagues, and thirteen current and former students in the Counselor Education Program. She then submitted a written report on June 30, 2003, concluding that “[o]n balance ... the majority of
Finally, I would like to express my utmost respect toward Ms. Swinehart and Ms. Hartman for their courage in coming forward with their complaints. I spoke to several students who believed that they had been harmed by Dr. Keri, but who were afraid to speak, lest their future careers be harmed. I spoke to former students who said that they had wanted to report their concerns about his behavior once they left the university, but they never had, and that they felt distressed and guilty that they had not. Hence, the university should applaud those who are willing to come forward with a serious complaint at possible risk to themselves, particularly when they are taking that risk partly for the good of others.
Blakemore recommended that Keri “be immediately removed from his teaching and practicum supervision responsibilities, and from any supervisory contact with students in the School of Education.”
Blakemore’s findings and conclusions were reviewed and approved by a three-person panel and by Chancellor Wartell, the senior executive officer at the Fort Wayne campus. Keri was notified that he would be assigned to a “100% research” position for the upcoming year and would not be permitted to use his university office. Keri appealed the determination to the President of Purdue University, who upheld Chancellor Wartell’s decision.
After his contract expired, Keri sued Purdue University in the Northern District of Indiana. Keri alleged state tort claims and violations of the Civil Rights Act of 1964, including a claim that Hartman, Swinehart, and Keri’s supervisor had “conspired to smear [Keri’s] reputation” through false allegations of sexual harassment and ineffective teaching. The district court granted summary judgment in favor of Purdue on these claims, Keri v. Board of Trustees of Purdue University, No. 1:04-CV-224-TS,
While the federal complaint against Purdue was pending in the district court, Keri filed this lawsuit in the Allen Superior Court against Hartman and Swinehart alleging libel, slander, and malicious interference with Keri’s employment contract. Hartman and Swinehart moved for summary judgment on several grounds, including that the statements in their complaints made pursuant to the Purdue policy were protected by an absolute privilege. The trial court granted summary judgment on the malicious interference count on the basis that the decision not to renew Keri’s contract was made before Hartman and Swinehart filed their complaints. The trial court denied summary judgment on the libel and slander claims, concluding that the students’ complaints enjoyed only a qualified privilege which turned on unresolved issues of fact.
Hartman and Swinehart were granted leave to file an interlocutory appeal and
Standard of Review
On appeal from an order denying summary judgment, we use the same standard of review used by the trial court: summary judgment is appropriate only when the evidence shows no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Row v. Holt,
Absolute Privilege
Indiana law has long recognized an absolute privilege that protects all relevant statements made in the course of a judicial proceeding, regardless of the truth or motive behind the statements. Wilkins v. Hyde,
Policies similar to Purdue’s are commonly found in institutions of higher education.
Hartman and Swinehart acted under the procedure Purdue established. Protecting their complaints with anything less than an absolute privilege could chill some legitimate complaints for fear of retaliatory litigation. Other faculty-student disputes would result in traditional litigation rather than academic resolution to avoid any risk of loss of the absolute privilege accorded statements in judicial proceedings. A university should be given the latitude to tailor its processes to the educational environment without degrading the protection the law gives to complaints of misconduct in the educational setting. The facts of this case illustrate the importance of such a procedure. Many, though not all, of Hartman’s and Swinehart’s allegations center around classroom activities. They complain of excessive class discussion of matters pertaining to sexuality, insufficient supervision of the counseling practicum, and “disrespectful or hostile treatment” of students in class. The university is the best judge of whether these classroom activities are a legitimate teaching method or constitute discrimination, harassment, or the establishment of a hostile environment. Cf S. Gibson Sch. Bd. v. Solimán,
Citizens reporting suspected criminal activity to law enforcement enjoy only a qualified privilege, which subjects them to the risk of retaliatory civil litigation for malicious or unfounded charges. E.g., Holcomb v. Walter’s Dimmick Petrol, Inc.,
Finally, we think it is relevant that the Indiana General Assembly has given state higher educational institutions the power to govern conduct on institution property and to “prevent unlawful or objectionable acts,” of the institution’s students, faculty, and employees “wherever the conduct might occur.” Ind.Code Ann. §§ 21-39-2-2 to -3 (West 2008). This includes the power to “dismiss, suspend, or otherwise punish any student, faculty member, or employee of the state educational institution who violates the institution’s rules or standards of conduct, after determination of guilt by lawful proceedings.” Id. § 21-39-2-4(b). These statutes authorize educational institutions to construct their own disciplinary procedures in a way that protects the needs of the participants and also serves the educational goals of the institution. Although Purdue’s procedure may
Conclusion
This case is remanded to the trial court with instructions to grant the defendants’ motion for summary judgment.
Notes
. The Boards of Trustees of Ball State University, Indiana State University, Indiana University, and Purdue University as amici curiae provided helpful briefs in the Court of Appeals and on transfer.
Concurrence Opinion
concurring in result.
I concur in the result reached by the majority. I write separately to explore a point of departure.
Public policy considerations require that certain defamatory communications be cloaked with an immunity, denominated as an “absolute privilege.” Such communications cannot form the basis for a cause of action. Rather, an absolute privilege bars an action for defamation even when the information was false and maliciously and knowingly published. Hoffman v. Roberto,
Whether a defamatory communication is protected by either an absolute or a qualified privilege requires weighing the need for free disclosure without fear of civil suit against an individual’s right to recover for such factors as damage to his reputation or his means of earning a livelihood. Weissman v. Mogol,
A central question presented by this case is what is it about the university’s procedure for addressing complaints of harassment that makes the procedure quasi-judicial in nature. Although acknowledging that the university’s processes lack a certain formality sometimes associated with quasi-judicial proceedings, the majority does not really answer this question. Instead it says, “[T]o the extent Keri has a complaint about the adequacy or fullness of the process, it is a complaint with Purdue, not Hartman and Swinehart.” Op. at 777. I cannot fully subscribe to this view. It is of course the case that Keri may have a separate cause of action against the university concerning its anti-harassment policy and procedure. But that is a wholly separate matter from an inquiry into whether the alleged defamatory communication the students made to the university is entitled to an absolute privilege or only a qualified privilege. That determination is dependent on whether the proceeding under which the university operated was indeed quasi-judicial. Only if the proceeding was quasi-judicial is the communication absolutely privileged and thus cannot form the basis for a cause of action.
Keri complains that the procedure under which Purdue acted did not allow counsel to appear and cross-examine witnesses or provide an opportunity to subpoena witnesses. According to Keri the “proceeding is ostensibly non-judicial. There was no formal hearing during the fact finding process. The process was non-adversarial.” Pet. to Trans, at 8. In essence Keri’s argument is that these safeguards are part and parcel of what it means for a body to act in a quasi-judicial capacity.
My research reveals no ironclad rule for determining what factors indicate that a body is serving in a quasi-judicial capacity. As Keeton notes,
The judicial proceeding to which [absolute] immunity attaches has not been defined very exactly. It includes any hearing before a tribunal which performs a judicial function, ex parte or otherwise, and whether the hearing is public or not. It includes, for example, lunacy, bankruptcy, or naturalization proceedings, and an election contest. It extends also to the proceedings of many administrative officers, such as boards and commissions, so far as they have powers of discretion in applying the law to the facts which are regarded as judicial, or quasi-judicial, in character.
Keeton, supra, § 114 at 818-19 (citations and internal quotations omitted).
In some jurisdictions the application of the absolute privilege in administrative proceedings turns in large part on only two factors: “(1) the nature of the public function of the proceeding and (2) the adequacy of procedural safeguards which will minimize the occurrence of defamatory statements.” Reiehardt v. Flynn,
While it is difficult, if not impossible, to define quasi-judicial power and to discriminate between judicial and administrative acts in a way which will be applicable to every case, we find it is the nature, quality, and purpose of the act performed, rather than the name or character of the officer or board which performs it, which determines its character as judicial. Generally, the judicial function consists of: (1) the presence of the parties upon notice; (2) the ascertainment of facts; (3) the determination of the issues; and, (4) the rendition of a judgment or final order regarding the parties’ rights, duties, or liabilities.
Lincoln v. Bd. of Comm’rs of Tippecanoe County,
Notably absent from these various formulations is any requirement that a party be (1) represented by counsel;
In this case the facts are clear that the university’s administrative procedure for addressing complaints of harassment is quasi-judicial in nature. During the course of the proceedings the university had the authority to and did: (1) exercise judgment and discretion; (2) determine facts and make a decision; (3) make binding orders; (4) affect Keri’s property rights; (5) examine witnesses; and (6) enforce its decision. Accordingly the students’ communications made pursuant to that procedure are entitled to an absolute privilege.
. At least one treatise notes only six areas in which courts have recognized an absolute privilege: (1) "Judicial proceedings;” (2) “Legislative proceedings;” (3) "Executive communications;” (4) "Consent of the plaintiff;” (5) "Husband and wife;” and (6) "Political broadcasts.” W. Page Keeton et al., Pros-ser & Keeton on the Law of Torts § 114, at 816-24 (5th ed.1984).
. Indeed in Lake Central Sch. Corp. v. Scartozzi,