misconduct was foreseeable. Similarly, the court refused to dismiss the claim that Yale had a fiduciary duty to the student, stating: “Given the collaborative nature of the relationship between a graduate student and a dissertation advisor who necessarily shares the same academic interests, the Court can envision a situation in which a graduate school, knowing the nature of this relationship, may assume a fiduciary duty to the student” (119 F. Supp. 2d at 97–98).
Another student claim related to educational malpractice is negligent misrepresentation or fraud. These claims tend to be brought by students claiming that an institution misled applicants or current students about the quality of its programs or the institution's accreditation status. For example, in Troknya v. Cleveland Chiropractic Clinic, 280 F.3d 1200 (8th Cir. 2002), a federal appellate court upheld a jury verdict that a chiropractic school was liable to students for negligent misrepresentation. The plaintiffs, graduates of the school, claimed that it had failed to provide the quality and quantity of clinical training that the school had promised; they filed claims of breach of contract, fraud, and negligent misrepresentation. The plaintiffs had graduated, passed the licensing exam, and had received licenses.
The jury found for the college on the breach of contract and fraud claims but found for the plaintiffs on the negligent misrepresentation claims, awarding each plaintiff $1 in compensatory damages and $15,000 each in punitive damages. Although the court upheld the compensatory damages award, it reversed the punitive damages award, stating that there was no evidence that the school knew that the false information it provided would have injured the students.
3.2.4 Defamation. Another tort asserted against postsecondary institutions, defamation, is committed by the oral or written publication of information that tends to injure a person's reputation. The information must have been communicated to some third person and must have been capable of defamatory meaning, and understood as referring to the plaintiff in a defamatory sense. Defamation claims are also asserted against officials of the institution, such as deans or department chairs, and even occasionally against students.
Defamation claims may be brought against faculty who write letters of reference for students or in the context of giving a (negative) evaluation of a student or subordinate. In such cases, the alleged defamer may be protected by the “opinion privilege” if the communication provides an opinion rather than reciting or implying facts. Defamation claims may also arise when an individual testifies in an internal grievance or appeal hearing. In most cases, courts have rejected defamation claims against institutions, although in some cases they have been more sympathetic to plaintiffs who sue individuals for defamation.
Several privileges can be raised by institutional defendants in defamation cases. One of the most important defenses against a defamation action is the conditional or qualified privilege of fair comment and criticism. An application of this privilege occurred in Olsson v. Indiana University Board of Trustees, 571 N.E.2d 585 (Ind. Ct. App. 1991). A prospective teacher, who had graduated from the university and had performed her student teaching under the supervision of one of its faculty, sued the university, claiming that a letter of reference written by a faculty member was libelous. The faculty member had described both the plaintiff's strengths and weaknesses with apparent candor.
The court ruled that the faculty member and the university were protected by a qualified privilege that may be asserted “if a need exists for full and unrestricted communication regarding matters on which the parties have a common interest or duty” (571 N.E.2d at 587). Such a privilege would cover any communication “if made in good faith on any subject matter in which the party making the communication has an interest or in reference to which he has a duty, either public or private, whether legal or moral, or social, if made to a person having a corresponding interest or duty” (571 N.E.2d at 587). Noting that the university had a responsibility to prepare teachers, the court ruled that this letter of recommendation was an appropriate occasion for the use of the qualified privilege.
The scope of the qualified privilege is a matter of state law and may differ by state. A case decided by a federal trial court, applying District of Columbia law, examined that jurisdiction's case law regarding the qualified privilege in a defamation claim. In Tacka v. Georgetown University, 193 F. Supp. 2d 43 (D.D.C. 2001), a faculty member, Tacka, sued Georgetown University for breach of contract and defamation. His defamation claim was based on the use of an allegedly defamatory evaluation of his scholarly work by a faculty rank and tenure committee that was considering whether to recommend that Tacka receive tenure. The evaluation, written by an untenured professor at a university in another state, accused Tacka of plagiarizing portions of a journal article. Without determining whether the plagiarism claim was true, the rank and tenure committee recommended against tenure for Professor Tacka. Later, the University's Research Integrity Committee exonerated Tacka of plagiarism, and he was granted tenure the following year.
In its motion for summary judgment, the university claimed that the department chair's “publication” of the allegedly defamatory external evaluation to the rank and tenure committee was protected by a qualified privilege. The trial court ruled that the qualified privilege could be lost if the plaintiff could demonstrate that the publisher acted with malice or published the evaluation beyond those who had a business reason for receiving the information. Tacka had alleged that the department chair's decision to solicit the sole external evaluation of his work from an individual who held a personal bias against him, and who was allegedly unqualified to perform the evaluation, demonstrated that the chair had acted with malice. The court ruled that Tacka should have the opportunity to have a jury decide whether the privilege was lost.
Although an individual who testifies in court is protected from defamation liability by an absolute privilege, a court determined that statements made in an internal grievance hearing are not protected by such a privilege. In Overall v. University of Pennsylvania, 412 F.3d 492 (3d Cir. 2005), the plaintiff sued the University and a department chair for defamation and sex discrimination when she was not hired for a tenure track position. Although the trial court ruled that the allegedly defamatory statements made by the department chair during a grievance hearing involving the University's decision not to hire her were privileged, the appellate court disagreed. Because the University was private, the appellate court ruled that the grievance hearing was not a “quasi-judicial” proceeding and thus the privilege did not apply. The court remanded the plaintiff's defamation claim to the trial court.
Another conditional privilege that is important for administrators in state institutions is the privilege afforded to executive and administrative officers of government. In Shearer v. Lambert, 547 P.2d 98 (Or. 1976), an assistant professor at Oregon State University brought a libel action against the head of her department. While admitting that the statement was defamatory, the defendant argued that the privilege of government officers should be extended to lesser executive or administrative officers, such as the head of a department. The court agreed, reasoning that, since “the privilege is designed to free public officials from intimidation in the discharge of their duties, we are unable to explain why this policy would not apply equally to inferior as well as to high-ranking officers.” This qualified privilege is available, however, only where the defendant “publishes the defamatory matter in the performance of his official duties.”
If a defamation lawsuit is brought against an institution by a prominent administrator, trustee, or faculty member, a constitutional privilege may come into play. If the plaintiff is a “public figure,” he or she must prove that the defendant acted with “actual malice,” and the privilege to defame is thus broader than it would be if the plaintiff were a “private figure.” If a person is a public figure, another person may not be held liable for defaming him unless that other person's comment “was made with knowledge of its falsity or in reckless disregard of whether it was false or true” (Garrison v. Louisiana, 379 U.S. 64, 74 (1964)). Thus, to the extent that members of the academic community can be characterized as public figures, the institution's potential liability for defamation is reduced. It is unlikely on any given campus
