however, that many administrators, staff, or faculty would be considered public figures.
But student-athletes or coaches may be considered public figures because of extensive press coverage or school-sponsored promotional activities. Furthermore, statements made concerning coaches or athletes are typically considered to be statements of opinion. For example, in two illustrative cases, coaches' defamation claims were unsuccessful because courts ruled that the statements made about the coaches were statements of opinion, rather than fact, and thus did not meet the legal standard for defamation. In the first, Moore v. University of Notre Dame, 968 F. Supp. 1330 (N.D. Ind. 1997), a former offensive line football coach was terminated, according to the university, because he had behaved abusively toward the players. In the second, Campanelli v. The Regents of the University of California, 51 Cal. Rptr. 2d 891 (Cal. Ct. App. 1996), university officials stated that the coach was fired because parents felt that he was placing their children under so much pressure that the children were becoming ill. In both cases, the courts ruled that neither statement was a factual assertion and, therefore, could not form the basis for a defamation claim. See also McGarry v. University of San Diego, 64 Cal. Rptr. 3d 467 (Cal. Ct. App. 2007), concerning a defamation claim brought by a coach against the university and the director of athletics; the court ruled that the alleged defamer had not acted with malice and that her statement, which could be interpreted as an assertion of immoral behavior, was an opinion and thus not actionable.
In many jurisdictions, truth is an affirmative defense to a defamation claim. In an unreported case, Morrison v. Chatham University, No. 16-476, 2016 WL 4701460 (W.D. Pa. 2016), a former student claimed she was dismissed from a doctoral program in counseling psychology because of allegedly defamatory statements that falsely accused her of plagiarizing a paper. Citing precedent that truth is an affirmative defense to defamation claims in Pennsylvania, a federal district court dismissed the plaintiff's defamation claim.
Charges of sexual misconduct against students have provided multiple opportunities for defamation litigation against colleges. One of the more famous cases is Doe v. Gonzaga University, 24 P.3d 390 (Wash. 2001), reversed on other grounds, Gonzaga University v. Doe, 536 U.S. 273 (2002). In Doe, a university administrator overheard a student office assistant tell another student that John Doe, an education student in his senior year, had raped a female student. At the time, John Doe was doing his student teaching. The administrator and a fellow staff member, both involved in placement for student teachers, met with the student whose conversation they had overheard, but the alleged victim had not reported any assault and refused to meet with the administrators to discuss the alleged incident. Despite the fact that the alleged victim would not provide information or corroborate the assault claim, the administrators decided not to recommend Doe for teacher certification because of these allegations. They gave Doe a letter to that effect; when Doe and his parents asked about his appeal rights, they were told there were none.
John Doe sued Gonzaga and several administrators for defamation, negligence, and breach of contract. At trial, Doe testified that his sexual relationship with the female student was consensual; in a videotaped deposition, the alleged student victim denied that Doe had assaulted her and denied that she had made any accusatory statements to university staff. A jury awarded Doe $500,000 for defamation and an additional $655,000 in compensatory and punitive damages for other claims, including a claim brought under FERPA that the Supreme Court dismissed.
Although the appellate court reversed the jury's defamation verdict, the Washington Supreme Court reinstated that verdict but affirmed the appellate court's dismissal of the negligence claim, stating that the university had no duty to the education licensing authority to investigate the allegations of sexual assault; when there was no duty, said the court, there was no claim for negligence. With respect to the defamation claim, the court ruled that the administrators were not protected by a qualified privilege because they were not acting “in the ordinary course of their work” when they involved themselves in the allegations of the student whose conversation the administrators secretly overheard.
Institutions that publish allegedly defamatory material in official publications or operate computer networks may be sued for transmitted libelous statements. See, for example, Rudloe v. Karl, 899 So.2d 1161 (Fla. Dist. Ct. App. 2005), in which the court ruled that sovereign immunity did not protect Florida State University from being sued by an alumnus for printing an allegedly libelous article in an alumni newsletter. Computer service providers will often be immune from such liability, however, under 47 U.S.C. § 230 (see Section 7.5.3 of this book).
Section 3.3. Institutional Contract Liability
Institutions of higher education face potential breach of contract claims from employees, students, and vendors, purchasers, or business partners. In this section, an institution's potential liability for contracts entered into by its employees or other agents is discussed.
The institution may be characterized as a “principal” and its trustees, administrators, and other employees as “agents” for purposes of discussing the potential liability of each on contracts transacted by an agent for, or on behalf of, the institution. The fact that an agent acts with the principal in mind does not necessarily excuse the agent from personal liability, nor does it automatically make the principal liable. The key to the institution's liability is authorization—that is, the institution may be held liable if it authorized the agent's action before it occurred or if it subsequently ratified the action. However, even when an agent's acts were properly authorized, an institution may be able to escape liability by raising a legally recognized defense, such as sovereign immunity. This defense is available in some states to public institutions but not to private institutions.
The existence and scope of sovereign immunity from contract liability vary from state to state. The Texas Court of Appeals, in considering a coach's breach of contract claim against Texas Tech University, explained the genesis of sovereign immunity:
[I]t is helpful to delve into the history underlying the doctrine of sovereign immunity. The latter found its genesis in old England. Then, as most will admit, the king (or queen as the case may be) was omnipotent. No inherent authority belonged to those over whom he lorded [citation omitted]. Rather, any rights or privileges they enjoyed were no greater than those the monarch deigned to bestow on them. Moreover, the judiciary that he created not only recognized this relationship between the king and his people but also deduced from it that since the former was sovereign over all, the latter could not be [sic] sue him without his approval. Thus, the tenet was of neither legislative nor executive origin. Instead, judges simply declared it to be law…
With the discovery and population of the New World, our forefathers were called upon to establish their own system of government. Having rebelled against the tyranny of British rule, one would think that they would instill a government of limited powers… Nonetheless, not all things British were rejected for our own courts adopted much of the common law developed overseas. And, included in that body of law was the doctrine of sovereign immunity… So, though we have no king…, the government (e.g., State, county, and municipalities) and those working for it in their official capacities came to enjoy that created to protect monarchs so many years ago [Leach v. Texas Tech University, 335 S.W.3d 386 at 391 (Tex. App. January 20, 2011)].
The court ruled that the university had not waived sovereign immunity and thus could not be sued for breach of contract. However, not all states have determined that universities enjoy the same level of immunity as the Texas courts have granted Texas Tech University.
A U.S. Supreme Court case demonstrates that sovereign immunity from contract liability will occasionally also be available to public institutions under federal (rather than state) law. In Regents of the University of California v. Doe, 519 U.S. 425 (1997), the Court upheld the university's assertion of Eleventh Amendment immunity as a defense to a federal court breach
