Discipline as Defamation: Title IX, Disciplinary Panels, and The Risks of Righteousness in The Wake of Wells V. Xavier and Harris V. St. Joseph’s

LR-college-campus_med_rgbTwo recent court rulings illustrate some of the perils facing university administrators when handling internal disciplinary complaints against students who have been alleged to have committed on-campus sexual assaults. These risks were previously discussed in the context of the plaintiff, Dez Wells’ Title IX claims in Wells v. Xavier University.  Of perhaps equal significance, however, was the Ohio-based federal court’s refusal to dismiss Mr. Wells’ defamation claims, in which he asserted that Xavier’s conclusion that he had sexually assaulted another student was “inherently false.”

Despite acknowledging the absolute privilege from defamation claims that is typically afforded quasi-judicial proceedings – and in what it characterized as “a close call” – the court based its holding upon Mr. Wells’ contention that the disciplinary proceedings were so procedurally deficient as to render them invalid. Additionally, the court questioned whether the disciplinary panel was properly trained and had sufficient experience, writing that while the panel was “a body well-equipped to adjudicate questions of cheating, [it] may have been in over its head with relation to an alleged false accusation of sexual assault.”

Approximately two months after the Wells’ opinion, a federal court sitting in Pennsylvania reached a similar result in Harris v. St. Joseph’s University.  As in Wells, the plaintiff in Harris filed suit following a disciplinary panel’s determination that he had sexually assaulted another student, and the defendants moved to dismiss it for failure to state a claim. Although it granted the defendants’ motion in substantial part – including with respect to the plaintiff’s Title IX claim – the court permitted the plaintiff to move forward with his defamation claims against all of the defendants, including the student who had accused him of assault.

The court rejected the defendants’ argument that the allegedly false communications had been confined among themselves and thus there had not been “publication,” a requisite element of any defamation claim. It also discounted their attempt to raise truth as a defense within the limited parameters of the dismissal motion, in which extrinsic evidence cannot be considered. The court further declined to apply the “absolute privilege” that generally attaches to “quasi-judicial proceedings,” holding that in Pennsylvania, “government involvement is . . . a necessary condition for according quasi-judicial status to grievance procedures,” whereas St. Joseph’s disciplinary proceedings involved “an entirely private grievance procedure.”

Because both the Wells and the Harris decisions were issued within the constraints of a dismissal motion — in which the court assesses only the sufficiency of the plaintiff’s allegations, not their validity – they lack the precedential heft of a more fully litigated trial-court ruling or an appellate decision. Nonetheless, it is noteworthy that two federal courts, sitting in different jurisdictions, would both recognize a cause of action for defamation based upon the findings of a university disciplinary panel. At the very least, the Wells and Harris decisions could be see as establishing a new standard of care for Title IX disciplinary procedures against which universities and colleges will be judged in future cases.

How, Then, Should A School Proceed?

Typically, a college student would not qualify as a “public figure” in the context of a defamation claim, and thus, a student alleging defamation would only have to establish that in making or “publishing” the allegedly defamatory communication, the defendants had been negligent. In turn, the adjudication of that claim would essentially be predicated upon the reasonableness of the disciplinary process that lead to the communication. Consequently, although a school’s protocol for handling sexual harassment claims should neither intimidate nor otherwise discourage victimized students from pursuing their claims, it is incumbent upon schools to provide accused students with a fair, unbiased forum in which to respond to those accusations.

Educational institutions must also exercise great care when selecting the individuals responsible for determining the validity of claims and recommending discipline in sexual assault or sexual harassment claims. These individuals should be versed in the applicable law, particularly as the legal definition of sexual harassment can be substantially different from what a layman believes it to be (although there is little ambiguity to be found in something as egregious as sexual assault). Additionally, given the inherent he-said/she-said nature of sexual harassment claims, schools should ensure that the adjudicatory body has experience assessing credibility and weighing evidence. Finally, these individuals should be independent, and neither in fact nor in appearance serving any agenda or constituency that might demand or even suggest an outcome that does not comport with a full and fair adjudication.