Hartman v. Keri

ATTORNEY FOR APPELLANTS ATTORNEY FOR APPELLEE

Karen R. Orr Swaray E. Conteh

Lafayette, Indiana Indianapolis, Indiana

AMICI CURIAE BOARDS OF TRUSTEES

OF BALL STATE UNIVERSITY, INDIANA

STATE UNIVERSITY, INDIANA UNIVERSITY,

AND PURDUE UNIVERSITY

Scott E. Shockley

FILED

Apr 01 2008, 10:26 am

James R. Williams

Muncie, Indiana

CLERK

______________________________________________________________________________ of the supreme court,

court of appeals and

tax court

In the

Indiana Supreme Court

_________________________________

No. 02S03-0706-CV-233

VIRGINIA HARTMAN AND

SUZANNE SWINEHART,

Appellants (Defendants below),

v.

DR. GABE KERI,

Appellee (Plaintiff below).

_________________________________

Appeal from the Allen Superior Court, No. 02D01-0503-CT-129

The Honorable David J. Avery, Judge

_________________________________

On Petition to Transfer from the Indiana Court of Appeals, No. 02A03-0603-CV-135

_________________________________

April 1, 2008

Boehm, Justice.

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 re-

newed 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 unsatisfac-

tory teaching performance.

Virginia Hartman and Suzanne Swinehart were graduate students in the School of Educa-

tion during the 2002–2003 academic year. Both took courses in the Counselor Education Pro-

gram from Keri and also worked as Graduate Aides. Apparently without knowledge of the ad-

ministration’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 ex-

pressly 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 in-

vestigation,” 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 ef-

forts will be taken to restore the reputation of the Respondent.”

Upon receipt of Hartman’s and Swinehart’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 Wartell advised Keri that he could not

dismiss complaints without investigation, and that Dr. Elaine Blakemore, Chair of the Depart-

ment of Psychology, had been assigned to investigate.

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Blakemore interviewed Keri, Hartman, Swinehart, Keri’s supervisor, some of Keri’s col-

leagues, 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

students . . . provided examples of experiences that were consistent with Ms. Hartman’s and Ms.

Swinehart’s complaints.” Blakemore found that Keri “created a hostile educational environment

for students in the Counselor Education Program” and had harassed Hartman. As to Swinehart’s

complaint, “[l]argely because her complaints were not reported in the appropriate time frame,”

Blakemore could not find that Swinehart was also “specifically harassed under the Purdue pol-

icy.” She described Hartman and Swinehart as “credible and genuinely anguished about their

experiences” and commended them for taking action:

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 stu-

dents 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 will-

ing to come forward with a serious complaint at possible risk to themselves, par-

ticularly 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 Indi-

ana. 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] reputa-

tion” 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 Pur-

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due University, No. 1:04-CV-224-TS, 2005 WL 4715211, at *26 (N.D. Ind. Nov. 9, 2005) (un-

published), and the Seventh Circuit affirmed. Keri v. Bd. of Trs. of Purdue Univ., 458 F.3d 620

(7th Cir. 2006), cert. denied, 127 S. Ct. 1331 (2007).

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 re-

new 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 the Court

of Appeals reversed the trial court, holding that Hartman’s and Swinehart’s statements were pro-

tected by an absolute privilege. Hartman v. Keri, 858 N.E.2d 1017, 1020 (Ind. Ct. App. 2006),

reh’g denied. We granted transfer to address this issue of first impression in Indiana. Hartman

v. Keri, 869 N.E.2d 461 (Ind. 2007). For the reasons given below, we agree with the Court of

Appeals that the students’ complaints are protected by an absolute privilege.

Standard of Review

On appeal from an order denying summary judgment, we use the same standard of re-

view 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, 864 N.E.2d 1011, 1013 (Ind. 2007). All inferences from the designated evidence

are drawn in favor of the nonmoving party. Id.

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 state-

ments. Wilkins v. Hyde, 41 N.E. 536, 536, 142 Ind. 260, 261 (1895); Van Eaton v. Fink, 697

4

N.E.2d 490, 494 (Ind. Ct. App. 1998). “The reason upon which the rule is founded is the neces-

sity of preserving the due administration of justice,” Wilkins, 41 N.E. at 536, 142 Ind. at 261, by

providing actors in judicial proceedings with the freedom to participate without fear of future

defamation claims. Van Eaton, 697 N.E.2d at 494 (citing Briggs v. Clinton County Bank &

Trust Co., 452 N.E.2d 989, 997 (Ind. Ct. App. 1983)).

Policies similar to Purdue’s are commonly found in institutions of higher education. 1 At

least three states have held that communications to school authorities raising complaints against

educators enjoy the same absolute privilege the law accords to statements in judicial proceed-

ings. Reichardt v. Flynn, 823 A.2d 566 (Md. 2003) (parents’ complaints of sexual harassment by

high school coach to principal and public school officials); Brody v. Montalbano, 87 Cal. App.

3d 725 (Cal. Ct. App. 1978) (parents’ complaints against junior high school teacher to board of

education); Weissman v. Mogul, 462 N.Y.S.2d 383 (N.Y. Sup. Ct. 1983) (parents’ complaints

against high school teacher to board of education). In reaching this conclusion courts have de-

scribed the processes of the educational institutions as quasi-judicial. Reichardt, 823 A.2d at

570, 574; Weissmann, 462 N.Y.S.2d at 386. This view of the issue, adopted by Justice Rucker’s

separate opinion, invokes a body of law that analyzes the availability of the privilege in terms of

the degree to which court-like procedures are available. Thus, courts have examined whether

proceedings are under oath, whether there is subpoena power, whether discovery is available,

and the like. Reichardt, 823 A.2d at 574; Weissmann, 462 N.Y.S.2d at 386–87. Purdue’s proc-

esses do not establish such a formal apparatus. But to the extent Keri has a complaint about the

adequacy or fullness of the process, it is a complaint with Purdue, not Hartman and Swinehart.

That complaint has been asserted in federal court and has been resolved there adversely to Keri.

At least in the context of educational institutions, as long as the process is reasonably transparent

and fair and affords the subject an opportunity to respond, we think the ultimate issue focuses

less on the particular process and more on the recognition of the institution’s interest in assuring

a proper educational environment.

Hartman and Swinehart acted under the procedure Purdue established. Protecting their

complaints with anything less than an absolute privilege could chill some legitimate complaints

1

The Boards of Trustees of Ball State University, Indiana State University, Indiana University, and Pur-

due University as amici curiae provided helpful briefs in the Court of Appeals and on transfer.

5

for fear of retaliatory litigation. Other faculty-student disputes would result in traditional litiga-

tion 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 proc-

esses to the educational environment without degrading the protection the law gives to com-

plaints 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 ac-

tivities are a legitimate teaching method or constitute discrimination, harassment, or the estab-

lishment of a hostile environment. Cf. S. Gibson Sch. Bd. v. Sollman, 768 N.E.2d 437, 442 (Ind.

2002) (upholding expulsion of high school student under zero-tolerance drug policy and noting

that “[s]chool officials, with their expertise in such matters, are in the best position to determine

in their discretion what actions are reasonably necessary to carry out school purposes”) (citations

omitted).

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. 858 N.E.2d 103, 106 (Ind. 2006) (cit-

ing Conn v. Paul Harris Stores, Inc., 439 N.E.2d 195, 200 (Ind. Ct. App. 1982)). At first blush it

may seem anomalous to grant a higher degree of protection to complaints made in the educa-

tional setting. But a current student is subject to academic discipline for abuse of the process. In

practical terms this is a substantial deterrent to false reporting. Moreover, the need for protection

is greater in the educational setting because the subject of the complaint—the educator—is in a

position of authority over the student, so fear of retaliation presents a potential obstacle to open

airing of grievances. For all these reasons, there is both a diminished need to deter false report-

ing and a greater need to encourage reporting than exists outside the educational environment.

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

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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 de-

termination of guilt by lawful proceedings.” Id. § 21-39-2-4(b). These statutes authorize educa-

tional 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 lack the trappings of a traditional court proceeding, it is orderly and reasonably

fair, requires “appropriate discipline” for those who file knowingly false or malicious com-

plaints, and promises reasonable efforts to restore the reputation of anyone charged with dis-

crimination or harassment that proves unsubstantiated. If Keri has been unfairly treated, his

complaint is against Purdue University as the architect and implementer of the policy and proce-

dures, not the students who invoked the process.

Conclusion

This case is remanded to the trial court with instructions to grant the defendants’ motion

for summary judgment.

Shepard, C.J., and Dickson and Sullivan, JJ., concur.

Rucker, J., concurs in result with separate opinion.

7

RUCKER, Justice, 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,

578 N.E.2d 701, 710 (Ind. Ct. App. 1991). Other communications receive a lesser degree of

protection, known as a “qualified privilege.” This latter privilege protects communication made

in good faith on any subject matter in which the party making the communication has an interest

or in reference to which he or she has a duty, either public or private, either legal, moral, or

social, if made to a person having a corresponding interest or duty. Schrader v. Eli Lilly & Co.,

639 N.E.2d 258, 262 (Ind. 1994).

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, 462 N.Y.S.2d 383, 385-86 (N.Y. Sup. Ct. 1983). In resolving

these competing interests, the protection of an absolute privilege has been afforded to defamatory

statements made during the course of judicial proceedings. 1 And that is so because “[p]ublic

interest in the freedom of expression by participants in judicial proceedings, uninhibited by the

risk of resultant suits for defamation, is so vital and necessary to the integrity of our judicial

system that it must be made paramount to the right of the individual to a legal remedy when he

has been wronged.” Van Eaton v. Fink, 697 N.E.2d 490, 494 (Ind. Ct. App. 1998) (citation

omitted). For the same reason, an absolute privilege has been extended to communications made

in the course of proceedings, which may be characterized as quasi-judicial, including certain

1

At least one treatise notes only six areas in which courts have recognized an absolute privilege: (1) “Ju-

dicial 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., Prosser &

Keeton on the Law of Torts § 114, at 816-24 (5th ed. 1984).

administrative proceedings. See, e.g., Keeton, supra § 114, at 818-19. “Absolute immunity has

been confined to a very few situations where there is an obvious policy in favor of permitting

complete freedom of expression, without any inquiry as to the defendant’s motives.” Id. at 816.

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.” Slip op. at 5. 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

2

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.” Reichardt v. Flynn, 823 A.2d 566, 571 (Md. 2003). See also, Fisher v.

Lint, 868 N.E.2d 161, 168 (Mass. App. Ct. 2007). In other jurisdictions courts have identified at

least six factors that assist in determining whether a proceeding is quasi-judicial in nature.

Among them are whether the body has the power to: (1) exercise judgment and discretion; (2)

hear and determine or to ascertain facts and make decisions; (3) make binding orders and

judgments; (4) affect the personal or property rights of private persons; (5) examine witnesses

and hear the litigation of issues on a hearing; or (6) enforce decisions or impose penalties. See,

e.g., Thomas v. Petrulis, 465 N.E.2d 1059 1062 (Ill. App. Ct. 1984); Gallegos v. Escalon, 993

S.W.2d 422, 425 (Tex. App. 1999).

This latter view is consistent with where this jurisdiction appears to come out on the

subject of whether a body is acting in a quasi-judicial capacity.

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, 510 N.E.2d 716, 721 (Ind. Ct. App. 1987)

(footnote omitted), abrogated on other grounds by McDillon v. N. Ind. Pub. Serv. Co., 841

3

N.E.2d 1148, 1152 (Ind. 2006). See also City of Mishawaka v. Stewart, 261 Ind. 670, 676, 310

N.E.2d 65, 68 (1974) (noting that the procedural safeguards in proceeding before quasi-judicial

bodies “should be at the highest level that is workable under the circumstances”).

Notably absent from these various formulations is any requirement that a party be (1)

represented by counsel; 2 (2) allowed to subpoena witnesses on his own behalf; or (3) allowed to

cross-examine adverse witnesses. Although these certainly are critical features of the judicial

process – indeed with constitutional implications – they are not necessarily features of a quasi-

judicial proceeding.

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.

2

Indeed in Lake Central Sch. Corp. v. Scartozzi, 759 N.E.2d 1185, 1191 (Ind. Ct. App. 2001), the Court

of Appeals rejected a claim that a student’s due process rights were violated where the school prohibited

student from having his attorney present during an expulsion meeting.

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