• Defamation Claims as a Substitute for Teacher Termination Appeals: How School Administrators Can Minimize the Risks of Liability
  • October 16, 2012 | Authors: Andrew G. Scott; Leslie R. Stellman
  • Law Firm: Pessin Katz Law, P.A. - Towson Office
  • I. Introduction

    A recent trend has emerged whereby teachers either terminated for cause or at risk of being terminated for cause have resorted to filing tort, civil rights, and contract claims against their supervisors and other school officials in lieu of or in addition to pursuing the traditional administrative remedies available to them.  Among the various reasons for such tactics is the pursuit of money damages—including punitive damages—in lieu of administrative remedies.  One of the claims which has been most commonly asserted is defamation.  Thus, a solid understanding of defamation law, including the privileges and defenses available to administrators, is essential to minimizing the risks of liability while at the same time maximizing administrative efficiency and peace of mind.

    II. The Evolution of Defamation

    In the landmark 1964 case of New York Times v. Sullivan, [1] the United States Supreme Court, acknowledging “a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open,” held that public officials should receive less protection than private individuals in defamation actions.[2]  Under this new standard, public officials are required to prove by clear and convincing evidence that the defendant published a statement with “actual malice”—“that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”[3]  Unfortunately for school administrators, the Court declined to define exactly who should be considered a public official.[4]

    Two years later in Rosenblatt v. Baer,[5] the Supreme Court articulated a two-pronged test to determine whether a person is a public official subject to the heightened New York Times standard.  The first prong takes into account the amount of government authority or control the plaintiff possesses.[6]  Known as the “apparent governmental authority test,” the Court explained that “the ‘public official’ designation applies at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”[7]  The second prong takes into account the level of interest the public has in the manner in which the plaintiff performs his job.[8]  Known as the “independent public interest test,” the Court explained that, to qualify as a public official under New York Times, the plaintiff must hold a position of “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualification and performance of all government employees.”[9]

    More than a decade later, the Supreme Court in Gertz v. Robert Welch, Inc.[10] expanded the scope of New York Times by holding that states may classify private individuals as “public figures” and thus subject them to the New York Times standard if they “invite attention and comment” from the public at large.[11]  The Court explained that a private individual could invite such attention and comment either by “occupy[ing] positions of such persuasive power and influence that they are deemed public figures for all purposes,” or, “[m]ore commonly, . . . [by] thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”[12]

    Maryland’s Court of Special Appeals addressed the “public figure” status of high school principals in Kapiloff v. Dunn.[13]  There, a local newspaper published profiles which rated each high school’s principal.  Plaintiff Fred Dunn, Jr. received one of two “unsuited” ratings and sued the newspaper, resulting in the court’s finding that “as a high school principal in Rockville, [Maryland], Dunn was within the ‘public figure-public official’ classification and [thus] his suitability for the position was a matter of public or general interest or concern.”[14]  The Court went on to conclude that the ratings constituted purely opinions, not facts, thus subject to a qualified privilege and protected by the doctrine of “fair comment.”  The court focused considerable attention on distinguishing between fact and opinion, holding “that expressions of opinion, as well as statements of fact, concerning public officials and public figures can be actionable,” subject to “the protection of the constitutional privilege of New York Times.”[15]  What is particularly surprising about the Dunn case is that the Court went on to assess each of the negative comments contained in the rating, concluding that they were factually supportable, thus obviating the need to examine whether they were the product of “reckless disregard” for the truth.

    The lessons learned from Dunn are multifold, and can be applied in many states:  (1) that principals are likely to be deemed “public figures” as compared to teachers and other school employees; (2) that defamatory misstatements of fact cannot be defended successfully as “fair comment” in libel actions; and (3) where statements are actually expressions of opinion, “based upon stated or readily known facts, their objective truth or falsity depends on the veracity of the underlying facts.”[16]

    Defamation may be manifested not only in words, but in deeds.  For example, in Graybill v. Burgee,[17] a disciplinary transfer was characterized as defamatory in nature because, in the words of the Complaint, “everyone knew” that moving a school secretary from a school where she served for years to another school was the result of discipline against the secretary for disclosing confidential information.  The fact that the transfer was accompanied by a letter of reprimand reinforced the contention that, in the eyes of the public, the transfer was punitive; hence, the transferred school secretary was allegedly the victim of unspoken defamation.  Frequently defamation claims are joined with “tortious interference with contractual relations,” a claim that individual supervisors have deliberately provided false information to decision-makers in a school district, thus resulting in the teacher losing his/her contractual position.  For example, in Haiyan v. Hamden Public Schools,[18] a Chinese language teacher successfully sued her department chair alleging that she conspired with others in her school to procure false statements that got her fired, all in retaliation for her complaints over a pay dispute with the district.

    III. Are Teachers Public Officials, Public Figures, or Neither?

    Although the Supreme Court has imposed heightened standards of proof on would-be plaintiffs who are public officials or public figures, the Court left the determination as to who constitutes a public official or public figure to the each individual state.  Not surprisingly, courts around the country have come to different conclusions as to whether teachers are public officials, public actors, or neither.  Some state courts have concluded that teachers are subject to the New York Times standard because they are public officials.[19]  Others have concluded that teachers are subject to the New York Times standard because they are public figures.[20]  Still others—the majority, in fact—have held that teachers are neither public officials nor public figures, and thus the traditional burden of proof governs their defamation claims.[21]

    Because of the heightened standard of proof applied to public officials and public actors, the determination as to whether a person fits into either category significantly affects a plaintiff’s chance of winning a case.  More practically, the standard of proof applied in a given jurisdiction affects the level of care administrators should exercise in communicating information about teachers to third persons.[22]  Indeed, individuals in jurisdictions in which teachers have been held to be private individuals should take extra steps to ensure that information communicated to third persons or which is likely to be communicated to third persons in the normal course of business is as accurate and objective as possible.

    IV. Absolute Privilege and Qualified Immunity

    Absolute privilege protects speakers from defamation liability when the value of their speech has been determined to outweigh the harm that speech may cause to others—even if the speech contains false and malicious statements.[23]  Because the privilege deprives defamation plaintiffs of a remedy, courts have applied it sparingly, typically limiting its extension to participants in judicial proceedings, participants in legislative proceedings, executive and administrative publications, publications between spouses, and publications required by law.[24]  Most states have also extended the privilege to “quasi-judicial” proceedings if they adhere to procedures like those used in judicial proceedings to ensure the integrity and good faith of the participants.[25]  The vast majority of states, however, have not extended absolute privilege to individuals communicating concerns or complaints about teachers, and even among those states which have, they have only done so with regard to parents and students lodging complaints about teacher conduct.[26]

    Although administrators and other school employees are not protected by absolute privilege from defamation claims brought by teachers, they nevertheless enjoy qualified immunity from defamation actions as long as they act without malice.  As but one example, the relevant statutory provision in Maryland provides that members of the administrative, educational, or support staff of any public, private, or parochial school are immune from civil liability for making a report required by law, participating in a judicial proceeding that results from such a report, or participating in an employee dismissal, disciplinary, administrative, or judicial proceeding relating to a school system employee so long as the individual’s action is within the scope of employment and without malice.[27]

    Similarly, the vast majority of state legislatures have passed employment reference shield laws which provide school administrators immunity for providing job references unless it is shown by clear and convincing evidence that the administrator acted with malice or intentionally or recklessly disclosed false information about the employee or former employee.[28]  In each such law, however, there is an exception for cases in which employees or former employees demonstrate that the reference was provided with malice.  For instance, Maryland’s reference shield law states that:

    An employer acting in good faith may not be held liable for disclosing any information about the job performance or the reason for termination of employment of an employee or former employee of the employer. . . .

    An employer who discloses information under . . . this section shall be presumed to be acting in good faith unless it is shown by clear and convincing evidence that the employer: (1) Acted with actual malice toward the employee or former employee; or (2) Intentionally or recklessly disclosed false information about the employee or former employee.[29]

    While alleging malice or bad faith might enable a Complaint alleging work-related defamation to survive a motion to dismiss, most cases rarely make it beyond summary judgment in the absence of specific evidence that the employer set out to destroy the present or former employee’s reputation and job prospects.[30]  In Qureshi v. St. Barnabas Hospital Center,[31] for instance, a resident who informed his co-workers that another doctor had left the program “for personal reasons” was entitled to assert a qualified privilege against a defamation claim.  The court there noted that the other doctors shared a common interest in training residents, thus further reinforcing the privileged nature of the communication.[32]

    V. Constitutional Due Process Claims Often Accompany Defamation

    Defamation claims resulting from adverse employment actions against teachers and/or administrators are often accompanied by allegations of constitutional violations.  Where a teacher has been denied due process, so-called “stigma” claims involving allegations that a teacher’s discharge deprived him or her not only of a property interest but a liberty interest frequently accompany traditional torts.[33]  The deprivation of one’s Fourteenth Amendment “liberty interest” was best defined by the Supreme Court in Roth as “impos[ing] a stigma or other disability that foreclosed [an employee’s] freedom to take advantage of other employment opportunities.”[34]  In Donato v. Plainview-Old Bethpage Central School District,[35] an assistant principal alleged in a constitutional claim against her principal and the superintendent that they “began a course of conduct designed to damage her professional career,” including “criticizing her decision to leave on vacation in early July, because leaving interfered with her scheduling responsibilities.”[36]  The assistant principal further alleged that her principal’s evaluations “contained factual distortions and untrue incidents,” as well as “misstatements of fact and outright fabrications.”[37]  Ultimately the school district did not renew her probationary one-year contract.

    The Court of Appeals in Donato rejected the plaintiff’s resulting “liberty interest” claim, finding that “a decision not to reemploy, standing alone, does not deprive an employee of liberty.”[38]  “Special aggravating circumstances are needed to implicate a liberty interest,” the Court concluded, such as “when the state fires an employee and publicly charges that she acted dishonestly or immorally.”[39]  Such serious charges entitle the employee “to defend her ‘good name, reputation, honor or integrity.’”[40]  On the other hand, the Court ruled, “[a] free-standing defamatory statement made by a state official about an employee is not a constitutional deprivation.  Instead, it is properly viewed as a state tort of defamation.  But a defamatory statement about an employee implicates a liberty interest when it is made during the course of that employee’s termination from employment.”[41]  If a government, for instance, fires an employee “for incompetence or because she can no longer do the job,” it “carries more potential for future disqualification from employment than a statement that the individual performed a job poorly,” and thus triggers the right to a “name clearing hearing” under the Fourteenth Amendment.[42]

    In the case of Mrs. Donato, however, the Court concluded that, given the fact that “the statement of reasons for termination read like a bill of indictment, methodically reciting a litany of lack of professional competence,” her discharge “implicated a liberty interest.”[43]  The fact that the stigmatizing information was placed in her personnel file, where they were likely to be disclosed to prospective employers, further reinforced the liberty interest deprivation alleged by the plaintiff.[44]  The Court of Appeals thus remanded the case to the District Court, with orders that the school district be required to offer Mrs. Donato a “name clearing hearing,” given the serious deprivation of her liberty interest as the result of her uncomplimentary termination.

    VI. Can Teachers Really Sue a School District  for Breach of the Union Contract?

    Most public school teachers labor under contracts negotiated between their union and the board of education.  The privity of contract is thus between those entities, with the teacher at best constituting a “third party beneficiary” to such contracts.[45]  In McCrary v. Aurora Public Schools,[46] the Tenth Circuit, applying federal labor law principles, concluded that “Ms. McCrary’s state law claim for breach of the collective bargaining agreement is preempted by § 301 of the Labor-Management Relations Act, 29 U.S.C. § 185.”[47]  Some courts have insisted that, in order to pursue a direct cause of action for breach of contract against a school board predicated upon the provisions of the teachers’ union contract, the teacher must bring an action against the union for having breached its duty of fair representation in respect to the manner in which the disputed issue was handled (or mishandled).[48]  In Offutt v. Montgomery County Board of Education,[49] Maryland’s Court of Appeals reasoned as follows:

    [B]efore the employee could be awarded damages for his wrongful discharge, he must first establish that the union breached its statutory duty of fair representation.  The Supreme Court was of the view that no individual cause of action would lie, regardless of whether the employer had violated the provisions of the collective bargaining agreement, unless the union had also breached its duty to fairly represent the employee in the matter.[50]

    The doctrine of “preemption” has often gotten in the way of pursuing breach of contract claims, particularly where the courts perceive the availability of administrative remedies capable of redressing the issues brought in the contract dispute.  Thus, in Personnel Commission v. Barstow Unified School District,[51] one California appellate court put it this way:  “a claim for declaratory relief may not be used ‘to avoid the inconvenience of deferred judicial review” by bypassing an administrative remedy.”[52]  In other words, courts are reluctant to weigh into situations that are addressed by existing administrative procedures, including teacher tenure laws and laws granting teachers the right to appeal adverse disciplinary decisions.  At most, courts are prepared to defer involvement in such cases until the completion of the administrative process.[53]  In other states, the courts have compelled teachers protesting their dismissal to elect between the statutory administrative process and binding arbitration under their union contract.[54]            

    VII. How School Administrators Can Avoid Being Sued for Defamation

    There are a number of important steps every school administrator should take to minimize the risk of defamation lawsuits:

                1.         Watch carefully everything you print or communicate, even (especially) in emails, texts, tweets, and other social media outlets.  Follow Rule Number 1:  Treat every email or tweet as if you want to see it on the front page of your local newspaper.

                2.         In giving references, be certain of whom you are speaking to when a reference is requested.  Former employees have frequently resorted to employing companies that specialize in pretending to be prospective employers for the sole purpose of learning what former employers are saying about their clients.  One such company is Global Verification Services, Inc., whose web site is found at http://www.global-verification.com.

                3.         Be very careful even when sharing information verbally with your colleagues in other school districts.  Anything you say may have to be repeated in a deposition, and you subject yourself to libel claims if what you share is either inaccurate and/or results in a former employee not being hired for a subsequent job.

                4.         While this is asking quite a bit, try to maintain centrality with regard to references provided on behalf of your school district.  In one defamation lawsuit, Exhibit 1 attached to the Complaint was the glowing letter of reference given by a terminated employee’s immediate supervisor.  The former employer’s human resources department, however, had sent out contradictory (and highly negative) information to a prospective employer.  Inconsistent reference information invites defamation litigation when an employee is not hired for the next position.

                5.         In observations, evaluations, disciplinary letters, performance improvement plans, and termination letters, stick to facts, not impressions or subjective opinions about an employee’s performance or conduct.

                6.         Offer timely redress of work-related grievances, even in a non-union environment.  If employees feel they are being treated fairly and have access to impartial review of discipline or discharge, they are less likely to bring a lawsuit, and even far less likely to prevail.

                7.         Do not provide references that contain anything your organization has not previously documented.  “Good faith” capable of defeating a claim of “malice” in states with reference and workplace disciplinary shield laws is best supported by documentation supporting the contents of the challenged communication, even if that documentation is called into question.

                8.         If a discharge decision has been made, support it in every forum, including unemployment compensation appeals proceedings.  Do not abandon the ability to defend the decision in any legal avenue, either before the Equal Employment Opportunity Commission (if a Charge of Discrimination is filed), before state teacher tenure boards, or in the contractual grievance procedure.

                9.         Where there are available remedies, insist that employees access those remedies, such as arbitration or administrative appeals.  Relentlessly focus the courts’ attention on those alternative remedies, as judges like nothing more than shedding cases onto alternative dispute mechanisms.

                10.       Finally, be prepared to defend your personnel decisions before juries.  Employment disputes are no longer confined to teacher tenure hearings before school boards or arbitration.  They have found their way into courtrooms, and you have to be ready to convince a jury that what you did was good for kids and good for the system.

     


     

    [1] 376 U.S. 254 (1964).

    [2] Id. at 270.  Defamation is defined as “[t]he act of harming the reputation of another by making a false statement to a third person.”  Blacks Law Dictionary 448 (8th ed. 2004).  Defamation may be in either written (libel) or oral (slander) form.  Id.

    [3] Id. at 279-80.

    [4] Id. at 283 n.23 (stating that “[w]e have no occasion here to determine how far down into the lower ranks of government employees of the ‘public official’ designation would extend for purposes of this rule, or otherwise to specify categories of persons who would not be included”).

    [5] 383 U.S. 75 (1966).

    [6] Id. at 85.

    [7] Id.

    [8] Id. at 86.

    [9] Id.

    [10] 418 U.S. 323 (1979).

    [11] Id. at 345.

    [12] Id.

    [13] 27 Md. App. 514 (1975), cert. denied, 276 Md. 741 (1976).

    [14] Id. at 524.

    [15] Id. at 531.

    [16] Id. at 533.

    [17] Circuit Court for Frederick County, Maryland, Case No. 10C00000757 (2000). 
    [18] 2011 U.S. Dist. LEXIS 76708 (D. Conn. 2011).

    [19] See, e.g., Sewell v. Brookbank, 581 P.2d 267, 270 (Ariz. 1978); Basarich v. Roedeghero, 321 N.E.2d 739, 742 (Ill. App. 1974).

    [20] See, e.g., Johnson v. Bd. of Junior College, 334 N.E.2d 442, 447 (Ill. App. 1975); Scarpelli v. Jones, 626 P.2d 785, 790 (Kan. 1981); Campbell v. Robinson, 955 S.W.2d 609 (Tenn. App. 1997).  As would be expected, few teachers have been determined to be “all purpose” public figures as defined in Gertz.  Thus, courts which have concluded that teachers are public figures have often done so after analyzing whether the teacher(s) at issue were “limited purpose” public figures—i.e., whether their notoriety was the result of their having “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.”  Gertz, 418 U.S. at 345.  Examples of such controversies include discussion about a teacher’s general professional fitness, see Gallman v. Carnes, 497 S.W.2d 47 (Ark. 1973); Foote v. Sarafyan, 432 So. 2d 877, 878 (La. App. 1982); True v. Ladner, 513 A.2d 257, 260 (Me. 1986), the selection of textbooks, see Franklin v. BPOE, 97 Cal. App. 3d 915 (1979); Johnson v. Board of Junior College, 334 N.E.2d 442, 444 (1975), and a teacher’s disciplinary methods, see Johnston v. Corinthian Television Corp., 583 P.2d 1101 (Okla. 1978).

    [21] See, e.g., Franklin v. BPOE, 97 Cal. App. 3d 915, 924 (1979); Nodar v. Galbreath, 462 So.2d 803, 808 (Fla. 1984); True v. Ladner, 513 A.2d 257, 263-64 (Me. 1986); Poe v. San Antonio Express News, 590 S.W.2d 537 (Tex. App. 1979); Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 37 (Va. 1987).  Courts which have concluded that teachers are private individuals often respond to the first Rosenblatt factor (namely, whether teachers “have, or appear to have, substantial responsibility for or control over the conduct of governmental affairs”) in the negative.  See, e.g., Franklin, 97 Cal. App. 3d at 924 (explaining that “[t]he governance or control which a public classroom teacher might be said to exercise over the conduct of government is at most remote and philosophical”); True, 513 A.2d at 264 (stating that “the authority exercised by a public school teacher is very limited[; it] is normally limited to school children within the school building during ordinary school hours”).  Thus, these courts often do not reach the second Rosenblatt factor (namely, whether teachers “hold a position of “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds it, beyond the general public interest in the qualification and performance of all government employees”)—a factor which courts are much more likely respond to in the affirmative given the importance of public schools in American life.  See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 493 (1954) (stating that “education is perhaps the most important function of state and local governments”).

    [22] This is especially true when the communication is made outside of the employment context because such communications may not be protected by privileges and/or immunities.  See Section IV, infra.

    [23] See Prosser and Keeton on the Law of Torts § 114, at 815-16 (5th ed. 1984).

    [24] See Joshua B. Orenstein, Absolute Privilege From Defamation Claims and the Devaluing of Teachers’ Professional Reputations, 2005 Wis. L. Rev. 261, 262 (2005) (citing authorities).

    [25] Id.

    [26] Id. at 266-67 (noting that California, Maryland, and New York are the only states which have extended absolute privilege to parent and student complaints on the reasoning that the need for parents and students to feel free to report concerns about teacher conduct without fear of retribution outweighs teachers’ right to a remedy for false reports).

    [27] Md. Code Ann., Cts. & Jud. Proc. § 5-803.

    [28] See, e.g., Md. Code Ann., Cts. & Jud. Proc. § 5-423.  Jurisdictions currently without job reference immunity laws include Alabama, Connecticut, District of Columbia, Kentucky, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, Vermont, and West Virginia.  It should be noted, however, that even in jurisdictions without such laws, case law may provide such an immunity.

    [29] Md. Code Ann., Cts. & Jud. Proc. § 5-423.

    [30] See, e.g., Frank v. Home Depot, 481 F.Supp.2d 439 (D. Md. 2007).

    [31] 430 F. Supp. 2d 279 (S.D.N.Y. 2006).

    [32]  Id. at 292 (explaining that “[e]vidence of the falsity of a statement alone is insufficient to raise an issue of fact as to malice”; rather, “[m]alice in this context means personal spite or ill will, or culpable recklessness or negligence”).

    [33] See, e.g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 573 (1968).

    [34]  Id.

    [35]  96 F.3d 623 (2d Cir. 1996).

    [36]  Id. at 627.

    [37]  Id.

    [38]  Id. at 630.

    [39]  Id.

    [40]  Id. (quoting Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971)).  

    [41]  Id.

    [42]  Id.

    [43]  Id. at 631.

    [44]  Id.

    [45] McCrary v. Aurora Public Schools, 57 Fed. Appx. 362, 373 (10th Cir. 2003).

    [46]  Id.

    [47]  Id. at 374.

    [48]  In so ruling, those courts tend to rely upon the Supreme Court’s landmark decision in Vaca v. Sipes, 386 U.S. 171 (1967).  See, e.g., Offutt v. Montgomery County Board of Education, 285 Md. 557 (1979). 

    [49] 285 Md. 557 (1979).

    [50]  Id. at 568.

    [51] 43 Cal. App. 4th 871 (Cal. Ct. App. 1996).

    [52]  Id. at 890 (Cal. Ct. App. 1996) (quoting Fresno Unified School Dist. v. National Education Assn., 125 Cal. App. 3d 259, 269 (Cal. Ct. App. 1981)).

    [53]  See, e.g., Reilly v. Lance, 2005 Conn. Super. LEXIS 1309 (2005).

    [54]  See, e.g., Public Employee Relations Commission v. District School Board of De Soto County, Florida, 374 So. 2d 1005 (Fla. App. 1979).