According to the decision, three separate investigations were conducted by the University after a student raised a concern in 2004 about plagiarism. The first investigation concluded that it had no jurisdiction because the allegations concerned former students. The second investigation did little more than categorize the types of plagiarism alleged and make recommendations. The third investigation was conducted by two administrators and is the focus of the litigation. Neither had been trained in what constituted plagiarism. Their draft report contained what the Dean perceived as “inflammatory and inappropriate content.” Although the Provost requested that they tone it down, they refused. Nonetheless, the Provost handed out the draft report to the media during a subsequent press conference about the scandal. Among other things, the draft report referred to “rampant and flagrant plagiarism.” The plaintiff was removed from graduate advising duties, but the Dispatch reported that he had been fired (purportedly because that is what the legal affairs director reported).
The Court of Claims found that the challenged defamatory statements constituted protected opinion and, thus, were not actionable. The Court of Appeals disagreed and found the following statements were capable of proof, rather than mere opinion, and that “a reasonable reader would perceive the specific language as a factual assertion that appellant failed to perform his duties as an advisor”:
• "faculty members who either failed to monitor the writing in their advisees' theses or simply ignored academic honesty, integrity and basically supported academic fraudulence."“Because [the authors] implied that they had first-hand knowledge of facts supporting their conclusions, the statements in the [their] Report are verifiable.” Although it was a close call about whether the Report was the author’s opinion (in light of the self-righteous tone, flamboyant phrases, and impassioned pleas), the Court ultimately concluded that the Report purported to reflect a thorough and factual investigation, not merely a call to action.
• faculty members "blatantly [chose] to ignore their responsibilities by contributing to an atmosphere of negligence toward issues of academic misconduct in their own department."
Finally, the Court was persuaded that the University intended the Report to reflect a factual investigation because it was released to the media with a press release. It later rejected the Court of Claims finding that the report was not actionable as a matter of law because it had been produced pursuant to a public records request. While not discussing whether any qualified privilege exists, it rejected any argument that there is a blanket privilege from defamation for public records.
The University then raised qualified privilege issues (i.e., matters of public concern, etc.) which the Court refused to consider on appeal. The Court of Claims never considered those issues when it dismissed on grounds or constitutionally protected opinion. Therefore, the Court of Claims would need to consider the qualified privilege issues when the matter is remanded for further consideration.
With respect to the statement by a University attorney that the plaintiff had been fired, the Court of Claims determined that neither the reporter nor the attorney seemed to have a clear memory of the issue, but the attorney denied that he would have made any statement like that which was not true. Accordingly, the Court found that there was insufficient proof that the statement had been made to the reporter as alleged.
In that this case has been remanded, we can look forward to another opinion in the future on the scope of the claimed qualified privileges.
NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.
