Defamation and Student Records Chapter 13 Many things

Defamation and Student Records Chapter 13 Many things that are defamatory may be said with impunity through the medium of speech. Not so, however, when speech is caught upon the wing and transmuted into print. What gives the sting to the writing is the permanence of form. The spoken work dissolves, but the written one abides, and “perpetuates the scandal. ” - Benjamin N. Cardoza

Defamation From the Latin diffamatus…a person of notorious and evil reputation Insulting words of one against another were punished by removing the offender’s tongue. 1275 became a criminal offense. Scandalum magnatum, the slander of magnates Gradually became a civil wrong

Defamation Can be Defined as: Imputation of immorality, dishonesty Dishonorable conduct to another by spoken or written word Tends to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him Diminishes the esteem, respect, good will or confidence in which plaintiff is held Excites adverse, derogatory or unpleasant feelings or opinions against him

Libel v. Slander Libel…publication by written or printed words Slander…publication by spoken words

To Determine Whether Libel or Slander: Area of dissemination Deliberate and premeditated character of its publication Persistence of the defamation

Defamation in Public Schools Teachers and administrators PARTICULARLY SUSCEPTIBLE to actions in defamation

Per Se Words IN and OF THEMSELVES, without extrinsic proof, injure a person’s reputation. Action complete when plaintiff proves words were articulated and conveyed. Can recover for actual harm. Must only show that words impaired his reputation or standing, causing personal anguish, suffering, or

Under American Common Law an Action for Defamation Per Se Will Lie Without Proof of Special Harm Where: 1. Words impute a) Criminal offense punishable by imprisonment or; b) That plaintiff is guilty of a crime involving moral turpitude. 2. Words impute to the plaintiff an existing venereal or other loathsome or communicable disease.

Per Se 3. Words impute to the plaintiff conduct, characteristics, or a condition incompatible wit proper conduct of his her lawful business, trade, or profession, or a public or private offense 4. Words impute unchastity to a woman

Per Quod Requires plaintiff show actual damage. Must show that publication was legal cause of special harm. Special harm requires proof of loss. Difference between per se (male teacher seduces female student) and per quod (headmaster seduces the school custodian’s wife) may depend

Privileges Absolute Privilege Qualified Or Conditioned Privilege

Privilege Qualified or conditional – common duty or interest in info and “acting in good faith. ” Not unlimited. Absolute – afforded only those individuals who perform vital governmental functions such as judicial proceedings, legislative proceedings, and certain executive proceedings.

School Officials Teachers, guidance counselors, principals and other school officials are protected by conditional/qualified privilege.

Privileged Communications Communication made in good faith without malice, in answer to inquiry, in reasonable protection of own interest or performance of duty to society. Defendant must honestly believe the communication to be true. reasonable or probably grounds known to him for the suspicion. Must go no further than the facts.

Malice A qualified privilege does not protect against malice, malice ill will or absence of good faith. In a legal sense malice characterizes all acts that are done with evil disposition and unlawful motive with intent to injure or cause harm to another.

Law Distinguishes Two Types of Malice: 1. Malice in law or Implied Malice a. Defamation per se. b. No excuse for conveyance of hurtful information. c. unsolicited, derogatory commentary, may be oral or written.

Type Two: 2. Actual malice a. Dependent on the defendant’s motive for making the statement. b. Requires proof that the defendant’s motives and interest were wrongful, ill- willed, and designed to harm the plaintiff’s reputation.

Good Faith A qualified privilege protects the teacher or school official when statements are made in good faith and without malice.

Truth Falsity is the basic ingredient in the Tort of defamation. Truth of a defamatory statement affects a complete defense to defamation regardless of whether ill will or malice is present.

Tatum v. Orleans Parish School Board (4 th Cir. 2008) An action in defamation by a teacher against a school principal cannot prevail from a statement or opinion by the principal based on his subjective view that does not state or imply falsity or malice. Alleged defamatory statement consists of a memo concerning a personnel matter.

Hett v. Ploetz (Wis. 1963) Negative recommendation is protected by conditional privileges. Public school official who expresses an opinion as to the qualifications of a person who has submitted an application for employment as a teacher should enjoy the benefits of a conditional privilege.

Desselle v. Guillory (La. Ct. App. 1981) Qualified privilege protects parents who convey information about teachers. A qualified privilege exists as to a communication, even if false, between parties sharing an interest or duty. To be a good defense such communication must be made in

Public Officials and Figures If a newspaper article defames a teacher, what are the teacher’s rights to bring action for libel? N. Y. Times Co. v. Sullivan (1964) A public official must prove that the published material was false and the defendant acted in reckless disregard for the truth or in malice.

N. Y. Times v. Sullivan (1964) Public officials must show that he statement was made with “actual malice” to recover damages. To recover damages must prove actual malice. “with knowledge that it was false” or “with reckless disregard of false or not. ” Extends to public “figures” as well as “officials. ” 1 st Amendment places limits on law of

N. Y. Times v. Sullivan (1964) Definition of “public official” was broaden in Curtis to include “public figures. ” Individuals who are in roles of public prominence in affairs of society must prove “actual malice. ”

Gertz v. Robert Welch Inc. (1974) In Gertz, the Supreme Court further clarified the meaning of “public figure” as one who assumes a role of importance in public affairs, that is, of general importance to the people. If a public figure, the burden of proof is on public figure to prove malicious intent.

Milkovich v. Lorain Journal Co. (1990) Newspaper article accusing coach of being a liar is not entitled to separate constitutional privilege for “opinion. ” It would be destructive of the law of libel if a writer would escape liability for defamatory accusations by simply saying “In my opinion. ”

Johnson v. Robbinsdale Independent School District (D. Minn. 1993) The question is whether a school principal is a public official according to the New York Times v. Sullivan definition. The court held that a public elementary school principal is a public official, and therefore cannot recover for defamation absent showing of malice.

Points to Consider: 1. The criteria to be considered in determining whether the plaintiff in a defamation case is a public official include the following: (1) whether the plaintiff performs governmental duties directly related to public interest; (2) whether the plaintiff holds a position to significantly influence the resolution of public issues; and (3) whether the plaintiff has (or appears to the

Points continued… 2. Parents who wrote a letter critical of a public elementary school principal’s official conduct could not be held liable for defamation absent the showing of actual malice. 3. The fact that a principal appeared to have responsibility over the conduct of education at a school was sufficient to trigger public-official standards, even if the principal did not actually exercise the power that the public perceived her

Points continued… 4. Parents who wrote critical letter could not be held liable for defamation without showing actual malice. 5. Principal had responsibility over conduct of education at school therefore triggered public official standards. 6. Power was perceived if not real.

Courts are Divided on Whether the Principal is a Public Figure Two examples: 1. Jee v. New York Post, Co. Inc. (N. Y. 1985) Retired principal is public official. 2. Ellerbee v. Mills (Ga. 1992) Georgia court ruled principal NOT a public figure. Too far removed from public policy.

Student Records Practices suggested by common law: 1. Info should not be conveyed to other teachers or admin. unless motive and purpose are to ASSIST and ENHANCE educational opportunities for students. 2. Student information should be transmitted to employers ONLY UPON REQUEST to individuals with a “need to know. ” 3. To colleges only if a statutory or regulatory requirement for

FERPA Family Educational Rights and Privacy Act Cannot be released w/o written consent of parent or student if 18 years of age (if student is independent of parents). Parents as well as 18 year old students have right to inspect all school records concerning that student. Records with “personally identifiable info” must be kept confidential. Parents have right to inspect all school records concerning that student.

FERPA continued… Recordkeeping system must allow parents to locate their student’s records. District staff members must be identified by title. Each file should include a record of access. Parents have a right to appeal ANYTHING considered incorrect. Parents may request a hearing and/or provide a written statement to be added to the challenged material. School must define directory info and under what circumstances that info may be released

Exceptions to FERPA Personal notes defined as “not education records. ” Personal notes not accessible to other school staff members.

FERPA Does not allow parents to sue in court to enforce right. Gonzaga University v. Doe (2000)

INFO to be Disclosed without Parent Consent 1. Information to other school officials with legitimate educational interest within the school district. 2. Information to another school, system or institution of postsecondary education where student seeks to enroll. 3. To representative of the Comptroller General of the U. S. , the Secretary of Education or state and local education authorities. 4. To agencies for student financial aid, to

No Child Left Behind Directory information must be made available to military recruiters. Directory information consists of student name, addresses, telephone number. Parent has right to opt out of release of directory information.

Owasso Independent School District v. Falvo (2002) Peer grading of papers does not violate the Family Educational Rights and Privacy Act (FERPA). –Classroom papers are not “education records, ” per the FERPA definition. –Parent brought a § 1983 action against a school district and individual school officials, alleging that the practices employed by pre-secondary school teachers of allowing students to grade one another's work and to call out their own grades in class violated FERPA.

Owasso continued… The U. S. Supreme Court held that (1) though it is an open question whether FERPA provides private parties with a cause of action enforceable under § 1983, the Supreme Court had subject-matter jurisdiction; and (2) a student assignment does not satisfy the FERPA definition of “education records” as soon as it is peer-graded by another student, so that FERPA is not violated by such grading or by calling out the scores. Reversed and remanded.

Points to Consider 1. Within FERPA, which defines “education records” as records containing information directly related to a student, which “are maintained by an educational agency or institution or by a person acting for such agency or institution, ” the word “maintained” suggests FERPA records will be kept in a filing cabinet in a records room at the school or on a permanent secure database, perhaps even after the student is no longer enrolled, while the phrase “acting for” connotes agents of the school, such as teachers, administrators, and other school employees. General Education

Points to Consider continued… 2. Even if students are acting for the teacher when they correct another student's assignment, that is different from saying they are acting for the educational institution in maintaining a record of the assignment, as required for the records to be “education records” within FERPA.

Points to Consider continued… 3. FERPA implies that “education records” are institutional records kept by a single central custodian, such as a registrar, not individual assignments handled by many student graders in their separate classrooms.

Points to Consider continued… 4. This holding is limited to the narrow point that, assuming a teacher's grade book is an education record, grades on students' papers are not covered by the Act at least until the teacher has recorded them. The Court does not reach the broader question as to whether the Act protects grades on individual assignments once they are turned in to teachers.