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.
2
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-
3
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
6
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.
4