Slander/Defamation?

[Whitby]

What is the name of your state? New York

My son recently failed a College course which he says was due to reasons other than his performance. He claims that the school has a quota system and that they are more concerned with meeting that quota than giving students a reasonable chance of passing - regardless of how good their overall grade point average is.

He sent an email to the school Dean in which he outlined his concerns that the coordinator and faculty had possibly achieved their postitions by nepotism and through "sleeping their way to the top." He was clear to mention that these were not necessarily his - my son's - opinions, but that he was merely reflecting the wide-spread rumors which had been circulating among his fellow students. The "allegations" were made in an effort to speak to the charachter, qualifications, and professional capabilities of the said faculty members and coordinator.

My son went on to ask what the school would do in such a "hypothetical" situation - as far as how the school would handle such allegations if they were, in fact, proven to be true.
As of yet, he hasn't received any response but feels that his enquiry was legitimate and justified as a tax-payer. He told me that the school does not allow students a realistic opportunity of making any sort of progress through their official appeals process, and that this was a way that he could - at the very least - try and stir up some dirt which would reflect badly on the faculty and coordinator.

Can his accountings of nepotism, etc. be considered actionable in any way?

Thank you.

 

[>Charlotte<]

So let me get this straight.

Your son failed a college course. He should have passed, but he failed because of some kind of quota system.

His attempts to appeal the failure were not successful, so he resorted to sending an e-mail to the Dean wherein he accused the faculty of being incompetent, having sexual relations with each other, and hiring each other's friends and family. And you want to know if these allegations by your son can be construed as slander or libel.

Is that about right? If it is, let me ask you a question just to clarify.

Quota or no quota, how would it benefit the faculty to give your son a failing grade, even though he deserved to pass? Do they have a quota which requires them to flunk a certain number of students?

 

[TomD1974]

If your son would wise up a bit he would be passing his courses and not making trouble for himself. Unless all of his allegations are true and he knows them to be true, his victims certainly can sue for libel if they have damages. That can go from intentional infliction of emotional distress to worse, if his actions result in professional injury.

 

[quincy]

I do not think that sending such an email was very wise of your son.

I cannot tell you whether the email is libelous or not, without seeing it, although it is generally deemed libel per se to impute to a professional person a breach of professional ethics, general unfitness, or inefficiency. It very much depends on how it was worded.

Private communications between two people are not generally actionable, however, and for defamation cases, the communication would have to include at least a third person. If your son only emailed the Dean and no one else, and no one else was privy to this communication (such as the Dean's secretary), it would not be considered libel. A condition for defamation is that a libelous or slanderous comment is made to at least a third person. Also, a writing might not convey a defamatory meaning if the adjectives used are written for effect or as a generic insult or your son worded the comments as opinion. The line between a statement of fact and an opinion is often a very fine one, though.

And, of course, if what he wrote was true, then that would be a complete defense to defamation (although not necessarily other charges).

So my answer to your question is, I guess, I don't know. Without seeing the email and without knowing if others saw it, it would be impossible to say for sure if your son could be sued for defamation.

 

[Whitby]

Libel/Defamantion?

My son never came right out and made any direct accusations - I saw the email he sent. He termed it in such a way where he was simply asking the Dean, in general terms, what the school 's policy is in such circumstances. He did say that he had heard rumors among the other students, however, and was simply reiiterating these rumors. The email was sent only to the Dean and not carbon copied to anybody else.

Thanks.

 

[quincy]

Did your son identify in his supposedly hypothetical scenario the faculty and coordinator that were subjects of the rumors? Or could their identities be surmised from what he wrote?

Even if your son did not cc the email to anyone, it does not eliminate the risk of a third person having seen the email. A secretary is a likely third person to have read the missive.

Your son MAY avoid any serious harm here, in the way of a defamation suit, depending on what the Dean does with the information provided in the email and whether or not anyone else saw it.

In the future, your son would be better served to approach his instructor directly with any problems, and only go to see the Dean if he gets an unsatisfactory response from the faculty member. Emails are a permanent record and, therefore, more likely to cause harm than a personal conversation with the person he has a complaint with.

 

[Whitby]

Libel/Defamantion?

Nobody was mentioned by name, only that they were "faculty" and "coordinator." So, yes, I suppose one could surmise who the intended parties were. Again, the email does not directly accuse anybody of anything - it poses a hypothetical question in a hypothetical situation based on "rumors" that were heard. If indeed a secretary were to see it, would that establish her/him as a third person - even if the email was sent directly to the Dean? If, as you say, the Dean does decide to show the email around how does that implicate my son? After all, that would be the Dean's own decision - the email was sent directly to him and to nobody else.

Thanks.

 

[quincy]

Basically, then, it sounds like your son identified people in his email.

Yes, the secretary would be considered a third person, even if the email were directed only to the Dean. It is the secretary's job, often, to read and respond to emails sent - and to direct only those emails to the Dean that need his attention personally. This could pose a problem for your son.

If the Dean takes the email, or the information in it, to the identified persons, this would not necessarily implicate your son in any way - it really depends on the Dean and what he chooses to do with the information in the email. He may want to investigate this "hypothetical" and get a response from those identified. He may not. He may just call your son into his office to discuss the matter, or he may choose to dismiss the whole matter. It is impossible for me to say what actions he will take.

As for your son's contention that the university bases grades in a class on a quota system, this is probably not entirely true. Professors may "curve" class grades, which can seem unfair to some students who think they deserved a higher grade, and I have known Professors who "play favorites" or can't see past their own biases to grade an essay fairly, but that is a problem all students face equally in any class. Grades can be disputed - and students win some and lose some. But, generally, accusing a Professor of sexual misconduct or nepotism will not improve a student's chances of getting a grade change, and, without evidence to back up any accusations, will not result in any disciplinary action against those accused - it will only reflect poorly on the student, and potentially result in legal action against the student.

 

[BoredAtty]

Quincy, the dean himself is a third party since the dean is not the subject of the rumor in question. Assuming the email was otherwise defamatory, then the defamed person could successfully sue the OP's son for publishing the untrue information to the dean.

 

[Whitby]

What, then, precludes a student - or anybody for that matter - from asking a question, any question about anything? The Dean is not Joe blow in this instance, he is the overseer of an educational institution. It is his job to provide answers to his school's system of conduct if so asked. And in this case, it seems that all the Dean was asked was his opinion on a "hypothetical." Wouldn't it be incumbent upon the Dean to just answer the question? Because if there were any accusations they were "implied." By the same token, why couldn't I tell the Dean that I believed that JFK was killed by a conspiracy involving high-government officials? Would I then be held accountable by said high-government officials for libel? I would not be emailing the family of Lyndon Johnson with my theories - I would be emailing the Dean. What's the difference? And if my son recounts instances of "rumors" that he heard during his tenure as a student, how does that make my son liable for anything other than informing the Dean? He - my son - is simply reporting and asking a question.

Thanks.

 

[quincy]

BoredAtty - The communication between the student and the Dean would be considered privileged - looked at as either a conditionally privileged communication (a defamatory statement made in good faith by a person with an interest in a subject to someone who also has an interest in the subject) or a confidential communication (a communication made within a certain protected relationship). I may be wrong on this, but I don't think so.

 

[BoredAtty]

BoredAtty - The communication between the student and the Dean would be considered privileged - looked at as either a conditionally privileged communication (a defamatory statement made in good faith by a person with an interest in a subject to someone who also has an interest in the subject) or a confidential communication (a communication made within a certain protected relationship). I may be wrong on this, but I don't think so.

If the communication were privileged, then it would not be "otherwise defamatory," as indicated in my post. That, however, has nothing to do with whether the dean is a third party for purposes of defamation.

You stated that telling the dean something defamatory about a faculty member would be okay because he's not a third party (see your quote below). That is not true -- he is a third party. In fact, if the dean were not a third party, then claiming that the communication was privileged would not be required since no publication took place.

Private communications between two people are not generally actionable, however, and for defamation cases, the communication would have to include at least a third person. If your son only emailed the Dean and no one else, and no one else was privy to this communication (such as the Dean's secretary), it would not be considered libel. A condition for defamation is that a libelous or slanderous comment is made to at least a third person.

 

[BoredAtty]

What, then, precludes a student - or anybody for that matter - from asking a question, any question about anything? The Dean is not Joe blow in this instance, he is the overseer of an educational institution. It is his job to provide answers to his school's system of conduct if so asked. And in this case, it seems that all the Dean was asked was his opinion on a "hypothetical." Wouldn't it be incumbent upon the Dean to just answer the question? Because if there were any accusations they were "implied." By the same token, why couldn't I tell the Dean that I believed that JFK was killed by a conspiracy involving high-government officials? Would I then be held accountable by said high-government officials for libel? I would not be emailing the family of Lyndon Johnson with my theories - I would be emailing the Dean. What's the difference? And if my son recounts instances of "rumors" that he heard during his tenure as a student, how does that make my son liable for anything other than informing the Dean? He - my son - is simply reporting and asking a question.

Thanks.

Whitby, please do not misunderstand my post. I was not stating that your son is guilty of defamation. Not having seen the email, I'm not going to speculate as to whether it was defamatory or not. I merely pointed out that if the email was defamatory in nature, claiming that the dean was not a third party would be of no help -- he is a third party.

Generally speaking, though, asking a question will not get one into trouble. Making an untrue statement of fact that injures a person's reputation is usually what you want to avoid.

 

[quincy]

Umm, I am not sure what you are saying.

If the secretary sees the email, then there is publication. The email would be seen before the email was sent to the Dean. You have a third person involved (even if this third person saw the communication second). If only the Dean sees the email, there is no actionable defamation because, 1. the communication is a private communication just between the student and the Dean about a matter that concerns them both, and 2. it would be privileged anyway.

For instance, if I speak to my attorney and say something defamatory about someone, and only he and I hear it - no problem. It is a privileged communication and there are only two of us involved anyway. It is both privileged and private. However, if I were to say something defamatory about someone to my attorney, and I said it in front of other people, no matter how privileged my communication with the attorney is, it could be actionable.

I could see how there could be argument against a third party publication, if you eliminate the Dean as the third party - but I don't see how the Dean would be considered a third party if only he saw the communication from the student. Even if a communication is ABOUT a third person, a third person is not privy to the communication in this case.

Have I confused both of us well enough now?? Just wait 'til I pull out the Family Immunity Doctrine.

 

[BoredAtty]

Quincy, you're misunderstanding the definition of "third party."

It does not necessarily mean there were three people privy to a communication where defamatory statements were thrown around. A third party is a party who is neither the person making the defamatory statement, nor the person who is the subject of the defamatory statement. Thus, defamation can take place in a communication between just two people.

In Whitby's scenario, the dean is a third party. However, if Whitby's son had written the email to the faculty member who is the subject of the rumors, then there would be no third party publication.

And this makes sense -- in Whitby's scenario, the faculty member's reputation could be ruined with the dean. In the latter scenario, the faculty member's reputation is not ruined with anybody.

Whether or not the communication is privileged (it may or may not be) is beside the point.