Chapter
12 -- Defamation and Student Records
I.
Introduction
A.
Defamation is the imputation of immorality, dishonesty, or dishonorable
conduct to another by spoken or written word.
B.
Defamation injures one's character or reputation by false aspersion or
calumny.
II.
Defamation in Legal history
A.
Defamation is considered to be a tort, it descends from a different
historical lineage than the common tort of negligence.
B.
The word "defamation" is a term derived from the Latin
diffamatus, signifying a person of sufficiently notorious and evil reputation
that the church was justified in accusing and placing him on trial.
C.
The elements of common-law defamation were well established by the
eighteenth century, and the American courts generally followed the rationale and
precedents of the early English courts.
III.
Defamation in Public Schools
A.
Defamation is constituted of
the twin torts of libel and slander.
B.
Libel as written and slander as oral communication are distinguishable.
C.
General acceptance by the courts à
libel is a malicious publication, expressed in either printing or writing, or by
signs and pictures, and slander is personal imputation effected by writings,
pictures, or signs, both of which tend to injure a party's situation in society.
D.
Privilege
1.
Statements regarding school matters are qualifiedly privileged if made by
persons having a common duty or interest in the information and acting in good
faith.
2.
Officials, teachers, and others dealing in the public interest context
have at least a qualified privilege.
E.
Good Faith
1.
The communication must be made in good faith, without malice, upon
reasonable grounds, in answer to inquiry, and importantly, it must be made with
regard to assisting or protecting the interests of either of the parties
involved or in performing a duty to society.
F.
Defamation Per Se and Per Quod
1.
Words which in and of
themselves, without extrinsic proof, injure one's reputation are defamatory per
se.
2.
Plaintiff must merely show that words were of such kind as to impair
one's reputation or standing in the community or to cause personal anguish,
suffering, or humiliation.
3.
Defamation per quod requires that the plaintiff prove actual damage.
G.
Public Officials and Figures
1.
Cases hold the interest of
the publisher to be of vital importance to a free and informed society.
2.
Sullivan invoked "freedom of press" as constitutional gloss on
the common law and provided much more latitude for the press.
3.
Sullivan made two major changes in the law;
It created the category of public official, and it shifted the burden of
proof to the plaintiff to prove that an untruth was conveyed with malice.
4.
Students and teachers are not usually considered to be public officials
or public figures.
H.
Malice
1.
Malice in a legal sense characterizes all acts that are done with evil
disposition and unlawful motive with intent to injure or cause harm to another.
2.
Two types of malice:
a.
Malice in law à
(implied malice) is defamation per se.
b.
Actual malice à
is dependent on the defendant's motive for making the statement.
I.
Truth
1.
Falsity is the basic ingredient in the tort of defamation.
2.
Conveyance of truth is not defamation.
3.
If a parent or student published defamatory information about a teacher,
the burden would be on the parent or student to prove the statement is true.
J.
Cases:
1.
Hett v. Ploetz (1963) à
Negative recommendation is protected by a conditional privilege.
2.
Desselle v. Guillory (1981) à
Qualified privilege protects parents who convey information about teachers.
3.
Milkovich v. Lorain Journal Co. (1990) à
Newspaper article accusing coach of being a liar is not entitled to separate
constitutional privilege for opinion.
4.
Nodar v. Galbreath (1984) à
Evidence of Express Malice in criticism of teacher insufficient to overcome
parent's conditional privilege.
5.
Richmond Newspapers, Inc., et al. v. Lipscomb (1987) à
Teacher is not a public official and is not required to prove actual malice to
recover compensatory damages for libel.
IV.
Student Records
A.
Teachers, guidance counselors, and principals are generally involved in
the release of student information and records.
B.
Practices suggested by common law:
1.
Information should not be
conveyed to other teachers or administrators unless the motive and purpose are
to assist and enhance the educational opportunities of the pupil.
2.
Pupil information should be transmitted to prospective employers only
upon request
3.
Records should be released to colleges and other institutions only if
there is statutory or regulatory requirement for the transmittals, or if the
pupil requests the conveyance.
4.
FERPA (Family Education Rights and Privacy Act) passed in 1974
establishing standards to which school districts must adhere in handling student
records:
a.
Records of individual students, containing "personally identifiable
information," must be kept confidential.
b.
Parents and guardians have right to inspect all school records concerning
that student.
c.
Record-keeping system must be sufficiently described.
d.
Staff members with access to student records must be identified by title.
e.
File must include a record of access.
f.
Parents have a right to appeal anything.
g.
School policy must define what constitutes "directory
information," and under what circumstances that information may be released
without parental consent.
C.
Cases:
1.
Fay v. South Colonie Central School District (1986) à FERPA alone does not provide for redress in damages, but may if
combined with ss 1983.