School Administrators Under Attack: Can I Sue For Damage to My Reputation?Bayonne native and former U.S. Secretary of Labor, Raymond J. Donovan, following his acquittal on charges for larceny and fraud, is famously quoted as asking, “Which office do I go to get my reputation back?”1 Unfortunately, there is no office that one can go to and recover one’s reputation. However, under the common law, individuals who believe their reputations have been damaged have the ability to sue for defamation. The law of defamation supports the policy that individuals should be free to enjoy their reputations without concern for defamatory attacks, and, therefore, the law is intended to strike a balance between the free speech rights of citizens and the protection of one’s reputation.2 So it comes as no surprise that school administrators, who are often the targets for criticism, including personal attacks, accusations of wrongdoing, and claims that they are failing to properly perform their duties, ask the question of whether they can successfully recover money damages if they sue for defamation. In the overwhelming majority of cases, the answer will be no.3
Defamatory statements are ones which tend to lower an individual’s reputation or deter people from associating with him/her.4 Defamatory statements may be verbal or written; if the defamatory statement is made orally it is considered slander, and if made in writing, it is considered libel.5 Regardless of whether a statement is oral or written, the determination of whether a statement is defamatory depends on three factors: (1) its content; (2) whether it is verifiable; and (3) the context in which it was made.6 With regard to the content, a court has to consider the fair and natural meaning that will be given to the statement by reasonable people of ordinary intelligence.7 In regard to the statement being verifiable, the question is whether the statement is one of fact or of opinion. In general, in order for a statement, to be defamatory it must be a statement of fact that is capable of being proven true or false.8 In general, a statement of pure opinion cannot be a defamatory statement since it cannot be proven true or false.9 Finally, a court has to consider the context in which a statement is made to determine whether a listener or reader will interpret the statement as defamatory.10
For purposes of bringing a defamation claim, school administrators are considered public officials or public figures.11 Public figures, unlike private figures, are given less protection for their reputations and have a higher burden to prove defamation. In order for a public figure to bring a claim for defamation, s/he must prove the following elements by clear and convincing evidence: (1) the defendant made a false and defamatory statement; (2) the false and defamatory statement was communicated in an unprivileged manner12 to a third party; (3) the false and defamatory statement was communicated with actual malice; and (4) an actual injury to his/her reputation.13 As for defenses to a defamation claim, perhaps the best known defense is truth; if the allegedly defamatory statement is true, any claim is barred.14
There are a variety of ways in which school administrators may have their reputations attacked. Defamatory statements may be made about them at public meetings, in newspaper articles, in correspondence to the board or to other public officials, and on internet blogs and websites. If the defamatory statements are made on the Internet, oftentimes the posting is made anonymously making it very difficult, if not impossible, to identify the author. However, a legal procedure does exist for compelling an internet service provider to identify an anonymous author.15 For the sake of discussion, if it is assumed that the author or speaker is known, and that s/he has made a false and defamatory, non-privileged, factual statement to a third party about a school administrator, typically the biggest hurdles to overcome in establishing a successful claim are proof that the defamatory statement was communicated with actual malice, and that the school administrator suffered actual damages.
In order to prove malice, the school administrator must demonstrate by “clear and convincing evidence” (and not just by the lower standard of a preponderance of the evidence), that the statement was made by the defendant with knowledge of its falsity or made in reckless disregard of whether it was true or false. This means that the school administrator must produce evidence that clearly and directly confirms that the defendant had information prior to making the defamatory statement that disproved or otherwise called into question the underlying basis for the statement.16 In addition to proving malice, the school administrator must also prove that s/he suffered actual damages. This means that s/he must show that, as a result of the defamatory statement, his/her reputation was diminished in the view of others, and/or that s/he suffered either a monetary loss, such as the loss of a job or the loss of some form of compensation, or suffered severe emotional harm; a feeling of personal embarrassment is insufficient to qualify.17
There are a multitude of published case decisions from around the country in which school administrators, particularly, school superintendents have sued for defamation, and were ultimately unsuccessful.18 In one instance, a superintendent filed suit against a group of parents over conversations between them and teachers in which they referred to him as having a “dictatorial attitude,” and engaging in “harassment” toward teachers resulting in a high rate of faculty turnover. These comments were put into a written document that was presented to the board for executive session consideration, and copies of the written document were left around the school building. The court dismissed the suit because the superintendent could not demonstrate that the statements were made with actual malice; the statements were essentially privileged because the parents had a common interest in discussing the education of their children.19
In another instance, a former superintendent filed suit against a newspaper and an individual who prepared two petitions for his removal. The petitions alleged that the former superintendent had misused his authority and failed to properly perform his duties. The newspaper was given a copy of one of the petitions and wrote an article entitled “Expelling the Superintendent? Petition Drive Planned to Oust Walker County Superintendent.” The newspaper subsequently published a cartoon entitled “Scary Thoughts,” that depicted a school board Halloween party. In the cartoon, the former superintendent was dressed as the heartless Tin Man, and sat at a table with the board members who were dressed as scarecrows. The former superintendent was depicted as thinking: “If they only had a brain, ha ha ha ha.” The former superintendent’s lawsuit was likewise dismissed because he could not demonstrate that the statements were made with actual malice.20
Consider a case in which an African-American elementary principal named Shirley Johnson, filed suit against parents who wrote a letter to the board and superintendent stating that their children had “learned prejudice” from the principal by watching “black children misbehave and having no consequences” while white children were punished for the same infractions. The letter stated that black children had assaulted white children on the bus, but the principal allowed it to continue for a month before telling the students to stop. The letter also said they heard that the principal had called another teacher a racist during a confrontation with the faculty. The parent’s letter closed with this:
All of these things show me that Shirley Johnson is not a good administrator. She cannot handle the job. In addition to not being able to do the job, she has introduced prejudice to the children and faculty. She should not be whining about her skin color. Her inability to be a principal has caused more harm to Meadow Lake school and its population than her skin color. (Emphasis in original).
The court dismissed the principal’s defamation claim because she could not show that the statements were made with actual malice. There was no evidence that the parents had any doubts about the truth of the statements they made. The parents received most of the information from their own children, and there was no evidence that the parents had any reason to doubt their children’s credibility regarding their accounts of the events.21
The statements in the sampling of cases mentioned above could easily be construed as tending to diminish or lower the school administrator’s reputation. Nevertheless, those individuals were unable to pursue a legal remedy because of their stature as public officials and their inability to produce evidence of actual malice. Bearing in mind the obstacles necessary for successfully bringing a defamation claim, when faced with a situation in which you believe your reputation has been harmed, it is important to identify the speaker or author, document the communication, and gather any evidence of actual harm to your reputation such as comments made by colleagues, parents, and board members.
School administrators must accept the fact that, as public officials, they will always remain “lightning rods” for criticism. But as the 19th century evangelist and religious author, Dwight L. Moody, is quoted as saying, “If I take care of my character, my reputation will take care of itself.” Therefore, even in the face of criticism, continue to act professionally and with dignity, so that your actions will speak louder than the words said against you.Endnotes
2. See Rocci v. Ecole Secondaire Macdonald–Cartier, 165 N.J. 149, 155 (2000); Lynch v. New Jersey Educ. Assoc. 161 N.J. 152, 166 (1999).
3. See, e.g., Philip DeVencentis, Former Ramapo Indian Hills Superintendent’s Defamation Suit Dismissed, NorthJersey.com, December 8, 2011; Mark Walsh, Court Backs School Employees in Principal’s Defamation Suit, Education Week, January 6, 2011; Joie Tyrrell, Mineola School Superintendent’s Lawsuit Dismissed, NewsDay.com, July 5, 2010; and Mark Walsh, Court Rules Against Superintendent in Libel Case, Education Week, March 25, 2009.
4. See W.J.A. v. D.A., 2010 N.J. 229, 238 (2012)
5. See id. at 238-239; Too Much Media, LLC v. Hale, 413 N.J.Super. 135, 166 (App. Div. 2010) (citation omitted), aff’d and judgment modified, 206 N.J. 209 (2011).
6. Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 585 (2009).
8. See Mangan v. Corporate Synergies Group, Inc., 834 F.Supp.2d 199, 204-205 (D.N.J. 2011) (citation omitted).
9. See id. at 205 (citation omitted).
10. See Leang, 198 N.J. at 585.
11. See Standridge v. Ramey, 323 N.J.Super. 538 (App. Div. 1999) (school district’s former athletic director was a public official).
12. Privileged communications include, among others, statements made in connection with judicial proceedings, the “fair-report” privilege for newspapers publishing statements from judicial proceedings, the “common interest” privilege for communications made based on a duty in which the parties share a common interest, and the “fair comment” privilege for statements made about a matter of public interest. See N.J.S.A. 2A:43-1 (privilege for communications in judicial proceedings); Mangan, 834 F.Supp.2d at 207 (discussing the common interest privilege); Senna v. Florimont, 196 N.J. 469, 485-486 (2008) (discussing the fair comment privilege).
13. See Leang, 198 N.J. at 585; Rocci, 165 N.J. at 157-158; Lawrence v. Bauer Publishing & Printing, Ltd., 89 N.J. 451, 466 (1982); Too Much Media, LLC, 413 N.J.Super. at 166-167.
14. See G.D. v. Kenny, 411 N.J.Super. 176, 187-188 (App. Div. 2009).
15. See Dendrite Int’l, Inc. v. Doe, 342 N.J.Super. 134 (App. Div. 2001); Mauro v. Intellectual Freedom Foundation, Inc., Dkt. No. A-0004-15T2 (App. Div. 2016).
16. See, e.g., Chambers v. Scutieri, 2013 WL 1337935 (App. Div. 2013) (plaintiff proved actual malice because defendant had information in his possession when he first made his allegations about the plaintiff that the allegations were baseless).
17. See Rocci, 165 N.J. at 158-159.
18. See, e.g., Levesque v. Doocy, 560 F.3d 82 (1st Cir. 2009) (superintendent could not prove that hosts of Fox & Friends acted with malice when they relied on falsified quotes attributed to the superintendent in ficticious article about an actual incident where a student left ham on the lunch table where Somali students sat); Kefgen v. Davidson, 617 N.W. 2d 351 (Mich. App. 2000) (superintendent could not prove parents’ written statement reflecting the general reasons why superintendent was terminated from prior position was made with malice); Scott v. The News-Herald, 496 N.E.2d 699 (Ohio 1986) (newspaper article that implied, but did not expressly state, that superintendent perjured himself during athletic association hearing was a statement of the author’s opinion, rather than a statement of verifiable fact); Vollmar v. Laura, 2006 WL 1008995 (Mich. Ct. App. 2006) (board member’s statement at public meeting that employees gave him a document that “provides information that a board member did something illegal and unethical,” and that “[t]he superintendent is also implicated,” was not defamatory).
19. Uken v. Sloat, 296 N.W.2d 540, 543 (N.D. 1980) (“We hold that [the] communication was between interested individuals and made without malice. It would be preposterous to foreclose parents from discussing school affairs that vitally affect the welfare of their children.”).
20. Atkins v. News Publishing Company, Inc., 290 Ga.App. 78 (Ga. Ct. App. 2008).
21. Johnson v. Robbinsdale Indep. Sch. Dist. No. 281, 827 F.Supp. 1439 (D. Minn. 1993).