Free Speech

Bust a Deal, Face the Wheel, Here for Colleges and Settlements for Lawsuits Over Expulsions

A student was expelled by St. John Fisher College for alleged sexual misconduct, but was then acquitted at a criminal trial and sued the college; the college agreed to confidentiality to settle the case, but then allegedly breached the agreement.


From Bisimwa v. St. John Fisher College, decided last week by the N.Y. intermediate appellate court (Judges Smith, Peradotto, Curran, Bannister & DeJoseph):

Plaintiff, while enrolled as a freshman at defendant St. John Fisher College …, was found responsible following a student conduct hearing for several violations of the College's student code of conduct, including sexual misconduct and assault, arising from a sexual encounter with another student. As a result, he was expelled.

Although plaintiff was also later criminally prosecuted on charges of rape in the first and third degrees, a jury found him not guilty of those alleged crimes. Plaintiff and the College thereafter entered into a settlement and release agreement in which each party agreed to various terms to resolve any disputes between them. While neither party admitted any wrongdoing and plaintiff remained expelled, the College acknowledged that if new evidence, including the trial testimony of several witnesses, had been available during the student conduct hearing, a different result may have been reached in the disciplinary proceeding.

Among other terms, the College agreed to expunge the notation of disciplinary action and sanctions from plaintiff's transcript and to expunge references to disciplinary action from any other records of the College made available to third parties.

Plaintiff subsequently commenced this action against the College … alleging causes of action for, inter alia, breach of contract and defamation. In relevant part, plaintiff alleged that defendants breached the agreement and defamed him when, in response to his authorizations for the release of information as part of his applications to the University at Buffalo (UB) and SUNY Buffalo State College (Buffalo State), Travaglini disclosed to those educational institutions information regarding the finding of responsibility against plaintiff for his violations of the student code of conduct and his resulting expulsion….

[T]here is no merit to defendants' contention that the agreement permitted the disclosure of plaintiff's non-expunged disciplinary history to third parties such as other educational institutions.

The first relevant paragraph of the agreement, which defendants ignore in presenting their argument, prohibited the parties from communicating any defamatory or disparaging statements to third parties but left undisturbed the College's "right to perform any action in its normal course of business, including without limit disclosing any student conduct history other than violations found at the Student Conduct Hearing" (emphasis added). The agreement thus clearly contemplated that the College's right to disclose plaintiff's disciplinary history was circumscribed to the extent that the College could not, as it might normally do in the course of its business, disclose violations found during the subject student conduct hearing against plaintiff.

That reading is reinforced by the second relevant paragraph, which indicated that the College agreed to expunge the notation of disciplinary action and sanctions from plaintiff's transcript and, in addition, provided that "references to any disciplinary action shall be expunged from any other [College] records that are made available to third parties." Taken together, the relevant paragraphs provide that, whatever was disclosed by the College to third parties, it would not include any reference to the disciplinary action taken against plaintiff as a result of the subject incident.

Defendants nonetheless contend that the final sentence of the second relevant paragraph, which allowed the College to retain records of the underlying disciplinary proceeding, permitted the disclosure of the finding of responsibility against plaintiff…. The final sentence stated that the College "shall retain records of the underlying disciplinary proceedings consistent with its record retention protocols generally applicable to records of such proceedings, which shall be treated as confidential student records under applicable law and [College] policies." … But retention of records by the College is decidedly different from disclosure thereof to third parties, and the final sentence is preceded by one unambiguously stating that references to any disciplinary action would be expunged from any records that the College made available to third parties….

But the court rejected the claim that the disclosure to Buffalo State also constituted defamation:

It is undisputed here that the information disclosed to Buffalo State was not false in and of itself; rather, as the parties and the court recognized, plaintiff's theory is defamation by implication based on omissions from the disclosure to Buffalo State and the alleged false suggestions or implications arising therefrom….

We now join the other Departments in adopting the heightened legal standard for a claim of defamation by implication[:] … "[t]o survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, the plaintiff must make a rigorous showing that the language of the communication as a whole can be reasonably read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference."

Here, a reasonable reading of the substantially true disclosure to Buffalo State of plaintiff's violations of the student code of conduct and expulsion from the College does not imply that plaintiff is "a rapist" as plaintiff alleged in his complaint or "a convicted rapist" as plaintiff's counsel asserted in opposition to the motion to dismiss. The disclosure that plaintiff was found responsible in a student disciplinary proceeding for sexual misconduct and assault as defined in a student code of conduct does not imply that there was a criminal proceeding, let alone that the result of any such criminal proceeding was a conviction for rape as defined by the Penal Law. We thus conclude that "there is no reasonable reading of th[e] true fact[s in the disclosure to Buffalo State] that can lend itself to a defamatory implication" that plaintiff is a convicted rapist.

Plaintiff nonetheless further contends that the disclosure falsely suggested that he had, in fact, committed the acts of which he was accused, despite the new evidence and record expungement as set forth in the agreement. Even assuming, arguendo, that plaintiff pleaded this theory, we conclude that the omission of the terms of the agreement did not impart any false inference. Plaintiff was found responsible for violations of the student code of conduct and was expelled, which the College truthfully disclosed to Buffalo State, and while the College acknowledged in the agreement that new evidence may have resulted in a different result at the student conduct hearing, the College did not admit that plaintiff was not responsible for the violations and did not reverse plaintiff's expulsion. As defendants contend, although plaintiff may wish that additional information from the College would have provided further context for the truthful information that was conveyed, the disclosure to Buffalo State did not imply anything false about plaintiff.

And the court therefore threw out plaintiff's punitive damages claim; while such damages are generally available in defamation cases, they aren't in contract cases: "As a general rule, '[p]unitive damages are not recoverable in a breach of contract action in which no public rights are alleged to be involved' … because the purpose of punitive damages 'is not to remedy private wrongs but to vindicate public rights.'"

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  1. Seems to me that the deliberate violation of the confidentiality requirement would go a long ways towards proving actual malice.

    1. And the deliberate omission of context would go the rest of the way, if you asked me.

      They actively set out to ruin his reputation after agreeing not to.

      1. Actual malice doesn’t matter if all he has is a contract claim.

        1. But the contract was the settlement of the defamation suit — IANAA but it strikes me that the college’s violation of the settlement ought to give him grounds to again litigate the underlying defamation.

          This also shows just how petty the academic nazis can be — I fear it is only a matter of time before someone walks into the Dean of Student’s Office and starts shooting.

          1. Special Ed, have you considered even once the possibility that when you feel the need to start a post with IANAL (or IANAA) that the better part of valor might simply be to not post?

            1. One need not be an attorney to write the second sentence — in fact, there is a great deal of evidence that something like this was what provoked the Virginia Tech shootings.

              What’s interesting is that while both ED and Judge Buckley say that FERPA expires with the student’s death, V/T refuses to release the perp’s conduct records.

          2. That was my reaction, and maybe I should have been more explicit.

            The contract in question was settlement of a defamation lawsuit. Doesn’t violating the contract, deliberately, unsettle the lawsuit? Allowing it to resume, with the deliberate violation as evidence of malice?

            1. No. Violating the contract is a breach of contract. It entitles one to sue for… breach of contract.

              Generally speaking, once one dismisses a suit, there’s no way to undismiss it. (Sometimes you can dismiss a suit with leave to reopen if the settlement is not consummated in a certain short period of time.)

      2. All government exemptions, grants, subsidies, and privileges should be shut down for this unAmerican, feminist, woke university. Shut it down.

      3. Defamation claims require the assertion of a provably false statement of fact, not a breach of contract. What was the alleged false statement of fact?

        1. That he raped someone…

        2. I think the court shouldn’t have dismissed the claim of defamation by implication. Even provably true statements can be defamation, if used to imply something false.

          And the idea that the College wasn’t trying to imply that he was guilty is a joke. What other inference would somebody be expected to draw, based on a disclosure like this, with all subsequent actions omitted?

          They went out of their way to violate the settlement, in order that he be treated as though he were guilt of something he was acquitted of. They should be nailed to the wall, legally speaking.

          1. They should be nailed to the wall by their accreditors as well — it won’t happen, but should.

    2. How so? I’m not seeing any particular connection.

  2. The school did not accuse him of being a convicted rapist, but “sexual misconduct and assault” is most naturally read as an accusation of a crime. I don’t know what standard St. John Fisher College uses so I’m going to give the words their normal meaning.

    1. Agree re ‘assault’ but not re “sexual misconduct.” I can think of plenty of activities that a college might punish as sexual misconduct but not punish as a crime (or, where no prosecutor would think it was a violation of any crime on the books in that particular state/jurisdiction.

      Streaking comes to mind. I can think of fact patterns where streaking could be seen as relatively innocuous by a university. And other ones where streaking could/would/should be seen as sexual misconduct and get you a suspension or expulsion.

      1. Public indecency =/= sexual misconduct (though it would be regular misconduct).

        1. Maybe. Maybe not. I can think of lots of situations where it could go both ways. I don’t think that “sexual misconduct” is some well-defined term of art. More like something that’s in the eye of the beholder. A professor telling her student, “Have sex with me…not that your grade depends on it.” when the student turns down this request. Is that a crime? I can’t see how? But sexual misconduct? I’d sure think so. (Albeit at a different level than, say, rape with violence, revenge porn, etc.)

          1. “Sexual misconduct” is a vague phrase that covers a range of behavior from telling a bad joke to quid pro quo to raping and murdering a busload of women’s studies students. Add “assault” to it and I read it as an accusation of a crime. Maybe rape, maybe what we call here indecent assault (nonconsensual touching of butt, female breasts, or crotch, or nonconsensual kiss with tongue).

            If they meant the lowest level crime of assault, threatened battery without physical contact, they need to say so. That is not how normal people use the word.

  3. “in response to his authorizations for the release of information as part of his applications to the University at Buffalo (UB) and SUNY Buffalo State College (Buffalo State)”

    Do the entities seeking the information rely on the authorization to believe that St. John Fischer was releasing all the information it had?

    If I were looking to rely on information about someone provided by a third party, I would the person to waive any such contracts with that party.

    1. Interesting point. What if the school had kept out the info (that they had agreed to omit), but added a paragraph, along the lines of, “The above student’s records have been redacted, due to a legal settlement. Nothing in this paragraph should suggest that this student did or did not do anything improper.”

      [That’s off the top of my head. Probably could be worded better, and more artfully. I do get that my sample smacks of: “Ship’s Log, May 10th: Captain is sober today.”]

      1. Which goes to why he shouldn’t have agreed to the settlement he did.

    2. “If I were looking to rely on information about someone provided by a third party, I would the person to waive any such contracts with that party.”

      Which comes back to the agreement for expungement — IF there are no such records, there is no such information to *be* provided. What St. John did was create a *new* record and provide that, except that the new record should have been subject to the rule that it also not contain this information.

      The larger issue I have always wondered about involves anti-trust — institutions colluding to require the records of each other.

      1. I can see transcripts if the student is seeking to have course credits transferred. But what justification is there other than blacklisting to share disciplinary records?

  4. If the college has any sense, it will settle this lawsuit. They do not want this one going to a jury.

    1. And settle it bigly..

      1. Isn’t the point of eliminating the defamation count to exclude settling it “bigly”, by prohibiting punitive damages?

        1. Actual damages would be lifetime earnings as a grad of the two other colleges who rejected him. Wouldn’t that alone be “bigly”?

          1. You’re not going to get actual damages that let you kick back on the beach without working, unless they’re damages for something that rendered you incapable of doing anything else.

            Lifetime difference in earnings, maybe, and I’m assuming he can still get into a college somewhere, only having to share with them the exculpatory details that were omitted when the college breached the settlement.

  5. Defamation claims require the assertion of a provably false statement of fact, not a breach of contract. What was the alleged false statement of fact?

    1. “Assault,” at least, is provable. I don’t know if it is defamation per se in New York.

    2. The provably specific statement of fact is that St. John has any record “of disciplinary action and sanctions” that it could make available to any third party.

      Hence as there are no (and can not be) any references to this in “any other records which the college [makes] available to third parties”, any such reference is false. QED libelous.

      “Among other terms, the College agreed to expunge the notation of disciplinary action and sanctions from plaintiff’s transcript and to expunge references to disciplinary action from any other records of the College made available to third parties.”

  6. Why defamation? Isn’t this a breach of contract?

    Is a settlement agreement a contract?

    1. (1) Yes, a settlement agreement is a contract.

      (2) Plaintiff’s defamation claim, if it had been allowed, would have potentially let him recover punitive damages, which aren’t generally available for breaches of contract.

      1. So, does the defendant’s breach of the settlement agreement allow the defamation lawsuit to resume?

        And, if so, would the breach, and omission of exculpatory context from the breach, be admissible as evidence of malice?

        1. What do statute of limitations have here?

          I know that ED-OCR has a 6 month one, and it is common for colleges to play games so as to run that out before the student has grounds to actually file.

          BUT: As to defamation, releasing the information without including the fact that (a) you promised not to and (b) exculpatory facts were later learned — wouldn’t that, itself, constitute defamation?

      2. Professor Volokh, you (or others) can advance my ‘ad hoc’ legal education (BTW, I learn a lot here). You stated the settlement agreement is a contract. Is the reasoning here that there was no punitive consequence specified in the contract (settlement agreement) that the student could invoke…And therefore was out of luck. Or something else. I don’t think the college acted with ‘clean hands and a clean heart’, based on what I am reading.

        How does this apply in employment law. Here is a real world example that happens every day in this country. Example: Company gives a middle-aged employee their walking papers. As a part of severance, there is a non-disparagement clause. If there is no punitive consequence in the non-disparagement clause, does it follow the separated employee has no means to ‘collect’ if the former employer disparages them?

        1. No, that doesn’t follow. Assuming as you say that there’s no liquidated damages provision in the severance agreement, then the separated employee can still sue for actual damages resulting from the disparagement.

        2. You usually can’t get punitive damages in contract disputes, even if there is a clause for them in the contract. Those clauses are generally considered to be against public policy, since compensatory damages should theoretically be sufficient to make a plaintiff whole following a breach of contract. Damages in contract cases usually involve the loss of the value in some sort of opportunity, right, obligation, etc., and that value can be calculated and awarded to a plaintiff in compensatory damages to make up for whatever loss they experience. Parties can, and often do, intentionally breach contracts when new opportunities make breaching the contract more valuable or beneficial than honoring it, hence why punitive damages for even intentional breaches are generally against public policy. For example, if we have a contract for you to sell me widgets you make for $1 each, but then you get another offer to sell your widgets to someone else for $2.50 each, it may make more sense to intentionally breach the contract and pay the damages to me rather than stay in a bad contract, and the law doesn’t punish that decision. In your employment example, the employee would have a cause of action to recover the lost value caused by the employer’s disparagement, but those would be compensatory damages, not punitive. For example, if the disparagement caused someone to lose an offer for a job paying $120,000 and now they have to settle for a job paying $60,000, the former employer may need to make up the difference. (See more here:

          Torts are different though and can involve much more serious, potentially non-economic damages (such as bodily injury or death), so tort law generally allows for punitive damages to discourage bad actors from intentionally causing further serious harm. Defamation is a tort, which is why the plaintiff was trying to include it in his cause of action to get punitive damages.

          1. Brian…you (and DN above) made my day. My ‘ad hoc’ legal education continues. And I even have some homework (your link). 🙂

            That business example of just saying, “I’ll pay the penalty” to get out of a bad contract made perfect sense. I have done this a few times.

          2. You usually can’t get punitive damages in contract disputes, even if there is a clause for them in the contract. Those clauses are generally considered to be against public policy, since compensatory damages should theoretically be sufficient to make a plaintiff whole following a breach of contract.

            Right. To elaborate, one can have what’s called a liquidated damages clause in a contract; that’s a clause that says that if X breaches, he owes Y a certain amount of money. And that is enforceable, but only to the extent that this amount of money is a reasonable approximation of the damages Y would suffer from a breach. (To the extent it is, it’s helpful to both sides because it saves the parties the trouble and expense of litigating over the exact damages incurred.) But if it’s completely disproportionate, then it’s considered a penalty and is generally unenforceable, for the reasons Brian explains.

            1. Your explanation (both of you) was very helpful!

  7. I’d bet that this site, and others like it, tend to selectively over-report false report cases (or cases that didn’t end in a criminal conviction) in this area and likewise under-report the cases where administration rules too easily against the person alleging. Combine that with the selectivity of outlets among many here and they honestly believe this reporting reflects actual trends.

    1. Ain’t likely….

    2. “I’d bet that this site, and others like it, tend to selectively over-report false report cases…”

      Any evidence to support this, or is it just speculation?

    3. In other exciting news, news organizations overreport things they think will interest the readers, while under (or not) reporting things they think won’t interest the readers.

      Can you imagine if news organizations actually gave a full, 1/2 page story, to every murder victim?

    4. This specific case is more relevant than most because it relates to earlier posts about whether it is or ought to be defamation to report a criminal charge but not a subsequent acquittal. If we look beyond academic discipline, there is a difference between “Jane accused John of rape and he was arrested and indicted” and “Jane accused John of rape and a jury acquitted him.”

  8. The issue here seems to be that the University never admitted that the student was not guilty in the settlement. One theory consistent with what the court found was that while there wasn’t enough evidence to find guilt beyond a reasonable doubt, there may have been enough to find guilt by a lesser standard like preponderence of the evidence. Under this theory, the finding of not guilty in the criminal proceeding didn’t automatically make the accusation false for libel purposes, and hence didn’t make reporting it false either.

    1. It strikes me that his lawyer wasn’t all that competent — and/or not aware of how slimy academic administrators are.

    2. As I understand the law the plaintiff needs to prove a false statement and negligence in making it. If all that had happened was guy got expelled and charged with sex crimes, the indictment or probable cause finding would imply that the school was not negligent in accusing him of sexual misconduct and assault. But the school was aware that he was acquitted under circumstances suggesting innocence.

      1. That makes a certain degree of sense. The court could have said that where judicial proceedings establish probable clause, communicating a school disciplinary proceeding to a similar effect cannot be libelous as a matter of law, even if the student is acquitted at trial. That would have explained the dismissal outcome.

        But I don’ think the court actually said that.

  9. What I think strange about this case is that this is an appeal from a motion to dismiss, not a motion for summary judgment. It seems to me that the bare statement of what happened isn’t enough to establish the facts here. What if, at the trial, the accuser admitted ahe was lying or the student had an irrefutable alibi that he wasn’t allowed to present at the hearing?

    So while it’s true that the trial outcome alone doesn’t establish defamation, I don’t see how it clearly establishes its lack.

    The outcome seems to be that in New York, university disciplinary procedure outcomes get, in effect, a strong presumption of judicial deference and are treated very differently by courts from ordinary conflicting testimony.

    The alternative to saying the statement wasn’t false, which is what I think the court was concluding, is to say it wasn’t defamatory. That seems absurd. A view that saying a university disciplinary board found him guilty of sexual “assault” is not saying the university is actually accusing him of sexual assault seems like rediculous hair splitting. It suggests the public and prospective employers can be presumed to conclude a finding of guilt does not establish guilt, in effect saying the public presumes university records of this type are not reliable. That’s rediculous. Tuition would be a fraction of what it is if employers didn’t rely on university records for hiring decisions.

  10. So yes, the college intentionally trashed the settlement agreement, but they can’t get any kind of punishment for it because there’s no “damage”? Isn’t the point of the agreement that it would be damaging??

    1. The court didn’t say there were no damages. It just said what the University did wasn’t libel, so the only remedies available are for breach of contract, which does not allow for punitive damages.

      The former student might still be able to get significant compensatory damages if the university’s statements made him unemployable. And he might be able to get an injunction not to do it again which could be enforced by sanctions.

    2. This could be malice or stupidity. The school’s record system might not have a way to make a note that this happened but should not be disclosed.

  11. Lots and lots of good reasons to learn a trade where there are no Title IX administrators.
    I still think we had it right in the sixties; you can’t fight the administration, but you can burn the college down.

  12. So if I contract with someone not to defame me… and they presumptively do just that… I’m SOL because it’s breach of contract, and not defamation?

    Seems like it can be both at the same time… they breached the contract (one issue) through defamation by implication (a second, yet related, issue).

    Why is this not possible? The remedy would seem to be for the former to tell the Uni to stop what it’s doing and uphold its end of the contract AND allow for a hearing of defamation based on the way in which they breached the contract.

    1. Yes, it can indeed be both at the same time, and one could get remedies for both at the same time. The court ruled here that it wasn’t defamation, not that the student couldn’t bring a claim for defamation.

  13. This case raises an interesting issue concerning the law of defamation, but commenters are overlooking something just as interesting: the fact that the university apparently didn’t make a serious effort to follow through on its agreement to make sure that it didn’t send any information about the sexual assault allegations to other universities. That fact alone shows that our current educational establishment believes that it is for some unknown reason largely exempt from the laws that apply to rest of society. Too bad the court didn’t suggest that even through the plaintiff can’t prove the tort of defamation, he could be entitled to damages arising from negligence or from for an intentional breach of contract.

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