The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
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.'"