The Volokh Conspiracy

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Free Speech

Fashion Institute of Technology Ex-Dean's Libel Claim Related to Allegedly Racist Fashion Show Can Go Forward


From the trial court decision in the case, Davis v. Brown (decided Jan. 6, 2022):

Plaintiff is the former Dean of defendant Fashion Institute of Technology's ("FIT") School of Graduate Studies. Plaintiff is suing FIT and its president, defendant Joyce Brown, for defamation. The defamation is allegedly contained in a February 21, 2020 Letter to the Community (the "letter") posted by Brown on FIT's website. The letter was issued in response to criticism of the Graduate School's February 7, 2020 Fashion Show specifically with respect to the racial insensitivity of accessories used by one of the designers. Eight days after the show, the New York Post reported that a Black model refused to wear certain accessories she believed to be racist. According to plaintiff, "[t]his cricitism amplified the long simmering complaints of systemic racism at FIT under Dr. Brown's leadership". She claims that the letter was Brown's attempt to defect [deflect? -EV] criticism of her own leadership failures at FIT. Ultimately, on November 10, 2020, FIT fired plaintiff….

The underlying controversy was described in the New York Times (Kimiko de Freytas-Tamura) thus:

It is considered one of the world's most prestigious fashion schools, priding itself on producing cutting-edge designs and a roster of alumni that includes Calvin Klein, Michael Kors and Carolina Herrera.

But before the coronavirus outbreak shut down classes, the Fashion Institute of Technology in Manhattan had been in upheaval since a student designer used oversized lips and "monkey ears" in a fashion show last month, setting off widespread outrage.

(You can see a photo here; I'm not reproducing it for copyright reasons.) Here's the relevant part of the allegedly libelous letter (I quote from the trial court decision):

Today I am writing to update you on the preliminary steps we have taken and are continuing to take in response to the fallout of the MFA Fashion show on February 7. This moment, in our minds, is not about closing a chapter and letting wounds heal. It is the beginning of accountability. And we cannot expect our community to trust us without a full examination of how this came about.…

It also appears—based upon information available—that the styling and accessorizing used in the show were provided to [Huang] rather than chosen at his discretion. To us, this indicates that those in charge of and responsible for overseeing the show failed to recognize or anticipate the racist references and cultural insensitivities that were obvious to almost everybody else. That's inexcusable and irresponsible—but also why we are commissioning an independent investigation. …

As a result, we are announcing today that the Dean of the School of Graduate Studies and the Chair of the MFA Fashion Design Department have been placed on administrative leave, pending the conclusion and outcome of the investigation.

Yesterday, the New York intermediate appellate court allowed the case to go forward:

Considering that the letter was issued in response to community criticisms, the letter implies that plaintiff was responsible for the show and failed to recognize the accessories as insensitive, even though she took no part in managing, directing, or approving the show. The complaint contains references to publications from other sources that interpret the letter as placing the blame on plaintiff and deeming her leadership inexcusable and irresponsible… "The [defamatory] publication will be tested by its effect upon the average reader" ….

On a …  motion to dismiss, denial is warranted if taking the words used both in their ordinary meaning and in context make them susceptible to a defamatory connotation as occurs in this case. The letter also contains statements of mixed opinion, "While a pure opinion cannot be the subject of a defamation claim, an opinion that 'implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it, … is a 'mixed opinion' and is actionable.'"

The letter omitted plaintiff's nonparticipation in the production, direction, and management of the fashion show; her unawareness as to the accessories the designers planned to present; the FIT policy precluding academic deans from evaluating, censoring, or approving student and alumni work; and plaintiff's prompt response to student concerns and her proactive approach to address those concerns; and implied that plaintiff was responsible for the show, was aware of the accessories, could approve them, and failed to respond to student concerns.

Here's the trial court's explanation of why it had dismissed the ex-Dean's libel claim (the decision that the appellate court has just reversed):

The context of the letter was to acknowledge criticisms of the fashion show and inform the school community of the actions taken in response to those criticisms. The letter was very carefully worded, using phrases such as "[i]t also appears—based upon information available" and "[t]o us". An average reader would clearly understand that the letter constituted the opinion of Brown, writing in her capacity as president of FIT, that the use of questionable accessories constituted a failure by "those in charge of and responsible for overseeing the show". It was further Brown/FIT's opinion that this failure was "inexcusable and irresponsible". Plaintiff is free to dispute these opinions in the marketplace of ideas, but not by suing Brown or FIT because of the letter.

In opposition to the motion, plaintiff's counsel argues that the letter "falsely stat[ed] she had failed to apprehend the racist nature of the presentation, characterize[ed] her as inexcusably irresponsible (and thus, by implication, professionally incompetent), and laying at her feet the blame for events in which she played no role and over which she had no control." For the reasons already stated, these are all protected opinions. By way of example, if Brown had said plaintiff was professionally incompetent because she handed the designer the questionable accessories, that could give rise to a defamation claim if false. However, the letter makes no such claim, and an average reader could only understand that those in charge failed to properly oversee the show.

Otherwise, as defense counsel correctly points out, there are only two actual statements of fact contained in the letter: [1] that FIT commissioned an independent investigation; and [2] that the Dean of the School of Graduate Studies and the Chair of the MFA Fashion Design Department had been placed on administrative leave, pending the outcome of the investigation. Neither fact is false and therefore neither can constitute defamation.

Congratulations to Marjorie Berman (Krantz & Berman LLP), who represents the plaintiff.