Ex-Law-Student's Defamation Claim Against Howard University Can Proceed in Part

His breach of contract and race discrimination claims, however, are dismissed.

A short excerpt from the long opinion in Newman v. Howard Univ. School of Law, decided today by Judge Trevor McFadden (D.D.C.):

Three years after he enrolled at Howard University School of Law, Michael Newman found himself in court—though not as a budding lawyer. Howard expelled Newman before his final year. Before that, Newman lost his scholarship, drew backlash from his peers, and feuded with administrators.

Newman now proceeds pro se in this case against his alma mater and several of its administrators (collectively, "Howard"). His claims have dwindled during the years this case has progressed. As things stand, Newman presses several contract breach claims (related to his lost scholarship), claims for racial interference with a contract under 42 U.S.C. § 1981 (again, related to his scholarship), and a handful of defamation claims. Howard now seeks summary judgment. The Court grants that motion as to all but two of Newman's defamation claims….

A sample of the rejected claims:

First up is Newman's theory that Howard manipulated its ranking systems to his disadvantage. The evidence does not bear this out.

Instead, it shows that Newman failed to rank in the top half of his class because he struggled academically. Newman's problems began when he matriculated at Howard Law. He had trouble keeping track of deadlines. His mind wandered during virtual lectures. These troubles were reflected in his first semester grades—a pair of Ds and a C. Newman Transcript at 2. That performance, Newman concedes, put him in the bottom five of his section. Newman found his footing in the spring. But even so, that left him with an 82.08 average for his first year. That GPA placed him in the bottom half of the class….

But some of Newman's defamation claims were allowed to continue:

Last, consider Newman's defamation claims against Dean Holley. Those claims turn on three statements made during Newman's 2022 disciplinary hearing. First, "Holley accused Newman of 'harassment' against her and against the students." Second, "Holley called Newman's email regarding a deceased classmate 'defamatory' and repeatedly characterized Newman's general conduct as 'defamatory.'" And third, "Holley accused Newman of saying African-Americans suffer from hive mind."

To prevail on these claims, Newman must show that Holley made a "false and defamatory statement about him, without privilege, to a third party and that the statement was made at least negligently and caused Newman special harm." Each alleged defamatory statement occurred in a University disciplinary proceeding, so Holley is entitled to a qualified privilege. Overcoming that privilege requires Newman to show that Holley's statements "were made with express malice." The Court begins by finding that Newman clears the malice hurdle, before turning to the remaining claim elements. In the end, Newman's first defamation claim is not actionable, but the rest are….

"Malice, in the context of a qualified privilege, is the equivalent of bad faith. It is the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will." … A jury could find that Dean Holley made the three statements with malice. Her dislike of and frustration with Newman is apparent as early as January 2021—a year before she filed the complaint against him. In January 2021, Holley led the town hall that devolved into a grievance fest about Newman. And though she did not identify Newman by name herself at the meeting, she endorsed students' complaints about Newman. See, e.g., id. at 15 ("You came to an HBCU [Historically Black College or University] to be free of this kind of activity.").

A few days earlier, Holley told Newman that Howard "does not seem to be a very good fit for you." And, in the same meeting she complained that she "spent 25%" of her time in the "last three weeks" addressing Newman and his behavior. By January 2022, Holley still saw Newman as "a disturbance." She told him as much in a meeting days before filing charges against him.

Holley seeks refuge in the principle that actual malice does not exist even if the speaker "feels resentment and indignation towards the plaintiff" so long as the "primary purpose" of the speech is to "further the interest which is entitled to protection." She claims that she made the statements to further her protected interest of representing other students' complaints about Newman's actions.

But construing the facts in the light most favorable to Newman, the record suggests Holley may have had ulterior motives. There is no evidence that a student filed a formal complaint against Newman…. [H]er decision—after a year of frustration with Newman—to bring charges on behalf of unnamed student victims who opted not to file their own complaints is at least open to question. This evidence, combined with Holley's past treatment of Newman, could permit a jury to find that Holley made the statements because of her ill will for Newman….

Now turn to the statements themselves…. Were Holley's statements false?

First up is Holley's statement that Newman committed harassment. She earns summary judgment on this claim because the statement was substantially true. She charged Newman with "harassment," which the Howard Student Code of Conduct defines as "engaging in verbal, electronic, visual, written or physical behavior directed at an individual or group that, in the view of a reasonable person, is likely to provoke or otherwise result in a negative or injurious response …"

The record bears that charge out. Many students complained that they felt harassed by Newman's unsolicited emails. Newman himself recognized that some of his peers likely did not want his messages. The most important one was the email discussing the deceased Howard student as part of a pitch for delayed vaccine deadlines. Students described that email as "deeply disturbing," an "exploitation" of the student's death, and "emotionally violating." Holley also found the "message completely disgusting and disturbing."

Newman maintains that his classmates were merely disagreeing with his views. Maybe so. But his classmates' repeated negative reactions to his messages support Holley's charge that he engaged in "harassment" as defined by the Code {"engaging in verbal, electronic, visual, written or physical behavior directed at an individual or group that, in the view of a reasonable person, is likely to provoke or otherwise result in a negative or injurious response …"}. In other words, the "substance" of her charge is justified. So Holley wins summary judgment.

Second is Holley's characterization of Newman's email about the deceased student as "defamatory." She first frames the statement as a non-actionable opinion. The Court rejected this argument years ago. Nothing in the record changes that holding. Holley now frames her use of "defamatory" as a personal gripe made "in colloquial terms," rather than a legal charge. But throughout the disciplinary process Holley used her position as Law School Dean to bolster her complaint. That context suggests she meant "defamatory" in its legal sense. Whether that charge is true turns on genuinely disputed "objectively verifiable" facts.

As for falsity, the analysis for this statement turns on the same elements Newman himself needs to prove for his claim that Holley defamed him. Holley focuses on falsity, arguing that Newman's statement was truly defamatory. In doing so, she recasts her description of Newman's email as "defamatory" against her. In other words, that she lied "about a student's cause of death." But the context of Holley's statement shows that she accused Newman of defaming the deceased student—not herself. See Holley Compl. at 2 (describing Newman's email as making a "false allegation that a recently deceased member of the Howard Law Class of 2022, [redacted] died due to receiving the COVID-19 vaccine and booster"). And Holley's briefing pays little attention to whether Newman defamed the student. She does not, for example, explain how Newman's speculation about the student's cause of death made the student appear "odious, infamous, or ridiculous." So summary judgment is inappropriate.

Now on to Newman's last defamation claim. It is based on Holley's statement, "You said that black people have hive mind." This claim also survives. Again, the statement was not framed as Holley's opinion. Holley was not, for example, offering an abstract "charge[] of racism." Her full statement was: "You said that black people have hive mind. You said that black people believe that the government should solve—and that's actually in the chat." Those are not words "expressing a subjective view, an interpretation, a theory, conjecture, or surmise." She was "claiming to be in possession of objectively verifiable statements." So the statement is an actionable factual assertion.

And a jury could find that it was a false one. It is undisputed that Newman wrote in a GroupMe, "I *don't* know what I'm doing. What I'm *trying* to do is share with you a viewpoint that you won't hear anywhere else because you all suffer badly from hive mind." Sufficient evidence supports Newman's argument that this statement referred to a few classmates, not all African Americans. To start, he posted it in the "Howard University School of Law Class of 23." And he wrote it in response to another student's question, "I'm just wondering why are u here? (as we seem to bother you so much)." Newman's message itself also suggests a focused critique. He says, "Your professors do not challenge you to question your assumptions" and "I still love all of you even though you so completely despise me." From this a jury could conclude that he did not accuse African Americans generally of suffering from "hive mind."

Holley's counter that Newman made comments about the "black community" "mere minutes earlier" is mistaken. Newman's "hive mind" comment came in January 2021. That was months, not minutes, after his October 2020 statement, "Where I part with the black community is where they believe government solves problems." And though Holley is correct that at least one student interpreted Newman's comment as an accusation against "the class (and the Black community more generally)," that evidence is best sent to the jury to be considered against Newman's contrary proffer….