Student Indemnification
Inside Higher Education has an article on universities indemnifying students who file charges of sexual assault and harassment for lawsuits from those they are accusing. The article follows up on Jennifer Lackey’s guest post here, “Two Ways To Help Victims” and focuses on the Ludlow case at Northwestern University.
The following sort of suggestion has been made in several places, including in the IHE article by Professor Lee:
“as an alternative to suing those who report sexual assault for defamation, respondents who feel they’ve been treated unfairly could lodge federal complaints against their universities for mishandling a Title IX case.”
It’s true that if one believes one has been treated unfairly by a university can sue the university for mishandling an investigation or on other grounds. I continue to fail to see why this is thought to be a proper and suitable substitute for situations in which one wishes to allege defamation by a student. If a student defames a faculty member in a statement that is part of a university investigation, it’s a legally separate matter whether the university mishandles or properly handles the overall investigation. A university might properly handle an overall investigation that includes defamatory statements from involved parties. Suing a university for mishandling an investigation in such a case would make little sense while suing for defamation may well make good sense. One needn’t, that is, show that a university mishandled an overall investigation in order to establish defamation. The issues are independent and so one isn’t a simple alternative to the other.
Universities should indemnify students who bring sexual harassment complaints for speech that ought to be privileged, e.g., remarks made to investigators in the course of an investigation. Universities should also provide students with independent legal counsel throughout an investigation, so that the student can be properly advised as the University’s investigation proceeds. But I’m not sure about indemnifying students for remarks made outside of these pseudo-privileged confines: blogposts, tweets, allegations made to friends over coffee, etc. It seems reasonable to restrict the indemnification to stuff said during and in the course of an investigation. What do others think?
BTW, nothing prevents an accused from suing an indemnified student: it’s just that the university will pay the student’s legal expenses and whatever judgement comes through in the accused’s favor.