Are Colleges Complicit if They Fail to Keep Students From Defaming Professors?

The Wesleyan Argus

Can a university be held liable for aiding and abetting defamation if it fails to stop student protesters from broadcasting false claims that a professor is a sexual predator?

That question is at the crux of a lawsuit against Wesleyan University filed by Michael A. McAlear, an associate professor of molecular biology and biochemistry. A state judge moved his case this week to a special docket for complex cases because of the “legally intricate” and potentially precedent-setting issues it raises.

It’s the latest legal skirmish involving universities accused of failing to rein in students who make false or defamatory claims. Coming on the heels of a $25-million defamation judgment against Oberlin College after protesters accused a local bakery of racism, the case has some campus officials worried about their legal exposure when protests get out of hand.

McAlear said the trouble began in 2016, when he encountered a group of students who had covered the walls of a campus building with banners and posters depicting the names and faces of several faculty members and administrators they claimed were sexual predators.

“I reported it, and the students quickly threw me under the bus and started making vicious accusations,” he said in an interview on Friday.

The students also told him that Wesleyan’s president, Michael S. Roth, and then provost, Joyce P. Jacobsen, promoted sexual violence on the Connecticut campus. McAlear told the students he thought their protest was “over the line and slanderous,” the lawsuit states.

He said he told Jacobsen about the protest, banners, and posters. A few days later, a dean told him that posters with McAlear’s name and face, accusing him of being a sexual predator, had been put up around the campus. He said he had met with the president and the provost, who both assured him that they took the harassment seriously and that they “would do what they could to stop the slander.”

Even though it was clear they considered the accusations spurious, he said, the administration should have taken affirmative steps to defend him and punish the students responsible, he argues.

Despite their assurance, no actions were taken against the students responsible, who couldn’t immediately be identified, McAlear said. In the meantime, more fliers calling him a sexual predator circulated, he said. His teaching evaluations, he said, included the false statement that he was a sex offender with multiple harassment and assault allegations against him.

McAlear said that he had never been accused of any sexual misconduct and that the continued harassment of him was in retaliation for his complaints about the protests.

“I understand and respect free speech,” he said. “You can say I’m a terrible teacher or I grade too hard, but it’s not OK to falsely call me a criminal.”

‘Legally Intricate Issues’

McAlear’s lawsuit, filed in June in Connecticut’s Middlesex Superior Court, accuses Wesleyan of violating his rights by “failing to immediately intervene, stop, and protect the plaintiff from the continuous harassment generated by the publication of the false, malicious, and degrading description of him as a ‘sexual predator.’”

In an emailed statement, Wesleyan denied the allegations and said it planned to “vigorously defend itself” in court. “As is our policy, we will not be commenting further on this active litigation,” the statement said.

In their application to transfer the lawsuit to the court’s complex-case docket, both sides wrote that it “involves legally intricate issues, including aiding and abetting defamation, a theory that has never been tested in Connecticut (as far as the parties can tell from searching relevant case law).”

The university’s faculty handbook, according to the lawsuit, establishes a faculty member’s “right to be protected against actions that may be harmful to (his) health or emotional stability … or that degrade (him) or infringe on his personal dignity,” the lawsuit states. The university breached its contract with him, he argues, by failing to protect him from continued harassment.

Roth, an occasional contributor to The Chronicle’s opinion pages, has written extensively about the need to balance commitments to free speech with the need to make diverse students feel respected and included. His book Safe-Enough Spaces: A Pragmatist’s Approach to Inclusion, Free Speech, and Political Correctness on College Campuses was released in August.

McAlear has accused the president of hypocrisy for billing himself as a protector of free speech while failing to uphold a professor’s right to safety from harassment. A campus spokeswoman said Roth could not respond to questions from The Chronicle about that criticism because of the pending lawsuit.

Rodney A. Smolla, dean of Widener University’s School of Law, in Delaware, and a First Amendment scholar, said McAlear would have to demonstrate that Wesleyan was somehow actively complicit in the allegedly defamatory statements.

“Traditionally, in the law of defamation, the fact that you fail to intervene doesn’t make you liable,” he said. The fact alone “that you didn’t restrain students from engaging in defamation normally wouldn’t make a university responsible for the student’s speech.”

A Question of Complicity

In the Oberlin case, where a judge reduced a $44-million defamation judgment to $25 million, college employees were accused of actively supporting the student protesters by helping distribute fliers outside the bakery.

Still, McAlear’s lawsuit seeks to prove that Wesleyan was in fact complicit. It said the university had “provided its campus facilities, including office space and printing and copying equipment, to its students, who used those facilities to prepare and publish the defamatory posters that pictured [the] plaintiff and falsely labeled him a ‘sexual predator.’” In doing so, the lawsuit said, Wesleyan “aided and abetted the malicious publication” of those posters campuswide.

Smolla said that unless university staff members were actually helping the students create their posters, supplying materials for them probably wouldn’t be considered “affirmative participation.”

“Colleges should be concerned because students do use college resources to photocopy, microphones to broadcast messages, and college spaces to put up posters,” said Lynn Pasquerella, president of the Association of American Colleges and Universities. In fact, in many cases, such student activities are part of course curricula or student organizations. If Wesleyan were to lose the case, she said, “it would have a profound impact on colleges.”

Defamation suits aren’t uncommon in colleges, but they’re usually filed against the person who uttered the harmful statements.

The idea of holding a college responsible for the speech of others seems to be part of a broader move, nationally, to treat colleges like media outlets, said Peter F. Lake, a professor of law at Stetson University, in Florida. The college isn’t publishing a newspaper or producing a show, but if it allows a protest at which potentially defamatory statements are made, should it now worry about being held legally responsible? That could cause colleges to clamp down harder on student protests, Lake said.

“This thing reads like a lawsuit against a newspaper or a television station,” Lake said of McAlear’s suit. At the same time, he said, “it’s not clear that colleges have the same protections that traditional media outlets have, and if they don’t, it’s going to be a pretty chilly day on campus for the First Amendment.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.