There is currently a national focus on gender-based harassment. College campuses are no different. Even with the changes to Title IX guidance in the past months,1 eliminating sexual harassment and assault on campuses remains a national priority. One overlooked result of this focus is defamation litigation facing higher-education institutions.

Students found to have violated university sexual harassment and sexual misconduct policies are fighting back in the courts. According to a 2015 study by United Educators (a large national insurance provider for colleges and universities), approximately 60% of Title IX-related lawsuits are brought by respondents (those accused of sexual misconduct).2 Respondents are asserting defamation claims against the individual who accused them as well as the university that disciplined them. The idea is that statements made by the accuser, through the course of a campus sexual assault investigation, are defamatory if the statements can be shown to be false. It has been reported that 72% of accused students who file a Title IX-related lawsuit against their university also sue their individual accuser for defamation.3

Defamation is governed by state law, but generally requires a publication of a false statement to a third party, intent or negligence in making the statement, and harm caused by the defamatory statement.4 Defamatory statements are generally categorized as libel or slander. Libel involves written statements while slander is spoken. Defamation claims in the university setting are not new.5 Academic evaluations, as well as disciplinary decisions, involve judgments and facts potentially harmful to a student’s reputation, and thus, to academic or employment prospects.

The particular facts underlying Title IX investigations could create the potential for a defamation lawsuit to follow. A claim of defamation may stem from oral or written statements—especially those alleging sexual assault—made over the course of a Title IX investigation. Unlike criminal law, there is no clear immunity doctrine to protect those involved in campus adjudications. In criminal proceedings, witness testimony has absolute privilege and cannot be used as a basis for a civil claim of defamation. Statements made in a Title IX investigation, however, are not clearly protected by law.

While the law in this area is still developing, there are several affirmative defenses schools and individuals should keep in mind if a defamation claim is anticipated. The most common defenses are that the alleged defamatory statement is true or opinion. Another defense is that the statement is subject to qualified or absolute privilege, meaning that the defendant cannot be liable for them even if they are proven false, because, generally, the speaker had a good-faith reason to believe the statement was true and there was a personal or professional interest in communicating the statement.

In addition, some courts have found that statements made by faculty members during the course of a Title IX investigation and disciplinary proceedings are subject to the common-interest qualified privilege. A plaintiff can only defeat the qualified privileged defense if he or she proves that the alleged statements were made with actual malice. Yet another defense can be found in state anti-SLAPP (“strategic lawsuit against public participation”) laws. Most states have anti-SLAPP laws protecting basic freedom of speech. Such laws usually allow for an early dismissal of a defamation claim that involves free speech, right to petition, and right of association.

Even with defenses available, higher-education institutions should take precautions to avoid liability in the first place. Confidentiality guidelines regarding Title IX investigations should be developed and applied consistently with the existing mandates contained in Title IX. Higher-education institutions should consider incorporating a slide or two into annual sexual harassment and Title IX trainings that refer to defamation so that statements about ongoing investigations are kept to a minimum.