School Business Affairs July-August 2019

38 JULY/AUGUST 2019 | SCHOOL BUSINESS AFFAIRS asbointl.org LEGAL ISSUES Pruden 2017) as public officials but are divided over the status of principals, as some courts treat them as public officials ( Ellerbee v. Mills 1992, 1993; Beeching v. Levee 2008), whereas others refuse to do so ( Palmer v. Bennington School Dis- trict 1992; Jordan v. World Publish- ing Co. 1994). Similarly, some courts treat teachers as public officials ( Dec v. Auburn Enlarged School District 1998), whereas others do not ( Kel- ley v. Bonney 1992; Tweedall v. Fritz 1997). Finally, at least one court refused to treat a coach as a public figure ( O’Connor v. Burningham 2007). In an illustrative case, an appel- late court in South Carolina affirmed that because an assistant principal was not a public official who had to prove actual malice on the part of a minister who used a racial slur in connection with him while in the presence of others, he was entitled to monetary damages ( Goodwin v. Kennedy 2001). Reflections Educators should keep two points in mind about whether education per- sonnel are public figures or officials. First, if those who are public figures or officials—such as superin- tendents or school board members— challenge news stories with which they disagree, they face uphill battles in prevailing. Because their jobs put them in the public eye, the courts have agreed that such criticism— unless made intentionally with reck- less disregard for the truth—goes with the territory. Second, the status of teachers and coaches is important because they are usually not considered public figures or officials. Moreover, should they face criticism, those raising concerns need only demonstrate that what they communicated was true and that they did not violate the educator’s privacy rights. Because truth is a defense in defamation claims, school York Times Co. v. Sullivan (1964) set the stage by treating public officials and public figures differently from private persons. For Sullivan , “public official” typically applies to government employees who have, or appear to have, substantial responsibility for or control over the conduct of government affairs. The Supreme Court subsequently defined a “pub- lic figure” in Gertz v Robert Welch, Inc. (1974, 1982, 1983) as one who voluntarily exposes himself or her- self to increased risk of injury from defamatory falsehoods by reason of achievements or success. Determining whether one is a public figure is usually a question of fact for a jury. For public officials and figures to succeed in defamation claims, they must prove that defen- dants either engaged in actual malice in making harmful remarks known to be false or acted with reckless disregard for the truth because their roles put them in the public eye. In a fairly recent case, the Texas Supreme Court, applying Sullivan , rejected a school board trustee’s defa- mation claim against a political blog and its executive director for writing that he was forcibly removed from a campaign event for a political oppo- nent of one of his colleagues because of his heckling ( Greer v. Abra- ham 2016). The court reasoned that absent actual malice by the defen- dants, even though the content was false and libelous, the claim failed because the comments addressed the trustee’s behavior as a public official. Another appellate court affirmed that where a former superintendent in Georgia failed to demonstrate that members of a newspaper staff who reported on a petition seeking his removal allegedly due to abusing his position acted with actual malice, his claim was not actionable because he was a public figure ( Atkins v. News Publishing Co. 2008). Courts typically treat board members ( Peavy v. Harman 1999) and superintendents ( Mitchell v. personnel—regardless of whether they are deemed public figures— should carry out their duties in such a manner that their names are unlikely to appear on the front page of a newspaper or on a TV broad- cast for having engaged in unaccept- able behavior. By acting responsibly, both professionally and personally, educators will not have to be con- cerned with the law of defamation. References Atkins v. News Publishing Co. , 658 S.E.2d 848 (Ga. Ct. App. 2008). Beeching v. Levee , 764 N.E.2d 669 (Ind. Ct. App. 2002). Dec v. Auburn Enlarged School District , 672 N.Y.S.2d 591 (N. Y. App. Div. 1998). Ellerbee v. Mills , 422 S.E.2d 539 (Ga. 1992), cert. denied , 507 U. S. 1025 (1993). Gertz v Robert Welch, Inc. , 418 US 323 (1974), appeal after remand , 680 F2d 527 (7th Cir. l982), cert. denied , 459 U. S. 1226 (1983). Goodwin v. Kennedy , 552 S.E.2d 319 (S. C. Ct. App. 2001), reh’g denied (2001). Greer v. Abraham , 489 S. W. 3d 440 (Tex. 2016). Jordan v. World Publishing Co. , 872 P.2d 946 (Okla. Ct. App. 1994). Kelley v. Bonney , 606 A.2d 693 (Conn. 1992). Mitchell v. Pruden , 796 N.E.2d 77 (N. C. Ct. App. 2017). New York Times Co. v. Sullivan , 376 U. S. 254 (1964). O’Connor v. Burningham , 165 P.3d 1214 (Utah 2007) Palmer v. Bennington School District , 615 A.2d 498 (Vt. 1992). Peavy v. Harman , 37 F. Supp.2d 495 (N. D. Tex. 1999). Tweedall v. Fritz , 987 F. Supp. 1126 (S. D. Ind. 1997). Verity v. USA Today , 436 P.3d 653 (2019). Charles Russo , content area leader for ASBO’s Legal Aspects Committee, is Joseph Panzer Chair of Education in the School of Education and Health Sci- ences (SEHS), director of SEHS’s Ph.D. program in educational leadership, and research professor of law at the Univer- sity of Dayton, Ohio . Email: crusso1@ udayton.edu

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