Illinois Appellate Court Rules that School Authorities’ Repetition of Allegations of Sexual Misconduct as part of Disciplinary Hearing are Cloaked with Absolute Privilege from Claims of Defamation

In Razavi v. School of the Art Institute of Chicago, 2018 IL App (1st) 171409, the First District Illinois Appellate Court held that repeated allegations about a claimed sexual assault or misconduct made to campus security and school authorities, and which are published as part of an investigation into a disciplinary hearing for the alleged misbehavior, are cloaked with absolute privilege from a claim of defamation.

Razavi, who was a student at the School of the Art Institute of Chicago (“SAIC”), was alleged to have sexually assaulted and stalked several classmates.  The classmates reported their allegations to campus security, who then reported them to law enforcement and school authorities.  The SAIC began an investigation, which resulted in a student conduct board meeting to determine whether Razavi violated the SAIC’s rules of conduct.  At the meeting, the board members found that the classmates’ accounts were credible and that Razavi’s account was not credible.  After the meeting, Razavi was expelled.  In a separate proceeding in Cook County Circuit Court, the circuit court also found the classmates’ allegations of stalking to be credible and entered a protective order against Razavi.

Razavi then filed a defamation suit against the SAIC and his classmates, alleging that his classmates had falsely reported to campus security and the SAIC that he committed criminal sexual assault.  The classmates moved to dismiss, arguing that their statements to campus security were absolutely privileged from claims of defamation because they were statements made to law enforcement.  After an interlocutory appeal, the First District held that the classmates’ initial reports to campus security were absolutely privileged.   The court reasoned that campus security should be treated as law enforcement because of the underlying rationale for the privilege, including the goal of protecting individuals who report crimes and the public policy aimed at preventing campus sexual assaults.

On remand, the classmates again moved to dismiss.  They argued that their subsequent statements during the investigation and resolution of their complaints were privileged for the same reasons that their initial reports to campus security were privileged.  The circuit court granted their motions and dismissed the relevant counts.

Affirming the circuit court, the First District held that the subsequent restatements of the allegations to SAIC officials were absolutely privileged.  The court recognized that absolute privilege applies to actions required or permitted by law in course of judicial or quasi-judicial proceedings, as well as actions necessarily preliminary to such proceedings.  The court noted that, in accordance with federal law, the SAIC adopted a policy encouraging anyone subjected to sexual assault to report the incident promptly to the police and/or SAIC officials.  Although the investigation here was not quasi-judicial, the court found that it was enough that it emerged from a fully-protected initial report that was required by federal law.  The court recognized that the same policies favoring privilege for the initial reporting apply to the subsequent investigation.  Thus, the investigation by campus security and the SAIC was part of the same continuum as the initial reporting and were entitled to the same level of absolute privilege.  Consequently, it was immaterial whether the reporting results in a formal criminal complaint, civil legal proceeding, or formal school disciplinary action.

Razavi emphasizes that public policy favors the reporting of sexual misconduct allegations to school authorities.  For policy reasons, statements made to school authorities at an institution of higher education are cloaked with absolute privilege from claims of defamation at the initial reporting phase throughout the continuum of the investigation and disciplinary hearing.  However, Razavi does not concern a K-12 school.  Although K-12 schools may have the same interests in encouraging the investigation of allegations of sexual misconduct, K-12 schools have different obligations under federal law than institutions of higher education.  Future cases will test whether public policy justifies extending absolute privilege to statements made to school authorities at K-12 schools who are involved with investigations and disciplinary hearings.

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