Do they deserve actual malice?

Public school teachers as plaintiffs in defamation suits: Do they deserve actual malice?

Markovitz, Brian

Thursday, November 15

10:55 PM

You pull into your driveway and look at your watch. You think, “Great. 10:55. 1 just made it in time to see the news.” As you get out of your car and go to your door, you notice a television station truck across the street. “Strange,” you think, but you think about it no more. You have had a busy day. After a full day of teaching, chaperoning the sixth grade play is no picnic, and you need to go to bed soon because you have to get up by 5:30 to get to school in time for your class at 7:25. You sit down and turn on the television. The news preview says something about a murder, the new tax bill, and then mentions an upcoming report about a teacher who told students to hit and punch an eight-year old student while the teacher held him down. “Great, another teacher-student scandal,” you say aloud.

The local news leads with the teacher scandal. You watch as the news clip shows you getting out of your car and going into your house. On the bottom of the screen is your name and the words “Accused Child Abuser.” You cannot believe it, but you watch as the newscaster explains that you allowed and even encouraged students to “beat up” another student in order to discipline him. Moreover, she says, this is not the first problem that parents have had with you. The piece concludes by stating that under the law, actions such as yours are considered child abuse and aggravated battery.

11:25 PM

You call the police. They tell you they investigated a call from a source at the school and concluded that the charges were unfounded. They will not ask the district attorney to bring charges against you.

11:30 PM

You call your union representative for advice. You explain that although you did nothing wrong and the police are not going to press for charges to be brought against you, you are worried about your reputation in the community. In order to help clear your name, you want to sue the television station for reporting this information before it checked out any of the facts. The representative tells you that she already spoke with the union attorney who does not think you can win in court. She explains that teachers are deemed “public officials” in your state. This means that you have to prove that the television station acted with “actual malice” in order to win a defamation suit. “The TV station did not set out to harm you. They just wanted a good story, so there is no actual malice. Basically, you have as much chance of winning as the President would for suing the media for reporting falsely on one of his policies,” she says. Is she right? Can a television station accuse a public school teacher almost at will and damage her reputation, leaving the teacher with no legal recourse?1

INTRODUCTION

If the union representative’s statements in the proposed hypothetical seem unjust, there is a reason. Our legal history teaches that people should be allowed to protect their reputations and to receive damages as redress when their reputations are harmed.2 This note will argue that public school teachers, when they are plaintiffs in defamation suits, are as entitled to these same protections and retributions guaranteed by law as are other private citizens.

Defamation is defined as the “[h]olding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community . . . .”3 Suits for defamation come in two forms: libel, a suit for a written attack on the plaintiff’s character, and slander, a suit for a verbal assault.4 In a defamation suit, the court must determine whether the plaintiff is a “public official” or a “private citizen,” a categorization that significantly affects the plaintiff’s chance of winning a case.5 In short, public officials, in almost all cases, win defamation suits only if they prove that the statements were made with an intention to harm them-an intention for which the legal term of art is “actual malice.”6 Consequently, a defendant can injure a plaintiff’s reputation and pay no damages so long as there is no intent to harm. This is true even if the statements turn out to be completely false. On the other hand, the standard of proof for private citizens, while varying from state to state, does not require the plaintiff to prove that the defendant intended harm, only that the defendant had some degree of culpability.7

The determinative nature of these categories is illustrated by comparing two cases. In Richmond Newspapers, Inc. v. Lipscomb,8 the court held that public school teachers were private citizens. In this case, the plaintiff-teacher’s name was published in a paper stating that she was “disorganized, erratic, forgetful and unfair . . . [left] the classroom for long periods . . . and demean[ed] and humiliate[d] [the bright] students.”9 The article then quoted a minister-parent as saying, “she is hurting these kids . . . [and] [s]he is bad for this system, bad for these kids.”10 The court noted that the reporter did not interview those students, colleagues, and administrators who believed that the plaintiff was a good teacher who had been falsely accused, information that contradicted all of the published material.11

Because the court held that teachers are not public officials in Virginia, the court applied the state negligence standard for private citizens to the plaintiff in this case. Under this standard, the newspaper and its employees had a duty to investigate whether the statements made were truthful and needed to be mindful that “a substantial danger of injury to [her] reputation [existed] . . . .”12 The court found that “a reasonably prudent news reporter writing this article could readily have contacted a number of other students to verify (or contradict) these accusations and should have done so.”13 The plaintiff was able to get to a jury and was awarded $100,000 in compensatory damages, which the appeals court upheld.14

In complete contrast is Campbell a Robinson,15 a case in which a newspaper published on its front page that Campbell, a teacher at an arts and sciences school, was a felon and should not be working with children, implying that he was a child molester. The article was part of a display charging that area schools were unsafe because felons were working within the school system.16 The article stated that twenty-four years earlier Campbell had been arrested for ” `contributing to the delinquency of a minor’ in a case in which police charged him with having sex with a thirteen-year-old girl.”17 The article then stated that he had been “arrested three times since on other charges,” apparently without charge or conviction, and had a warrant out for failing to appear in court regarding an illegal U-turn charge. Moreover, it reported that fifteen years earlier, female students complained that Campbell used “vulgar and sexual language in their presence, as well as touch[ed] them improperly . . . [and that a year earlier] two complaints were filed against him for inappropriate behavior toward children as well as a separate complaint that he was blowing kisses to a female student.”18 Another article on a back page quoted the county school board attorney as saying that the entire investigation was “a damn witch hunt by The Chattanooga Times,” the newspaper that published the pieces.19

Were the allegations a “witch hunt” and was Campbell defamed, or did the newspaper have a legitimate piece? The Tennessee court system never addressed these questions because Campbell, as a teacher, was a public official according to the court. Therefore, the focus, under the public official standard, was not on the truthfulness of the publication but on the intent of the publisher.

The motion to dismiss made by the defendant at trial demonstrates this focus and the low-threshold needed to overcome public official status. The defendant asserted that even if it did not “search arrest records and court documents prior to the challenged publication . . . [such inaction] is not the kind of actual malice or reckless disregard required by the United States and Tennessee Supreme Courts in order for a public official to sue the media for inaccurate reporting.”20 The defendant also stated that it is “clear that even a `failure to investigate before publishing . . . is not sufficient to establish reckless disregard for the truth . . . .’ “21 Therefore, the basis of the defense was that even if the published story was completely inaccurate and sources were not checked, the defendant could not be liable, absent an intent to harm Campbell.

The trial court agreed with the defendant that Campbell was a public official. Consequently, the court granted the motion to dismiss for the newspaper based on a holding that the newspaper had not intended to do Campbell harm. Moreover, the Court made Campbell pay all costs.22 On appeal, the trial court’s holding was upheld and remanded with no mention of the particular facts of the case, only a discussion of whether teachers are public officials.23 On remand, the case was ordered dismissed.24 Campbell never received a day in court. In this respect, the union representative in the introductory hypothetical is correct. The plaintiff teacher, if placed in the public official category, would have some very difficult hurdles to overcome in order to win a suit.

The consequences of false publication to a teacher, as to anyone, can be considerable. Ms. Lipscomb “felt her whole career and life had been destroyed,” and the court quoted her saying that she “forever live[s) in fear when I go to school and in the classroom . . . .”25 The plaintiff’s minister stated that “she was `totally destroyed and distraught. . . not the self-confident and assured . . person she had been,’ “26 and her supervisor found that “she ha[d] changed from a `proud, confident person’ to one who avoids crowds, does not mingle with people, `has like crawled into a little shell, lost faith in almost anything and everything.’ “27 Campbell also had similar feelings about the charges directed at him. In his complaint he noted that he had been “exposed to wrath, public hatred, contempt, and ridicule, and ha[d] [been] deprived of the benefits of public confidence and social interaction” such that he “suffered economic loss, injury to his reputation and emotional distress as a direct and natural result of the alleged libel.”28 However, unlike Ms. Lipscomb’s case, a determination of the truthfulness of his charges will never be made, and he will never receive retribution.

The ramifications of false charges, of course, go beyond damage to the teacher. Loss to the education system and the community in general may occur as well. For instance, if Ms. Lipscomb continues to be afraid to teach, she will never be as effective a teacher as she once was. As the trial testimony demonstrated, she had become a tentative person who had “lost faith,” which could lead to classroom disciplinary problems as well as subpar performance due to her disillusionment. Perhaps a better example of loss to the community comes from the case of Johnston v Corinthian Television Corp.,29 where Johnston, a teacher and a coach whom the appellate court described as dedicated and remarkable, lost both his positions. The situation that led to the media coverage stemmed from Johnston’s duties as the wrestling coach. One of his wrestlers refused to participate in the “warm-up” lap around the school. When confronted by the coach, he quit the team. Later, the coach, a former military man, told the student that if he wanted to get back on the squad, he could do so only if the squad allowed. They voted to put him through a hazing incident in which “[t]he squad members lined up one behind the other with legs spread apart and [the student] began to crawl through them receiving one slap of each member’s hand . . . on his bare behind,” all within the view of Johnston, who did not touch the student.30 The student “emerged unharmed” and “laugh[ed] and jok[ed] about it,” saying, “it was kind of funny.”31 While no one can excuse this poor judgment by the teacher, the resulting inaccurate broadcasts by a local television station were inexcusable and unnecessarily sensationalized the incident by reporting that Johnston and students beat the twelve-year-old boy with belts while he crawled around naked.32 Two of these broadcasts came after three people notified the station of the inaccuracies.33

The damage done by the broadcasts was considerable. The appellate court noted the report, “with all its incendiary language, innuendo, and falsehoods, kindled a smoldering bed of anti-Johnston embers among the citizens . . . .”34 Johnston was relieved of his duties both as a teacher and a coach by the school board at a “kangaroo court” hearing where “all semblance of objectivity vanished . . . [replaced by] an urgent need to extinguish the fire by purging the school of the degraded coach.”35 The court noted that the board “ignor[ed] completely the dedication of Hohnston [sic] to his duties and the remarkable achievements he [brought to] the school’s ailing athletic program in the short seven months he had been there . . . .”36 The end result from the inaccurate reporting was a community angered over an exaggerated incident and the loss of a valuable teacher and coach. Nonetheless, due to the holding of the highest court in Oklahoma, the station was allowed to misinform the public with little accountability.37 Where is the benefit to the education system or the community in general from this inaccurate reporting?

Additional policy reasons exist for placing teachers into the private citizen category. First, false charges of child abuse, such as those in the hypothetical and in the previously mentioned cases, are becoming commonplace, including some instances where children have made up false accusations to intimidate teachers.38 These charges make teachers reluctant to do their jobs. For instance, teachers in many jurisdictions are trained to avoid all physical contact with students because false accusations of child abuse are very common.39 When teachers do not have a legitimate chance for redress and news institutions and others need not investigate thoroughly allegations made against teachers, this lack of legal protection fuels teachers’ reluctance to do their jobs. As Beverly Tucker, legal counsel for the California Teachers Association explained,

There have been some highly publicized cases [of arrests] of teachers who simply seem to have a touchy-feely style of teaching. It’s really discouraging to other teachers who know that teacher is a good teacher who really cares about the students and who is falsely accused of having some sexual intent in touching a child.40 Does the public really want schools where teachers cannot comfort children if they fall or touch students to congratulate them if they do well?41

Moreover, many of these charges are not related to education policy. As this note will demonstrate, the intent behind the Supreme Court’s establishment of the public official category was to allow people the ability to criticize public officials about the duties of their office and about government policies without fear of retaliation.42 Teachers’ molestation or abuse of children are criminal justice issues, wholly outside of the realm of education, that should be handled like other criminal cases. As the appellate court in Johnston noted, “when all else is said, the stubborn fact remains that the public school teacher’s only duty and authority is to impart knowledge to his pupil . . . .”43 This is where the focus of debate should be. Is the right to accuse teachers of crimes under a standard that allows less than accurate reporting worth the negative backlash of less effective teaching?44 In addition, placing public school teachers in the public official category is especially unnecessary for these noneducation issues. The Supreme Court has already provided a safeguard for these situations-the public figure exception to the private citizen standard. If a teacher thrusts himself into the public eye outside of his defined duties, he deserves to be treated the same as a public official and must prove actual malice.45

Finally, as the facts of the court cases show, members of the public have numerous administrative remedies such as going before the superintendent or school board to criticize a teacher’s decision.46 In this way, accountability for decisions rests with those officials who really make the decisions-the intent of the public official category. Teachers are not on the same “level” as the highest official of the local executive branch, a state’s governor, the President of the United States, or even a school board member or superintendent. However, plaintiffs in defamation suits must fall in one of only two categories: private citizen or public official. When placed in the public official category, public school teachers are given as little protection from damage to their reputations as the President of the United States.

Would you put yourself on the line, work to build a career, only to have it ruined by retaliatory accusation? Worse yet, how discouraging would it be to know that you have little chance of recovering damages for your lost reputation simply because the person reporting the accusation did not intend to harm you, though the person who made the statement did? Would you want that job?47 False charges in the press without recourse only lead to the aforementioned complications.

This note first will explain briefly the defamation categories and the determinative tests as established by the Supreme Court. Then it will demonstrate how public school teachers, based on the Court’s own tests, should be treated as private citizens and should not be held to the “actual malice” standard used for public officials.48

I. CONSTITUTIONAL DISTINCTION BETWEEN PUBLIC OFFICIALS AND PRIVATE INDIVIDUALS IN DEFAMATION SUITS

A. PUBLIC OFFICIALS

In 1964, the Supreme Court in New York Times v. Sullivan49 held that public officials, when criticized about their official duties, should receive less protection than private individuals in defamation suits. The Court found that, when a public official institutes a defamation suit against her “critics,” the criticisms are protected by the First and the Fourteenth Amendments.50 In a defamation suit by a public official, the defendant’s speech will lose constitutional protection only if the plaintiff proves that defamatory statements were made with “actual malice.” The crux of the actual malice requirement is that the plaintiff must prove that the statement was made “with knowledge that it was false or with reckless disregard of whether it was false or not.”51 The actual malice standard places difficult burdens of proof on the plaintiff. In most cases, she must prove that the intent of the defendant was to cause harm, not just that the statements were made and proven untrue. Erroneous statements that harm the plaintiff’s reputation, but were not made with malicious intent or a blatant disregard for the truth, produce no liability.

A subsequent Supreme Court opinion raised the bar even higher for situations where the defendant was unaware that the information was false by placing additional burdens on the “reckless” part of the standard. “[R]eckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”52 Under this standard, a publisher can act less than reasonably, and the public official plaintiff still will not recover damages. For instance, in the proposed hypothetical, the television reporter would not have been held reckless for relying on the information from her source unless she had some “serious doubts” as to the source’s truthfulness. While such action may be poor journalism, it is not reckless under the standard. When there is an absence of proof of the defendant’s intent to harm the plaintiff, the “reckless disregard” standard does not provide an effective means of recovery for the plaintiff.

The Court had a simple reason for raising the bar so high in order to prove actual malice. The Court felt that requiring actual malice would allow people-to make open and unrestrained criticisms of public officials and not have to be concerned with liability if an allegation proved to be an honest mistake. As the Court stated, “a rule compelling the critic of official conduct to guarantee the truth of all his factual assertions” leads to censorship and “does not mean that only false speech will be deterred.”53 In other words, a requirement of truth would “chill” the political criticism and the free exchange of ideas that Americans value. For this reason, the Court found that some damage to public officials was a necessary evil, noting that there must be a “profound national commitment to the principle that debate on public issues should be uninhibited; robust, and wide-open” even if there are “sharp attacks” on government and public officials.54

The New York Times Court failed, however, to define who should be considered a public official.55 A later case, Rosenblatt a Baer,56 also failed to shed significant light on this category. As the Rosenblatt Court explained, it would not draw “precise lines [as to how far into the] lower ranks of government employees the `public official’ designation would extend . . or otherwise . . . specify categories of persons who would or would not be included.”57

The Court, wanting to maintain flexibility in the definition, established the minimum standard of a “public official.” It stated that the definition applies “at the very least to those among the hierarchy of government employees who have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”58 The Court further added that, to qualify as a public official under New York Times, a government employee must be of “such apparent importance that the public has an independent interest in the qualifications and performance of the person who holds [the position], beyond the general public interest in the qualifications and performance of all government employees.”59 By adding additional guidance, the Court instituted some limitation on the actual malice standard so that it cannot apply to all people who choose to work in the public sector but intended to leave much of the work to the lower courts. In fact, as one lower court commented regarding the public official standard, “In a sense, every public employee is a `public official’-but in the idiom of libel law, the term has a much narrower sweep.”60

A final difficulty for public officials is that the evidentiary proof needed for a successful claim of actual malice is not a preponderance of evidence but the higher hurdle of “clear and convincing” proof. The Court acknowledged that this standard would produce a high stumbling block for public official plaintiffs. “[I]t exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test.”61

B. PRIVATE INDIVIDUALS

After defining the standard for public officials, two questions arose for the Gertz Court to decide:

(1) Should the public official standard apply to private individuals?

(2) If the public official standard does not apply, then what standard should apply?62

The Court concluded that the states have a greater interest in protecting private individuals than in protecting public officials and that the states should be allowed to have a “less demanding” standard for private individuals.63 The Court found that defendants, while entitled to the protections of the First Amendment, had a lower interest in publishing information about private individuals than about public officials. Therefore, the Court held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.”64

The Court stated two reasons for requiring a less demanding standard than “actual malice” for private individuals. The first reason was based on the assumption that most people, when defamed, attempt a self-help remedy by trying to stop the spread of the untruth and reducing any possible damage to reputation. The Court noted that private individuals, because of their limited access to public channels of communication, do not have the same resources as public officials to counteract falsehoods.65 Therefore, they are “more vulnerable to injury, and the state interest in protecting them is correspondingly greater.”66 Secondly, the Court stated that private individuals have not put themselves into positions where they could expect to be attacked publicly, whereas a public official should expect criticism.67 Since a private individual would be just “minding his own business,” the Court found that damage done to the reputation of a person in this situation would be much more offensive. As the Court explained, the private individual “has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, [he or she is] also more deserving of recovery.”68

Allowing the states to regulate private citizens’ suits would balance competing concerns. “It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation.”69 The Court also noted that by allowing states to handle these cases, constitutional claims would not have to be resolved on a case-by-case basis “lead[ing] to unpredictable results and uncertain expectations, and [rendering] our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general application.”70

The Court did add one caveat to the private individual standard. A private citizen will be treated as a public official, having the same “rights” as a public official in having to overcome the actual malice standard, if he or she becomes what the Court termed a “public figure.” A private individual is a public figure if famous “by reason of the notoriety of [his] achievements [or if the private individual was with] vigor and success [seeking] the public’s attention.”71 As the Court noted, public figures deserve the same standard as a public officials because “they invite attention and comment.”72

II. APPLICATION OF THE CATEGORIES TO PUBLIC SCHOOL TEACHERS Lower courts have difficulty in determining whether public school teachers should be treated as public officials or private actors. As one court noted, “[p]ublic official is just such a classification. It is impossible to satisfactorily define. Almost any definitive criteria applying to the governor of the state, for example, can also be arguably applied to the Capitol building custodian.”73 There has been little consistency among the lower courts in deciding whether a public school teacher belongs in the public official category or in the private citizen category.74 Courts also do not appear to apply consistent definitions to these categories.75

While inconsistency and uncertainty may plague the courts in this area of the law, courts use basic arguments, either alone or in conjunction with other arguments, to decide which classification best suits teachers. An evaluation of these arguments will demonstrate that public school teachers do not belong in the public official category. The central thrust of the evaluation will be on the standards from the Rosenblatt case: (1) a teacher’s control over government affairs and (2) the public’s interest in public school teachers.76 These standards give courts a framework, albeit a loose one, and are used by almost all courts when making a determination.77 As will be demonstrated, teachers do not have control over government affairs to the point of reaching public official status. Moreover, while the public is interested in the duties of teachers, countervailing arguments demonstrate that finding public school teachers to be public officials based on this test is unsatisfactory. Additionally, some courts, relying on language from the Court in Gertz,78 have used “self help” arguments79 to place public school teachers in either category. As will be shown, public school teachers do not have the necessary ability to use the media to meet this threshold standard. Finally, some courts have used arguments that are, at best, tangentially related to language from the Court’s defamation cases. These arguments will also be evaluated.

A. SUBSTANTIAL RESPONSIBILITY AND CONTROL OVER GOVERNMENT AFFAIRS

One factor in the Rosenblatt v. Baer rubric is whether public school teachers “have, or appear to the public to have, substantial responsibility for or control over the conduct of governmental affairs.”80 That public school teachers do not have substantial responsibility or control is the strongest argument used by the courts to demonstrate that public school teachers are private citizens.

1. Some Courts Have Found that Teachers Do Have Substantial Responsibility and Control

A minority of courts have asserted that public school teachers exercise enough discretion in their jobs and enough control over government affairs to qualify for public official status because they make lesson plans, choose textbooks, and make other daily classroom decisions.81 As one court explained, “teachers exercise almost unlimited responsibility for the daily implementation of the governmental interest in educating young people. In the classroom, teachers are not mere functionaries. Rather, they conceive and apply both policy and procedure.”82 Interestingly, the same court, while noting that teachers are to be afforded some legal protection, held in an earlier opinion that public school teachers could not assert the governmental immunity defense public officers may employ to avoid personal liability.83 At the very least, holding that teachers are not “public officers” for immunity situations but are “public officials” for defamation suits is inconsistent and quite possibly unjust. A more recent case held that any public servant, including the public school teacher-plaintiff, who has “duties and responsibilities affecting the lives, liberty, money or property of a citizen or that may enhance or disrupt his enjoyment of life, his peace and tranquillity, or that of his family” is a public official.84 This broad holding by the court makes it difficult to imagine what action any public servant could take that would have none of these consequences. The Rosenblatt Court surely intended something less broad than this ruling to apply.85

2. Some Courts Have Found that Teachers Do Not Have Substantial Responsibility and Control

On the other hand, most courts use the requisite control argument to cut the other way, holding that teachers are private citizens who exert little control over government affairs. Courts using this argument usually stress that the discretion given a public school teacher (for example, running the classroom and choosing course materials) is minor when compared to general governmental policymaking decisions.86 In Richmond Newspapers, Inc. v Lipscomb, the court even went one step further, noting that not only did the plaintiff in her role as a public school teacher lack control over general government policy, but she lacked requisite “control” over her own school’s policy and its public affairs.87 Another court held that the purpose of the actual malice standard is the freedom of “the Governed to question the Governor of those who are influenced by the operation of government to criticize those who Control [sic] the conduct of government,” and then stated that to hold that a public school teacher is a “Governor” of policy is “at most remote and philosophical: Far too much so in our view, to justify exposing each public classroom teacher to a qualifiedly privileged assault upon his or her reputation.”88 Finally, one court noted that teachers do not supervise “substantial numbers” of employees and therefore do not meet the Rosenblatt standard.89

The fact that public school teachers lack the “substantial control” necessary to satisfy this standard can be demonstrated by comparing their duties to those of social service workers and police officers, who always are found to be public officials.90 Social service workers who make decisions about whether children will stay with their parents or be placed in foster homes have considerably more personal and authoritative decisionmaking power than teachers who only watch over children during the school day. As one court noted, “[the social worker] had sufficient power to remove or cause their children to be taken from their custody . . . conditions fraught with financial, physical and psychological problems.”91 Thus, the court held that “[she] had greater control over governmental affairs than a . . . school teacher . . . . We hold that a social worker exercising this kind of power is more closely akin to a prosecutor or police officer than to a classroom teacher . . . .”92 Another case emphasized that a social worker who had the power to remove children from custody “was engaged in a vital function of state government, i.e., the protection of its citizens.”93

Similarly, an enforcement officer is engaged in the protection of citizens. Police, at all levels of government, have been classified as public officials because of the protective nature of their jobs and their power to restrain and arrest people.94 Police can use weapons, and their “decisions to search and to arrest directly and personally affect individual freedoms.”95 While one could argue that teachers have the ability to restrain children, this ability does not reach the level of control or intimidation that police officers possess. The court in True a Ladner96 made this very point. A school superintendent gave a math teacher, True, a poor reference, even though evidence, including satisfactory evaluations from the very same superintendent, showed that he was an excellent teacher. Based on the recommendation, the teacher was removed from contention for a position in another school district.97 The court used a comparison of the duties of a teacher to those of a police officer to demonstrate how little control a teacher has when compared to other lower-level government employees who are potential candidates for public official status. As the court noted, police officers’ authority extends over all people in a territory at all times, while teachers have limited authority over children and only during school hours. Moreover, the court explained that law enforcement is unique to the government, “punctuated by the fact that a firearm, no less than a badge, comes [with the job]. By comparison, education is not uniquely governmental.”98

3. Further Demonstration that Teachers Do Not Have Substantial Responsibility and Control

While courts have used requisite control arguments to decide how to classify public school teachers, they largely base their decisions on their own abstract impression of what it is that public school teachers do on a daily basis.99 Arguably, defining the responsibilities and duties of a teacher is difficult. As one teacher’s publication noted, “[u]mike other well-respected and well-paid professionals (doctors, architects, lawyers) who work under clear and objective-standards for accomplished demonstrated practice, the teaching profession had never defined the knowledge, skills, and accomplishments that create an excellent teaching professional.”100 However, to make an accurate evaluation, courts should investigate more deeply what role teachers play in the education process and what the duties and qualifications are of public school teachers. A more probing look demonstrates that public school teachers have neither control over the governance of schools nor substantial responsibility for government affairs as required by Rosenblatt. They are the lowest professional employees in the government education hierarchy,101 and their decisions can be overruled. In addition, teachers’ duties, as defined by state or local governments, show that teachers do not have the authority to make policy decisions.

a. Education Bureaucracy. When one looks at all the decisionmakers involved in education policy, it becomes apparent that the idea that teachers have “substantial control” over any of the government decisions involved is inaccurate. Teachers are at the bottom of the process. A quick overview of the education system from top to bottom will demonstrate these two points.

At the federal level, congressional legislation, as well as regulatory input from the Department of Education, directs public school funding. For many education-related programs, these federal laws and regulations shape what states can and cannot do with their education programs by conditioning federal funding to the states upon compliance with federal guidelines. In this respect, the federal policymakers exert influence over the education system.102

At the state level, via the Tenth Amendment of the Constitution, states have control over education because education is not delegated to the federal government, nor are states prohibited from regulating it.103 Moreover, all state constitutions designate the state legislature as the body with the responsibility to establish and run schools.104 The legislature, in turn, delegates to subordinate agencies (usually its respective state department of education or board of education) that make rules and regulations that are necessary to carry out the state laws, including licensing of teachers.

At the local level, all states and the District of Columbia, with the exception of Hawaii, have given the day-to-day operation and the administration of school programs to local school boards, which often are comprised of elected officials.105 Under these boards are various school-based councils and often a superintendent.106 Under the superintendent are the principal, assistant principal, and finally, teachers. At the very least, it is clear that teachers have a small amount of control over education policy.

Moreover, at least two federal courts have found that a lower-than-average official is not a public official. One court noted that a staff psychologist for the Veteran’s Administration was not a public official because he “fell below the middle of the VA’s organization chart.”107 The District Court for the District of Columbia, whose jurisdiction includes a large number of government employees, went a step further by limiting public official status to only “high-ranking government officials [such that] [t]he host of Federal, State, municipal and local government administrators, scientists, lawyers, physicians, secretaries, clerks . . . are not deprived of their rights under the law of libel.”108

b. Teachers’ Authority and Duties. While making it highly unlikely that they have the “substantial control” needed to meet the Rosenblatt standard, the fact that public school teachers are low-level officials does not alone mean that teachers do not meet the standard. Regardless of whether designation as a low-level official is enough to be categorized as a private citizen, looking at various states’ statutes concerning who decides education-related policy makes two things apparent: (1) the local school board and its superintendent have ultimate control and (2) teachers do not have any final authority, and consequently, do not have the substantial control necessary to satisfy Rosenblatt.

In Maine, for instance, the school boards are responsible for the “management of schools,”109 and the superintendent acts as the “ex officio secretary of the school board . . . [i]nspect[ing] the schools and review[ing] the operating rules, the discipline and the proficiency of the students.”110 The superintendent is also given oversight for all hiring, firing, and decisions made regarding teachers, with the final decisions to be made by the school board.111 Maine appears to be a typical state in this regard.112 While teachers are given discretion in many cases to pick textbooks and to make some disciplinary decisions within the classroom, they do not have final control over these policies and procedures because their decisions can be overruled at any time. A study of defamation cases is also demonstrative of public school teachers’ lack of control. These cases show that decisions made by teachers, such as choosing course materials and textbooks and using disciplinary tactics, if challenged, immediately go before a higher authority, such as the school board or superintendent, for review and final decision.113 Holding that teachers have substantial control when even the most basic decisions they make can be challenged before the school board and superintendent and overruled is unreasonable. This is not control, let alone “substantial control,” of government affairs.

Additionally, in the many states and localities that specifically define the duties of teachers, such definitions show that public school teachers are not expected to make policy decisions such as decisions that demonstrate control of government affairs. The California Department of Education (CDE), for instance, appears typical and limits teachers’ duties to preparing and evaluating classroom work, supervising extracurricular activities such as school clubs, managing and instructing in a study hall, and other “duties that are ordinarily assigned to certificated personnel in connection with the custody and control of pupils . . . .”114 These duties are vastly different from CDE’s description of the duties of supervisory personnel who are the true policymakers. “The term supervision is used to designate those activities having as their purpose the actual improvement of instruction under the direction of supervisors and assistants. Such activities include (1) personal conferences with teachers on instructional problems; (2) classroom visitation; (3) group conferences with teachers; (4) and demonstration teaching.”115 In other words, these supervisors instruct teachers in effective teaching methods and monitor teaching policy, which demonstrates that in California, teachers do not have control over teaching policy.

In other states and localities, while methods vary, the supervision, evaluation, and remediation of teachers’ teaching techniques by higher-level public employees show that teachers do not make teaching policy. For example, in Hawaii, teachers’ duties are defined as being “under the supervision and direction of the principal and his assigns, [such that the teacher] shall be responsible for the teaching of students assigned to him or his classroom and shall perform all other duties assigned by the principal.”116 Consequently, when one takes into consideration defined teachers’ duties, plus state statutes that subject teachers’ decisions to the authority of the superintendent and local school board, one sees that states neither expect nor require public school teachers to make decisions that substantially control government affairs.

B. THE PUBLIC’S INTEREST IN THE QUALIFICATIONS AND PERFORMANCE OF PUBLIC SCHOOL TEACHERS

Some courts find that because teachers are involved with the education of children, “a prime government responsibility,” they are public officials.117 The argument recalls Rosenblatt, which stated that if the general public is more interested in the “qualifications and performance” of a particular type of public servant, beyond the average interest in other public servants, that public servant should be classified as a public official.118 For instance, in Johnston a Corinthian Television Corp.,119 the court, in holding that a teacher was a public official, stated that “we can think of no higher community involvement touching more families and carrying more public interest than the public school system.”120

This line of reasoning appears to follow Justice Brennan’s dissent in the denial of certiorari in Lorain Journal Co. a Milkovich.121 In that case, a brawl broke out at a wrestling match between spectators and members of two wrestling teams, one of which was coached by Mr. Milkovich, a public high school teacher. At a hearing on the matter, the Ohio High School Athletic Association disqualified Mr. Milkovich’s team from the state tournament. Concerned parents and students sued in court and overturned the association ruling. Mr. Milkovich, while not a party, testified at the court hearing. The next day a local reporter published an article entitled, Maple Beat the Law With the `Big Lie.’122 In this article, the local reporter accused the coach of teaching the kids a lesson that “[i]f you get in a jam, Iie your way out.” ]23 Moreover, he stated that “[a]nyone who attended the meet (where the brawl took place) . . . knows in his heart that Milkovich [] lied at the hearing . . , ,” 124 The highly decorated coach125 sued and the court found him to be a private citizen. The court noted that applying public official status to Milkovich would “unduly exaggerate” the intent behind the category, and then, without discussion, held that based on “the facts and circumstance contained in the instant case” it could not find that Milkovich was a public official under Rosenblatt.126

In Brennan’s dissent from denial of certiorari from this holding, he emphasized that general public interest in public school teachers was higher than in other government employees. As he explained, public schools are “the Nation’s most important institution . . . [and t]he public school teacher is unquestionably the central figure in this institution.”127 He found it “self-evident” that the public’s distinct interest in the “qualifications and performance” of public school teachers surpasses its general interest in government employees.128 One court, without citing Brennan, took this argument a step further by noting that people have extreme interest in teachers because they could potentially damage children.129 As the court explained, “teachers’ positions, if abused, potentially might cause serious psychological or physical injury to school-aged children. Unquestionably, members of society are profoundly interested in the qualifications and performance of the teachers who are responsible for educating and caring for the children in their classrooms.”130 Brennan’s arguments, however, apparently have been rejected when applied to public school teachers. While cited by several courts for suits by other education personnel, no court to date has used his dissent to find that teachers are public officials.131

There is no question that the public is interested in education.132 Nonetheless, the emphasis on this element of the Rosenblatt standard,133 from a logical standpoint, is misplaced when applied to public school teachers. The public’s heightened interest in education and teachers is not simply limited to public education, but includes education generally. The interest becomes apparent if one examines the reasons behind finding that the public has a higher interest in public school teachers than it has in other government employees: public school teachers are role models, they have children under their care, they instruct children about government and political processes,134 and they shape values and perceptions.135 All these duties, while ones that public school teachers have, are not strictly governmental in nature and apply equally to private school teachers that do not have to overcome the actual malice standard in defamation suits.136

This inconsistency becomes more pronounced if one compares public and private school teachers. For instance, state governments regulate both private and public schools, including their teachers. As the Supreme Court has noted, “no question is raised concerning the power of the State, reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils.”137 Moreover, most states require at least one of the following: private school teachers must be certified by the state, the instruction must be the “equivalent” of that of a public school, and the curriculum must meet certain state standards.138 Even what was once the most notable difference between public and private school teachers-the salary paying entity-is no longer a notable difference. A recent case held that a publicly funded Wisconsin voucher system was constitutional. As a result, private schools will receive tuition money from the public coffers and private school teachers’ salaries will be paid in part by the public.139 Therefore, holding public school teachers and private school teachers to two different legal standards is, to say the least, intellectually unsatisfying.

C. SELF-HELP

As previously noted, the Supreme Court has reasoned that public officials have greater access to the media, and can consequently summon it to counter any attacks on their character.140 This is known as the “self-help” argument. The argument has been used to place teachers in the public official category and is based on the belief that they get extensive media coverage because the public is interested in them. Under this reasoning, teachers, like elected officials, have more access to the channels of the media and should be deemed public officials because they can defend themselves better than members of the general public, who have less access to the media.141 The Kelley court, the only court to use this argument in the public school teacher context, stated, “[a]s a result of that significant public interest, it is also likely that the media would not only provide a teacher about whom allegations have been made with an opportunity to respond, but that the media would encourage comment by the teacher.” laa However, this argument is exactly the opposite of the reasoning employed by the Supreme Court for using the actual malice standard, which is that people should not have the actual malice standard applied to them because they were drawn into a controversy.143 In Time, Inc. v Firestone, the wife of a wealthy tycoon held press conferences to defend her reputation while going through a messy divorce. The Court held that even her press conferences were not of her choice because she was “drawn into a public forum largely against [her] will in order to attempt to obtain the only redress available . . . .”144 Moreover, the Court showed great sympathy for people who were “drawn” into controversies, noting that “[t]here appears little reason why these individuals should substantially forfeit that degree of protection which the law of defamation would otherwise afford . . . .”145

The public has great interest in public education.146 Still, courts that use the “self help” argument to place teachers in the private citizen category have a stronger argument. These courts do not use speculation about media attention. Instead, they ground their arguments in the standards set out by the Supreme Court in Gertz: (1) the ability of an individual to use a self-help remedy to counter defamatory statements must be proportional to the strength of the state’s interest in protecting that individual and (2) the individual must have thrust himself into the public eye.147 For instance, one court, while applying the Gertz standards, noted that a teacher could not simply summon the media at will in order to counteract defamatory statements. This court also held that teachers do not voluntarily expose themselves to an “increased risk of injury from defamatory falsehood” merely by accepting a teaching position.148

In Franklin v Lodge 1108, Benevolent & Protective Order of Elks,149 a high school American Government teacher selected a book called Movement to a New America. The court described the book as “a pastiche of underground writings concerning revolution, sex, and drugs, vividly illustrated and replete with vulgar language.”150 In the teacher’s opinion, the book was simply “an encyclopedia of propaganda of the 60’s” that she was using “to expose leftwing propaganda and militant Black rhetoric” to the students, but she “did not consider the book to be a shocker or one which would offend any student.”151 The local Elks Lodge, upon learning of the text, complained to the school district superintendent, whose subsequent recommendation that the text be given limited usage was approved by the school board.152 For the Elks Lodge’s “Americanism Committee,” though, limited usage was not good enough. It pushed to have an article published in the national Elks Magazine about the teacher. The article “strongly criticized” the book and questioned why the teacher was still teaching.153 It also falsely stated that “[she] was turned down in 62 other school systems before being hired. . . .”154 Moreover, it said that the Elks opposed people like her who:

advocate thought control groups as they exist in dictatorships . . . [and encourage] this nation to be overthrown by such revolutionaries as wish to expound communist, Godless philosophies to our young people in the very institutions which were conceived and built and operated under the system of government we are blessed to call the United States of America.155

In the subsequent lawsuit, The Elks claimed that the teacher had to prove actual malice. The court, using Gertz, however, stated that the “good faith” selection of a book that some found offensive as teaching material would not make the actual malice standard applicable to her. Moreover, since the plaintiff teacher did not attempt to contact the media in order to garner public support for her case, she had not thrust herself into the public eye, and therefore the public figure exception to the private actor rule could not be applied to her. The court also found that employment as a public school teacher was not enough, on its own, to make her a public official and deserving of the actual malice Standard.156

It should be noted that under the self-help argument, the public official standard also has been found by the Supreme Court to be inapplicable to people who have more access to the media and have invited public comment more than most public school teachers. For example, the aforementioned wife of the wealthy tycoon in Firestone, who held press conferences to inform the media, was undeserving of the actual malice standard.157 As a result, a teacher who has never sought media attention, is unable to call ‘the media at will, and has substantially less financial resources to combat false accusations than a person of great wealth also appears undeserving of such a difficult burden. As one court explained, while citing the facts of the Gertz case where the plaintiff-lawyer was not held to the actual malice standard, “attorneys have significantly more access than teachers to the media and a more realistic opportunity to answer false charges about their competence.”158

An additional self-help argument, made by a court-cited law review note, also deserves some evaluation. It states that because teachers’ unions receive heavy media coverage that helps enhance public school teachers’ access to the media, those teachers should be subject to public official status.159 However, to date, no court has used this line of reasoning in making a decision because this argument is not persuasive in showing that teachers have a stronger ability for self-help. Teachers’ affiliations as union members fail to distinguish them from other public servants. Moreover, court cases have not held union membership to be a reason for the public official standard to apply to a government employee.160

Another problem arises with the union affiliation self-help argument. Even assuming that teachers’ unions generate a large amount of press coverage, a member of a union and the union itself remain two separate entities. In this regard, actions that are best for the union may not be in the best interest of the individual teacher, thus leaving teachers to fend for themselves in lawsuits. While unions do have a “duty of fair representation” to their members,161 this duty does not mean that a union cannot make decisions that adversely affect individual members of the union. As one author explained:

[t]he exclusive. statutory representative is not barred from making agreements that may have unfortunate effects on some members of the bargaining unit, all of whom cannot have identical interests or equal qualifications. Differences within the group are bound to arise, and the complete satisfaction of all who are represented is quite unlikely.162

This dissatisfaction can result from a refusal to help a member with a dispute, including, while rare, a defamation suit.’63 Therefore,, the fact that a union receives a lot of press coverage does not necessarily translate into a benefit for an individual member.

D. ADDITIONAL ARGUMENTS

1. Paid With Public Funds

Perhaps the simplest argument is that public school teachers deserve the public official status because they are paid with public funds. Two courts have made this argument: Johnston,164 the wrestling-hazing incident case, and Basarich a Rodeghero.165 In Basarich, teachers at a local high school belonged to a “voluntary association,” a quasi-union, called the “Lockport Federation of Teachers.”166 Several individual teachers, representing themselves and the Federation, sued because of a published newsletter that “libeled the plaintiffs . . . [with] the alleged motive . . . to discourage membership in the Federation which the individual plaintiffs presumably support[ed].”167 The court held that the teachers were public officials in part because “[p]laintiffs are public employees, hired by the school board and paid with public funds.”168

However, determination of the category to which a public school teacher belongs is not aided by this tautology. That government employees work for the government and are paid out of the public coffers is nothing but a truism. Employees from the lowest level to the top of the executive branch share these characteristics. The Supreme Court noted in Rosenblatt v Baer that the public official status does not apply to all who choose public service but only to those who “[hold positions] beyond the general public interest in the qualifications and performance of all government employees.”169 Therefore, the Supreme Court, by this language, delineated two “types” of public employees, those who are public officials and those who are not. Several circuits have explicitly acknowledged this distinction.170 Characteristics common to all public servants are not helpful in determining to which category a particular employee belongs.

2. Not Elected Officials

In two cases, courts have used the fact that public school teachers are not elected officials in finding that teachers are private citizens, but these two courts have used the argument as cursory support in the context of other arguments.171 Much like the “public funds argument,” this argument deserves limited consideration. The Supreme Court did not intend the actual malice standard to apply only to elected officials, as evidenced by the public figure standard and the Rosenblatt rubric.172 In addition, several circuits have held that some unelected government employees are public officials.173

3. Academic Freedom

One particularly clever argument against treating public school teachers as public officials derives from the heart of the First Amendment: holding a teacher to the actual malice standard discourages teachers from choosing controversial topics for study in the classroom. Teachers’ reluctance to choose topics that may offend occurs because the high threshold of the actual malice standard can expose teachers to character attacks. For example, a teacher could be accused of promoting racism for teaching Huckleberry Finn, so the teacher may choose not to teach it.174 In effect, this self-censorship by teachers will result in less speech.175 The court in Franklin, where the teacher was accused of being un-American for trying to use a text about 1960s counterculture, perceived “a real and intolerable danger to the freedom of intellect and of expression which the teacher must have to teach effectively” 176 should teachers be held to this standard.

The problem with this argument is that, even though it is based on the theories of producing a net gain in overall speech and in the exchange of free ideas-both goals of the First Amendment)177-it is inconsistent with the Rosenblatt standard regarding the amount of public interest in a government employee.178 Inconsistency arises because the intellectual freedom argument is meant to exempt teachers from the actual malice standard because of their importance to society. As one author noted in reference to the intellectual freedom argument, “teachers should be exempt from proving actual malice not because they do not occupy a unique position among government employees, but because they do! Rosenblatt is turned on its head.”179

CONCLUSION

Holding public school teachers, as public officials, to the actual malice standard is not consistent with the original intent of the category as established in New York Times. In that case, the Court’s holding was meant to allow the public to criticize policy decisions made by public servants without fear of retaliation if the charge did not prove to be true.180 By permitting this open criticism, a free exchange of ideas on public issues would result.ig’ For public school teachers, education policies and particular practices used by teachers in the classroom may cause public concern. Free discussion on these issues will continue though, regardless of whether the actual malice standard is applied to public school teachers. Consequently, asking teachers to bear this high burden is unjust and using a lesser standard does not reduce speech about public education issues.

Additionally, members of the community will have administrative remedies to voice their opinions about education, whether public school teachers are held to the actual malice standard or a less severe standard.182 Grievances filed before a school board or a superintendent allow the public to express its displeasure without any chilling effect. If a member of the community is not satisfied with the decisions made by the school board or superintendent, he should voice his criticism to them, for they control broad education policy and make decisions as to whether a particular practice used by a teacher is appropriate.183 The Rosenblatt case supports this conclusion by focusing attention on a public employee’s control over government policy. In addition, since superintendents and school board officials are either appointed by another, higher, elected public official or are elected directly by the public,184 any member of society can use his political voice to express his feelings on school policy issues during elections, campaigns, debates, and other mechanisms created by the political process. Therefore, applying the actual malice standard to public school teachers misses the mark and strays from the intent of the New York Times, which was to allow criticism of those who make government policy.

Furthermore, many criticisms about public school teachers are not related to discussions about public education policy, and, therefore, these accusations are not the type of public speech that the New York Times standard was meant to protect. False attacks on teachers for the sale of drugs to students, sexual molestation or physical assault, as in the hypothetical, are criminal justice issues, not education policy issues.185 These incidents should be treated in the same way as other criminal cases. In this respect, there is no criticism of education policy preserved by requiring teachers to bear a higher burden than that of other private citizens trying to restore their names after being falsely accused of these crimes.

Finally, it is difficult to justify why private school teachers, who are situated similarly to public school teachers, are held to a lesser standard. As previously noted, the difference between the two is minimal, at best, and decreasing with the mixing of public monies into the private school system.186 If two professionals are held to different standards when both jobs are essentially the same, the standards become unjust.

The state interest in protecting its citizens’ reputations is a great concern in our society and must be maintained.187 As the Supreme Court noted in Milkovich v Lorain Journal Co.,

[t]he right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty. The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored.188

Public school teachers also deserve equal access to this right.

1. This hypothetical is largely based on a defamation suit by Rosalyn Snitowsky, a special education teacher at Chicago’s Nettelhorst School. See Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc., 696 N.E.2d 761, 763-65 (Ill. App. Ct. 1998); Jack Leyhane, Differing Defamation Cases Delineate Standards for Suits, CHL DAILY L. BmL., Oct. 26, 1998, at 6.

2. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 22-23 (1990).

3. BLACK’S LAW DICTIONARY 417 (6111 ed. 1990.

4. See MARC A. FRANKLIN & DAVID A. ANDERSON, CASES AND MATERIALS ON MEDIA LAW 215 (5th ed. 1995).

5. See generally Robert Gertz, Inc. v. Welch, 418 U.S. 323, 335-39 (1974) (noting that in addition to the public official and private individual classifications, there is a “public figure” exception to the private individual standard). The “public figure” exception, a subcategory of the private citizen category, allows a private citizen to be treated in the same manner as a public official if extraordinary circumstances arise. For instance, Michael Jordan, a private citizen, would be placed in this category because of his choice to be an entertainer, an occupation through which he thrusts himself into the public’s eye.

6. See New York Times v. Sullivan, 376 U.S. 254 (1964) (holding that actual malice requires an intention by an individual to harm another). See also BLACK’s LAW DICTIONARY 957 (6th ed. 1990) (defining actual malice as “intent to inflict harm through falsehood”); MARC A. FRANKLIN & DAVID A. ANDERSON, MASS MEma Law 257 (5th ed. 1995) (stating that actual malice requires that the defendant’s attitude must be an intention to harm the plaintiff).

7. See discussion infra Part I for further analysis of the public official and private citizen categories.

8. 362 S.E.2d 32 (Va. 1987).

9. Id. at 34.

10. Id.

11. See id. at 35, 38.

12. Id. at 38.

13. Id. (emphasis added).

14. See id. at 44-45. The jury originally awarded the plaintiff one million dollars in compensatory damages. However, the court reduced this amount to $100,000. She also received an additional $45,000 in punitive damages.

15. 955 S.W.2d 609 (Tenn. Ct. App. 1997). Apparently, Campbell was convicted of a misdemeanor offense involving a child. Court documents do not make clear whether sexual misconduct was involved. Nonetheless, the purpose of discussing this case is not to focus on Campbell’s guilt or innocence but to demonstrate the low-threshold defense used by the newspaper-defendant in claiming that Campbell was a public official because he was a public school teacher. See generally Plaintiffs Complaint and Defendant’s Motion to Dismiss, Campbell v. Times Printing Co., Circuit Court of Hamilton County, Tenn. (No. 96-CV-0234) (1996).

16. See Workers With a Past, CHATTANOOGA TIMES, Dec. 15, 1995, at Al.

17. Id. (emphasis added).

18. Id.; see also Mark Curriden & Heather Smith, Nobody Checked: Area Public Schools Employ 57 Felons, CHATTANOOGA TIMES, Dec. 15, 1995, at Al (listing several crimes committed by school personnel that included murder, child sex abuse, armed robbery, and drug possession).

19. Mark Curriden, Public Records Shed Light on Criminal History, CHATTANOOGA TMs, Dec. 15, 1995, at A3.

20. Brief in Support of Defendant’s Motion to Dismiss at 3, Campbell v. Times Printing Co., Circuit Court of Hamilton County, Tenn. (No. 96-CV 0234) (1996).

21. Id. at 7 (quoting Stem v. Gannett Satellite Info. Network, Inc., 866 R Supp. 355, 360 (W.D. Tenn. 1994)) (emphasis in original).

22. See Order, Campbell v. Times Printing Co., Circuit Court of Hamilton County, Tenn. (No. 96-CV 0234) (1996).

23. See Campbell v. Robinson, 955 S.W.2d 609 (Teen. Ct. App. 1997).

24. Telephone Interview with Kim Howard, Deputy Clerk/Appeals Court Clerk for the Circuit Court of Hamilton County, Tenn. (Oct. 22, 1999).

25. Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 45 (Va. 1987). 26. Id.

27. Id.

28. Plaintiff’s Complaint at 2-3, Campbell v. Times Printing Co., Circuit Court of Hamiltion County, Tenn. (No. 96-CV-0234) (1996). 29. 583 P.2d 1101 (Okla. 1978).

30. Johnston v. Corinthian Television Corp., No. 49,565 1977 Okla. Civ. App. LEXIS 182, at *6 (Okla. Ct. App. Oct. 18 1977), overruled by 583 P.2d 1101 (Okla. 1978). 31. Id. at *6-7. 32. Id. at *8. 33. See id. at *8-13. 34. Id. at *12-13. 35. Id. at *13, *14(emphasis added). 36. Id. at *13.

37. The appellate court remanded the case to the trial level, holding that teachers were private citizens. Therefore, the negligence standard, the statutorily prescribed duty of care of “ordinarily prudent persons engaged in the same kind of business usually exercise under similar circumstances” was required of the station’s reporting. Id. at *41. Unfortunately for Johnston, his case never went to trial under the negligence standard (or any standard at all) as ultimately there was no trial. The Supreme Court of Oklahoma reversed and remanded the appellate decision, holding that Johnston was a public official. Therefore, he had to show that the station intended to harm him with the reports. No further court action occurred. See Johnston, 583 P 2d at 1103-04.

38. See, e.g., Michael Gillis, Sometimes Kids Falsely Accuse Teachers to Get Back at Them, CHi. SUN-TIMES, Apr. 20, 1998, at 6 (noting that false accusations occur frequently and for a variety of reasons, including frustration over lack of control, wanting attention, or anger over disciplinary action); Robert King, Schools Fear False Claims of Abuse, ST. PETERSBURG TIMEs, Dec. 6, 1998, at 1 (noting that false accusations in the media against teachers about child abuse are “an all too familiar story”); When Teachers Are Falsely Accused, OMAHA WORLD-HERALD, Mar. 27, 1998, at 22 (noting that the president of the Omaha Education Association said that accusations against teachers are increasing and that “[t]he vast majority are false”).

39. See Maria Newman, A Fear of Abuse Charges Leads to Greater Restraint with Students, N.Y TIMES, June 24, 1998, at B5.

40. Scott Martelle, Case Casts Chill on Contact Between Teachers, Students, Schools: Molestation Allegations Against O. C. Man Fuel Fears, L.A. TIMES, May 24, 1998, at Al (quoting Beverly Tucker).

41. See Scott Martelle, Molestation Case Renews Dialogue Over Teacher-Student Contacts, L.A. Tims, May 24, 1998, at A3 (stating that “for the most part teachers must rely on their common sense, and on their faith that an innocent hug of support won’t end their careers or land them in jail”).

42. See infra notes 53-54 and accompanying text.

43. Johnston v. Corinthian Television Corp., No. 49,565 1977 Okla. Civ. App. LEXIS 182, at *31 (Okla. Ct. App. Oct. 18 1977), overruled by 583 P.2d 1101 (Okla. 1978).

44. See Martelle, supra note 40, at Al (noting that California school district has “basic rule of thumb” that teachers should never touch students except for defensive purposes and/or to stop fighting).

45. See infra notes 71-72 and accompanying text.

46. See, e.g., Sewell v. Brookbank, 581 P2d 267, 269-70 (Ariz. Ct. App. 1978) (stating that parents complained to local school board about teacher’s conduct in the classroom and board decided that teacher’s classroom needed to be monitored); Franklin v. Lodge 1108, Benevolent & Protective Order of Elks, 159 Cal. Rptr. 131, 133 (Ct. App. 1979) (showing that teacher’s course outline needed final approval of the school board); Kelley v. Bonney, 606 A.2d 693, 696-97 (Conn. 1992) (noting that student petition was brought before local school board claiming that teacher inappropriately touched female students and that superintendent decided to recommend termination proceedings upon investigation); Snitowsky v. NBC Subsidiary (WMAQ-TV, Inc.), 696 N.E.2d 761, 764 (Ill. App. Ct. 1998) (noting that plaintiff was relieved of her teaching duties until Chicago Board of Education determined whether she used inappropriate disciplinary tactics on a student); Elstrom v. Independent Sch. Dist. No. 270> 533 N.W.2d 51, 54 (Minn. Ct. App. 1995) (noting that teacher’s comments in class were to be evaluated by the coordinator of affirmative action and human resources and a report was given to the district superintendent to see if the comments were improperly racist); Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 37 (Va. 1987) (noting that parents have administrative remedies available).

47. See Gillis, supra note 38, at 6 (citing psychiatrist at Loyola University Medical Center as saying that “[t]here are some malicious kids who are pretty well informed” and who know that even one false accusation of child abuse can devastate a teacher’s career); Martelle, supra note 40, at Al (noting that teacher who was cleared of child molestation charges was fired by school board anyway after board reviewed evidence not available at trial).

48. This note will not discuss statutory privilege afforded in quasi-judicial proceedings such as school board hearings on teacher decertification. 49. 376 U.S. 254 (1964). 50. See id. at 264. 51. Id. at 279-80. 52. Saint Amant v. Thompson, 390 U.S. 727, 731 (1968).

53. New York Times, 376 U.S. at 279. 54. Id. at 270. 55. See id. at 284 n.23 (declining to define the boundaries of a public official or official conduct). 56. 383 U.S. 75 (1966). 57. Id. at 85 (quoting New York Times, 376 at U.S. at 284 n.23). 58. Id. at 86. 59. Id. at 86. 60. Kassel v. Gannett Co., 875 F.2d 935, 939 (1st Cir. 1989).

61. Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). 62. See id. at 323-24 (demonstrating that these two questions must be answered by the Court). 63. See id. at 348-49 (noting also that any compensation given based on a lower standard would be only in the amount of actual harm done to the plaintiff’s reputation and that “presumed or punitive damages [could not be given without] a showing of knowledge of falsity or reckless disregard for the truth”).

67. See id. at 344-45. 68. Id. at 345. 69. Id. at 348. 70. Id. at 343-44. 71. Id. at 342.

72. Id. at 345. The Court further subdivided the “public figure” category into “all purpose public figures” and “limited purpose public figures.” All purpose public figures are people who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes,” thus having the actual malice standard apply to them in all situations. Id. Limited purpose public figures are people who have “thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.” Id. These people are to be treated with the same standard as public officials only in instances that arise regarding these limited “public controversies.”

73. Johnston v. Corinthian Television Corp., No. 49,565 1977 Okla. Civ. App. LEXIS 182, at *31-32 (Okla. Ct. App. Oct. 18 1977), overruled by 583 P 2d 1101 (Okla. 1978).

74. See Danny R. Veilleux, Annotation, Who Is “Public Official” for Purposes of Defamation Action, 44 A.L.R. 5th 193, 323-32 (1996) (categorizing several public school teacher defamation suits). 75. See id.

76. See Rosenblatt v. Baer, 383 U.S. 75, 85-86 (1966).

77. See Veilleux, supra note 74, at 323-32. But see Bowman v. Parma Bd. of Educ., 542 N.E.2d 663, 668 (Ohio Ct. App. 1988) (holding, without further explanation, that because the plaintiff “failed to rebut” the defendant’s evidence that a teacher is a public official, the slander claim must be dismissed). 78. 418 U.S. 323 (1974).

79. See id. at 345.

80. Rosenblatt, 383 U.S. at 85-86.

81. See Kelley v. Bonney, 606 A.2d 693, 710 (Conn. 1992) (stating that teachers “conceive and apply” government policy); Basarich v. Rodeghero, 321 N.E.2d 739, 742 (Ill. App. Ct. 1974) (noting that public school teachers “run” public school systems); Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 56 (Mine. Ct. App. 1995) (finding that teachers act with the authority of the government so the public has a “greater than normal interest in being able to debate and criticize freely” their conduct); Campbell v. Robinson, 955 S.W.2d 609, 612 (Tenn. Ct. App. 1997) (finding a broad standard such that any public servant whose “duties and responsibilities affect[] the lives, liberty, money or property of a citizen or that may enhance or disrupt his enjoyment of life, his peace and tranquility, or that of his family, is a public offic[ial]”).

82. Kelley, 606 A.2d at 710.

83. See Sansone v. Bechtel, 429 A.2d 820, 822 (Conn. 1980). 84. Campbell, 955 S.W.2d at 612.

85. The Court did not want all public employees to be public officials. This point is emphasized by the Court’s example of a “night watchman’s” duties as insufficient to render him a public official. By contrast, under the broad holding in Campbell, the duties of a “night watchman,” by themselves, could make that person a public official. Therefore, the holding in Campbell is too broad. See Rosenblatt, 383 U.S. at 86 n.13; see also Kassel v. Gannett Co., 875 F.2d 935, 939 (1st Cir. 1989) (noting that, while every government employee is a public official “in a sense,” the “term has a much narrower sweep” for defamation); Lewis v. Elliott, 628 F. Supp. 512, 519 (D.D.C. 1986) (limiting application of public official status to only “high-level government officials”).

86. See, e.g., Franklin v. Lodge 1108, Benevolent & Protective Order of Elks, 159 Cal. Rptr. 131, 136 (Ct. App. 1979) (finding that teachers are not the type of public servants at which the Rosenblatt standard of government control was aimed); Nodar v. Galbreath, 462 So. 2d 803, 808 (Fla. 1984) (finding that, unlike an elected official or policymaking government employee, a high school English teacher is not a public official); Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc., 696 N.E.2d 761, 768 (Ill. App. Ct. 1998) (citing Franklin as support for holding that teachers do not have control over government affairs); McCutcheon v. Moran, 425 N.E.2d 1130, 1133 (Ill. App. Ct. 1981) (noting that principals and teachers are too removed from policymaking to be public officials); Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 37 (Va. 1987) (noting that teachers’ control over government affairs is too remote); see also Stevens v. Tillman, 568 F. Supp. 289, 294 (N.D. Ill. 1983) (citing McCutcheon to note that a principal, who had more governmental authority than a teacher, was neither a public official nor a public figure); East Canton Educ. Assoc. v. McIntosh, 709 N.E.2d 468, 475 (Ohio 1999) (holding that principals are private citizens).

87. See Lipscomb, 362 S.E.2d at 37.

88. Franklin, 159 Cal. Rptr. at 136; see also McCutcheon, 425 N.E.Zd at 1133 (finding that plaintiff teacher-principal’s control over policy was “far too remote”).

89. True v. Ladner, 513 A.2d 257, 264 (Me. 1986).

90. See Veilleux, supra note 74, at 261-64, 281-309 (categorizing several social worker and police defamation suits).

91. Kahn v. Bower, 232 Cal. App. 3d 1599, 1612 (Ct. App. 1991) (quoting Press Inc. v. Verran, 569 S.W.2d 435, 443 (Tens. 1978)).

92. Id. at 1613 (citations omitted).

93. Villarrel v. Harte-Hanks Communications, Inc., 787 S.W.2d 131, 134 (Tex. App. 1990) (emphasis added).

94. See Gray v. Udevitz, 656 F.2d 588, 591 (10th Cir. 1981) (noting that police officers are public officials because they “possess[] both the authority and ability to exercise force” such that “[m]isuse of their authority can result in significant deprivation of constitutional rights and personal freedoms”); MARC A. FRANKLIN & DAVID A. ANDERSON, Mass MEDIA Law 292 (5th ed. 1995); Veilleux, supra note 74, at 281-306.

95. Meiners v. Moriarity, 563 F.2d. 343, 352 (7th Cir. 1977); see also, e.g., Buendorf v. National Pub. Radio, Inc., 822 F. Supp 6, 10-11 (D.D.C. 1993) (noting that Secret Service agent was a public official because he was authorized to use “whatever force necessary, including making arrests”); Zurita v. Virgin Islands Daily News, 578 R Supp. 306, 308 (D.VI. 1984) (noting that police officer was a public official because he could use excessive force, which could result in loss of constitutional rights, bodily injury, and financial loss).

96. 513 A.2d 257 (Me. 1986).

97. The superintendent stated that True was “a good mathematician but not a good math teacher . . . [and was] more concerned with living up to the terms of his contract rather than going the extra mile . . . .” Id. at 260.

98. Id. at 264 (emphasis added). True prevailed in his suit, winning a judgment of $37,000 plus interest and costs. See J. at 2, True v. Ladner, Androscoggin County Superior Court, Me. (No. CV 82-274) (1982), aff’d, 513 A.2d 257 (Me. 1986).

99. See supra notes 81-84, 86-89, 98 and accompanying text (demonstrating that courts make abstract conclusions about the duties of teachers but do not use empirical evidence as support).

100. Maryland State Teachers Association, A National Teaching Certificate?, AcTO,LINE, Jan. 1999, at 8.

101. See, e.g., Nanette Asimov, Prescription for Education Teacher’s Report Issues a Challenge`Put Us in Charge’, S.R CHRON., Mar. 11, 1991, at A5; Dona Gower, Wrong Model; Schools Aren’t Factories, and Students Aren’t Widgets, DALLAS MoRNING NEws, Sept. 26, 1999 at 6J; Anne Mitchell, Teachers Still the Key to Reforming Education, SEATTLE POST-INTELLIGENCER, Oct. 7, 1995, at A7; see also, e.g., Beth Foushee, Polk Teachers Bemoan Paychecks, TAMPA TRIB., Dec. 4, 1994, at 1 (stating that teachers are among the lowest paid professionals in Florida); Ula Pendleton, Southern California Voices/A Forum for Community Issues: Modest Proposal; `Put Educators Into Classrooms’, L.A. TIMES, Mar. 1, 1993, at B4 (stating that teachers are the lowest paid professionals in the Los Angeles school district); NBC Nightly News: American Teachers Among Lowest Paid Professionals (NBC television broadcast, Aug. 30, 1999) (stating that teachers are among the lowest paid professionals in the United States).

102. See Paul Weckstein, School Reform and Enforceable Rights to Quality Education, in LAw AND SCHOOL REFORM 306, 322-35 (Jay P Heubert ed., 1998) (noting important federal education statutes and their requirements to gain federal funding).

103. U.S. CONST. amend. X.

104. See MARTHA M. MCCARTHY ET AL., PUBLIC SCHOOL Law 2 (4th ed. 1998).

105. See id. at I-10 (providing an overview of the interaction between state and local governments in education policy).

106. See id

107. Kassel v. Gannett Co., 875 F.2d 935, 940 (Ist Cir. 1989). 108. Lewis v. Elliot, 628 E Supp. 512, 519 (D.D.C. 1986).

109. ME. REV. STAT. ANN. tit. 20-A sec 1001 (West 1997) (quoting Clarx v. Pearson, 248 F. Supp. 118, 193-94 (D.D.C. 1965)). 110. Id. sec 1055. 111. See id. sec 13201.

112. See, e.g., WIS. CONST. art. 10, I 1 (stating that final decisions on public instruction are made by the superintendent); IND. CODE ANN. 20-2-2-3 (West 1998) (giving the school board authority to manage schools); Irm. ConE ANN. 20-6.1-4-6 (West 1998) (noting that provisions in teachers’ contracts regarding the governance of the school are subject to the control of the state superintendent); S.C. CODE ANN. 59-19-10 (Law. Co-op. 1998) (noting that school management is under the control of the county’s board of trustees, which reports directly to the county boards of education); Vn. CODE ANN. 22.1-253.13:1 (Michie 1998) (stating that “Boards of Education shall establish educational objectives to implement the development of the skills that are necessary for success in school”).

113. See, e.g., Sewell v. Brookbank, 581 P.2d 267, 269-70 (Ariz. Ct. App. 1978) (noting that the teacher’s classroom procedures were challenged by parents at a school board meeting, and that the teacher was to be monitored until a further hearing was held by the board); Franklin v. Lodge 1108, Benevolent & Protective Order of Elks, 159 Cal. Rptr. 131, 133 (Ct. App. 1979) (showing that controversial course materials required school board’s approval); Snitowsky v. NBC Subsidiary (WMAQTV), Inc., 696 N.E.2d 761, 764 (Ill. App. Ct. 1998) (noting that school board removed teacher from all classroom duties because of allegations that teacher used improper disciplinary tactics on a child); McCutcheon v. Moran, 425 N.E.2d 1130, 1131 (Ill. App. Ct. 1981) (noting that the school board would decide teacher’s employment status when faced with misconduct charges against teacher); Elstrom v. Independent Sch. Dist. No. 270, 533 N.W.2d 51, 54 (Minn. Ct. App. 1995) (noting that teacher placed on suspension because superintendent deemed teacher’s class discussion inappropriate).

114. Department of Education, State of California, Partial Text of California School Accounting Manual (visited Jan. 14, 2000) ; see also, e.g., Graham County School District of North Carolina, Robbinsville Middle School Handbook for Parents & Students (visited Jan. 14, 2000) (defining teachers as being “directly responsible for the conduct and behavior of students assigned to them . . . throughout the day”); Texas Department of Education, 19 TAC ISO.AA. Teacher Appraisal (visited Jan. 14, 2000) (defining, in part, teachers’ duties as including “[c]ompliance with policies, operating procedures and requirements”); Federal Way School District of Washington, Continuous Professional Development Program (CPDP) (visited Jan. 14, 2000) (noting that effective teachers create and manage a positive environment, have knowledge of their subjects, and know how to convey that knowledge to students).

115. Department of Education, State of California, Partial Text of California School Accounting Manual (visited Jan. 14, 2000) .

116. Hawaii Board of Education, Policy-Duties and Responsibilities of Teachers (visited Jan. 14, 2000) ; see, e.g., Anchorage Alaska School Board, 500-Certificated and Other Professional Personnel Policies (visited Jan. 14, 2000)

(stating that teachers are responsible for “teaching, directing and leading the students in their care in conformity with the laws of the state and the policies of the Boards; cooperating with fellow teachers and other employees in carrying out Board policy and program”); Leon County School District of North Carolina, 2.07 Duties and Responsibilities of Teachers (visited Jan. 14, 2000) (stating that teachers “shall perform the duties as outlined in Florida Statutes, State Board Rules, and the rules, regulations and policies adopted by the Board or Superintendent”); Texas Department of Education, 19 TAC ISO.AA. Teacher Appraisal (visited Jan. 14, 2000) (noting that teachers will be appraised of their duties and if found to be “a teacher in need of assistance” will receive “directives or recommendations for professional improvement activities . . . [and] directives for changes in teacher behavior”); Federal Way School District of Washington, Creating and Managing Positive Environments (visited Jan. 14, 2000) (noting that “[c]lassroom routines and expectation [sic] are reviewed periodically and revised as necessary”).

117. Basarich v. Rodeghero, 321 N.E.2d 739, 742 (III. App. Ct. 1974), modified, Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc., 696 N.E.2d 761 (III. App. Ct. 1998); see also Johnston v. Corinthian Television Corp., 583 P2d 1101, 1103 (Okla. 1978) (noting that teachers are public officials because they “maintain highly responsible positions in the community”); Luper v. Black Dispatch Publ’g Co., 675 P.2d 1028, 1031 (Okla. Ct. App. 1983) (citing Johnston v. Corinthian Television Corp., 583 P2d 1101 (Okla. 1978)).

118. See Rosenblatt, 383 U.S. at 86.

119. 583 P2d 1101 (Okla. 1978).

120. td. at 1103; see also Luper, 675 P2d at 1031 (Okla. Cc. App. 1983) (citing Johnston, 583 P2d 1101 (Okla. 1978)) (holding teachers to be public officials without discussion).

121. 474 U.S. 953 (1985) (Brennan, J., dissenting). The case was subsequently granted certiorari by the Court in Milkovich v Lorain Journal Co., 493 U.S. 1055 (1990), but on a separate claim which was rejected by the Court: whether a defendant in a defamation suit had an absolute defense when misrepresented facts were “opinion.” Milkovich, 497 U.S. at 21 (1990).

122. See Milkovich v. News-Herald, 473 N.E.2d 1191, 1191-92 (Ohio 1984). 123. Id at 1192.

124. Id

125. Milkovich’s wrestling coaching career was quite illustrious. He won the National Coach of the Year Award is 1977, received an honorable citation from both the Ohio Senate and House of Representatives, and won ten Ohio state team titles. See id. at I 195 n.1.

126. Id. at 1196.

127. Milkovich, 474 U.S. at 958. 128. Id. at 959.

129. Kelley v. Bonney, 606 A.2d 693 (Conn. 1992). 130. Id. at 710.

131. See East Canton Educ. Assn v. McIntosh, 709 N.E.2d 468, 480-81 (Ohio 1999) (Stratton, J., dissenting) (noting that the court should have held a principal to be a public official (citing Milkovich, 474 U.S. 953 (1985) (Brennan, J., dissenting))); Scott v. News-Herald, 496 N.E.2d 699, 704 (Ohio 1996) (holding a superintendent was a public official; citing Brennan’s dissent from denial of certiorari in Milkovich); Domokos v. Board of Educ., Mentor Exempted Village Sch. Dist., No. 13-071, 1989 WL 56364 at *3, *4 (Ohio Ct. App. 1989) (holding that an athletic director was a public official, but noting that a teacher was not; citing Brennan’s dissent from denial of certiorari in Milkovich); Palmer v. Bennington Sch. Dist., 615 A.2d 498, 502 (Vt. 1992) (holding that a principal was a public official but declining to decide if a teacher would be; citing Brennan’s dissent from denial of certiorari in Milkovich).

132. See Judy Mann, The Low Road Takes Republicans Nowhere, WASH. PosT., Nov. 6, 1998, at E3 (citing an exit poll in the 1998 Congressional election by Voter News Service finding that education was voters’ top concern).

133. See Rosenblatt v. Baer, 383 U.S. 75, 86 ( 1966).

134. See, e.g., Bernal v. Fainter, 467 U.S. 216, 220 (1984) (noting the importance of teachers to society as role models because they influence the way children think about the government and political processes); Ambach v. Norwick, 441 U.S. 68, 78-79 (1979) (same).

135. Ambach, 441 U.S. at 78-79 & n.9 (stating that teachers “[exert] a subtle but important influence over [children’s] perceptions and values”).

136. See, e.g., DATA RESEARCH, INC., PRIVATE SCHOOL Law IN AMERICA 190-94 (6th ed. 1995) (describing defamation suits with private school teacher-plaintiffs without mention of public official status or need to show actual malice); Veilleux, supra note 74, at 323-32 (1996) (describing professions that concern the public official/private citizen distinction without discussing private school teachers).

137. Pierce v. Society of Sisters, 268 U.S. 510, 534 (1925).

138. See DATA RESEARCH, INC., supra note 136, at 65-68; see also RALPH D. MAwDSLEY, LEGAL PROBLEMS OF RELIGIOUS AND PRIVATE SCHOOLS 80 (1989) (noting that no COUrt haS ever held that non-public schools are exempted from government regulation).

139. See Jackson v. Benson, 578 N.W.2d 602 mss.), cert. denied, 119 S. Ct. 466 (1998); (holding that some public funding could go to private schools to pay the tuition of students); see generally Jamie S. Kilberg, Note, Neutrality and Indirection: Designing a Constitutional School Voucher Program & Getting the Accommodationist Message Right, 88 GEO. L.J. 739 (arguing that private school voucher programs that participate in public educational funding do not violate the Establishment Clause).

140. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).

141. See Kelley v. Bonney, 606 A.2d 693, 710 (Conn. 1992); see also Peter S. Cane, Note, Defamation of Teachers: Behind the Times?, 56 FORDHAM L. Rev. 1191, 1206 ( 1988).

142. Kelley, 606 A.2d at 710.

143. See Time, Inc. v. Firestone, 424 U.S. 448, 457 (1975). 144. Id.

145. Id.

146. See Mann, supra note 132, at E3 (citing an exit poll by Voter News Service which found that education was voters’ top concern in the last congressional election).

147. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). Compare Kassel v. Gannett Co., 875 F.2d 935, 941 (Ist Cir. 1989) (noting that a Veteran’s Administration psychologist had “no preferred access channels of self help” and was not a public official because (1) “his duties did not involve answering press inquiries” and (2) the agency “employed its own media liaison person”) with Kelley v. Bonney, 606 A.2d 693, 710 (Coon. 1992) (stating that teachers have good access to the media and thus are public officials).

148. True v. Ladner, 513 A.2d 257, 264 (Me. 1986) (quoting Gertz, 418 U.S. at 435); see also Nodar v. Galbreath, 462 So. 2d 803, 808 (Fla. 1984) (noting that a teacher in a public high school had not surrendered the defamatory protection as would an elected official or a policymaker of a government body); McCutcheon v. Moran, 425 N.E.2d 1130, 1333 (Ill. App. Ct. 1981) (finding, without discussion, that teachers do not take on the risk and thrust themselves into the public eye).

149. 159 Cal. Rptr. 131 (Ct. App. 1979).

150. Id. at 133. 151. Id.

152. See id. 153. Id. at 134. 154. Id.

155. Id.

156. See id. at 140-41.

157. See Time, Inc. v, Firestone, 424 U.S. 448, 455 n.3 (1975).

158. Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 36 (Va. 1987); see also Crane v. Arizona Republic, 972 F2d 1511, 1525 (2d Cir. 1992) (noting that attorneys are not like candidates for office who “expect to be at the center of the public spotlight”).

159. See Cane, supra note 141, at 1206; Pendleton v. City of Haverhill, 156 F.3d 57, 70-71 (lst Cir.

1998) (citing Cane note but leaving “for another day” in which category to place public school teachers). 160. See Gibson v. Kincaid, 221 N.E.2d 834 (Ind. Ct. App. 1966) (holding that a steelworker, a

member of union, was not a public official); McKinnon v. Smith, 275 N.YS.2d 597 (Sup, Ct. 1966) (holding that candidates in a union election were not public officials). But see Stuart v. Porcell, 603 N.YS. 900 (App. Div. 1993) (holding that a state trooper, who was also the union president, was a public official).

161. See Steele v. Louisville & Nashville R.R., 323 U.S. 192 (1944); Miranda Fuel Co., 140 N.L.R.B. 181 (1962).

162. Benjamin Aaron, The Duty of Fair Representation: An Overview, in THE DUTY of FAUt REPRESENTATION 8, 9 (Jean T. McKelvey ed., 1977).

163. See Campbell v. Pan Am. World Airways, Inc., 668 F. Supp. 139 (E.D.N.Y 1987). In this case, the plaintiff-flight attendant sued her union for inadequate representation in a defamation suit against her former employer who had fired her for intoxication on the job. The plaintiff charged that the union was conspiring with the employer against her and failed to represent her as adequately as it had white members, thus violating its duty of fair representation.

164. 583 E2d 1101, 1103 (Okla. 1978).

165. 321 N.E.2d 739, 742 (Ill. App. Ct. 1974). The holding in Basarich was questioned by a later case. Snitowsky v. NBC Subsidiary (WMAQ-TV), Inc., 696 N.E.2d 761, 767-68 (Ill. App. Ct. 1998) (citing and agreeing with Franklin v. Lodge 1108, Benevolent & Protective Order of Elks, 159 Cal. Rptr. 131 (Ct. App. 1979)) (holding that public school teachers are private citizens).

166. Basarich, 321 N.E.2d at 740.

167. Id at 741. 168. Id. at 742.

169. Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).

170. See, e.g., Kassel v. Gannett Co., 875 F.2d 935, 939 (1st Cir. 1989) (noting that while all public employees are public officials “in a sense,” the definition of public officials for libel law is not as broad); Meiners v. Moriarity, 563 F.2d 343, 352 (7th Cir. 1977) (stating that the terms public officials and government employees are not “synonymous”); Lewis v. Elliot, 628 F. Supp. 512, 519 (D.D.C. 1986) (noting that “[the public official standard] does not comprehend the entire Government personnel”).

171. See Nodar v. Galbreath, 462 So. 2d 803, 808 & n.3 (Fla. 1984) (noting that the teacher was not elected and comparing her to an elected superintendent); Richmond Newspapers, Inc. v. Lipscomb, 362 S.E.2d 32, 37 (Va. 1987) (noting among other factors that while the plaintiff teacher received payment from public funds she was not an elected official). See also Poe v. San Antonio Express-News Corp., 590 S.W.2d 537, 539-40 & n.2 (Tex. Civ. App. 1979, writ ref’d n.r.e.) (categorizing a teacher as a private citizen and noting that even election to office does not mean a person is a public official).

172. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974) (holding that a public figure was a person who was either famous from his achievements or sought public attention); Rosenblatt, 383 U.S. at 85-86 (mentioning public interest and governmental control, not whether the plaintiff was an elected official, as the standards for determining public official status).

173. See, e.g., Baumback v. American Broad. Co., 161 F3d 1 (4th Cir. 1998) (holding that a timber management officer for the United States Forest Service is a public official); Bressler v. Fortune Magazine, 971 F.2d 1226 (6th Cir. 1992) (holding that an official of the Tennessee Valley Authority is a public official); Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977) (holding that Department of Justice law enforcement personnel are public officials).

174. See Franklin v. Lodge 1108, Benevolent & Protective Order of Elks, 159 Cal. Rptr. 131, 134 (Ct. App. 1979) (noting that teacher was compared to communists and Godless philosophers for choosing certain course materials).

175. See id. at 136.

176. See id. at 136. See supra notes 149-56 and accompanying text for further description of the facts of the case.

177. See supra notes 53-54.

178. See Rosenblatt v. Baer, 383 U.S. 75, 86 (1966) (noting that public employees become public officials when they hold a position in which the public has particular interest “beyond the general public interest in the qualifications and performance of all government employees . . .”).

179. Richard E. Johnson, No More Teachers’ Dirty Looks-Now They Sue, 17 FLA. ST. U. L. Rav. 761, 776 (1990).

180. See New York Times, 376 U.S. 254, 279 (1964). 181. See id. at 270.

182. See supra note 46 and accompanying text.

183. See supra notes 109-16 and accompanying text. 184. See supra notes 105-06 and accompanying text.

185. See, e.g., Poe v. San Antonio Express-News Corp., 590 S.W.2d 537 (Tex. Civ. App. 1979, writ ref’d n.r.e.) (explaining that the teacher was falsely accused by the local press of molesting young girls); Kevin Simpson, Bogus Claims Against Music Teacher Strike a Familiar Chord, DENv. PosT, Sept. 30, 1993, at lB (explaining that teacher’s reputation was ruined because she was thought to be a child molester and a lesbian); Teacher Wants Teen Who Framed Her for Drugs to Speak to Other Students, MINNEAPOLIS STAR-TRIB. Oct. 8, 1997, at 2B; supra note 1 and accompanying text.

186. See supra notes 133-39 and accompanying text.

187. See Robert Gertz, Inc. v. Welch, 418 U.S. 323, 345 (1974); Rosenblatt v. Baer, 383 U.S. 75, 86 (1966) (finding that “[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation”).

188. 497 U.S. 1, 22-23 (1990) (citation omitted).

BRIAN MARKOVITZ*

* J.D., Georgetown University Law Center, 2000; B.A., Dickinson College, 1993. I would like to thank my father, Charles M. Markovitz, for being the greatest “teacher” that I know.

Copyright Georgetown University Law Center Jun 2000

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