St. Margaret’s Episcopal School (School) is a private school that enrolls students in early childhood classes through 12th grade. Two female students at the School complained about Garrett Higgins, a high school student, to the then dean of female students, Jamie Bunch. One student said Higgins purposefully “nudged her breast” and made derogatory comments about Black people. The other student claimed Higgins said slurs to gay people. The assistant principal of high school, James Harris, and other school administrators met with Higgins. Higgins denied the incidents and Harris told him to change his behavior, not share details of the meeting with others, not attempt to discern who made the complaints, and to not engage in retaliation. Higgins agreed.
The next day, Higgins asked Bunch for details about the complainants. Higgins said he knew he was “‘handsy’ but not in a bad way.” Bunch declined to share any information because the female students feared retaliation, and told Higgins to not touch girls or say inappropriate things to them.
Over the next few weeks, four more female students spoke to Bunch about plaintiff making inappropriate sexual gestures and touching them without their consent. Harris and St. Margaret’s principal, Tony Jordan, met with Higgins and his parents. Higgins’ parents did not believe the allegations, but Jordan said there would be serious consequences if there were additional credible complaints of sexual harassment.
Over the next few months, Bunch received more sexual harassment complaints from female students about Higgins. Eventually, the Head of School, William Moseley, determined Higgins should no longer be allowed on school campus. Mosely told Higgins’ parents that Higgins could complete the school year remotely and would need prior permission to come to campus. Higgins’ parents agreed.
Afterwards, security personnel posted a notice regarding Higgins on the wall of the School’s security office. The notice stated that Higgins was no longer a student and if he was seen on campus, he should be escorted off and a supervisor should be notified. Although the security office is locked and not accessible to students, two female students ended up seeing the notice when taken to the office for fingerprinting.
Towards the end of the school year, Higgins’ mother told Jordan that Higgins planned to be on campus to do some library research and hang out with his friends. Jordan responded and said Higgins cannot come to campus without advance permission and that Higgins would be dismissed from the School if he showed up to campus without such permission.
Less than one week later, Mosely saw Higgins walking toward the School’s parking lot. Moseley reminded Higgins that he was not allowed on campus, and cautioned that it was the end of the school year and to not “mess things up.”
Higgins finished his junior year and attended a different school for 12th grade. During his senior year, Higgins attended a St. Margaret’s football game with his then girlfriend who was a student at the School. A School staff member approached Higgins’ girlfriend and told her and her family that Higgins was not wanted on campus.
About a year after he left the School, Higgins sued the School and various School administrators, alleging defamation. He alleged that the School made the following defamatory statements: (1) the written notice posted in the School’s security office; (2) Moseley’s warning to Higgins a few weeks before the end of the school year; (3) an alleged statement by Bunch to students that Higgins was “gone for good”; (4) the statement by the School staff member at the football game. Higgins also alleged the sexual harassment accusations against him were defamatory.
The School filed a motion to strike the allegations under California’s anti-SLAPP statute, which allows for the early dismissal of a case that thwarts constitutionally-protected speech. A court examines an anti-SLAPP motion in two parts: 1) whether a defendant has shown the challenged cause of action arises from protected activity; and 2) whether the plaintiff has demonstrated a probability of prevailing on the claim. Speech made in connection with a public issue falls within protected activity under the anti-SLAPP statute.
The trial court agreed with the School in part and disagreed in part, concluding that all the statements were not protected activity under the anti-SLAPP statute, except the statement by Bunch that Higgins was “gone for good.” The trial court also held that plaintiff could not prevail on that claim. Both parties appealed to the Court of Appeal.
On appeal, the School argued that all the statements should have been protected because there were made in connection with an issue of public interest and Higgins failed to meet his burden of showing a probability of prevailing on his claims. Higgins argued that none of the statements are protected activity and even if they are, the trial court made a series of evidentiary errors which led to its erroneous conclusion that Higgins could not show the probability of prevailing on any of his claims.
The Court of Appeal agreed with the School. The Court of Appeal explained that protecting minors, including schoolchildren, from abuse, bullying, and harassment is an issue of public interest and therefore, falls within the anti-SLAPP statute’s protections.
The Court of Appeal turned to the second part of the analysis – whether the plaintiff demonstrated a probability of prevailing, or in other words, the defamatory statements had a “natural tendency to injure the plaintiff” or actually caused him damages. The Court of Appeal held the statements alleged by Higgins were not slander (oral defamatory statements) or libel (written defamatory statements). Under Civil Code Section 46, oral statements have a natural tendency to injure if they: charge a person with a crime, state someone was indicted, convicted, or punished for a crime; state that a person has an “infectious, contagious, or loathsome disease”; injure a person with respect to their profession; or “impute on a person impotence or a want of chastity.” The Court of Appeal held that none of the oral statements were remotely similar to any of these four categories.
The Court of Appeal similarly held that the one libelous statement – the memorandum by the security office – was not libel because on its face, the memo was innocent and Higgins did not establish that a third-person would understand the memo to be defamatory.
Ultimately, the Court of Appeal agreed with the School and ordered the trial court to grant the anti-SLAPP motion in its entirety.
Higgins v. St. Margaret’s Episcopal Sch. (Cal. Ct. App., Dec. 21, 2021) 2021 WL 6050622 (unpublished).
Note:
Anti-SLAPP motions are a powerful tool for the early dismissal of lawsuits involving issues of protected speech. Here, the alleged defamatory statements were protected under California’s anti-SLAPP statute because they concerned an issue of public interest – the protection of minors against harassment and abuse. We would note that student disciplinary matters are typically student records that are protected by privacy rights in California. Schools should discuss or disseminate such information only as necessary.