RHODE ISLAND — A student who sued his university for naminghim as the assailant in an assault near campus has not yet decided whether tocontinue his case after a federal appeals court dismissed the suit lastmonth.
A crime alert issued by Johnson & Wales University in September 2004said Christopher Havlik, then a student at Johnson & Wales, had punchedanother student on a sidewalk near the Providence campus, causing the victim tofall and fracture his skull. The alert also cited witness reports that Havlikhad flashed a knife.
Havlik was expelled and faced criminal charges, but a jury ultimatelyacquitted Havlik in May 2005. Havlik then sued Johnson & Wales, allegingthat the crime alert had defamed him. The school argued that it was protectedfrom Havlik’s suit because it was obligated under the federal Jeanne Clery Actto issue a warning about the assault based on what school officials knew at thetime.
A federal district court sided with Johnson & Wales in May 2007 anddismissed Havlik’s suit. A three-judge panel of the 1st U.S. Circuit Court ofAppeals upheld the district court decision on Dec. 5, ruling that the schoolreasonably believed it had a legal obligation to report what it knew about theassault and that there was no evidence anyone involved in drafting the crimealert knowingly included false information.
The Clery Act applies to all colleges and universities that accept federalmoney. Among other things, the law requires institutions to issue timelywarnings to students and other members of the campus community about certaincrimes — including aggravated assault — that occur on campus or incertain areas near university property.
Havlik’s suit argued that the alleged assault was not covered under theClery Act because it took place on a public sidewalk not adjacent touniversity-owned property. Both courts rejected that argument, finding that thesidewalk runs alongside a parking lot used and controlled by the university andthus probably is covered under the federal law’s reporting requirements.
“[T]he need to assure safety and security for campus communities counselsthat doubts should be resolved in favor of notification,” the 1st Circuit panelruled.
Havlik also argued that Johnson & Wales should not be protected fromliability by its Clery Act obligations because school officials maliciouslychose to include his name in the crime alert, along with the allegation that hebrandished a knife; a school disciplinary hearing hours before the alert hadfound there was not enough evidence to support the weapons allegation. Bothcourts found there was no evidence that the officials who drafted the crimealert knew about the outcome of the disciplinary hearing or that they had namedHavlik out of spite.
Finally, both courts ruled that the appeals process at Johnson & Waleswas sufficiently fair, dismissing Havlik’s breach-of-contract claim.
General Counsel Barbara L. Bennett, who drafted the final version of thecrime alert, said she and the school were pleased with the appellatedecision.
“I think it’s a very helpful opinion in the higher education community,”Bennett said. “I believe that there are a number of colleges that were under theimpression prior to this that they would never publish a student’s name in aClery Act timely warning.”
But she said she disagreed with media reports that painted the decision asgiving colleges a “green light” to name alleged perpetrators in crimealerts.
“I think it is still a situation by situation analysis,” based on whetherofficials believe a student might post a continuing threat, she said. “What youare really trying to achieve is the safety of your campus community.”
John Mahoney, Havlik’s attorney, said he thinks the appeals court wanted togive schools leeway to report crimes in the aftermath of April’s mass shootingat Virginia Tech University.
But “the student himself under these circumstances had his own individualrights that should have been balanced,” Mahoney said.
Havlik has until early March to decide whether to appeal further, butMahoney acknowledged that “statistically, the chances in the U.S. Supreme Courtare always poor.”