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Avins v. White

decided: June 30, 1980.



Before Rosenn, Garth and Sloviter, Circuit Judges.

Author: Rosenn


This appeal in a diversity action presents important questions of defamation law arising out of the accreditation process of a private law school. It arises out of a controversy which had its genesis in the intense conflict surrounding the struggle of Delaware Law School (DLS) and its founder and first dean, Alfred Avins, to secure provisional accreditation by the American Bar Association (ABA) so that the school's first graduating class would be eligible for the state bar examinations. Avins charged that James P. White, serving his first assignment as a consultant for and a member of the ABA accreditation team, in the course of evaluating DLS, made defamatory statements which eventually resulted in Avins losing his position as dean and faculty member of the law school. The jury agreed and awarded Avins $50,000 in compensatory damages. We reverse and remand for a new trial.


In an effort to maintain minimum standards for faculty, facilities, and programs, and to protect students, the public, and the legal profession from substandard law schools, the ABA maintains a Council of the Section of Legal Education and Admissions (Council) and an Accreditation Committee. The Council and Committee carry responsibility for inspecting law schools and recommending to the ABA House of Delegates those law schools eligible for accreditation. In recent years, almost all states have delegated the accreditation responsibility for law schools to the American Bar Association.

Plaintiff, Alfred Avins, possessed an impressive academic background with numerous advanced degrees and many legal publications to his credit. In 1971, he became the founder and progenitor of DLS. DLS was established as a purely private and independent law school, financially dependent for its operations on student tuition. It was able to attract a substantial student body composed principally of students who had been unsuccessful at securing entrance to an accredited law school.

ABA accreditation is critical to the existence of any law school for without it graduates in most states do not have access to the official state bar examination. Provisional approval is granted by the ABA House of Delegates which ordinarily accepts the recommendation of the Council and its Accreditation Committee. The Council and Accreditation Committee act on reports of teams who inspect applying schools. The inspection reports are treated confidentially and are distributed only to the applicant's dean and the members of the Council and Accreditation Committee. The administrative duties of the Council are carried out by a consultant who, in this instance, was the defendant White. The present suit arose out of four ABA accreditation inspections of DLS. On November 12, 1973, Avins requested an ABA accreditation inspection which was conducted in January 1974. The on-site inspection team consisting of White and Professor Millar Rudd, the outgoing consultant, visited DLS and did not recommend accreditation. Instead, they issued a report, a summary of which stated:

(The) most important deficiency is an intangible one; there is an academic ennui that pervades the institution. The intellectual spark is missing in the faculty and students.

At the request of DLS, the ABA conducted a second accreditation inspection in May 1974. Defendant White was not a member of this inspection team and did not participate in its report. During this inspection, an inspector criticized the school library because it did not contain the United States Code Service. That night DLS obtained a set of the Service and had it stacked in the library by the next morning. The ABA Accreditation Committee and Council met in July 1974 which was attended by Avins. He addressed both bodies. Provisional approval was again denied and the Council adopted a resolution that DLS was not making satisfactory progress under its present administration.

Early in the spring of 1974, a group of concerned parents of DLS students formed a committee to assist DLS in its accreditation problems. When accreditation was denied for a second time, Judge DiBona, a member of the parents' organization, volunteered to attend the ABA Council's August meeting in Hawaii to find a solution to the school's dilemma. He left armed with a DLS Board of Trustees' resolution establishing three committees to improve DLS. In Hawaii, Judge DiBona presented the resolution to White and learned that Avins' position as dean was a major stumbling block to accreditation. Judge DiBona conveyed this information to Avins upon his return.

Avins thereupon invited White to a DLS Board of Trustees' meeting to be held on August 23, 1974, in Wilmington, Delaware. However, the Board meeting did not eventuate, but Avins, Assistant Dean John Tovey, Judge DiBona, and White went to lunch. At lunch a broad discussion of DLS problems ensued, including a discussion of the book incident of the past May. White allegedly accused Avins of intentionally misleading the Accreditation Committee by falsely representing that the Code Service had been in the DLS library from the inception of the inspection.

Apparently, with the beginning of the new school year, pressures began to mount because of the failure to obtain accreditation. In Avins' words, the "student body became so unmanageable and DLS became so destabilized" that he retired as dean on September 8, 1974. However, he continued as a tenured member of the faculty. DLS thereupon appointed Arthur Weeks as its dean.

The Accreditation Committee conducted a third inspection in January 1975. White was a member of this team. This team also issued a critical report unfavorable to accreditation, although it noted some progress.

The team feels that the Board would be strengthened by the appointment of an experienced, recognized and respected legal educator. . . . The inspectors believe that the quality of instruction ranges from barely competent to good.

DLS' continued unaccredited status caused panic among its students scheduled to graduate in June 1975. Threats were made against Avins and his car was vandalized.

The new dean of DLS, Weeks, proposed that DLS become affiliated with Widener College. A decision was made on April 12, 1975, to affiliate. In 1976 Dean Weeks filed a set of grievances against Avins and the Widener Board of Trustees voted to dismiss him as a tenured faculty member. He was dismissed on April 20, 1978. White had nothing to do with the grievance committee hearing or Widener's decision to dismiss Avins.

Avins thereupon filed suit against White in Delaware Superior Court for (1) defamation, (2) interference with advantageous relations, and (3) intentional infliction of emotional distress. The defamation charged was based on (1) the first ABA report, (2) the third ABA report, and (3) White's remarks over the book incident at the August 23, 1974, luncheon. On White's application, the case was removed to the United States District Court for the District of Delaware.

A three-week jury trial ensued. White's motions for a directed verdict were denied. The defamation claims were submitted to the jury with the burden of proof set as a "preponderance of the evidence." No special interrogatories were requested or sent to the jury on the defamation counts. The jury found for Avins on the defamation claims and awarded $50,000 in compensatory damages. The jury returned a verdict for White on the other two claims. White appeals from the jury verdict on defamation and Avins appeals from the adverse jury verdict on tortious interference. The intentional infliction of emotional distress claim is not pressed on appeal.


We note initially that Delaware law governs the substantive law in this diversity case. Our first task, therefore, is to determine how Delaware courts would resolve the substantive issues presented by this appeal. See, e.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3d Cir. 1980). Because a determination of the state law issues may be dispositive and relieve the necessity for examining constitutional issues, we turn to Delaware's law on the substantive issues.

Defamation is defined in the Restatement (Second) of Torts § 559 (1977):

A communication is defamatory if it tends to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.

Delaware has essentially followed this definition. See Spence v. Funk, 396 A.2d 967, 969 (Del.1978). See also Klein v. Sunbeam Corp., 47 Del. 526, 94 A.2d 385, 390 (1952), Snavely v. Booth, 36 Del. 378, 176 A. 649, 654 (1935). White's central argument on appeal is that the defamation claims should not have been sent to the jury because the alleged defamatory statements were not false statements of fact but rather were non-actionable opinions. No Delaware cases have been cited to us and our research has not uncovered any dealing with the actionability of opinions as defamation. We must therefore predict what rule Delaware courts would follow.

The Restatement (Second) of Torts § 566 (1977) provides:

A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.

This principle, making expressions of pure opinion non-actionable as defamation, is grounded on the theory that ideas themselves cannot be false. In Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S. Ct. 2997, ...

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