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The 1st U.S. Circuit Court of Appeals has handed down the first appellate decision interpreting what kind of latitude colleges and universities receiving federal funding have when notifying the school community of certain crimes under the Clery Act. The Dec. 5 opinion by Senior Circuit Judge Bruce M. Selya upheld the lower court’s summary judgment in favor of Johnson & Wales University, which was sued for libel, slander and breach of contract for using its crime alert system to notify the campus that a particular student had assaulted another student and allegedly brandished a knife. Havlik v. Johnson & Wales University, No. 07-1879 (1st Cir.) The opinion “gives a fair amount of latitude to colleges and universities” in terms of the content of crime alert and notices, said the university’s lawyer Paul V. Curcio of Adler Pollock & Sheehan in Providence, R.I. “This decision can be read to stand for the proposition that if a university deems it appropriate to include the name of the student in the crime alert, they will be protected by a qualified privilege assuming they issue the crime alert without malice,” Curcio said. Colleges and universities are grappling with campus crime notification issues in the wake of controversy surrounding Virginia Tech’s delayed notification of Seung Hui Cho’s first shooting attack on April 16. Cho ultimately killed 32 others and himself in two separate attacks. Curcio said the Virginia Tech incident spurred more questions about timeliness than content, but that many schools are grappling with how to structure crime alerts. “[The 1st Circuit's] examination of the history and purpose of the act have some implications for any school in terms of crime alerts,” Curcio said. The appellate court upheld the lower court’s interpretation that the school acted “without ill will or malice” and that its responsibilities to comply with the Clery Act protected it from protected it from liability. “School officials must act expeditiously to satisfy their responsibilities under the Clery Act, and a reasonable belief — even if later shown to be incorrect in some particular — is all that is required for the qualified privilege to attach,” wrote Selya. In the underlying case, the plaintiff claimed university officials knew when the crime alert was published that he didn’t have a knife during his fight with another student in September 2004. Havlik v. Johnson & Wales University, No. 05-510 (D. R.I.) Although witnesses reported that the plaintiff had flashed a knife during the fight, the disciplinary hearing concluded that he was “not responsible” for the charge of possessing a knife. According to the appellate opinion, the crime alert posted on campus noted knife possession because the school’s chief in-house counsel didn’t learn of the disciplinary hearing outcome before the posting. The plaintiff was expelled from the university following the disciplinary hearing and the school denied his request for an appeal. In his lawsuit, he sought compensatory and punitive damages for the university’s publication of the crime alert, damages for the school’s breach of contract and reinstatement to the school. The student’s lawyer, John R. Mahoney of Providence, R.I.-based Asquith & Mahoney did not return a call for comment.

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