Scarpelli v. Jones, 51574

• Citation: 626 P.2d 785,229 Kan. 210
• Decision Date: 26 February 1981
• Docket Number: No. 51574,51574
• Parties: , 7 Media L. Rep. 1284 Dante G. SCARPELLI, M. D., Appellee, v. Nolan JONES, Charles K. Lee, Ernest Turner and Charles Floyd, Appellants.
• Court: United States State Supreme Court of Kansas

Page 785

626 P.2d 785

229 Kan. 210, 7 Media L. Rep. 1284

Dante G. SCARPELLI, M. D., Appellee, v. Nolan JONES, Charles K. Lee, Ernest Turner and Charles Floyd, Appellants.

No. 51574.

Supreme Court of Kansas.

Feb. 26, 1981.

Syllabus by the Court

1. In a libel action, a plaintiff who is classified as a public figure is required to prove the allegedly defamatory communication was made with actual malice.

2. Actual malice is defined as knowledge that the statement was false or made with reckless disregard to whether it was false or not.

3. In a civil action for libel, we have examined the record and find the communication alleged to have been libelous was made without actual malice. The trial court erred in refusing to grant defendants' motion for directed verdict at the close of plaintiff's case in chief.

Reid F. Holbrook, of Holbrook & Ellis, P. A., Kansas City, and Lee J. Dunn, Jr., Chicago, Ill., argued and on brief, for appellee.

James I. Meyerson, of the National Association for the Advancement of Colored People, New York City (argued), Charles E. Carter and Thomas I. Atkins, New York City, Elmer C. Jackson, Jr., Kansas City, Victor Goode and Patricia Goins, of the National Conference of Black Lawyers of New York City, and Herbert O. Reid, of Howard University School of Law, Washington, D. C., with him, on brief, for appellants.

Chester Lewis, Jr., Wichita, and Ralph R. Smith, of the University of Pennsylvania Law School, Philadelphia, Pa., on brief amicus curiae for The Affirmative Action Coordinating Center, et al.

William Rich, of the Washburn University School of Law, Topeka, on brief amicus curiae for The American Civil Liberties Union of Kansas.

HERD, Justice:

This is an appeal by defendants Nolan Jones, Ernest Turner, Charles K. Lee and Charles Floyd, in a libel action brought by plaintiff Dante G. Scarpelli. The jury awarded Scarpelli a judgment against each defendant in the amount of $1,000 compensatory damages and $10,000 punitive damages.

Dante G. Scarpelli, M.D. was a professor and the chairman of the department of pathology from 1966 to 1976 and dean for faculties and academic affairs from January 1972 to August 1973 at the University of Kansas Medical School in Kansas City, Kansas. Scarpelli is now chairman of the pathology department of Northwestern University, Evanston, Illinois. The four defendants were medical students at the University of Kansas Medical School at the time this action arose and are now graduates of that institution; all of them are black persons. Chester J. Rempson was originally a defendant but was severed from the action prior to the trial. He is also black and was assistant vice-chancellor for affirmative action at the University of Kansas Medical School at all times pertinent hereto.

In the early 1970's, the University of Kansas Medical School had a faculty of approximately 500. The curriculum was four years, with approximately four black students in each class. The faculty became conscious of the scarcity of minority admissions and launched a program with the goal of encouraging minority recruitment and admission to the medical school. As a result of the university program, Chester J. Rempson was employed as assistant vice-chancellor for affirmative action charged with the responsibility of administering the guidelines for minority admissions programs. The stated purpose of the programs was to devise and administer enrichment programs for educationally disadvantaged minorities, encompassing financial and tutorial assistance with reduced curriculum requirements. These amounted to special programs for minority students beginning with the first year of medical school oriented particularly toward math, science, curriculum and medical terminology. Prior to the creation of the minorities program, admissions had been predicated on college grade point average (GPA) and medical college admission test (MCAT) scores with no attention given to race. The minority admissions program permitted admission of minorities to medical school with a lower MCAT and undergraduate GPA than for non-minority students. The medical school faculty clearly intended there was to be only one standard for graduation for all students, in spite of the lowered admissions standard.

None of the defendants had GPA's or MCAT scores that would have admitted them under a non-minority admissions standard. The four defendants were all admitted to the University of Kansas Medical School under the minority admissions program. With the exception of Lee, the defendants experienced much academic difficulty with basic sciences which required the repeating of courses, remedial work and some makeup courses in other medical schools, as anticipated in the minority admissions program.

The academic performance of medical students, including those in the minority program, is the responsibility of the medical school faculty which operates with a committee system. The principal committee charged with academic responsibilities is the academic committee which is composed of members elected by the faculty and students elected by the medical student assembly. When a student's performance is deemed substandard by a department, the departmental decision is transmitted to the academic committee for review. The academic committee considers the departmental recommendation and makes its recommendation to the entire faculty for final disposition.

In addition to the academic committee, the University of Kansas Medical School is administered by and through a number of administrative positions which are called deans. Two of the deanships important to this controversy are: David Waxman, M. D., dean of students, and Dante G. Scarpelli, M. D., Ph.D., dean for faculties and academic affairs. The dean for faculties and academic affairs is responsible for all academic programs and, together with the dean of students, receives and evaluates reports from various faculty committees. He is also responsible for implementing the academic policy of the medical school which includes the minority admissions program.

Dante Scarpelli was born in Padua, Italy. He and his parents immigrated to America when he was fourteen months of age. They settled in the Italian section of Cleveland, where plaintiff grew up. He served in the Marine Corps during World War II and was later graduated from Baldwin-Wallace College. Scarpelli then entered Ohio State University Medical School from which he received his M.D. and Ph.D. in pathology in 1954. Following residency programs and assistance professorships at Ohio State, plaintiff was employed by the University of Kansas to serve as a professor and chairman of the department of pathology in 1966. Under the leadership of Dr. Scarpelli the department of pathology at the University of Kansas attained a ranking of among the top ten of all pathology departments in the United States. Dr. Scarpelli set high standards for himself and his students which were reflected by his students' high scores on the National Board of Medical Exams; on some occasions the University of Kansas Medical School ranked as high as 12th out of the 125 medical schools in the United States. Dr. Scarpelli acquired a reputation for demanding high standards of excellence from his students.

The four defendants were the executive committee of the student national medical association (SNMA) of the University of Kansas Medical School. SNMA is primarily a black students' organization and, at that time, Charles Floyd was its chairman. SNMA held meetings for the mutual benefit of its members and discussed their progress in medical school. From the meetings came a consensus that the pathology department of the University of Kansas Medical School and, more particularly, Dr. Scarpelli were discriminating against black students.

The defendants consulted with Chester J. Rempson and he agreed with the students' conclusion. In the summer of 1973, defendants Turner and Jones also talked with Dr. Robert Hudson, chairman of the department of history and philosophy of medicine, about taking action against Scarpelli for what they considered discriminatory practices. Hudson had a good rapport with the students and was supportive of the minority admissions program. Hudson told Turner and Jones he believed Scarpelli's standards were artificially high but they were applicable to all students regardless of race. He did not believe Scarpelli was racially prejudiced. After talking with Hudson, the students spoke with Dr. William O. Reike, vice-chancellor for health affairs. He suggested they put their grievances in writing and submit them to Dr. E. B. Brown, Jr., who later succeeded Scarpelli as dean of faculties and academic affairs. The defendants accepted Reike's advice and on April 3, 1974, filed a complaint on behalf of the SNMA charging Scarpelli with

"(W)illful and unlawful acts of discrimination toward black medical students at the University of Kansas Medical Center in an attempt to systematically eliminate them from medical school and depriving them of an opportunity of achieving a medical education, through individual acts, conspiratorial efforts and inciting the Kansas University Medical Faculty to discriminate against black students ...."

The complaint charged such action was in violation of the medical school's affirmative action program, Title VI of the 1964 Civil Rights Act, Title VII and Title VIII of the Public Health Service Act, as amended by the Comprehensive Health Manpower Training Act of 1971, and the Kansas Act against Discrimination K.S.A. 1980 Supp. 44-1001 et seq. The complaint lists several incidents involving altercations between Scarpelli and the defendants and other black medical students as proof of the allegations. Some of those incidents will be discussed in more detail in this opinion.

Dr. Brown responded to the complaint with a letter stating the "charges will be investigated and you will receive a detailed answer...