Writing Reference Letters: A Guide for Faculty and Staff

The Problem

There is an increasing number of lawsuits being brought against faculty members who write reference letters for students. Most of the cases involve defamation of character, although several discrimination suits have also been filed. The law grants a "qualified privilege"; to reference letter writers. This privilege allows the writer to make statements free of liability. However, he privilege is very strictly defined, and a reference writer failing to meet one of the elements of the privilege can be held liable.

Guidelines for Reference Writers

The following guidelines will help you to write "safer" reference letters. Although there is no sure way of avoiding a lawsuit, these guidelines will help lower your risk of liability. The uidelines can apply to letters written both for students seeking employment and those applying to graduate schools.

To Write Or Not To Write:

Write a reference letter only if asked to; do not volunteer to write one. You may lose the qualified privilege defense by writing a letter without being asked.
NEVER write a letter for a student with whom you have had difficulties or run-ins with in the past. The student could then claim that anything negative you said was due to malice and possibly defeat your privilege defense.

Writing The Letter

It is preferable to write a reference letter to a specific person for a specific job. You can then relate the student's strengths and weaknesses to the job duties and desirable qualifications stated by the employer.
If the student wants you to write a generic "To Whom It May Concern" letter that she/he can show to numerous employers, state in the letter that the student has requested that type of letter and is solely responsible for its dissemination.
Try to state only factual information as opposed to personal opinion. If your opinion is specifically requested, state that it is your opinion only and try to give concrete examples supporting your opinion.
Make sure that any facts you state are true, not just mere rumors or educated guesses on your part. Be able to provide backup documentation for your comments.
If you do make negative comments, back them up with facts. For example: if you say the person is a bad student, state what that means, such as grades, attendance, etc.
Do not make comments about the student's character (e.g. "He is lazy" or "She is considered a campus troublemaker ).
Don't mention characteristics that can be the basis of discrimination, such as age, sex, marital status, race, national origin, color, religion or handicapping condition.
Don't distribute or show the letter to any third party. It is your choice whether to give the student a copy of the letter.
You are legally permitted to ask a student to waive the right to see the letter and can refuse to write one without the waiver. Realistically, though, even a confidential letter sometimes makes its way into the student's hands. The safest policy: If you can't write an overall positive letter that you feel comfortable sharing with the student, DON'T WRITE THE LETTER.

Prepared by Karen L. Simpkins, J.D. - Eastern Michigan University

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Writing Reference Letters: A Guide for Faculty and Staff

The Problem

Guidelines for Reference Writers

To Write Or Not To Write:

Writing The Letter