from the Elkhart Superior Court The Honorable Kristine A.
Osterday, Judge Trial Court Cause No. 20D01-1701-PL-15
ATTORNEY FOR APPELLANT James E. Ayers Wernle, Ristine &
Ayers Crawfordsville, Indiana
ATTORNEYS FOR APPELLEES Robert B. Thornburg Maggie L. Smith
Frost Brown Todd LLC Indianapolis, Indiana
of the Case
Kevin Pack appeals the trial court's entry of summary
judgment for the Truth Publishing Company and John S. Dille
III, the owners of The Elkhart Truth newspaper
(collectively, "the Newspaper"). The trial court
entered summary judgment after the Newspaper moved to dismiss
Pack's defamation complaint under Indiana's Strategic
Lawsuit Against Public Participation Act, Ind. Code
§§ 34-7-7-1 to -10 (2018) ("the Anti-SLAPP
statutes"). Pack raises five issues for our review,
which we consolidate and restate as the following two issues:
1. Whether the Newspaper's publication was in connection
with a public issue.
2. Whether the Newspaper's publication was taken in good
faith and with a reasonable basis in law and fact.
and Procedural History
In August of 2013, Kevin Pack, an atheist, began teaching
German at Northridge High School ("NHS") in
Middlebury on a probationary contract. Shortly after
beginning his employment, Pack became the subject of various
complaints by parents, students, and faculty. The complaints
alleged that Pack had used profanity in class and had
utilized films and literature that contained sexual content.
Additionally, students alleged that Pack's lack of
respect, organization, and guidance made it difficult to
learn. Other NHS employees also complained of Pack's
tardiness and absences from school and school functions.
On February 24, 2014, Gerald Rasler, NHS's principal,
issued to Pack a "Notice of Preliminary Decision of
Immediate Cancellation of Contract." Appellant's
App. Vol. II at 33. That notice cited Pack's alleged
"immorality, insubordination, neglect of duty, and other
just cause" as reasons to support the immediate
cancellation of Pack's contract. Id. On February
28, Pack requested a private conference with Jane Allen,
NHS's superintendent. Following that conference, Allen
recommended the termination of Pack's contract to the
Board of Trustees of Middlebury Community Schools ("the
School Board"), and Pack requested a hearing with the
On April 1, the School Board held a hearing at which Pack and
his union representative were present. The next day, the
School Board terminated Pack's employment. The School
Board explained its decision with more than seventy findings
of fact, which included the following findings:
19. Mr. Pack showed a movie titled "Lola Rennt"
("Run Lola Run") to his Level One (1) German class,
made up primarily of freshmen and sophomores who are under
the age of seventeen (17).
20. "Lola Rennt" is rated R in the United States.
21. "Lola Rennt" features scenes which represent
two (2) individuals engaging in sadomasochism. The
individuals are wearing tiny leather costumes. The male is
pictured bent over a sofa, wearing nothing but a dog collar
and a leather thong. The female is wearing leather lingerie
while holding the male on a leash and winding up to strike
him with a whip.
22. "Lola Rennt" contains multiple spoken swear
words, including "F[**]k," "F[*****]g
B[***]h," "D[**]n," and "S[**]t."
23. Several students expressed concerns to building level
administrators and [to] their parents about struggles with
their command of the German language due to a lack of
review/lack of proper teaching methods to become familiar
with the German language . . . .
24. Students expressed that they felt disrespected by Mr.
Pack because he laughs at students' answers.
25. Students mentioned that Mr. Pack will occasionally yell
or get angry if a student does not know the correct answer to
26. Students reported that Mr. Pack will occasionally
interrupt the students, sometimes with a comment that is
irrelevant to what is being discussed in class.
28. Students complained that Mr. Pack's lack of
organization and guidance often made it difficult to follow
what was happening in class.
29. Students stated that the curriculum is confusing
because they are never sure what they are going to learn in
class or when to take notes.
30. Students stated that Mr. Pack has created a negative
atmosphere where many students do not plan on taking future
German classes at NHS.
36. Several students complained that Mr. Pack tests and
quizzes them over topics never covered in class.
37. Students stated that Mr. Pack occasionally leaves the
classroom during student presentations.
38. Several students stated that Mr. Pack has used swear
words in front of students, using the words
"F[**]k" and "G[*]d D[**]n."
39. Students stated that Mr. Pack told the class an
inappropriate Jewish joke during a lesson over the Holocaust.
40. Several students stated that they received A's and/or
A's for work which they had never completed.
41. Several students complained that Mr. Pack loses
42. Several students complained that[, ] when Mr. Pack gave
the semester final exam, he allowed the students to grade
their own exams. This exam was a common assessment that was
required by NHS to be given to all Level Two (2) German
students. The results of this exam were ...