The Volokh Conspiracy
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Absolute Immunity from Libel Lawsuits for Witnesses Testifying in Private Universities' Title IX Proceedings?
Witnesses testifying in court have such "judicial immunity"; this is a longstanding principle, animated by a worry that otherwise angry litigants would otherwise routinely sue witnesses who testified against them, and that the threat of such lawsuits would deter witnesses from coming forward. (Prosecutors can of course still prosecute witnesses who they think were lying, but that requires an independent and generally disinterested judgment by the prosecutor; whether to file a civil lawsuit would be at the discretion of the litigant.) But does this apply to noncourtroom hearings, including ones in private organizations?
Friday's Second Circuit decision in Khan v. Yale Univ., written by Judge Reena Raggi and joined by Chief Judge Debra Ann Livingston and Amalya Kearse, has just certified that question to the Connecticut Supreme Court:
In 2015, while both were students at Yale University, defendant "Jane Doe" accused plaintiff Saifullah Khan of sexual assault. As a consequence, Yale initiated university disciplinary proceedings against Khan, and the State of Connecticut criminally charged him with sexual assault. Khan and Doe each testified at both proceedings—in each other's presence, under oath, and subject to cross examination at trial, but with none of those procedures at the university hearing. Holding the prosecution to a proof-beyond-a-reasonable-doubt standard at trial, a jury acquitted Khan of all criminal charges. Applying a lesser, preponderance standard of proof to its disciplinary proceeding, Yale found Khan to have violated its Sexual Misconduct Policy and expelled him.
Khan seeks to litigate Doe's sexual assault accusations for a third time, suing Doe in the United States District Court for the District of Connecticut … for defamation and tortious interference with contract, claims on which he would bear a preponderance burden at any trial. {In the same complaint, Khan also sued Yale and various of its employees for violating Title IX of the Education Amendments of 1972, as well as for state law breaches of privacy, contract, and the implied warranty of fair dealing, and for negligent and intentional infliction of emotional distress.}
Khan now appeals from a February 9, 2021 partial final judgment of the district court dismissing his complaint against Doe in its entirety on absolute quasi-judicial immunity … grounds. Specifically, Khan argues that the proceedings of non-government entities cannot be quasi-judicial and, thus, Doe's accusations of sexual assault in a private university's disciplinary hearing are not shielded by absolute immunity….
The court extensively canvassed the precedent, in Connecticut and outside it, on quasi-judicial immunity, concluded that it was inconclusive, and certified the following questions:
[1.] Under Connecticut law, can a proceeding before a non-government entity ever be deemed quasi-judicial for purposes of affording absolute immunity to proceeding participants?
[2.] If the answer to the first question is "yes," what requirements must be satisfied for a non-government proceeding to be recognized as quasi-judicial? Specifically,
[a.] Must an entity apply controlling law, and not simply its own rules, to facts at issue in the proceeding? See Petyan v. Ellis, 200 Conn. at 246, 510 A.2d 1337; see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of Torts § 114, at 818-19 (5th ed. 1984).
[b.] How, if at all, do the "power" factors enumerated in Kelley v. Bonney, 221 Conn. at 567, 606 A.2d 693, and Craig v. Stafford Construction, Inc., 271 Conn. at 85, 856 A.2d 372, apply to the identification of a non-government entity as quasi-judicial; and, if they do apply, are these factors "in addition" to, id., or independent of, a preliminary law-to-fact requirement?
[c.] How, if at all, does public policy inform the identification of a non-government entity as quasi-judicial and, if it does, is this consideration in addition to, or independent of, a law-to-fact requirement and the enumerated Kelley/Craig factors?
[d.] How, if at all, do procedures usually associated with traditional judicial proceedings—such as notice and the opportunity to be heard; the ability to be physically present throughout a proceeding; an oath requirement; the ability to call, examine, confront, and cross-examine witnesses; the ability to be represented by counsel—inform the identification of a proceeding as quasi-judicial? See Craig v. Stafford Const., Inc., 271 Conn. at 87-88, 856 A.2d 372; Kelley v. Bonney, 221 Conn. at 568-70, 606 A.2d 693.
[3.] If it is possible under Connecticut law to identify a non-government proceeding as quasi-judicial, then, in light of responses to the above questions, was the 2018 Yale University UWC proceeding at issue on this appeal properly recognized as quasi-judicial?
[4.] If the answer to Question 3 is "yes," would Connecticut extend absolute quasi-judicial immunity to defendant Jane Doe for her statements in that UWC proceeding?
[5.] If the answer to Question 3 is "no," would Connecticut afford defendant Jane Doe qualified immunity or no immunity at all?
Khan's factual allegations:
The following facts are drawn from Khan's complaint, documents incorporated therein, and facts of which we may take judicial notice. For present purposes, "we evince no views concerning whether the 'facts' we detail below are actually true. Our task is limited to determining whether, if [Khan's] allegations were true, they would state a … claim." In applying this standard, we are obliged to view the facts in the light most favorable to Khan….
On Halloween night in 2015, Khan and fellow Yale student Jane Doe separately attended an off-campus party hosted by one of the university's "secret societies." At some point, Khan and Doe left the party together to attend an on-campus event. When Doe began to feel unwell, she and Khan left the event and returned to Trumbull College, the Yale dormitory where both resided. Khan asserts that after he dropped Doe off at her room and started to return to his own, Doe called him back and asked him to check on a friend. After Khan did so, he returned to Doe's room where the two had consensual sex before falling asleep.
The next morning, Doe told friends that Khan had raped her. That same day, however, when Doe sought contraceptive assistance at the university's health center, she reported having engaged in consensual, unprotected sex. A few days later, when Doe publicly repeated her rape claim, she was directed to the Yale Women's Center. There, a counselor (defendant David Post), assisted Doe in preparing a formal university complaint against Khan. Upon receipt of that complaint, a Yale deputy dean (defendant Joe Gordon) suspended Khan, ordering him to vacate his dormitory room and to leave campus. Soon thereafter, Yale began a disciplinary proceeding against Khan under the university's Sexual Misconduct Policy.
At and about the same time, the Yale Police Department opened an investigation into Doe's sexual assault claim. This ultimately resulted in the State of Connecticut criminally charging Khan with sexual assault in the first, second, third, and fourth degrees. At Khan's request, Yale agreed to stay its disciplinary proceedings pending the conclusion of his criminal case….
The state's criminal case against Khan would not be resolved for approximately two and a half years. On March 7, 2018, after a two-week trial, a Connecticut jury acquitted Khan of all charges after less than a full day's deliberations. Khan attributes this outcome to his attorney's ability to cross-examine Doe, highlighting various memory lapses and inconsistences in her accounts of the alleged sexual assault, and eliciting flirtatious communications that she had sent Khan in the days before Halloween 2015. {Khan does not sue Doe for statements made at trial, conceding that such testimony is shielded by absolute judicial immunity.}
Khan's trial and its outcome were unfavorably reported on in the Yale Daily News. Thereafter, over 77,000 persons signed a petition urging Yale not to readmit Khan, notwithstanding his acquittal. Yale nevertheless permitted Khan to resume full-time student status at the start of the Fall 2018 term….
On October 5, 2018, the Yale Daily News reported new sexual assault accusations against Khan by a man—not a Yale student—who claimed Khan had assaulted him on a number of occasions at locations outside Connecticut. {Khan asserts that these accusations did not prompt any criminal charges or university disciplinary proceedings against him.} The day the article was published, Yale police and administrators contacted Khan to see if he was unduly distressed so as to require professional help. Khan assured them that he was not distressed but agreed to a mental health consultation at the Yale infirmary. Khan asserts that the consultation indicated no cause for concern.
Two days later, however, on Sunday morning, October 7, 2018, Yale administrators requested a meeting with Khan. When Khan refused, a letter from a Yale dean (defendant Marvin Chun) was hand-delivered to Khan advising him that his immediate suspension from the university and exclusion from campus were "necessary for your physical and emotional safety and well-being and/or the safety and well-being of the university community."
Thereafter, Khan was not permitted to return to Yale's campus until November 2018, when Yale resumed its sexual misconduct disciplinary proceeding against Khan based on Doe's 2015 complaint….
In November 2018, a UWC hearing panel convened to consider Doe's complaint that Khan had sexually assaulted her on campus three years earlier. Both Doe and Khan appeared at the hearing: Khan in person; Doe (who had by this time graduated from Yale) by teleconference from a remote location. Despite the fact that Doe was not physically present, neither Khan nor his attorney-advisor was permitted to be in the hearing room when Doe made her preliminary statement and answered panel questions. Rather, Khan and his attorney were required to remain in another room, provided with only an audio feed of Doe's appearance. Nor was Khan's attorney permitted to speak on his client's behalf or to voice objections to panel questions that Khan now asserts were compound or assumed facts not in evidence.
The final UWC hearing panel report is not before this court. Khan, however, asserts that the panel found him to have violated Yale's Sexual Misconduct Policy in his 2015 encounter with Jane Doe, as a result of which Yale expelled him….
