No Absolute Privilege for Accuser's Allegations in College Disciplinary Proceedings; #TheyLied Libel Lawsuit

alleging the accuser lied in the proceedings can thus go forward, holds the Connecticut Supreme Court.

From the syllabus of today's Connecticut Supreme Court decision in Khan v. Yale Univ., which summarizes the court's reasoning in a unanimous opinion by Justice Raheem Mullins:

In 2015, D accused the plaintiff [a Yale undergraduate] of sexually assaulting her in her dormitory, and the university suspended the plaintiff. The committee, however, stayed the disciplinary proceedings against the plaintiff pending the outcome of a criminal case that the state had filed against him. The plaintiff subsequently was acquitted on multiple counts of sexual assault, and, in 2018, he resumed full-time student status at Yale.

Shortly thereafter, however, as a result of the reporting in a student newspaper of additional allegations of sexual assault involving the plaintiff, the plaintiff agreed to undergo a mental health consultation, but he refused a request that he meet with university administrators. Subsequently, the university again suspended the plaintiff on the ground that it was necessary for the safety and well-being of the plaintiff and the university community.

Thereafter, the committee convened a hearing in connection with D's 2015 sexual assault complaint. [Details of the procedures at the hearing quoted below. -EV] The university ultimately expelled the plaintiff.

Plaintiff sued D for defamation and interference with business relations, claiming "that D had made false accusations in an effort to have him expelled as part of the #MeToo political movement and a personal vendetta stemming from D's alleged romantic advances toward the plaintiff." But the federal District Court threw out the claims, "concluding that the disciplinary proceedings were quasi-judicial in nature and that D, therefore, enjoyed absolute immunity under Connecticut law for any statements that she had made in the course of those proceedings" (much like witnesses in trials have such immunity from civil lawsuits).

Eventually the Second Circuit asked the Connecticut Supreme Court whether Connecticut law provided such immunity, and the court said no:

A proceeding is quasi-judicial for the purpose of affording its participants absolute immunity when the proceeding is specifically authorized by law, the entity conducting the proceeding applies law to fact in an adjudicatory manner, the proceeding contains adequate procedural safeguards, and there is a public policy justification for encouraging absolute immunity for proceeding participants…. The disciplinary proceeding at issue was not quasi-judicial for the purpose of affording absolute immunity to D's statements because it lacked sufficient procedural safeguards necessary to ensure the reliability of the information presented: …

D did not testify under oath or certify to the truth of her statements, she could not have been disciplined for failing to testify truthfully because she had graduated from Yale before the hearing, and those shortcomings undermined the reliability of D's statements in view of how fundamental the oath requirement is to the reliability of the information presented.

The committee's procedures, which vested the hearing panel with discretion to ask the questions submitted by the plaintiff, did not afford the plaintiff or his counsel a meaningful opportunity to cross-examine or otherwise to confront D in real time, there was nothing in the record to indicate that the hearing panel varied from its procedures in a manner that afforded the plaintiff fundamental fairness, those procedures hampered the plaintiff's ability to ask legitimate questions or sequence questions in a way that he believed would have tested the veracity of D's testimony, and, in view of the importance that the opportunity to meaningfully cross-examine adverse witnesses has to the truth-seeking function of any judicial or quasi-judicial proceeding, the plaintiff was denied a fundamental procedural protection inherent in such proceedings.

Likewise, the committee's procedures did not afford the parties a reasonable opportunity to call witnesses, insofar as the parties could not independently call a witness but were required to submit names to the hearing panel, which had the sole discretion to decide whether to call those proposed witnesses for questioning, and, therefore, failed to comport with the protections typical of quasi-judicial proceedings.

Moreover, although the plaintiff was accompanied by counsel at the disciplinary hearing, the committee's procedures prohibiting counsel from submitting documents or arguing on the plaintiff's behalf, raising objections, or participating in the questioning of witnesses materially limited the assistance of counsel to the point that counsel was effectively rendered irrelevant, and those restrictions, although not dispositive, also supported the conclusion that the disciplinary proceeding was not quasi-judicial.

Furthermore, there was no adequate record of the proceeding because the committee's procedures did not require the keeping of record statements, testimony, or questions, the hearing panel specifically denied the plaintiff's request that it make a transcript or other electronic recording of the hearing for the purpose of further review, the plaintiff's ability to appeal was severely constrained by the lack of a transcript or recording, and the restriction was especially prejudicial in light of the fact that the plaintiff's counsel was not permitted to object when members of the hearing panel allegedly assumed facts not in evidence or otherwise violated core evidentiary principles.

The court concluded that "A qualified, rather than an absolute, privilege is available to alleged victims of sexual assault who report their abuse to proper authorities at institutions of higher education," and plaintiff's allegations of malice on D's part would, if believed by the factfinder, suffice to overcome this qualified privilege:

The plaintiff alleged in his complaint that D had made romantic advances toward him, that she initially told a campus health care worker that she had engaged in consensual unprotected sex, that she reported a sexual assault only because she was ashamed of her sexual advances, and that she was encouraged by the larger political movement waged against the plaintiff, and, on the basis of those allegations, a reasonable inference could be drawn that D knowingly fabricated claims of sexual assault against the plaintiff.

But the court noted that "a more complete factual record could warrant revisiting the issue of D's qualified privilege at a later stage of the proceedings, such as at the summary judgment stage or if and when the case is submitted to the jury."

Thanks to Prof. KC Johnson for the pointer.