No Absolute Privilege for Accuser's Allegations in High School Sex Misconduct Investigation,

because the investigations doesn't offer the sort of due process available in a judicial trial.

If Alice accuses Bob of some misconduct (sexual or otherwise) in a statement to a third party, Bob can sue Alice for defamation. He would have to show that the statement is false, and generally speaking that Alice was at least negligent in making that allegation. But if he does show this, he would generally be able to prevail.

If Alice makes the accusation in some context where she is protecting some legitimate interest of her own or of the third party—for instance, the third party is Alice and Bob's employer—then she might be protected by a "qualified privilege." To oversimplify slightly, this basically means that she won't be liable unless she knows the statement is false (or at least likely to be false).

But if Alice makes the statement about Bob in court, then she as a witness is generally absolutely immune from defamation liability. She might still be prosecuted for perjury, if the prosecutor concludes that she deliberately lied. But she needn't fear a lawsuit from Bob. And the same is true in other "quasi-judicial" proceedings.

What happens, though, with Title IX proceedings, whether in K-12 schools or in colleges? Should complainants and other witnesses be entitled to the absolute privilege, as they are in court? Or should they be entitled only to qualified privilege? (It's generally accepted that at least a qualified privilege would apply.)

Gonzales v. Hushen, decided Sept. 28 by the Colorado Court of Appeals, in an opinion by Judge Katharine Lum, joined by Judges Jerry Jones and JoAnn Vogt, holds that this depends on whether the Title IX proceedings offer enough procedural protections of the sort available in trials. In this respect, it follows the Connecticut Supreme Court's recent decision in Khan v. Yale Univ. (which was followed three weeks ago by the Second Circuit in that case, applying Connecticut law). An excerpt:

Generally, statements made in the course of judicial or quasi-judicial proceedings are absolutely privileged and cannot form the basis for a subsequent civil claim if the statements "bear some relation or reference to the subject of the inquiry." This is the case even if the statements "are false or defamatory and made with knowledge of their falsity." …  "Quasi-judicial" decision-making, as its name suggests, bears similarities to the adjudicatory function performed by courts….

"The purpose behind a grant of absolute immunity is to preserve the independent decision-making and truthfulness of critical judicial participants without subjecting them to the fear and apprehension that may result from a threat of personal liability." "A witness who knows that he might be forced to defend a subsequent lawsuit … might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence."

At the same time, … the doctrine of absolute immunity is "justified" by features of judicial proceedings that "enhance the reliability of information and the impartiality of the decisionmaking process."

If shadowed by the threat of liability, a witness might testify in a manner that would prevent a potential lawsuit, but would deprive the court of the benefit of candid, unbiased testimony. However, if the threat of subsequent civil liability is removed, witness reliability is otherwise ensured by oath, cross-examination, and the threat of criminal prosecution for perjury.

… Absolute immunity assures that "'witnesses can perform their … functions without harassment or intimidation,' while, at the same time, 'the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling … conduct.'" …

[W]e are mindful of the need to encourage victims of sexual assault to report the crimes allegedly committed against them, particularly because such victims are often reluctant to speak out due to "shame, guilt, [and] embarrassment," "concerns about confidentiality," and "fear of not being believed." We are also aware of the potential for abusers to use civil liability, or the threat of it, to silence or further victimize survivors.

At the same time, we recognize that the "mere allegation of sexual misconduct can be devastating to the accused. A determination that a person engaged in non-consensual sexual contact can potentially destroy the accused's educational, employment, and other future prospects." The right of the accused to receive fundamental fairness before imposing such consequences is no less important than the right of the victim to seek justice….

[W]e conclude that the application of absolute immunity cannot be justified where those safeguards are absent. Proceedings "that lack fundamental procedural safeguards 'do not adequately protect a critical public policy undergirding the doctrine of absolute immunity—to encourage robust participation and candor in judicial and quasi-judicial proceedings while providing some deterrent against malicious falsehoods.'" …

These safeguards may include, but are not limited to, the right to notice, the right to a hearing, the right to present oral and documentary evidence, the right to call witnesses, the right to cross-examine witnesses, the right to have the meaningful assistance of counsel (or other representation) during the proceeding, and the right to appeal the decision. Courts may also consider whether statements relied on by the decision-making body are made under oath or whether the decision-making procedures provide some other deterrent against untruthful statements. Because each proceeding is unique, no one safeguard is determinative. Rather, courts should look to the totality of the circumstances in determining whether the safeguards are sufficient to consider a proceeding quasi-judicial….

We conclude that the Title IX proceeding in this case did not contain sufficient procedural safeguards to be considered "quasi-judicial" for absolute immunity purposes. While the JCSD investigators apparently "collected" and reviewed evidence from defendants and Gonzales and interviewed unspecified "supplemental witness[es]," it is undisputed that there was no hearing, and there is no indication that Gonzales had the right or opportunity to call witnesses, cross-examine adverse witnesses or defendant daughters, or even review and respond to the "supplemental witness" statements and other evidence that JCSD reviewed in reaching its decision.

The court then discussed how the Title IX witnesses may still be protected by the qualified privilege:

Where the qualified privilege exists, there is a presumption that the communication was made in good faith without malice. The plaintiff has the burden of rebutting that presumption, and may do so by proving that the defendant published the statement with malice; that is, knowing the statement is false or communicating it in reckless disregard for its veracity. "Reckless disregard" in this context means "a high degree of awareness for probable falsity or serious doubt as to the truth of the statement."

While ill will and improper motive toward the plaintiff are not elements of actual malice, "evidence of the defendant's 'anger and hostility toward the plaintiff' may serve as circumstantial evidence of actual malice 'to the extent that it reflects on the subjective attitude of the publisher.'" …

[To avoid dismissal, in this case,] Gonzales must demonstrate a reasonable probability of proving [at an eventual jury trial] that, at that time the communications were made, the speakers knew that Gonzales had not committed sexual misconduct or in fact had "serious doubt" as to the truth of the sexual misconduct allegations. In making this determination, the court cannot weigh evidence, resolve conflicting factual claims, or make credibility determinations. Rather, the court must accept Gonzales's evidence as true and evaluate defendants' showing only to determine if it defeats Gonzales's claim as a matter of law.

Here's an excerpt of the factual allegations, which the court held were sufficient to allow Gonzales's defamation claim to go forward (note that the lawsuit is by Gonzales against two classmates and their mothers, based on allegations they made that Gonzales committed sexual harassment):

Defendant daughters were classmates with Gonzales at Evergreen High School (EHS), a public high school in Jefferson County. Defendant daughters alleged that Gonzales sexually harassed them at school. The allegations resulted in a Title IX investigation that led to Gonzales's expulsion from EHS. Gonzales was also tried as a juvenile on criminal charges relating to the allegations but was acquitted on December 20, 2019.

After acquittal, the Jefferson County School District (JCSD) communicated with Gonzales regarding re-admittance to EHS and recission of the Title IX findings that led to his expulsion. JCSD then notified defendants that Gonzales might be permitted to return to EHS. Between February 20 and 28, 2020, defendant mothers sent several emails to school officials voicing concerns about Gonzales's potential return.

On March 4, 2020, JCSD formally rescinded its prior Title IX finding due to Gonzales's acquittal, but it also re-opened the Title IX investigation. {Gonzales asserts that the re-opening was at least partially due to defendant mothers' emails.} On April 24, 2020, during the re-opened investigation, an attorney representing defendants prepared a "Title IX supplement," in which defendants reasserted some of their allegations. The attorney sent the Title IX supplement to the JCSD Title IX coordinator, apparently at the coordinator's request….

Gonzales vehemently denie[s] the sexual misconduct allegations. In support of his contentions that defendants made their statements with actual malice, Gonzales relie[s] on evidence relating to (1) inconsistencies in defendant daughters' allegations that were elicited during the criminal trial; (2) evidence of defendant daughters' ill will toward Gonzales; (3) credibility findings made by the judge presiding over the criminal trial; (4) his acquittal; and (5) the Title IX supplement.

Defendant daughters both asserted in their criminal trial testimony that they were approached by a teacher who became concerned after noticing that Gonzales would stare at defendant daughters. However, the teacher testified that this did not occur and that she only suggested that defendant daughters file a report after Alexandra [one of the girls] complained to her about Gonzales. The Title IX supplement repeated some aspects of the teacher's involvement. However, instead of alleging that the teacher approached defendant daughters due to her concerns about Gonzales's behavior, the Title IX supplement alleged that the teacher asked defendant daughters if they had made written reports to the school "upon hearing about [Gonzales's] concerning behavior and noticing [defendant daughters'] unease during class."

At the criminal trial, Alexandra testified in detail about an incident that she said took place during a school lockdown drill; however, the EHS principal subsequently testified that the only lockdown drill in the relevant year took place after Gonzales had already left the school. The Title IX supplement later submitted by defendant daughters and defendant mothers omitted this incident.

Ashley [the other daughter] testified that Gonzales touched her inappropriately at theater rehearsals on specific days in late August and early September. However, the judge presiding over the criminal trial found that Gonzales was not present at rehearsals on some of those days due to prior commitments. The Title IX supplement maintained that Gonzales had inappropriately touched Ashley beginning in late August but omitted reference to specific dates.

An investigator hired by Gonzales's parents attested that Alexandra altered the timeline of her allegations "multiple times" during her criminal trial testimony and that she identified multiple witnesses who she claimed had seen the alleged assaults. The investigator also attested that witnesses at the criminal trial, some of whom Alexandra had named in her testimony, did not recall observing or could not corroborate the problematic behavior that Alexandra described.

Testimony was also elicited at the criminal trial relating to a group chat in which defendant daughters participated. The chat "centered on [Gonzales] and his being weird or being thought of as weird." A witness described the chat as "hateful."

In the ruling from the criminal trial, the judge noted that the verdict "[came] down to issues of credibility and corroboration or lack of corroboration as to the charges," and while defendant daughters corroborated each other, "[t]here's no independent corroboration as to any of the incidents in terms of their sexual context for sexual arousal, gratification, or abuse." The judge further commented on defendant daughters "collaborat[ing]" with each other and noted that "[t]he accusations against [Gonzales] began to evolve and become more serious" after defendant daughters engaged in the group chat, which "appeared to solidify [their] belief that any [contact] was deliberate, not accidental."

Gonzales and his parents submitted affidavits attesting that defendant mothers were present during defendant daughters' testimony and during the testimony of the teacher who partially refuted their claims relating to the teacher's observations in class. It's unclear whether Nicole [one of the mothers] was present during the testimony of the other witnesses or for the judge's ruling; however, the record reflects that Julie [the other mother] "watched almost the entirety" of the criminal trial.

Finally, based on the relief requested in the Title IX supplement, Gonzales argues that defendants persisted in making allegations against him after the criminal trial in order to raise defendant daughters' grades, allow them to graduate with academic honors, and provide them with tuition credits for certain college courses.

This evidence, taken as true, establishes multiple inconsistencies in defendant daughters' allegations of sexual misconduct and that defendant mothers witnessed at least some, if not most, of those inconsistencies when they were elicited at the criminal trial. Additionally, when defendants submitted the Title IX supplement, they changed or omitted details relating to portions of the allegations that had been directly refuted during the criminal trial, which tends to show an awareness by all defendants that at least some of the allegations were false or that there was, at least, reason to doubt some aspects of the allegations.

Further, Gonzales submitted evidence tending to demonstrate that defendant daughters bore ill will toward him. And he asserts that the Title IX supplement establishes a possible motive for why defendants might persist in making false allegations despite the outcome of the criminal trial.

Taking this evidence together, we cannot conclude, as a matter of law, that a reasonable juror would not be able to find that defendants knew the allegations were false or had serious doubt as to their truth when they made their statements.

We are mindful that, as the trial court observed, Gonzales's acquittal does not necessarily mean that he did not commit sexual misconduct against defendant daughters. We acknowledge that defendant mothers submitted their own affidavits, in which they attested that they had no reason to disbelieve the allegations against Gonzales and had in fact received information tending to corroborate those allegations. And we acknowledge that the relief requested in the Title IX supplement may well be related to injuries suffered by defendant daughters as a result of sexual misconduct and the school's action (or lack thereof) in response. But we cannot make credibility determinations or weigh the evidence at this stage, and Gonzales's evidence creates a factual dispute as to these issues….

Carolyn Pelloux represents plaintiff.