Absolute Immunity from Libel Lawsuits for Witnesses Testifying in Private Universities’ Title IX Proceedings?

This “judicial immunity” applies to witnesses testifying before a court. It is an old principle that was motivated by the fear that angry litigants might routinely sue witnesses against whom they testified, as well as that witnesses would be discouraged from speaking out because of this threat. Although witnesses may still be prosecuted if they believe that they are lying, this requires the prosecution to make an impartial and disinterested decision. The litigant would decide whether or not to bring a civil suit. This applies to all non-courtroom hearings.

Friday’s Second Circuit decision in Khan v. Yale Univ.Reena Raggi, Chief Judge Debra Ann Liveston, and Amalya Kerse all wrote the following:

While both were Yale University students in 2015, plaintiff Saifullah Khan was accused of sexual assault by defendant Jane Doe. Yale instituted university discipline proceedings against Khan and the State of Connecticut charged Khan 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. Yale applied a lower, preponderance standard for proof in its disciplinary proceedings and found Khan guilty of violating its Sexual Misconduct Policy.

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….

It thoroughly analyzed the Connecticut precedent and other jurisdictions on quasi-judicial immune, concluding it to be inconclusive. The court then certified the following questions.

[1.]Connecticut law says that a proceeding in which a person is involved can be considered quasi-judicious for the purpose of providing absolute immunity.

[2.]The first question asks “Yes” what are the requirements for non-governmental proceeding to become quasi-judicial? Specifically,

[a.]Does an entity have to apply the controlling law and not its own rules to facts in a proceeding? Check out Petyan against Ellis200 Conn. at 246; 510 A.2d 1337 Also see W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of Torts § 114, at 818-19 (5th ed. 1984).

[b.]Which of the “power factors” are most important? Kelley v. Bonney, 22 Conn., 567, 606 A.2d 693 Craig v. Stafford Construction, Inc.271 Conn., 85, 856 A.2d 372 apply to non-governmental entities being identified as quasi-judicial. If they apply, what factors are “in addition to”? id.Is it independent or in addition to a pre-law-to-fact obligation?

[c.]What, if any, role does public policy play in the identification of non-governmental entities as quasi-judicial? If so, how does this factor impact the law-to-fact requirements 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? Check out Craig v. Stafford Const., Inc.?, 271 Conn. 87-88; 856 A.2d 362. Kelley v. Bonney221 Conn.

[3.]If it’s possible to make a non-governmental proceeding quasi-judicial under Connecticut law, is the Yale University UWC 2018 proceeding properly considered quasi-judicial in this appeal?

[4.]If Question 3’s answer is yes, would Connecticut give Jane Doe absolute quasi-judicial immunity?

[5.]If “no” is the answer to question 3, would Connecticut grant Jane Doe qualified immunity, or none at all?

Khan’s actual claims

Here are the facts from Khan’s complaint. Documents were also included in Khan’s case. We do not have any opinion as to whether or not the “facts” we describe below are correct. Actually true. It is our task to determine 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….

Khan was accompanied by Jane Doe, a Yale student. They attended an off-campus party organized by the secret societies of Yale on Halloween night 2015. Khan and Doe departed the party to attend an event on campus. Doe started to feel sick and Khan and Doe left the party to go to Trumbull College. Trumbull College is the Yale dorm where Doe and Khan lived. Khan claims that Doe dropped Doe at Khan’s room, and he began to go back to his own home. Doe then called Khan and requested him to call a friend. Khan returned to Doe’s bedroom and had consensual sexual sex, before falling asleep.

Doe then told her friends Khan had raped Doe the next day. Doe reported that she had engaged in unprotected consensual sex the day after Doe requested contraceptive help at the university’s medical center. Doe repeated her claim of rape a few days later. She was then directed to Yale Women’s Center. Doe was assisted by a counsel (defendant David Post) in filing a university complaint against Khan. A Yale deputy dean, Joe Gordon, suspended Khan and ordered him to vacate the dormitory. Yale soon began an investigation against Khan in accordance with the university’s Sexual Misconduct policy.

Around the same time, Doe was also being investigated by the Yale Police Department for sexual assault. The State of Connecticut eventually charged Khan with the fourth, fifth, sixth, and seventh degrees of sexual assault. At Khan’s request, Yale agreed to stay its disciplinary proceedings pending the conclusion of his criminal case….

Khan’s criminal case would remain unresolved for at least two years. A Connecticut jury exonerated Khan after just two weeks of trial. It acquitted Khan after only one full day. Khan attributes the outcome to Doe’s attorney being able to cross-examine Khan. Doe described various memories lapses and inconsistencies in Khan’s account of the sexual assault and she received flirtatious communication from Khan days prior to 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 the outcome thereof were not reported in favorably by The Yale Daily News. After Khan’s acquittal, more than 77,000 people signed petitions urging Yale to not readmit Khan. Yale nevertheless permitted Khan to resume full-time student status at the start of the Fall 2018 term….

This was on the 5th of October 2018. 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.} Yale administrators and police contacted Khan the day after the article had been published to determine if Khan was feeling unduly stressed. Khan assured Yale police and administrators that Khan was not in distress, but he agreed to undergo a Yale mental health consultation. Khan claims that there was no reason to be concerned by the consult.

Khan requested to meet with Yale officials on October 7, 2018. Khan was reluctant to accept a letter by Marvin Chun (a Yale dean) advising Khan that immediate exclusion and suspension from Yale were necessary for his safety, well-being, and the safety of all university members.

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….

A UWC hearing panel met in November 2018 to hear Doe’s claim that Khan had sexually assaulted and raped her three years prior. Khan as well as Doe were present at the hearing. Doe, who had just graduated Yale, was present by phone. Khan and his lawyer-advisor were not allowed to attend the hearing, even though Doe wasn’t physically there. Doe gave her preliminary statements and answered questions from the panel. Khan and his attorney had to be in another area, which was only equipped with an audio feed of Doe’s appearance. Khan’s lawyer was not allowed to speak for his client or voice objections on panel questions Khan claims were compounded or assumed facts that aren’t in evidence.

This is the court’s final UWC hearing panel report. 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….