Absolute Immunity from Libel Suits for Witnesses Testifying in Title IX Proceedings of Private Universities?

Witnesses who testify in court enjoy such “judicial immunity”; this is a long-standing principle, driven by fears that otherwise angry litigants would systematically sue witnesses who testified against them, and that the threat of such prosecutions would deter witnesses from coming forward. (Prosecutors can of course still prosecute witnesses they believe have lied, but this requires independent and generally disinterested judgment by the prosecutor; whether to bring a civil suit would be at the discretion of the litigant.) apply to non-courtroom hearings? , including those of private organizations?

Friday’s second circuit decision in Khan vs. Yale Univ.written by Justice Reena Raggi and joined by Chief Justice Debra Ann Livingston and Amalya Kearse, just certified this issue to the Connecticut Supreme Court:

In 2015, when they were both students at Yale University, defendant “Jane Doe” accused plaintiff Saifullah Khan of sexual assault. As a result, Yale initiated academic 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 without either of these proceedings at the university hearing. Holding the prosecution to a standard of proof beyond a reasonable doubt at trial, a jury acquitted Khan of all criminal charges. Applying a lesser and overriding standard of proof to its disciplinary proceedings, Yale found that Khan had violated its policy on sexual misconduct and expelled him.

Khan is seeking to plead Doe’s sexual assault charges for the third time, suing Doe in the United States District Court for the District of Connecticut…for defamation and tortious interference with contract, claims he would bring a charge against paramount in any trial. {In the same complaint, Khan also sued Yale and various of its employees for violation of Title IX of the Education Amendments of 1972, as well as violation of the state’s Privacy, Contract, and implied warranty of fair use, and for negligence and intentionally inflicting emotional distress.}

Khan is now appealing a February 9, 2021 partial final judgment of the district court dismissing his complaint against Doe in its entirety on grounds of absolute quasi-judicial immunity…. Specifically, Khan argues that proceedings by non-governmental entities cannot be quasi-judicial, and therefore Doe’s sexual assault charges at a private university disciplinary hearing are not protected by immunity. absolute….

The court considered at length the precedent, in Connecticut and outside, on quasi-judicial immunity, found it inconclusive, and certified the following issues:

[1.] Under Connecticut law, can a proceeding before a non-governmental entity ever be considered quasi-judicial for the purposes of granting absolute immunity to participants in the proceeding?

[2.] If the answer to the first question is “yes”, what conditions must be met for a non-governmental proceeding to be recognized as quasi-judicial? Specifically,

[a.] Should an entity apply applicable law, and not just its own rules, to the facts at issue in the proceeding? To see Petyan v. Ellis200 Connecticut at 246, 510 A.2d 1337; see also W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of Torts § 114, p. 818-19 (5th ed. 1984).

[b.] How, if at all, the “power” factors listed in Kelley v. Bonney221 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 nongovernmental entity as quasi-judicial; and, if applicable, are these factors “in addition to”, identifier.or independently of a preliminary requirement of law and fact?

[c.] How, if at all, does public policy inform the identification of a non-governmental entity as quasi-judicial and, if so, is this consideration additive or independent of a requirement of law and of the listed facts? Kelley/Craig The factors?

[d.] How, if at all, the procedures typically associated with traditional court proceedings, such as notice and opportunity to be heard, take place; the ability to be physically present throughout a procedure; an oath requirement; the ability to call, examine, confront and cross-examine witnesses; the ability to be represented by counsel – informing the identification of a proceeding as quasi-judicial? To see Craig vs. Stafford Const., Inc.271 Connecticut, p. 87-88, 856 A.2d 372; Kelley v. Bonney221 Conn. at pages 568-70, 606 A.2d 693.

[3.] If it is possible under Connecticut law to identify a non-governmental proceeding as quasi-judicial, then, in light of the answers to the above questions, the 2018 Yale University UWC proceeding in cause in 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 this UWC proceeding?

[5.] If the answer to question 3 is “no”, would Connecticut grant defendant Jane Doe qualified immunity or no immunity?

Khan’s factual claims:

The following facts are taken from Khan’s Complaint, the documents incorporated therein, and facts of which we may take judicial notice. For current purposes, “we express no opinion as to whether the ‘facts’ we detail below are in fact true. Our task is limited to determining whether, if [Khan’s] allegations were true, they would state a … allegation. In applying this standard, we are compelled 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 one point, Khan and Doe left the party together to attend a campus event. When Doe began to feel unwell, she and Khan left the event and returned to Trumbull College, the Yale dorm where they both resided. Khan claims that after dropping Doe off in his room and starting to walk back to his own, Doe called him back and asked him to watch out for a friend. After Khan did so, he returned to Doe’s bedroom where the two had consensual sex before falling asleep.

The next morning, Doe told friends that Khan had raped her. On the same day, however, when Doe sought contraceptive assistance at the university’s health center, she said she had consensual, unprotected sex. A few days later, when Doe publicly repeated her rape complaint, she was directed to the Yale Women’s Center. There, an adviser (the defendant David Post) helped Doe prepare a formal academic complaint against Khan. Upon receipt of this complaint, a Yale vice-dean (the defendant Joe Gordon) suspended Khan, ordering him to leave his dorm and leave campus. Shortly thereafter, Yale began disciplinary proceedings against Khan under the university’s sexual misconduct policy.

Around the same time, the Yale Police Department opened an investigation into Doe’s sexual assault complaint. This eventually led the State of Connecticut to charge Khan with first, second, third, and fourth degree sexual assault. At Khan’s request, Yale has agreed to suspend its disciplinary proceedings pending the conclusion of its criminal case….

The state’s criminal case against Khan would not be resolved for about 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 day of deliberations. Khan attributes the result to her lawyer’s ability to cross-examine Doe, pointing out various memory lapses and inconsistencies in her accounts of the alleged sexual assault, and prompting flirtatious communications she had sent Khan in the days leading up to Halloween. 2015. {Khan is not prosecuting Doe for statements made at trial, conceding that such testimony is protected by absolute judicial immunity.}

Khan’s trial and its outcome have been the subject of unfavorable reports in the Yale Daily News. Subsequently, more than 77,000 people signed a petition urging Yale not to readmit Khan, despite his acquittal. Yale nevertheless allowed Khan to resume full-time student status at the start of the 2018 fall term….

On October 5, 2018, the Yale Daily News reported new sexual assault charges against Khan by a man – not a Yale student – ​​who claimed Khan repeatedly assaulted him in locations outside of Connecticut. {Khan says these charges did not result in any criminal charges or academic disciplinary proceedings against him.} On the day the article was published, police and Yale administrators contacted Khan to see if he was unduly distressed to to need professional help. Khan assured them he was not in distress but accepted a mental health consultation at Yale Infirmary. Khan says 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 college and removal from campus was “necessary for your safety. physical and emotional well-being and/or the safety and well-being of the University community.

Subsequently, Khan was not allowed to return to the Yale campus until November 2018, when Yale resumed its sexual misconduct disciplinary proceedings against Khan based on Doe’s complaint in 2015….

In November 2018, a UWC Hearing Panel convened to consider Doe’s complaint that Khan had sexually assaulted her on campus three years earlier. Doe and Khan appeared at the hearing: Khan himself; Doe (who had by then graduated from Yale) via teleconference from a remote location. Despite the fact that Doe was not physically present, neither Khan nor his counsel were permitted to be in the courtroom when Doe made his opening statement and answered questions from the panel. Instead, Khan and his lawyer had to stay in another room, only having an audio feed of Doe’s appearance. Khan’s attorney was also not permitted to speak on behalf of his client or express objections to panel questions which Khan said were made up or supposedly unproven facts.

The final report of the UWC Hearing Panel is not before this court. Khan, however, claims the panel found he violated Yale’s sexual misconduct policy during his 2015 meeting with Jane Doe, following which Yale expelled him….