What Yale did to Saifullah Khan after his swift acquittal on a rape charge is a fiasco of the highest order, and so he pursued a defamation action against his pseudonymous accuser for having given false testimony against him at Yale’s Title IX hearing. The district court dismissed, holding that the accuser was entitled to absolute quasi-judicial immunity for her testimony.
The issue has been raised and decided in other circuits based on the state caselaw as to what constitutes a quasi-judicial proceeding, and what level of immunity for testimony should apply. The Second Circuit certified questions to the Supreme Court of Connecticut to decide.
[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?
There has been a split in other circuits, other states, over whether this testimony should be immune from subsequent suit for defamation, but it raises some very significant questions with broader implications.
if an accuser can be sued for defamation for testimony given at a Title IX hearing, would they still be willing to testify and take the risk? Even truthful witnesses can come off poorly, lose and be exposed to civil liability. Is the interest in protecting an accuser’s access to the process sufficient to eliminate this risk, as it is otherwise in court proceedings where testimony is immune?
Then again, this involves a private institution and thus lacks the imprimatur of even an administrative agency, no less a court. At the same time, these hearings are held as a consequence of federal administrative mandate. So even though they’re run by a private institution, it’s not as if the government doesn’t have its finger in it.
But if Title IX sex tribunals are quasi-judicial, what are the implications for the fact that they are also subconstitutional? The degree of due process is minimal at present, but what about before the last Title IX regs, about those universities that reject or circumvent the minimal due process rules?
The new DoE OCR under the old Catherine Lhamon is in the process of trying to undo the minimal due process requirements imposed by DeVos. Can accusers simultaneously enjoy some version of immunity for testimony at Title IX sex tribunals which fail to provide the requisite due process expected of a process deemed quasi-judicial?
*Tuesday Talk rules apply.
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Brilliant Catch-22 here. It’s *quasi*-judicial, so few of the usual rules apply, such as testifying under oath or risk of perjury. But if someone lies, you can’t sue for defamation, because it’s quasi-*judicial*. Fundamental fairness requires that parties in a proceeding are compelled to tell the truth, with assured punishment to follow for willful failure to do so. Of course, when you assume a priori that one of the parties is always telling the truth, what need is there to compel that party to be truthful?
I suspect that deference to quasi-judicial proceedings such as the defamation protections for testimony are provided due to an assumption of good faith handling by the proceedings administrators to ensure fairness. Assuming the accuser is never lying hardly counts as good faith in that respect. Maybe we should call Title IX cases quasi-quasi-judicial to mark that distinction.
Quasi-judicial in a hippity-hoppity, marsupial sort of way. Earlier this week, press articles tied the suicide of Katie Meyer to stress induced by Stanford’s kangaroo student disciplinary system.
I would prefer (no surprise) due process, the right to cross, and sworn testimony. That level should obviously grant a litigation privilege.
I detest the modern system, which obviously is very far from good process. But if folks insist on using it, there should NOT be a litigation privilege. Absent cross and sworn testimony, a threat of defamation is needed to keep complainants, “neutral investigators,” and witnesses honest.
I’m not sure the threat of a defamation suit would mean much to most witnesses, who are likely to be students with nothing to their name but debt.
The question presented is: “Can accusers simultaneously enjoy some version of immunity for testimony at Title IX sex tribunals which fail to provide the requisite due process expected of a process deemed quasi-judicial?”
The district court opinion, Khan v. Yale, Docket No. 3:19-cv-01966 (D. Conn. January 7, 2021) contains the Connecticut legal test for litigation immunity, which is a Connecticut state law six factor test that focuses exclusively on the power of the adjudicatory body.
So the answer is a qualified yes, because due process is not a factor in the test for litigation immunity. This makes sense, because the two address different concerns: Litigation immunity makes parties willing to settle their disputes through legal process rather than through self-help by preventing secondary lawsuits for litigation conduct; due process ensures that litigation does not result in a garbage in, garbage out verdicts.
The yes is qualified because, as a private body, Yale and its Title IX tribunals may not be within the scope of litigation immunity. But that doesn’t mean that the Connecticut Supreme Court is going to spontaneously graft in due process concerns into the test.
This makes sense. Controlling people in proceedings lacking due process by preventing people from using the using the proceedings is a bad solution. Then people move on to self help solutions like making ‘bad people lists’, which are harder for the legal system to correct than ensuring a hearing has adequate due process.
This seems like a simple question but it isn’t. Since I’m just a dumb non-lawyer, let’s let attorney Dumpty explain:
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean–neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean different things–that’s all.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master–that’s all’
So yes, according to attorney Dumpty, Title IX Sex Tribunals At Private Universities are not at all “Quasi-Judicial” when we decide how the process should be managed, but they positively are “Quasi-Judicial” when witnesses are caught lying.
You misspelled quack.
What the ever-living fuck are you talking about?
Quasi = Quack? I dunno
Makes sense.
I don’t see any mention on “It’s Your Yale” about “Quasi-judicial” anything, not even in the fine print of its procedures. So is there a “false claims” to be made as well? Also, was the Title IX coordinator an authorized signatory for the school (assuming it was a Title IX coordinator calling the shots). If not, where does that put the school’s liability? I wonder what the school’s insurer says. Were the Title IX coordinator’s investigation expenses and salary paid for by federal funds? What are the rules that govern employees paid with federal funds?
https://your.yale.edu/university-policies-procedures-forms-and-guides
These aren’t relevant legal questions. If there’s a point buried in there, it remains hidden.