I characterized it as “subconstitutional” back in 2015, not because I had the future potential of a claim of quasi-judicial immunity in mind, but because I wasn’t a big fan of calling it a “kangaroo court” because it was insulting to kangaroos. But in response to the question posed in the referral from the Second Circuit, the Connecticut Supreme Court gave chapter and verse as to what a sham and due process fiasco Yale’s Title IX procedures in holding that accusations made against Saifullah Khan were not entitled to absolute immunity.

If the name sounds familiar, it’s because Khan was prosecuted, and acquitted, of rape in Connecticut. Accusers’ Rights organizations condemned the verdict as a “victim’s worst nightmare” of being discredited on the witness stand. A more objective view would be that the accuser was revealed as a liar on cross. So what did Yale do about its falsely accused student? Take a wild guess. Of course it expelled Khan, because reasons.

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).

There is a privilege that immunizes allegations made in the course of litigation. But on appeal of the dismissal, the Second Circuit referred the question to Connecticut to determine whether under its law allegations made in the course of Title IX sex tribunal proceedings were worthy of the same immunity given for allegations made in real courts. In language that left no doubt (and in an opinion that is worthy of a full read), the Connecticut Supreme Court called out Title IX proceedings for the subconstitutional shams they are.

How critical was the Connecticut Supreme Court? This is from the shorter syllabus since the longer opinion goes on at far greater length.

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.

In other words, if you want to claim immunity under the litigation privilege, you can’t put on a dog and pony show that provides no due process and hide behind it as if it were some legitimate quasi-judicial proceeding from which an accuser derives protections while the accused gets burned at the stake.

But what about the “public policy” of encouraging, or at least not dissuading, accusers from raising their allegations?

There is no benefit to society or the administration of fair and impartial  disciplinary hearings in granting absolute immunity to  those who make intentionally false and malicious accusations of sexual assault. Those accused of sexual assault  in the higher education context often face life altering and stigmatizing consequences, including suspension or expulsion, criminal referrals, lack or revocation of employment offers, loss of future academic opportunity, and deportation. In the face of these consequences, we must acknowledge that the accused’s right to fundamental fairness is no less important than the right of the accuser or the larger community to achieve justice.

Indeed. The Connecticut Supreme Court “got it.”