History of the Khan case
On Friday, the Connecticut Supreme Court weighed in on whether a student accused of sexual misconduct can sue their accuser for defamation for statements made to the school during a Title IX proceeding. Khan v. Yale arose out of a complicated fact pattern that extended over years. The plaintiff, Saifullah Khan, was an undergraduate at Yale in 2015 when he was accused of sexual assault by a classmate. Yale started to investigate the allegation, but put the investigation on hold while a parallel criminal proceeding took place. Khan was found not guilty at the criminal trial in 2018. After the criminal case ended, Khan petitioned to resume his education at Yale and re-enrolled. After he re-enrolled, over a significant public protest from other students, the Yale Daily News published an article alleging that Khan had sexually assaulted a man in the fall of 2018, and Yale suspended Khan, allegedly for his own safety. Yale then resumed its investigation into the 2015 allegation, with the participation of the complainant who had already graduated Yale by that time. Yale’s hearing panel found Khan responsible for sexual misconduct, and Yale expelled him. Khan filed a federal lawsuit against Yale. He also sued the former classmate who made the accusation for defamation.
The federal district court dismissed the claims against Khan’s classmate, holding that Khan could not sue his accuser for defamation because the Yale Title IX proceedings were “quasi judicial,” which granted the parties an absolute privilege over the statements they made. An absolute privilege means that the speaker cannot be sued for defamation or related claims, even if the statements were knowingly false. Khan appealed that decision to the Court of Appeals for the Second Circuit, which decided the state-law question of how defamation privileges applied in the case was one the Connecticut Supreme Court would have to decide. The Second Circuit certified various questions about defamation privileges to the Connecticut Supreme Court.
The Connecticut Court Decision
As in most states, under Connecticut law there is an absolute privilege for statements made in judicial and quasi-judicial proceedings. In Friday’s opinion, the Connecticut Supreme Court explained that a proceeding is quasi-judicial if it is one in which a body applies law to facts, and there are procedural protections that ensure reliability and promote “fundamental fairness.” Of course, even if a statement is not privileged it must still meet the definition of defamation in order for the person making it to be held liable. False statements of fact can be defamatory, but not statements of opinion. In addition, there may be other privileges beyond the one addressed in this case that could apply to shield someone from a defamation claim.
Before diving into the opinion, it is important to note that the Title IX process at issue was the process Yale used in 2018, before the 2020 federal Title IX regulations went into effect. As the court describes that process—and as we experienced when representing students in it in the years before 2020—at the hearing in that process the two parties would be in different rooms, connected to the hearing room by an audio/visual feed. The parties could suggest witnesses the panel should call, but the panel decided who it would or would not hear from. The parties could submit questions they wanted the panel to ask of the other party but had no opportunity to cross-examine each other. While parties could have counsel present, those lawyers could not voice objections, make arguments, or ask questions.
Application of Law to Facts
In deciding whether Yale’s proceeding was quasi-judicial, the court reaffirmed that the body in question must be applying “public law,” not its own rules, for the proceeding to qualify. That application of the law must be subject to judicial review, or be able to be altered or repealed by a public entity. In the Title IX hearing, Yale applied its own policies and procedures. However, the court noted that those policies were promulgated pursuant to a Connecticut state law that requires colleges and universities to adopt sexual assault policies and set forth certain procedural requirements for disciplinary proceedings. The court explicitly noted that at the time of the proceeding in question, there was no applicable federal law, but that as of 2020 there are federal Title IX regulations that detail how schools must respond to allegations of certain types of sexual misconduct.
Procedural Protections
After determining that the 2018 Title IX process was authorized by state law, the court turned to whether the process contained the kinds of procedural protections necessary for an absolute privilege to attach. The court noted that one key procedural protection it had found necessary to satisfy this requirement in the past is that testimony was made under oath or under certification that it is true and correct, so that there is a strong deterrent against giving false testimony. Another key procedural protection is the ability to challenge witness testimony through cross-examination. Other protections the court highlighted included notice, the opportunity to call witnesses, the opportunity to have “meaningful” assistance of counsel, and to be able to appeal on the record of the proceeding.
The court found that the 2018 Title IX process did not provide sufficient procedural protections to make it a quasi-judicial proceeding. The court noted that the procedure did not subject the parties to meaningful penalties for false statements (particularly when one party had graduated), did not provide an avenue for cross examination, did not allow parties to call witnesses to testify (because the hearing panel decided which witnesses it would hear from), did not allow parties to have meaningful assistance of a lawyer, and did not create a record or transcript the parties could use to appeal the decision. The court was careful to say it was not holding that all of these protections are necessary to make a proceeding quasi-judicial, but that the absence of all of them showed there were not sufficient procedural safeguards to promote fundamental fairness. This decision is consistent with the decisions of courts in other states that have found that school disciplinary processes do not afford an absolute privilege against defamation claims.
Qualified Privilege
After deciding that absolute privilege did not apply, the court turned to the question of whether there is a qualified privilege for providing testimony in a school sexual misconduct hearing. A qualified privilege will be defeated if the plaintiff can prove the defendant made the defamatory statements with actual malice. The court found that public policy in favor of encouraging disclosure of sexual assault and protecting victims of assault mandated that there be a qualified privilege in Title IX proceedings, consistent with the holdings in various other courts across the country. However, with respect to the facts of the Khan case, the court held that at the motion to dismiss stage there were sufficient facts pleaded in the complaint alleging that the complainant made her statements with actual malice—i.e. knowing they were false—that the case should not be dismissed.
What Immunity Applies to Current Title IX Processes?
Since the 2018 process at issue in this case, the landscape of federal (and state) law on sexual misconduct cases in higher education institutions has changed dramatically. In 2020 the federal government issued detailed regulations instructing schools how to handle these cases, including requiring various procedural protections that most schools had previously not provided. States, including Massachusetts, have passed their own laws regulating how these proceedings are to be conducted. The current regulations require many of the procedural protections the Connecticut court highlighted as relevant to ensuring fundamental fairness: detailed notice, the ability to present witnesses, cross examination by attorneys, and the creation of a record on which to appeal. Notably, the one thing the regulations do not require is any requirement that witnesses attest to the veracity of their statements, or any sanction for the making of false statements in these proceedings.
Under the Connecticut court’s opinion, it would seem that Yale’s current Title IX process, which follows the federal regulations and also contains a requirement that participants provide truthful information under the threat of discipline would constitute a quasi-judicial proceeding. It is interesting, though perhaps not surprising, that the procedural protections that advocates for students accused of sexual misconduct have spent years fighting to implement may have now created an absolute privilege for complainants—at least in Connecticut.
However, as the Khan court noted, the Biden administration has proposed new Title IX regulations that would remove some of the procedural protections the Connecticut court found relevant to its analysis. The Khan court specifically highlighted that under the proposed regulations there would be no requirement of a live hearing and therefore no requirement of cross-examination. The removal of that protection would be a dealbreaker for the absolute privilege analysis in Connecticut. The Khan court states: “Regardless of how Title IX regulations may be amended, we conclude that, for absolute immunity to apply under Connecticut law, fundamental fairness requires meaningful cross-examination in proceedings like the one at issue.” In addition, the proposed regulations would allow people who are not connected to the school to bring claims at the school. As the court noted, the fact that the Khan complainant was no longer a student, and Yale could not discipline her for making false statements, greatly reduced the reliability of those statements. It appears that if the proposed regulations go into effect, and if schools reduce the procedural protections they offer to the minimum required by the regulations, the processes will not be quasi-judicial and no absolute privilege can attach.
The Khan decision creates a situation where the procedural protections sexual assault advocates have opposed, particularly live hearings with cross-examination of the parties, may be what protects sexual assault victims from defamation claims. As people accused of sexual misconduct increasingly use defamation and other tort claims to strike back at their accusers, more courts will have to confront this question of whether and how complainants’ statements are privileged.
If you have experienced sexual misconduct at your school or have been accused of sexual misconduct or other violations of campus rules, contact our education attorneys at (617) 742-6020.