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A recent decision by Connecticut’s Supreme Court outlined what makes a Title IX investigation quasi-judicial.
STATELIB/Wikimedia Commons
A Connecticut Supreme Court decision allowing a former Yale University student who was accused of rape to sue for defamation could have implications that go beyond the scope of cases like it, legal experts say. Some even believe it could influence the legal challenges brought against the Biden administration’s new Title IX rules, set to go into effect this October.
The court’s decision could set a precedent in Connecticut allowing those who are accused in Title IX lawsuits to sue the complainants for defamation—at least at institutions where the Title IX investigation process does not qualify as quasi-judicial by the court’s standards.
The decision, which stresses the importance of fair proceedings and the “life altering and stigmatizing consequences” of being accused of sexual assault at an institution of higher education, could also potentially play a role in the anticipated legal battle over changes to federal Title IX regulations.
The case, which began in 2018, before the current federal Title IX regulations were implemented, involved a former Yale student named Saifullah Khan who was accused of raping another student, leading to Khan’s expulsion from the university. Khan, who was found not guilty in a criminal trial regarding the same assault, subsequently attempted to sue the complainant, known as Jane Doe, for defamation. Doe’s lawyer argued that she had absolute immunity—sometimes referred to as absolute privilege—from being sued for statements she had made during the Yale Title IX proceedings.
The case eventually made it to the state’s highest court, which ruled unanimously that Doe did not have absolute immunity, due to the disciplinary proceeding lacking a number of safeguards for the respondent that would have made the procedure quasi-judicial. Absolute immunity applies to statements when testifying in judicial or quasi-judicial settings.
The Connecticut Supreme Court provided five protections that would have made Yale’s Title IX proceedings quasi-judicial:
- Requiring the complainant to testify under oath or penalizing them if they are not truthful
- Allowing the cross-examination of opposing witnesses in real time
- Providing parties a reasonable opportunity to present witnesses
- Allowing the respondent to consult with their legal counsel
- Providing a record or transcript of the hearing afterward
“Although we do not maintain that all of these procedural features are required for our recognition of a quasi-judicial proceeding, we conclude that the collective absence of such features militates against a determination that the proceeding had adequate safeguards to ensure reliability and promote fundamental fairness,” the court’s opinion read.
The latter four of these protections are currently in place under controversial Title IX regulations implemented by the Trump administration, meaning that this decision would likely be irrelevant to any cases that have taken place since 2020. While some argue that those regulations make the Title IX proceedings fairer to students who are accused of sexual misconduct, others believe they make investigations too legalistic and place undue stress on those who bring sexual misconduct charges.
“Even when it is conducted through third parties, cross-examination can be used as a tool to harass Title IX complainants,” Alyssa Leader, an activist on Title IX issues, told Inside Higher Ed ahead of the finalization of Trump’s Title IX regulations. “Accused students can raise pointed questions designed to embarrass or traumatize the complaining party, such as questions about mental health, substance abuse or irrelevant details of the events alleged.”
Doe’s lawyer, James Sconzo, declined to comment on pending litigation. Norm Pattis, who is representing Khan, did not respond to an emailed request for comment.
Potential Legal Impact
Although this will not be the first time a respondent has successfully filed a defamation suit against the student who accused them of assault, Title IX victims’ rights advocates believe that the case could open the door for more such cases.
Elizabeth Tang, senior counsel at the National Women’s Law Center, fears that the ruling creates a situation where victims are trapped between a rock and a hard place. If their university doesn’t allow the respondent those aforementioned protections, the complainant may be sued and retraumatized during the intensive discovery process, she argued. But if the university does, the Title IX investigation itself will be retraumatizing.
“They have to weigh … which harms they’re going to be willing to endure. For a lot of survivors weighing this pretty impossible choice, they’re probably going to say to themselves, ‘Well, it’s better if I don’t report at all,’” she said.
A group of 15 organizations that advocate against gender-based violence made similar points in an amicus brief that argued for the court to grant Doe immunity.
The decision said Doe may be entitled to qualified immunity, which, in defamation cases, requires the plaintiff to prove actual malice, meaning the defendant knew their statement was false or didn’t care that it was likely false. But that immunity wouldn’t prevent the trial from moving forward as absolute immunity would, as a trial is often necessary to ensure the defendant hasn’t lost or abused their immunity.
Those who advocate for accused students’ rights disagree, seeing the ruling as a pathway for those students to have recourse against false claims. Edward Bartlett, president of SAVE, a group that opposes what it has called a “widespread problem of false allegations,” described this as a “milestone case” but stressed that it should only affect complainants who acted maliciously.
Others don’t believe the case will have a particularly strong effect at all. KC Johnson, a professor who has written critically about Title IX proceedings, said that fewer than 2 percent of Title IX investigations lead to a defamation suit.
“The core issue in 99 percent of these lawsuits is they want the record expunged because they need the expungement of the record to go on with their lives,” and a defamation lawsuit doesn’t help with that, Johnson said.
Citation in Regulatory Challenges
Where Johnson does think the ruling will play a central role is in challenges to Biden’s upcoming changes to Title IX regulations.
The president is expected to roll back Trump-era rules that required institutions to provide safeguards for respondents, like the right to cross-examine opposing witnesses (colleges would be allowed to keep those measures in place, but it remains to be seen how many will).
“To me, I thought, this opinion was one of the two clearest … for why the pre-DeVos regulations were unfair, and I think, even more generally, why fair procedures benefit everyone in the Title IX proceedings,” he said. The fact that the Yale Title IX investigation, which took place before those regulations went into effect, did not end in the same results as the criminal trial showed that “a reasonable outside observer could [not] be confident in the reliability of the outcome” of Yale’s process. (Yale did not respond to a request for comment on Thursday.)
He said that the opinion easily could have rejected the notion that Doe should not have absolute immunity without going into such depth about the importance of due process for the respondent. He also stressed that all seven Connecticut Supreme Court justices who signed the opinion were appointed by Democratic governors.
He doesn’t think the case will actually influence the federal rules, but “this opinion will be front and center in those challenges.”
Tang agreed that it ultimately won’t end up impacting the new regulations, saying that, even though there is a chance the case will be cited in litigation against the new regulations, she doesn’t believe a state court decision about whether a student who reports a sexual assault can be sued under Biden’s regulations has any impact on whether those regulations are legal themselves.
S. Daniel Carter, president of Safe Campuses LLC, a consulting firm focused on campus safety issues, also agreed.
“While I think it will be cited in a lot of claims filed, that’s far from an argument that it would be compelling grounds to overturn a federal regulation,” he said.
