Connecticut Supreme Court issues blistering critique of Yale’s unfair Title IX proceedings

In a unanimous decision late last month, the Connecticut Supreme Court issued a blistering critique of Yale University’s lack of procedural safeguards in its Title IX proceedings. The case, Khan v. Yale University, addressed whether an accusing student is entitled to absolute immunity in a defamation suit stemming from statements made during a Title IX proceeding. The Court ruled that because Yale's Title IX proceedings lack the safeguards to ensure fundamental fairness found in other “quasi-judicial” proceedings, the accusing student does not possess absolute immunity.

The opinion serves as a warning to institutions and the federal Department of Education as it readies new Title IX regulations that would remove many of the due process protections the Connecticut Supreme Court recognized as essential for fundamental fairness.

The plaintiff, Saifullah Khan, brought a defamation case against his classmate who accused him of sexual assault in 2015, for allegedly making false statements during the campus proceedings which resulted in his expulsion from Yale university. Yale stayed its proceedings pending the outcome of criminal proceedings related to the same allegations, and Khan was allowed to resume his education in 2018 after he was acquitted of the criminal charges. 

But soon after he resumed his studies, the campus newspaper reported on his case, which also resulted in new allegations against him. Yale demanded that Khan undergo a mental health evaluation, which he agreed to, but suspended him again when he refused to meet with campus administrators. Yale launched a new hearing regarding the 2015 allegations, and the accusing student, who had already graduated, provided a statement via teleconference, but she was never put under oath. 

The Court had no trouble recognizing that without active assistance of counsel, a campus disciplinary proceeding is fundamentally unfair.

At the conclusion of the hearing, which was devoid of basic procedural protections, Khan was expelled from Yale, and subsequently brought the defamation suit against his accuser at the heart of this case.

The accusing student claimed she was entitled to absolute immunity from liability for any false statements made during the proceedings because those proceedings were quasi-judicial — that is, closely analogous to a court proceeding. According to the Court:

[A] proceeding [is] quasi-judicial only when the proceeding at issue is specifically authorized by law, applies law to fact in an adjudicatory manner, contains adequate procedural safeguards, and is supported by a public policy encouraging absolute immunity for proceeding participants.

Applying this standard, the Court concluded that the accusing student was not entitled to absolute immunity. Instead, in order to protect the “public interest in encouraging the reporting of sexual assaults to the proper authorities at institutions of higher education,” the Court concluded that an accusing student is entitled to a qualified immunity which may be pierced if the plaintiff can prove that false statements were made during the proceedings with malice. This is an appropriate result, but how the Court reached this conclusion is of particular significance. 

Setting the table, the Court acknowledged the importance of campus disciplinary proceedings to ensure students learn in a campus environment free from sexual violence. But rather than decide that the goal of a sexual-violence-free environment justified curtailing due process, the Court offered a compelling statement about why those procedural rights are so important: 

[W]e must recognize a competing public policy that those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled a sexual predator. Statements made in sexual misconduct disciplinary proceedings that are offered and accepted without adequate procedural safeguards carry too great a risk of unfair or unreliable outcomes.

[ . . . ]

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.

For years, FIRE has been pointing out that the stakes are high for accusing and accused students alike. What’s at stake for the accused is often trivialized by those who seek to curtail due process protections in Title IX proceedings. But Khan’s case illustrates many of the reasons why we must reject the argument that cutting corners is no big deal merely because the accused can’t be sent to jail at the conclusion of the proceedings.

Being expelled is obviously serious in and of itself, but Khan was also kicked out of his student housing twice — rendering him homeless — and faced the imminent loss of his health care coverage. And as an international student on a student visa, he also ran the risk of being deported if he was expelled. Moreover, while not addressed in this opinion, statements made by accused students in campus proceedings may be admitted against them in subsequent criminal proceedings, resulting in a waiver of the Fifth Amendment’s protection against self-incrimination.

Hopefully, the federal Department of Education and lawmakers across the country will recognize that institutions must be required to provide meaningful procedural protections during campus disciplinary hearings. 

Returning to the analysis of whether Yale’s proceedings were quasi-judicial, the Court acknowledged that the institution’s campus sexual assault disciplinary proceedings are “specifically authorized by Connecticut law.” Nevertheless, the Court concluded that the “proceeding did not have adequate procedural safeguards to be recognized as quasi-judicial for the purpose of affording absolute immunity to Doe.”

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The Court then analyzed the sufficiency of the proceeding’s procedural protections:

After reviewing the record before us, we conclude that [Yale’s campus sexual assault] proceeding did not incorporate sufficient procedural safeguards to be considered quasi-judicial. Specifically, the [Yale] proceeding failed (1) to require complainants to testify under oath or to subject them to explicit and meaningful penalties for untruthful statements, (2) to provide Khan, or his counsel, the meaningful opportunity to cross-examine adverse witnesses in real time, (3) to provide parties a reasonable opportunity to call witnesses to testify, (4) to afford Khan the opportunity to have the active assistance of counsel during the [campus sexual assault] hearing, and (5) to provide Khan any record or transcript of the proceeding that would assist him in obtaining adequate review of the [Yale] decision or to expose the legitimacy or fairness of the proceeding to public scrutiny.

The Court then discussed each shortcoming which undermined the reliability of the proceedings. The missing safeguards discussed in the opinion are some of the same protections we judge institutions on in our annual Spotlight on Campus Due Process report, where we rate the fairness of campus disciplinary proceedings. Although they are each noteworthy, two of the shortcomings emphasized in the opinion in particular stand out: the lack of a right to active assistance of counsel and the failure to provide meaningful opportunity to cross-examine adverse witnesses in real time. The Court had no trouble recognizing that without active assistance of counsel, a campus disciplinary proceeding is fundamentally unfair: 

[Yale’s campus sexual assault] proceeding materially limited the assistance of counsel throughout the hearing. Under [Yale’s] procedures, ‘‘[a] party may be accompanied by an adviser . . . [but] [t]he adviser may not submit documents, either directly or indirectly, on a party’s behalf at any stage of the process, nor speak for the party during an interview with a [fact finder] or during a formal hearing.’’ In practice, this meant that counsel could not present any argument, either orally or in writing, on Khan’s behalf, raise objections, or be present during — let alone participate in — the questioning of witnesses. These restrictions effectively rendered counsel irrelevant, relegating Khan’s attorney to the status of the proverbial potted plant.

Our cases recognize that the assistance of counsel during a quasi-judicial proceeding is an important procedural safeguard to ensure the procedural and evidentiary fairness of a judicial proceeding . . . The active assistance of counsel is especially important in settings like the one at issue, when the accused or accuser may lack experience with self-advocacy or representing his or her interests in an adversarial process that involves significant consequences for the individual parties.

The Court’s discussion of the critical importance of cross-examination is equally compelling:

The opportunity to meaningfully cross-examine adverse witnesses is vitally important to the truth seeking function of any judicial or quasi-judicial proceeding and is necessary if a university’s disciplinary proceeding is to be considered quasi-judicial.

[ . . . ]

Meaningful cross-examination allows for witness testimony to be challenged in real time, whether in person or through advanced video technology that allows for instant two-way communications and follow-up questions. It is equally important, in our view, that the accused and the accuser be provided a chance to cross-examine one another so as to allow the fact finder to assess the consistency of testimony and demeanor of both the parties when their testimony is called into question. 

Our review of the [Yale] procedures provides us with no assurance that Khan had a meaningful opportunity to cross-examine or otherwise confront Doe in real time. [Internal citations omitted.]

The Court’s emphasis on the essentiality of cross-examination is especially relevant in light of the fact that the Department of Education’s pending revisions to the current Title IX regulations would make offering the right to cross-examination optional. In fact, the Court used a footnote to acknowledge that unfortunate context: 

At the time this opinion was written, the Department of Education had proposed amendments to Title IX regulations that would eliminate any cross-examination requirement at postsecondary institutions . . . 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. [Emphasis added.]

FIRE has long argued that campus disciplinary proceedings must include robust procedural protections because their reliability depends on those protections. We are gratified that the Connecticut Supreme Court unanimously agrees. The case also illustrates how eliminating procedural protections in order to “help” accusing students can spectacularly backfire when the proceedings lose their credibility and with it, the qualities of a proceeding that justify granting an accuser broader immunity from liability for potential factual misrepresentations. 

Hopefully, the federal Department of Education and lawmakers across the country will recognize that institutions must be required to provide meaningful procedural protections during campus disciplinary hearings.