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Do Witnesses in Private Universities’ Title IX Proceedings Have Absolute Immunity?

Friedman & Nemecek, L.L.C.

On March 4, 2022, the United States Court of Appeals for the Second Circuit certified an important question to the Connecticut Supreme Court, which may have drastic effects on Title IX and other private university hearings across the country.

Do witnesses testifying in non-courtroom hearings, such as a private university’s Title IX or Student Code of Conduct hearings have judicial immunity?

Often times, students who are accused of sexual misconduct in an educational setting may face the threat of criminal charges, as well as a formal school disciplinary process. Under these circumstances, the accuser may testify at both criminal and Title IX proceedings. At a criminal proceeding, witnesses enjoy “judicial immunity,” meaning that their testimony cannot be used against them in a subsequent lawsuit. The rationale behind this principle is to allow witnesses to testify without worry that the person(s) they testified against will sue them for claims such as libel or defamation. However, a question arises as to whether this same principle applies to witnesses in non-courtroom hearings, such as a Title IX proceeding.

Khan v. Yale University

The case of Khan v. Yale Univ. presents defendant, “Jane Doe,” accusing plaintiff, Saifullah Kahn, of sexual assault in October of 2015. Doe lodged a formal complaint against Khan with Yale University, which led to his initial suspension. The Yale Police Department began a parallel investigation which led to criminal charges being brought against Khan.

Two-and-a-half-years later, a Connecticut jury fully acquitted Kahn after at trial. Despite the acquittal, the disciplinary proceedings administered by Yale (which were continued pending the results of his criminal case, per Khan’s request) found Khan to have violated its Sexual Misconduct Policy. Khan was expelled from Yale.

Khan then filed a lawsuit against Doe for defamation and tortious interference with contract. The lawsuit also named Yale and its employees for violating Title IX of the Education Amendments of 1972 among other claims.

On February 9, 2021, a partial final judgment of the district court dismissed Khan’s complaint against Doe, in its entirety, on absolute quasi-judicial immunity grounds. Khan appealed, arguing that the proceedings of non-government entities cannot be quasi-judicial and, thus, Doe's accusations of sexual assault in a private university's disciplinary hearing are not shielded by absolute immunity.

After reviewing limited judicial precedent, the Second Circuit certified the question of whether quasi-judicial immunity may apply in these scenarios. Now, it will be up to the Connecticut Supreme Court to address this question of Connecticut law.

This decision will certainly be one to watch, as it may have a drastic impact on private universities’ Title IX and Code of Conduct hearings around the country and the ability of those falsely accused to bring civil claims against their accusers. Due to a lack of significant precedent from across the country, this decision is likely to serve as a guiding decision throughout the nation. Regardless of the outcome, it is expected that the decision will be met with criticism due to the highly polarizing issues before the court.

Extending Judicial Immunity to Non-Courtroom Hearings

Proponents of extending judicial immunity to non-courtroom hearings will likely argue that victims will be more willing to come forward, as they will be protected from retaliation in the form of a lawsuit. Conversely, opponents of extending immunity will likely argue that immunity will provide little recourse for those students who have faced malicious and false allegations, which have drastic effects on their reputation as well as their future academic and employment opportunities. In a courtroom setting, there is obvious motive to tell the truth, as witnesses must testify under oath and under the penalty of perjury. However, non-courtroom hearings are not accompanied by these incentives and consequences for false testimony. As such, opponents of extending immunity will point to the threat of civil liability as a strong motive to ensure truthful testimony.

Contact a Team of Experienced Title IX Attorneys

At Friedman Nemecek Long & Grant, L.L.C., L.L.C., our team of experienced Title IX and Student Disciplinary lawyers have represented students, faculty members, and coaches across the United States. Our lawyers stay abreast of the constant changes affecting Title IX proceedings and utilize our specialized knowledge, passion, and creative approach to provide aggressive and robust representation in Title IX and Student Disciplinary matters. If you have questions regarding a student’s rights in Title IX proceedings, or you have been subjected to, or accused of, sexual misconduct, sexual assault, dating violence, or sexual harassment on campus, please call Friedman Nemecek Long & Grant, L.L.C., L.L.C., in Cleveland, Ohio at 216-928-7700 for a free initial consultation.

The full Opinion can be found by clicking here.