Another Cautionary Title IX Story – Part 2

We recently posted about a Title IX case in which lack of due process in the campus procedures led a court to allow the defendant – who had been accused of rape, expelled, and then found not guilty by an outside court – to sue the complainant for defamation.* Inside Higher Ed now has a lengthy article on the case: [excerpt]

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…

Full story at https://www.insidehighered.com/news/students/safety/2023/07/14/yale-title-ix-defamation-case-may-impact-reporting-regulations.

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What you may miss in reading the article is that had Yale provided due process, the complainant would have been protected from being sued. That is, when due process is provided, witnesses who testify receive immunity from lawsuits concerning their testimony. Thus, due process protects both defendants and plaintiffs.

It’s easy to turn this tale into a political good-guys-versus-bad-guys story. (Due process rules were put in place for Title IX during the Trump administration and may be repealed by the Biden administration.) But whatever happens in DC, nothing prevents due process from being provided voluntarily by universities. Those universities, including UC, that have union-management agreements with grievance and arbitration systems for employees have systems that are routinely operated with due process. The procedures typically end with decisions by outside, professional arbitrators who ensure the kinds of due process outlined by the court in the Yale case. (A quick online check reveals that Yale itself has such agreements for union-represented employees. Why would it not provide a comparable system for Title IX?)

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*https://uclafacultyassociation.blogspot.com/2023/07/another-cautionary-title-ix-story.html.