Khan v. Yale University ( 2023 )

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SAIFULLAH KHAN v. YALE UNIVERSITY ET AL.
(SC 20705)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker, Alexander and Keller, Js.
Syllabus
The plaintiff, who was an undergraduate student at Yale College, sought to
recover damages in the United States District Court for the District of
Connecticut in connection with statements the defendant D, a classmate
of the plaintiff, made during a disciplinary hearing conducted by the
named defendant university’s committee on sexual misconduct (commit-
tee). In 2015, D accused the plaintiff of sexually assaulting her in her
dormitory, and the university suspended the plaintiff. The committee,
however, stayed the disciplinary proceedings against the plaintiff pend-
ing the outcome of a criminal case that the state had filed against him.
The plaintiff subsequently was acquitted on multiple counts of sexual
assault, and, in 2018, he resumed full-time student status at Yale. Shortly
thereafter, however, as a result of the reporting in a student newspaper
of additional allegations of sexual assault involving the plaintiff, the
plaintiff agreed to undergo a mental health consultation, but he refused
a request that he meet with university administrators. Subsequently,
the university again suspended the plaintiff on the ground that it was
necessary for the safety and well-being of the plaintiff and the university
community. Thereafter, the committee convened a hearing in connection
with D’s 2015 sexual assault complaint. At the hearing, D, who had since
graduated, provided a statement via teleconference, but she did not
testify under oath or provide any sworn statement. The plaintiff and his
counsel were not permitted in the hearing room when the hearing panel
questioned D and, instead, listened to an audio feed from an anteroom.
The plaintiff’s counsel was not permitted to speak, question D or any
other witness, or raise objections, and the hearing panel denied the
plaintiff’s request for a recording or transcript of the hearing. Addition-
ally, the committee’s procedures allowed the parties to submit questions
that they wanted the hearing panel to ask and to request that the panel
call witnesses to testify, but the panel had the sole discretion to reject
the proposed questions or witnesses. The university ultimately expelled
the plaintiff. In his complaint filed in the District Court, the plaintiff
alleged, inter alia, defamation and tortious interference with business
relations as to D in connection with the sexual assault allegations that
she had made during the disciplinary proceedings. He also alleged that
D had made false accusations in an effort to have him expelled as part
of the #MeToo political movement and a personal vendetta stemming
from D’s alleged romantic advances toward the plaintiff. The District
Court, however, granted D’s motion to dismiss the plaintiff’s claims,
concluding that the disciplinary proceedings were quasi-judicial in
nature and that D, therefore, enjoyed absolute immunity under Connecti-
cut law for any statements that she had made in the course of those
proceedings. The plaintiff appealed from the District Court’s granting
of D’s motion to dismiss to the United States Court of Appeals for the
Second Circuit, which concluded that the outcome of the plaintiff’s
appeal depended on whether the absolute immunity afforded in connec-
tion with quasi-judicial proceedings extends to proceedings of nongov-
ernmental entities and certified certain questions to this court regarding
the requirements that must be satisfied for a proceeding to be deemed
quasi-judicial for the purpose of affording absolute immunity to proceed-
ing participants, whether the disciplinary proceedings at issue properly
were recognized as quasi-judicial, and, if not, whether Connecticut law
extends qualified immunity to D for statements that she had made during
the disciplinary proceedings. Held:
1. This court addressed the requirements that must be satisfied for an
adjudicative proceeding to be recognized as quasi-judicial:
a. A proceeding is quasi-judicial for the purpose of affording its partici-
pants absolute immunity when the proceeding is specifically authorized
by law, the entity conducting the proceeding applies law to fact in an
adjudicatory manner, the proceeding contains adequate procedural safe-
guards, and there is a public policy justification for encouraging absolute
immunity for proceeding participants:
A review of this court’s case law revealed that a threshold requirement of
any quasi-judicial proceeding is that the proceeding must be specifically
authorized by law, meaning that the proceeding is governed by or con-
ducted pursuant to a state or federal statute, and that requirement was
consistent with the purposes of absolute immunity insofar as the imposi-
tion of absolute immunity is intended to be a public benefit and a societal
necessity, and a proceeding that is not specifically authorized by or
conducted pursuant to law provides little foundation for a court to
determine that the public has an interest in encouraging participation
and unfettered candor in the proceeding.
Moreover, in Priore v. Haig (344 Conn. 636), which was decided after
the Second Circuit certified questions to this court, this court explained
that a quasi-judicial proceeding is one in which the entity conducting
the proceeding has the power of discretion in applying the law to the
facts within a framework that contains procedural protections against
defamatory statements, and that courts charged with determining
whether a proceeding is quasi-judicial in nature may consider, in addition
to the six factors set forth in Kelley v. Bonney (221 Conn. 549), any
other factors that are relevant to the particular proceeding, including
whether there are procedural safeguards in place to ensure the reliability
of the information presented at the proceeding and the authority of the
entity to regulate the proceeding, and courts must carefully scrutinize
whether there is a sound public policy justification for affording absolute
immunity in any given context.
b. With respect to the law to fact requirement, the entity conducting the
proceeding must apply some form of public law, rather than its own
internal policies, to facts in rendering an adjudicatory decision:
The public law that the entity applies may be constitutional, statutory,
administrative, municipal, or common law, so long as it is promulgated
by a public official or entity, and the application of the law must either
be subject to judicial review or to alteration or repeal by a public official
or entity.
Accordingly, although a private entity may adopt publicly created law
to govern its affairs, the law applied must be controlled and formulated
by the public and be designed to benefit the greater public, and, when
an entity creates and applies only its own internal policies, there is a
lack of the necessary components of public participation and approval to
characterize its proceedings as quasi-judicial for the purpose of affording
participants absolute immunity.
c. A quasi-judicial proceeding, for the purpose of affording absolute
immunity, requires sufficient procedural safeguards to ensure reliability
and to promote fundamental fairness, and, the more robust the safe-
guards, the more likely the proceeding will be deemed quasi-judicial:
This court reviewed its case law, especially Priore, and identified various
procedural safeguards that it has considered in determining whether a
proceeding is quasi-judicial, including whether the declarant testifies
under oath or certifies to the truth of his or her statements, whether
there is an opportunity to cross-examine witnesses or to hold declarants
accountable for false or misleading statements, whether the accused
individual received notice, whether there is a right to appeal the adjudica-
tor’s decision, and, relatedly, whether there is an adequate record of the
proceeding.
d. In determining whether a proceeding is quasi-judicial, a court should
consider the factors enumerated in Kelley, but it need not conclude that
they are dispositive:
The Kelley factors, which concern the various powers of the entity
conducting the proceeding and which were intended to assist in the
determination of whether a proceeding is quasi-judicial in nature, are
not exclusive and supplement and function in addition to the other
procedural safeguards that this court identified in Priore.
e. In determining whether a proceeding is quasi-judicial, a court must
always carefully scrutinize whether there is a sound public policy justifi-
cation for the application of absolute immunity in any particular context:
Courts should consider public policy, and the attendant balancing of
the public interest of encouraging public participation with the private
interest of protecting individuals from false and malicious statements,
in addition to the law to fact requirement and the Kelley factors, such
that, even if an entity applies law to facts in a proceeding with adequate
procedural safeguards, the proceeding should not be deemed quasi-judi-
cial for purposes of conferring absolute immunity on its participants if
there is no discernable public policy supporting absolute immunity for
those participants.
2. The disciplinary proceeding at issue was not quasi-judicial for the purpose
of affording absolute immunity to D’s statements because it lacked
sufficient procedural safeguards necessary to ensure the reliability of
the information presented:
a. As a threshold matter, this court recognized that the disciplinary
proceeding was specifically authorized by statute (§ 10a-55m (b)), pursu-
ant to which each institution of higher education in Connecticut is
required to adopt policies regarding sexual assault, including policies
providing for an investigation and disciplinary proceedings for allegations
of sexual violence, and policies requiring that, if a disciplinary hearing
is held, certain procedures be followed.
b. Nonetheless, even if this court assumed that the hearing panel that
conducted the plaintiff’s disciplinary proceeding satisfied the law to
fact requirement, the collective absence of certain features during the
proceeding led this court to conclude that the proceeding did not have
adequate safeguards to ensure reliability and promote fundamental fair-
ness:
D did not testify under oath or certify to the truth of her statements,
she could not have been disciplined for failing to testify truthfully because
she had graduated from Yale before the hearing, and those shortcomings
undermined the reliability of D’s statements in view of how fundamental
the oath requirement is to the reliability of the information presented.
The committee’s procedures, which vested the hearing panel with discre-
tion to ask the questions submitted by the plaintiff, did not afford the
plaintiff or his counsel a meaningful opportunity to cross-examine or
otherwise to confront D in real time, there was nothing in the record to
indicate that the hearing panel varied from its procedures in a manner
that afforded the plaintiff fundamental fairness, those procedures ham-
pered the plaintiff’s ability to ask legitimate questions or sequence ques-
tions in a way that he believed would have tested the veracity of D’s
testimony, and, in view of the importance that the opportunity to mean-
ingfully cross-examine adverse witnesses has to the truth-seeking func-
tion of any judicial or quasi-judicial proceeding, the plaintiff was denied
a fundamental procedural protection inherent in such proceedings.
Likewise, the committee’s procedures did not afford the parties a reason-
able opportunity to call witnesses, insofar as the parties could not inde-
pendently call a witness but were required to submit names to the hearing
panel, which had the sole discretion to decide whether to call those
proposed witnesses for questioning, and, therefore, failed to comport
with the protections typical of quasi-judicial proceedings.
Moreover, although the plaintiff was accompanied by counsel at the
disciplinary hearing, the committee’s procedures prohibiting counsel
from submitting documents or arguing on the plaintiff’s behalf, raising
objections, or participating in the questioning of witnesses materially
limited the assistance of counsel to the point that counsel was effectively
rendered irrelevant, and those restrictions, although not dispositive, also
supported the conclusion that the disciplinary proceeding was not
quasi-judicial.
Furthermore, there was no adequate record of the proceeding because
the committee’s procedures did not require the keeping of record state-
ments, testimony, or questions, the hearing panel specifically denied the
plaintiff’s request that it make a transcript or other electronic recording
of the hearing for the purpose of further review, the plaintiff’s ability to
appeal was severely constrained by the lack of a transcript or recording,
and the restriction was especially prejudicial in light of the fact that the
plaintiff’s counsel was not permitted to object when members of the
hearing panel allegedly assumed facts not in evidence or otherwise vio-
lated core evidentiary principles.
3. A qualified, rather than an absolute, privilege is available to alleged victims
of sexual assault who report their abuse to proper authorities at institu-
tions of higher education, but the allegations of malice in the plaintiff’s
complaint were sufficient to defeat D’s entitlement to qualified immunity
as a matter of law at the motion to dismiss stage of the proceeding:
a. The public policy of this state, as articulated in § 10a-55m, supported
a qualified privilege for statements made by alleged victims of sexual
assault to proper authorities at institutions of higher education:
The legislature had responded aggressively to address concerns sur-
rounding the issue of hesitation by victims to report sexual misconduct
on college campuses when it enacted a series of measures reflecting a
strong public commitment to protecting such victims, those measures
served to encourage alleged victims to report claims of sexual violence
and to enable them to obtain justice with dignity and privacy, and, in
view of the legitimate public interests articulated by the legislature, it
was appropriate to afford a qualified privilege to the statements of alleged
victims of sexual assault who report their abuse to proper authorities
at institutions of higher education.
b. Accepting the factual allegations in the plaintiff’s complaint as true
and drawing all inferences in the plaintiff’s favor, as the court was
required to do at the motion to dismiss stage, this court concluded that
the plaintiff alleged sufficient facts to establish that D acted with malice
when making the statements at issue so as to defeat D’s qualified privilege
at this stage of the plaintiff’s federal action:
The plaintiff alleged in his complaint that D had made romantic advances
toward him, that she initially told a campus health care worker that she
had engaged in consensual unprotected sex, that she reported a sexual
assault only because she was ashamed of her sexual advances, and that
she was encouraged by the larger political movement waged against the
plaintiff, and, on the basis of those allegations, a reasonable inference
could be drawn that D knowingly fabricated claims of sexual assault
against the plaintiff.
Nevertheless, this court observed that a more complete factual record
could warrant revisiting the issue of D’s qualified privilege at a later
stage of the proceedings, such as at the summary judgment stage or if
and when the case is submitted to the jury.
Argued October 3, 2022—officially released June 27, 2023
Procedural History
Action to recover damages for, inter alia, defamation,
and for other relief, brought to the United States District
Court for the District of Connecticut, where the court,
Dooley, J., granted the motion to dismiss filed by the
defendant Jane Doe and rendered partial judgment thereon,
from which the plaintiff appealed to the United States
Court of Appeals for the Second Circuit, which certified
certain questions of law to this court.
Norman A. Pattis, with whom, on the brief, was
Cameron L. Atkinson, for the appellant (plaintiff).
James M. Sconzo, with whom was Brendan N.
Gooley, for the appellee (defendant Jane Doe).
Jennifer M. Becker filed a brief for Legal Momentum
et al. as amici curiae.
Opinion
MULLINS, J. This case arises from disciplinary pro-
ceedings conducted in 2018 by the University-Wide
Committee on Sexual Misconduct (UWC) of the named
defendant, Yale University (Yale). In those proceedings,
the defendant Jane Doe1 accused another student, the
plaintiff, Saifullah Khan, of sexual assault in violation
of Yale’s sexual misconduct policy, resulting in his expul-
sion from Yale. There is no question that, when Doe
made those accusations during a criminal trial, an official
governmental proceeding with inherent procedural safe-
guards, she enjoyed absolute immunity in any subsequent
civil action challenging her testimony during the criminal
proceeding as defamatory.2 The primary question pre-
sented by this appeal, which reaches us in the form of
questions of law certified by the United States Court of
Appeals for the Second Circuit; see General Statutes § 51-
199b (d);3 is whether Doe should likewise be afforded abso-
lute immunity from suit for her statements made during
the UWC proceeding.
As we explain in this opinion, absolute immunity
attaches to statements made in judicial or quasi-judicial
proceedings. Doe argues that the UWC proceeding is a
quasi-judicial proceeding. Therefore, she contends, her
statements made therein are entitled to absolute immu-
nity because such immunity furthers the important pub-
lic policy goal of permitting alleged victims of sexual
assault to speak candidly and frankly with university
officials without fear of retaliatory lawsuits.
Khan counters that the UWC proceeding is not quasi-
judicial because it was neither a governmental proceed-
ing nor a proceeding with sufficient judicial-like proce-
dures to protect against malicious and defamatory state-
ments. Khan asserts that, if absolute immunity is afforded
to testimony provided in proceedings such as that con-
ducted by the UWC, individuals who are falsely accused
will be left with no recourse or protection against mali-
cious and defamatory allegations.
Both parties’ arguments are compelling. Supporting
Doe’s position, the amici4 indicate that one in four
women, and one in fifteen men, will experience sexual
assault while attending college. These victims are often
reluctant to report such crimes. In one survey, for exam-
ple, college men and women identified these concerns
as affecting their decision to report sexual assaults:
(1) ‘‘shame, guilt, embarrassment,’’ and ‘‘not wanting
friends and family to know,’’ (2) ‘‘concerns about confi-
dentiality,’’ and (3) ‘‘fear of not being believed . . . .’’
Doe v. Roe, 295 F. Supp. 3d 664, 676 (E.D. Va. 2018).5
We are mindful of these concerns and sensitive to the
need to encourage alleged victims of sexual assault to
report their abuse to the appropriate authority at any
institution of higher education, free from fear of intimi-
dation and retribution. More generally, we consider it
foundational that all students must be able to attend
school, move about campus, and enjoy the manifold
privileges and benefits of their academic pursuits with-
out fear of sexual harassment or assault by members
of their own community. It is difficult to think of a right
more fundamental than the right to physical safety. Indeed,
the public policy of this state, established through General
Statutes § 10a-55m,6 demonstrates that sexual assault
at institutions of higher education must be addressed
by encouraging and supporting alleged victims of sexual
assault to speak out, to vindicate their rights, and to
bring the perpetrators to justice if the allegations are
proven. Likewise, the remedial powers of our judicial
system must not be used as a means of intimidation to
enable the perpetrators of sexual assault to silence their
accusers by using the threat of civil litigation and liabil-
ity for damages.
At the same time, however, we must recognize a
competing public policy that those accused of crimes,
especially as serious a crime as sexual assault, are enti-
tled to fundamental fairness before being labeled a sex-
ual 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. There is no benefit
to society or the administration of fair and impartial
disciplinary hearings in granting absolute immunity to
those who make intentionally false and malicious accu-
sations of sexual assault.7 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 opportu-
nity, and deportation. In the face of these consequences,
we must acknowledge that the accused’s right to funda-
mental fairness is no less important than the right of
the accuser or the larger community to achieve justice.
Disciplinary proceedings that lack fundamental proce-
dural safeguards ‘‘do not adequately protect a critical
public policy undergirding the doctrine of absolute
immunity—to encourage robust participation and can-
dor in judicial and quasi-judicial proceedings while pro-
viding some deterrent against malicious falsehoods.’’
Priore v. Haig, 344 Conn. 636, 651, 280 A.3d 402 (2022).
To balance and protect both of the aforementioned
interests, we must clarify when a proceeding is quasi-
judicial for the purpose of affording proceeding partici-
pants absolute immunity. As we explain hereinafter, we
recognize a proceeding as 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 pro-
ceeding participants. In short, we accept the Second Cir-
cuit’s invitation to clarify the scope of Connecticut’s
absolute immunity doctrine and conclude that the UWC
proceeding did not meet the conditions necessary to be
considered quasi-judicial. Consequently, Doe is not enti-
tled to absolute immunity.
Nevertheless, because the public interest in encour-
aging the reporting of sexual assaults to the proper
authorities at institutions of higher education is suffi-
ciently compelling to warrant protection of a defama-
tory statement, a qualified privilege is appropriate for
alleged victims of sexual assault in this context. Because
this matter is only at the motion to dismiss stage, how-
ever, we must accept as true Khan’s factual allegations
in his complaint that Doe’s statements were made with
malice, which defeats Doe’s asserted privilege at this
stage of the proceedings. At a later stage of the proceed-
ings, with a more complete factual record, it may be
appropriate to revisit whether Doe’s qualified privilege
has been defeated.
I
Khan brought the underlying action in the United
States District Court for the District of Connecticut,
alleging, among other things, defamation and tortious
interference with business relationships against Doe.8
Khan v. Yale University, 511 F. Supp. 3d 213, 216, 219
(D. Conn. 2021). The District Court’s memorandum of
decision contains the following factual allegations,
taken from Khan’s complaint, which we are required
to accept as true and construe in Khan’s favor for pur-
poses of answering the certified questions of law.9 See,
e.g., Littlejohn v. New York, 795 F.3d 297, 306 (2d Cir.
2015) (on motion to dismiss pursuant to rule 12 (b) (6)
of Federal Rules of Civil Procedure, court must accept
complaint’s factual allegations as true and draw infer-
ences in plaintiff’s favor); Lunardini v. Massachusetts
Mutual Life Ins. Co., 696 F. Supp. 2d 149, 155 (D. Conn.
2010) (‘‘[a] motion to dismiss under [r]ule 12 (b) (6)
must be decided on facts stated on the face of the
complaint, in documents appended to the complaint or
incorporated in the complaint by reference’’ (internal
quotation marks omitted)), quoting Leonard F. v. Israel
Discount Bank of New York, 199 F.3d 99, 107 (2d
Cir. 1999).
‘‘Khan is a [foreign national] who at all relevant times
was enrolled as an undergraduate student at Yale. . . .
[In the fall of 2012, he enrolled as an undergraduate at
Yale.] He was expected to graduate Yale with the [c]lass
of 2016. . . .
‘‘[Doe] was a classmate of . . . Khan’s and was like-
wise enrolled at all relevant times as an undergraduate
student at Yale. . . . On Halloween night in 2015 . . .
Khan and . . . Doe, who were familiar with one
another from prior campus encounters, met at an [off
campus] Halloween party before attending a musical
performance at [Yale’s] Woolsey Hall. . . . Doe was
not feeling well and so the two left the performance
early and walked on campus together before returning
to Trumbull College, [a Yale residential college] where
they both resided. . . . After . . . Khan escorted . . .
Doe to her room, she asked him to [enter] and the two
. . . engaged in consensual sexual intercourse. . . . In
the morning . . . Doe reported to friends that she had
been raped, though she informed a health care worker
that she had engaged in unprotected consensual sex
when [she sought] contraception at the Yale [H]ealth
[C]enter [later] that same day. . . .
‘‘In the days that followed . . . Doe went public with
her rape claim and issued a formal complaint against
. . . Khan on the advice of the Yale Women’s Center.
. . . Khan was immediately suspended by Yale [Col-
lege]10 Deputy Dean Joe Gordon based on . . . Doe’s
written complaint alone and was ordered to vacate cam-
pus, which rendered him homeless. . . . The Yale
Police Department opened an investigation and by mid-
November [of 2015] the [s]tate . . . filed criminal
charges against . . . Khan for [first degree] sexual
assault. . . . In the meantime [the UWC] . . . [stayed]
any disciplinary proceedings pending the outcome of
the prosecution. . . . Khan subsequently faced trial
before a jury in early 2018 for first, second, third, and
[fourth degree] sexual assault during a nearly [two
week] trial and was acquitted on all counts after less
than [one] day of deliberations. . . .
‘‘Following his acquittal . . . Khan sought readmis-
sion [to] Yale, to which #MeToo activists galvanized an
opposition, generating more than 77,000 signatures on
a petition protesting his reenrollment. . . . Khan was
eventually readmitted and resumed full-time student
status in the fall of 2018, though he was denied [on
campus] housing and treated as unwelcome[d] on cam-
pus. . . . In early October 2018, the Yale Daily News
published an article relaying the allegations of a trou-
bled young man who claimed that he had a romantic
relationship with . . . Khan that included an episode
in which . . . Khan sexually assaulted him during an
act of role-playing with a woman in Washington, D.C.,
and an instance in which . . . Khan slapped him in
the face while the two were together in [Indianapolis,
Indiana]. . . . The article did not provide any indica-
tion that this young man had any affiliation with Yale
or had ever been to the Yale campus. . . .
‘‘Following publication of the article . . . Khan was
contacted by members of the Yale Police Department
and by two Yale administrators to inquire as to his well-
being and to determine whether he needed professional
help. . . . Khan agreed to undergo a mental health con-
sultation but reported that he was fine and had not
considered harming himself or others. . . . Khan was
then asked to meet with Yale administrators and after
indicating that he would not do so . . . Khan received
a letter informing him that he was suspended [effective]
immediately from Yale College . . . which Dean Mar-
vin Chun described as necessary for [Khan’s] physical
and emotional safety and well-being and/or the safety
and well-being of the university community. . . . Khan
was thus barred from campus and prohibited from
attending his classes; he was again rendered homeless
without warning and informed that he would lose his
health care coverage effective November 1, 2018. . . .
‘‘[Khan] alleges that Yale’s professed concern with
his safety and with the safety of the Yale community
[was] not credible, as there [was] no evidence that . . .
Khan posed a danger to himself or to anyone else . . . .
[Furthermore, Khan completed a psychiatric examina-
tion during his suspension, in which the evaluator con-
cluded that Khan posed no threat.] Instead . . . Khan
asserts that his suspension was pretextual and arose
from a confluence of factors that included his unique
history at Yale and the heightened sensibilities sur-
rounding sexual assault claims, which were often cred-
ited without investigation or due process at Yale as a
function of the university’s pervasive #MeToo culture.
. . . Following his suspension . . . Khan placed Yale
on notice that he intended to seek judicial relief and
open an investigation into Yale’s alleged Title IX11 viola-
tions in connection with his suspension and with the
university’s failure to convene a hearing on the claims
of . . . Doe . . . . Khan also requested and was
denied permission to attend his classes with an escort
to address Yale’s safety concerns, though Yale had
afforded other male students accused of sexual miscon-
duct the ability to complete their degrees off-site. . . .
‘‘In November 2018 . . . Khan was permitted to
return to campus for a hearing convened by the UWC
on . . . Doe’s 2015 sexual assault complaint. . . .
Doe, who had since graduated from Yale, was not pres-
ent and provided a statement via teleconference. . . .
Khan was not permitted to be in the room when the
UWC [hearing] panel questioned . . . Doe and was
instead required to sit in an anteroom where he listened
to an [audio feed] of the hearing; as a result . . . Khan
[claims that he] was denied an opportunity to confront
his accuser. . . . And although . . . Khan had counsel
present, his attorney was not permitted to speak, ques-
tion witnesses, or [raise] objections when panel mem-
bers assumed facts not in evidence and asked com-
pound questions. . . . A member of [Yale’s Office of
the General Counsel] was present throughout the pro-
ceedings to provide counsel to the UWC panel. . . .
Khan also requested a transcript or recording of the
hearing, which the panel denied.12 . . . The UWC panel
decided to expel . . . Khan as a result of the hearing,
which he contends failed to afford him the basic due
process that Title IX demands. . . . As a result of losing
his opportunity to complete his Yale education . . .
Khan [was] subject to immediate deportation to [his
country of citizenship], where he [faced] serious physi-
cal danger due to his family’s decision to seek refuge
in [another country].’’13 (Citations omitted; footnotes
added; footnote altered; footnote omitted; internal quo-
tation marks omitted.) Khan v. Yale University, supra,
511 F. Supp. 3d 216–18.
The following additional procedural history is rele-
vant. After Khan brought the federal action against Yale,
various Yale employees, and Doe, the District Court
granted Doe’s motion to dismiss Khan’s claims of defa-
mation and tortious interference with business relation-
ships. See id., 216, 219, 226, 228; see also footnote 8 of
this opinion. Insofar as Khan sued Doe for defamation
on the basis of her allegations of sexual assault in the
UWC proceeding, the District Court concluded that the
UWC proceeding was quasi-judicial in nature, and,
therefore, under Connecticut law, Doe enjoyed absolute
immunity for statements she made in that proceeding.
See Khan v. Yale University, supra, 511 F. Supp. 3d
226. Although the District Court acknowledged that it
was ‘‘reluctant to alter the landscape of Connecticut’s
immunity law’’ by extending absolute immunity to state-
ments made during the proceedings of a nongovernmen-
tal entity—an area it said Connecticut courts have not
resolved; id., 224; the court concluded that extending
such immunity in the present case was warranted, both
as a matter of public policy; id., 225–26; and under the
six factor test that this court had used to identify quasi-
judicial proceedings in Kelley v. Bonney, 221 Conn. 549,
567, 606 A.2d 693 (1992). See Khan v. Yale University,
supra, 220–22.
On appeal to the Second Circuit, ‘‘Khan argue[d] that
the proceedings of [nongovernmental] 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.’’ Khan v. Yale Uni-
versity, 27 F.4th 805, 810 (2d Cir. 2022). The Second
Circuit concluded that the outcome of the appeal hinges
on a question of Connecticut state law—namely, whether
quasi-judicial immunity extends to proceedings like that
of the 2018 Yale UWC proceeding—and that it could
not predict how this court would resolve that question.
See id., 833. Consequently, the Second Circuit certified
the following questions of law, which we modify to address
issues of Connecticut law pertinent to this appeal:14
(1) What requirements must be satisfied for a pro-
ceeding to be recognized as quasi-judicial for purposes
of affording absolute immunity to proceeding partici-
pants? Specifically:
(a) Must an entity apply controlling law, and not
simply its own rules, to the facts at issue in the proceed-
ing? See Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d
1337 (1986); see also W. Keeton et al., Prosser and
Keeton on the Law of Torts (5th Ed. 1984) § 114, pp. 818–
19.
(b) How, if at all, do the power factors enumerated
in Kelley v. Bonney, supra, 221 Conn. 567, and Craig
v. Stafford Construction, Inc., 271 Conn. 78, 85, 856
A.2d 372 (2004), apply to the identification of a proceed-
ing as quasi-judicial; and, if they do apply, are these
factors in addition to; see id.; or independent of, a pre-
liminary law to fact requirement?
(c) How, if at all, does public policy inform the identi-
fication of a proceeding as quasi-judicial, and, if it does,
is this consideration in addition to, or independent of,
a law to fact requirement and the Kelley/Craig factors?
(d) How, if at all, do procedures usually associated
with traditional judicial proceedings—such as notice
and the opportunity to be heard; the ability to be physi-
cally present throughout a proceeding; an oath require-
ment; the ability to call, examine, confront, and cross-
examine witnesses; and the ability to be represented
by counsel—inform the identification of a proceeding
as quasi-judicial? See id., 87–88; Kelley v. Bonney, supra,221 Conn. 568–70.15
(2) Was the 2018 Yale UWC proceeding at issue in the
present appeal properly recognized as quasi-judicial?
(3) If the answer to the second question is yes, would
Connecticut extend absolute quasi-judicial immunity to
Doe for her statements in the Yale UWC proceeding?
(4) If the answer to the second question is no, would
Connecticut afford Doe qualified immunity or no immu-
nity at all? See Khan v. Yale University, supra, 27
F.4th 833–34.
Although the Second Circuit also asked us to answer
whether, under Connecticut law, a proceeding before
a nongovernmental entity could ever be deemed quasi-
judicial for purposes of affording absolute immunity to
proceeding participants; id., 833; we conclude that it is
unnecessary to answer that question in order to resolve
whether Yale’s UWC proceeding was quasi-judicial.
Instead, we answer the certified questions focusing on
the requirements that any proceeding must satisfy to
be considered quasi-judicial.
II
We first address what requirements must be satisfied
for a proceeding to be recognized as quasi-judicial for
purposes of affording absolute immunity to proceeding
participants. See id. At the outset, we recognize that
‘‘the determination of whether [a proceeding] consti-
tutes a quasi-judicial proceeding is a question of law
over which our review is plenary.’’ Craig v. Stafford
Construction, Inc., supra, 271 Conn. 83. ‘‘[W]hether a
particular proceeding is quasi-judicial in nature, for the
purposes of triggering absolute immunity, will depend
on the particular facts and circumstances of each case.’’
(Internal quotation marks omitted.) Priore v. Haig,
supra, 344 Conn. 645.
The doctrine of absolute judicial immunity, or abso-
lute privilege, which shields judges, parties, and wit-
nesses from liability for their testimony in judicial and
quasi-judicial proceedings, has its origins in English
common law.16 In Connecticut, we have long held that
‘‘communications uttered or published in the course of
judicial proceedings are absolutely privileged [as] long
as they are in some way pertinent to the subject of the
controversy.’’ (Internal quotation marks omitted.) Gallo
v. Barile, 284 Conn. 459, 466, 935 A.2d 103 (2007); see
also Charles W. Blakeslee & Sons v. Carroll, 64 Conn.
223, 232, 29 A. 473 (1894) (Blakeslee) (relying on English
common law to first recognize privilege), overruled in
part on other grounds by Petyan v. Ellis, 200 Conn.
243, 510 A.2d 1337 (1986).
Our earliest cases recognizing absolute immunity lim-
ited the privilege to official adjudicative proceedings,
i.e., formal dispute resolution proceedings or forums,
that were specifically authorized by law. In Blakeslee,
for example, this court held that ‘‘[a] judicial proceeding
within the meaning of the rule as to absolute privilege
must . . . be one carried on in a court of justice estab-
lished or recognized by law, [in which] the rights of
parties which are recognized and protected by law are
involved and may be determined.’’ (Emphasis added.)
Charles W. Blakeslee & Sons v. Carroll, supra, 64 Conn.
234.
Since Blakeslee, we have acknowledged that ‘‘[t]he
judicial proceeding to which [absolute] immunity atta-
ches has not been defined very exactly. [At the very
least, it] includes any hearing before a tribunal [that]
performs a judicial function, ex parte or otherwise, and
whether the hearing is public or not. It includes . . .
[competency], bankruptcy, or naturalization proceedings,
and an election contest. It extends also to the proceed-
ings of many administrative officers, such as boards and
commissions, so far as they have powers of discretion
in applying the law to the facts [that] are regarded as
judicial or [quasi-judicial], in character.’’17 (Internal quo-
tation marks omitted.) Kelley v. Bonney, supra, 221
Conn. 566; see also Hopkins v. O’Connor, 282 Conn.
821, 839, 925 A.2d 1030 (2007) (‘‘ ‘judicial proceeding’
has been defined liberally to encompass much more than
civil litigation or criminal trials’’).
Although we have never expressly said so, a review
of our case law demonstrates that a threshold require-
ment of any quasi-judicial proceeding is that the pro-
ceeding must be specifically authorized by law, meaning
that the proceeding is governed by or conducted pursu-
ant to a state or federal statute.18 For example, in Petyan
v. Ellis, supra, 200 Conn. 243, General Statutes (Rev.
to 1979) §§ 31-241, 31-242 and 31-249 authorized offi-
cials of the Employment Security Division of the state
Department of Labor to conduct reviews of unemploy-
ment compensation claims. See id., 248–49. In Kelley
v. Bonney, supra, 221 Conn. 549, a state Board of Educa-
tion’s hearing to revoke a teaching certificate was pre-
scribed by General Statutes (Rev. to 1987) § 10-145b
(m). See id., 567. In Craig v. Stafford Construction,
Inc., supra, 271 Conn. 78, a proceeding by the Hartford
Police Department was required by the department’s
official code of conduct, enacted pursuant to both city
charter and a collective bargaining agreement in accor-
dance with Connecticut’s Municipal Employee Rela-
tions Act. See id., 86; see also General Statutes § 7-467
et seq.
Similarly, our appellate courts have recognized that
arbitration proceedings, both contractual and court
mandated, were specifically authorized by law and qual-
ified as quasi-judicial.19 See Larmel v. Metro North Com-
muter Railroad Co., 341 Conn. 332, 341, 267 A.3d 162(2021) (‘‘[court mandated] arbitration proceeding pur-
suant to [General Statutes] § 52-549u is, undoubtedly,
a quasi-judicial examination of the parties’ claims, as
arbitrators are statutorily authorized to carry out func-
tions that are judicial in nature’’); Preston v. O’Rourke,
74 Conn. App. 301, 310–12, 314–15, 811 A.2d 753 (2002)
(arbitration proceeding conducted pursuant to State
Employee Relations Act and governed by General Stat-
utes §§ 52-408 through 52-424 was quasi-judicial in
nature).
Requiring that a proceeding be specifically authorized
by or conducted pursuant to law is consistent with the
purposes of absolute immunity because, among other
things, the imposition of absolute immunity is intended
to be a public benefit and a societal necessity. A pro-
ceeding that is not specifically authorized by or con-
ducted pursuant to law provides little foundation for
this court to determine that the public has an interest
in encouraging participation and unfettered candor in
the proceeding. See Logan’s Super Markets, Inc. v.
McCalla, 208 Tenn. 68, 72, 343 S.W.2d 892 (1961)
(‘‘[absolute immunity] belongs to the public, not to the
individual, and the public should not stand to lose the
benefit it derives’’). Indeed, a proceeding that lacks
authorization by law provides no assurance that the
public interest in the proceeding is sufficiently vital to
justify affording absolute immunity to its participants.
Beyond a specific authorization by law, our decision
in Priore, which was released after the Second Circuit
certified this question, sets forth the general require-
ments that must be satisfied for any proceeding to be
recognized as quasi-judicial: ‘‘[A] quasi-judicial proceed-
ing is one in which the entity conducting the proceeding
has the power of discretion in applying the law to the
facts within a framework that contains procedural pro-
tections against defamatory statements. As part of their
inquiry into whether a proceeding is truly quasi-judicial,
courts may consider the relevant factors enumerated
by this court in Kelley to determine whether the entity
exercises powers akin to a judicial entity. . . . Courts
may also consider other factors that are relevant to a
given proceeding, including the procedural safeguards
of the proceeding and the authority of the entity to
regulate the proceeding. Finally, courts must always
carefully scrutinize whether there is a sound public
policy justification for the application of absolute immu-
nity in any particular context.’’ (Citation omitted.) Pri-
ore v. Haig, supra, 344 Conn. 652–53. We now discuss
in greater detail how each of these requirements applies
to adjudicative proceedings, in response to the auxiliary
questions posed by the Second Circuit.
A
The Second Circuit asks whether the entity conduct-
ing a quasi-judicial proceeding must ‘‘apply controlling
law, and not simply its own rules, to [the] facts at issue
in the proceeding . . . .’’ Khan v. Yale University,
supra, 27 F.4th 833. We have repeatedly held that ‘‘a
quasi-judicial proceeding is one in which the entity con-
ducting the proceeding has the power of discretion in
applying the law to the facts . . . .’’ Priore v. Haig,
supra, 344 Conn. 652. Although we have recognized
various sources of official law—statutes, regulations,
municipal codes—in each case in which we deemed
the proceeding at issue to be quasi-judicial, the entity
conducting the proceeding applied more than its own
internal policies or rules of decision.
The law to fact requirement originated in judicial
proceedings and was derived to distinguish proceedings
involving mere investigatory powers from proceedings
that involved investigation and adjudication of the mat-
ter.20 In the nineteenth century, this court determined
that a committee proceeding to investigate the truth of
certain statements made by the New Haven Board of
Aldermen did not constitute a judicial or quasi-judicial
proceeding. See Charles W. Blakeslee & Sons v. Carroll,
supra, 64 Conn. 234. The court explained that ‘‘the
power and the duty of the committee were simply to
obtain . . . information . . . . The persons who were
to make the inquiry had no judicial character or office
. . . had no settled jurisdiction or fixed mode of proce-
dure . . . and they had no judicial function to exercise,
for they could decide nothing, and could only report
their action to a board [that] might altogether disregard
what the committee had done.’’ Id.Nearly one century later, in Petyan v. Ellis, supra,200 Conn. 243, this court clarified that a proceeding can
be quasi-judicial if the entity conducting the proceeding
‘‘ha[s] powers of discretion in applying the law to the
facts . . . .’’ (Internal quotation marks omitted.) Id.,
246. Unlike in Blakeslee, the entity conducting the pro-
ceeding in Petyan ‘‘decide[d] the facts and then appl[ied]
the appropriate law’’ to the facts to render a decision.
Id., 248. At issue was whether statements provided by
a defendant-employer on a ‘‘ ‘fact-finding supplement’ ’’
form of the Employment Security Division of the state
Department of Labor were subject to absolute immu-
nity. Id., 247–48. The court concluded that, because,
‘‘[i]n the processing of unemployment compensation
claims, the administrator, the referee and the [E]mploy-
ment [S]ecurity [B]oard of [R]eview decide the facts and
then apply the appropriate law . . . [t]he [E]mploy-
ment [S]ecurity [D]ivision . . . acts in a quasi-judicial
capacity when it acts [on] claims for unemployment
compensation.’’ (Citation omitted; footnotes omitted.)
Id., 248–49. Specifically, in Petyan, the adjudicators
were authorized by statute to determine unemployment
claims. See id.Similarly, in Kelley, this court placed special empha-
sis on the Board of Education’s duty to apply Connecti-
cut laws and regulations to its findings of fact in order
to properly revoke a teaching certificate. See Kelley v.
Bonney, supra, 221 Conn. 567–68. This court observed
that the proceedings had to conform to statutory regula-
tions that listed well delineated causes for a teacher’s
license revocation. Id., 568; see also Craig v. Stafford
Construction, Inc., supra, 271 Conn. 84–89 (Hartford
Police Department applied its official code of conduct
and collective bargaining agreement to facts, thus satis-
fying law to fact requirement).21
Most recently, in Priore v. Haig, supra, 344 Conn.
636, we likewise observed that ‘‘the [Greenwich Plan-
ning and Zoning Commission] has the discretion to
apply the law, [the Greenwich zoning regulations] . . .
to the facts set forth in the application before it.’’ Id.,
654. We explained that, ‘‘when acting in this administra-
tive capacity on a special permit application, a planning
and zoning commission . . . decides [whether] all of
the standards enumerated in the special permit regula-
tions are met . . . .’’ (Internal quotation marks omit-
ted.) Id., 653.22
A review of our cases thus demonstrates that the
entity conducting a quasi-judicial proceeding must apply
public law—whether it be constitutional, statutory,
administrative, municipal, or common law—to facts for
the purpose of rendering an adjudicatory decision. The
law that is applied is promulgated by a public official
or entity, and the application of the law is either subject
to judicial review or may be altered or repealed by a
public official or entity. In other words, although a
private entity may adopt publicly created law to govern
its affairs, the law applied is controlled and formulated
by the public and is designed to benefit the greater
public. Thus, an entity that creates and applies only its
internal policies lacks the necessary components of public
participation and approval to be considered quasi-judi-
cial for the purpose of affording participants absolute
immunity.
B
We next turn to the question of how ‘‘procedures
usually associated with traditional judicial proceed-
ings—such as notice and the opportunity to be heard;
the ability to be physically present throughout a pro-
ceeding; an oath requirement; the ability to call, exam-
ine, confront, and cross-examine witnesses; [and] the
ability to be represented by counsel—inform the identi-
fication of a proceeding as quasi-judicial?’’ Khan v. Yale
University, supra, 27 F.4th 833. Because the doctrine
of absolute immunity has applied to statements made
during official judicial proceedings, which feature all
of these procedures, the extent to which these proce-
dures are present will often be determinative of whether
a proceeding qualifies as quasi-judicial. Our recent deci-
sion in Priore provides guidance.
In that case, we concluded that, in addition to the
law to fact requirement, ‘‘our case law also looks to
the procedural safeguards that attend to the proceeding
. . . which promote reliability and due process, as part
of the analysis to determine whether a proceeding is
truly quasi-judicial in nature.’’ Priore v. Haig, supra,
344 Conn. 648–49. We explained that ‘‘it [is] eminently
reasonable for courts to consider the procedural safe-
guards attendant to a proceeding because [s]tatements
made during proceedings that lack basic [due process]
protections generally do not engender fair or reliable
outcomes.’’ (Internal quotation marks omitted.) Id., 651.
In Priore, we ultimately concluded that statements
made during a town planning and zoning commission
public hearing were not entitled to absolute immunity.
See id., 661, 663. Although the commission applied law
to fact and the public hearing satisfied many of the
Kelley factors; see id., 654, 661; see also part II C of
this opinion; we declined to recognize the hearing as
quasi-judicial because, among other things, ‘‘the hearing
before the commission had almost no procedural safe-
guards in place to ensure the reliability of the informa-
tion presented at the proceeding.’’ Priore v. Haig, supra,
344 Conn. 655. Specifically, we identified two significant
procedural safeguards that were missing: (1) the declar-
ant did not testify under oath or certify the truth of her
statements, and (2) there was no practical opportunity to
cross-examine witnesses or to hold declarants account-
able for false or misleading statements. See id., 655–57;
see also id., 655 n.4.
We explained in Priore that it is important for any
declarant receiving absolute immunity to make the
statements under oath or otherwise certify that the
information is true and correct because, without doing
so, there is no judicial remedy available to deter a wit-
ness from giving false information. See id., 655. This is
consistent with a long line of Connecticut cases holding
that, for absolute immunity to apply, it is vitally important
that statements be sworn, made under oath, or other-
wise subject to the penalty of perjury. See, e.g., Craig
v. Stafford Construction, Inc., supra, 271 Conn. 87(emphasizing that ‘‘witnesses [gave] sworn statements
to the investigator during the investigation, and the form
on which they sign[ed] their statement inform[ed] the
witness that he or she [could] be criminally liable for
filing a false statement’’); Kelley v. Bonney, supra, 221
Conn. 568–69 (relying on fact that ‘‘a request for revok[-
ing] . . . [a teaching certificate had to be] made under
oath’’); DeLaurentis v. New Haven, 220 Conn. 225, 264,
597 A.2d 807 (1991) (holding that, ‘‘[although] no civil
remedies can guard against lies, the oath and the fear
of being charged with perjury are adequate to warrant
an absolute privilege for a witness’ statements’’); Pet-
yan v. Ellis, supra, 200 Conn. 250–51 (emphasizing that
defendant was required to certify that information pre-
sented was true and correct and that she could have
been summoned to testify under oath, subject to crimi-
nal penalties, if she perjured herself); see also Larmel
v. Metro North Commuter Railroad Co., supra, 341 Conn.
341 (relying on fact that arbitrators are statutorily
authorized to administer oaths); Preston v. O’Rourke,
supra, 74 Conn. App. 312 (noting that ‘‘witnesses [in con-
tractual arbitration] testified under oath’’). Because
absolute immunity removes the threat of private defa-
mation actions in order to incentivize witnesses to par-
ticipate candidly and willingly in the proceeding, it is
crucial that there be some strong deterrent, such as the
threat of a perjury prosecution, against abuse of the
privilege by the giving of untruthful testimony.23
The second missing safeguard in Priore was the
opportunity for parties to meaningfully challenge the
veracity of participants’ statements, whether through
cross-examination or other comparable means. See Pri-
ore v. Haig, supra, 344 Conn. 657. ‘‘For two centuries,
[common-law] judges and lawyers have regarded the
opportunity of cross-examination as an essential safe-
guard of the accuracy and completeness of testimony.’’
(Internal quotation marks omitted.) Pagano v. Ippoliti,
245 Conn. 640, 656, 716 A.2d 848 (1998) (McDonald, J.,
dissenting). It has been said many times that ‘‘cross-
examination is beyond any doubt the greatest legal
engine ever invented for the discovery of truth.’’ (Inter-
nal quotation marks omitted.) State v. Ali, 233 Conn.
403, 424, 660 A.2d 337 (1995). The procedure allows
counsel to ‘‘expose [testimonial infirmities, such as for-
getfulness, confusion, or evasion] . . . thereby calling
to the attention of the [fact finder] the reasons for giving
scant weight to the witness’ testimony.’’ (Internal quota-
tion marks omitted.) State v. Hutton, 188 Conn. App.
481, 504, 205 A.3d 637 (2019).
It is not surprising, then, that, as we discussed in
Priore, several of this court’s prior cases recognizing
quasi-judicial proceedings, including Hopkins, Craig,
and Kelley, relied on the respondent’s ability to cross-
examine adverse witnesses or to otherwise challenge
the credibility of witness testimony in quasi-judicial
proceedings. See Priore v. Haig, supra, 344 Conn.
649–51; see, e.g., Hopkins v. O’Connor, supra, 282 Conn.
834–37 (patient confined to hospital under emergency
certificate had right to cross-examine adverse witnesses);
Craig v. Stafford Construction, Inc., supra, 271 Conn.
88 (police officer who was under investigation had right
to cross-examine adverse witnesses); Kelley v. Bonney,
supra, 221 Conn. 570 n.14 (parties possessed right to
cross-examine adverse witnesses); see also, e.g., Spen-
cer v. Klementi, 136 Nev. 325, 332, 466 P.3d 1241 (2020)
(‘‘to qualify as a quasi-judicial proceeding for purposes
of the absolute privilege, a proceeding must, at a mini-
mum . . . allow opposing parties to cross-examine,
impeach, or otherwise confront a witness’’). The failure
to provide a mechanism to challenge the veracity of
testimony weighs heavily against the conclusion that a
proceeding is quasi-judicial.
In addition to these two key procedural protections
that were absent from the town planning and zoning
commission hearing in Priore, this court has frequently
relied on the presence of other procedural protections
in determining whether a proceeding qualifies as quasi-
judicial. One threshold requirement is notice. Indeed,
‘‘[t]he essence of due process is the requirement that
a person in jeopardy of a serious loss [be given] notice
of the case against him and [an] opportunity to meet
it.’’ (Internal quotation marks omitted.) State v. Lopez,
235 Conn. 487, 493, 668 A.2d 360 (1995). Thus, notice
to the accused, who may be subjected to serious loss,
is an important and necessary procedural safeguard
that accompanies any quasi-judicial proceeding. See
Craig v. Stafford Construction, Inc., supra, 271 Conn.
88 (police officer must be given notice of charges against
him and date of formal hearing); Kelley v. Bonney, supra,221 Conn. 569 n.14 (teacher is required to be given notice
of teaching certificate decertification proceeding); Pres-
ton v. O’Rourke, supra, 74 Conn. App. 310–11 (contractual
arbitration proceedings require formal notice to parties).
This court has also stressed the importance of proce-
dures such as the opportunity for parties to call witnesses
or otherwise have them subpoenaed, to have the meaning-
ful assistance of counsel during the proceeding, and to
appeal on the record of the proceeding. Nearly all the
proceedings recognized by this court as quasi-judicial have
provided a reasonable opportunity for the decision mak-
ers or parties to subpoena or call witnesses. See, e.g.,
Larmel v. Metro North Commuter Railroad Co., supra,
341 Conn. 341 (arbitrator authorized to issue subpoenas
pursuant to General Statutes § 52-549w (c)); Craig v.
Stafford Construction, Inc., supra, 271 Conn. 88 (police
department officials had subpoena power and officer
being investigated could call witnesses on his or her own
behalf at formal hearing); Kelley v. Bonney, supra, 221
Conn. 570 n.14 (counsel were granted reasonable opportu-
nity to call witnesses); Petyan v. Ellis, supra, 200 Conn.
251 (officials of Employment Security Division of state
Department of Labor possessed subpoena power); see
also Preston v. O’Rourke, supra, 74 Conn. App. 312 (noting
arbitrator’s power to subpoena witnesses pursuant to
General Statutes § 52-412). Thus, the ability of the entity
conducting the proceeding to subpoena witnesses, or pro-
cedures that allow parties to call their own witnesses to
testify; see Kelley v. Bonney, supra, 570 n.14; are proce-
dural safeguards common to quasi-judicial proceedings.
This court also has recognized the opportunity for coun-
sel to be present and meaningfully assist their client during
the proceeding as an important safeguard that helps to
identify a quasi-judicial proceeding. The presence of coun-
sel in adjudicatory proceedings serves to protect the par-
ties from unfair or improper procedures and provides a
means by which parties may effectively defend them-
selves. In concluding that the revocation hearing in Kelley
was quasi-judicial, this court noted that the governing
legislation specifically allowed for counsel to call wit-
nesses, to cross-examine adverse witnesses, and to pres-
ent oral argument. Id. (quoting provision in State Board
of Education Regulations); see also id., 570. Indeed, many
of the proceedings recognized by this court as quasi-judi-
cial provided parties the same opportunity to have counsel
present and to assist them during the proceeding. See,
e.g., Larmel v. Metro North Commuter Railroad Co.,
supra, 341 Conn. 336, 341 (plaintiff to arbitration proceed-
ing was represented by counsel and could object to evi-
dence); Hopkins v. O’Connor, supra, 282 Conn. 831 n.3
(respondents to commitment proceeding were entitled
to representation by counsel, who could cross-examine
adverse witnesses); Craig v. Stafford Construction, Inc.,
supra, 271 Conn. 88 (police officer subject to internal affairs
investigation had right to counsel).
Finally, this court frequently has recognized a party’s
right to appeal the adjudicator’s decision as part of
its conclusion that the proceeding at issue was quasi-
judicial. In Petyan, the court relied on the fact that,
‘‘[a]t any time before the referee’s decision [on an unem-
ployment compensation claim] has become final within
the periods of limitation . . . any party including the
administrator, [could] appeal therefrom to the [Employ-
ment Security Board of Review].’’ (Internal quotation
marks omitted.) Petyan v. Ellis, supra, 200 Conn. 249n.4; see also Craig v. Stafford Construction, Inc., supra,
271 Conn. 88 (‘‘the [police] officer ha[d] a right to appeal
to the personnel board of the city . . . [and] [t]here-
after . . . to the state labor board’’); Preston v.
O’Rourke, supra, 74 Conn. App. 312 (‘‘either party could
appeal to the trial court to request an order confirming
the arbitrator’s award or to vacate, modify or correct
the award’’).
The right to appeal, or to have the proceeding offi-
cially reviewed, requires that an adequate record of the
proceeding be available. See Craig v. Stafford Con-
struction, Inc., supra, 271 Conn. 88 (‘‘the hearing officer
[took] notes on the testimony and evidence presented
. . . which constitute[d] the record for the purposes
of the hearing’’); Kelley v. Bonney, supra, 221 Conn.
570 n.14 (‘‘[a] verbatim transcript of the hearing shall
be made and shall be supplied to all [parties and adjudi-
cators]’’ (internal quotation marks omitted)); Petyan v.
Ellis, supra, 200 Conn. 249 n.4 (‘‘[any] appeal to the
board shall be heard on the record of the hearing before
the referee’’ (internal quotation marks omitted)). There-
fore, when considering whether a proceeding is quasi-
judicial in nature, we recognize a party’s right to a
meaningful appeal, which requires an adequate record
of the proceeding, as an important procedural safeguard
to ensure that facts were properly found and that law
was appropriately applied.
In sum, there must be sufficient procedural safe-
guards to ensure reliability and to promote fundamental
fairness. The more robust the procedural safeguards,
the more likely a given proceeding will resemble a judi-
cial proceeding and thereby be considered a quasi-judi-
cial proceeding to which absolute immunity would
apply.
C
The Second Circuit next asks us ‘‘[h]ow, if at all . . .
the power factors enumerated in Kelley . . . and Craig
. . . apply to the identification of a [proceeding] as
quasi-judicial; and, if they do apply, are these factors
in addition to . . . or independent of, a preliminary
[law to fact] requirement?’’ (Citations omitted; internal
quotation marks omitted.) Khan v. Yale University,
supra, 27 F.4th 833. Kelley established, and Priore
affirmed, that the Kelley factors are in addition to, not
in lieu of, the other criteria discussed in this part of
the opinion.
In Kelley, we recognized ‘‘a number of factors that
assist in determining whether a proceeding is [quasi-
judicial] in nature. Among them are whether the body
has the power to: (1) exercise judgment and discretion;
(2) hear and determine or to ascertain facts and
decide;24 (3) make binding orders and judgments; (4)
affect the personal or property rights of private persons;
(5) examine witnesses and hear the litigation of the
issues on a hearing; and (6) enforce decisions or impose
penalties.’’ (Emphasis added; footnote added.) Kelley
v. Bonney, supra, 221 Conn. 567. Kelley explained that
courts must consider whether the entity conducting the
proceeding has the power to determine facts and to
apply appropriate law and requires proceeding partici-
pants to certify that statements were true and correct
and to determine if there are sound public policy rea-
sons for permitting absolute immunity. See id.Since Kelley, we have explained that the Kelley fac-
tors are not exclusive and that, for the most part, they
supplement, and function in addition to, the criteria
already discussed in this part of the opinion. See Priore
v. Haig, supra, 344 Conn. 648. Accordingly, a court
should consider the Kelley factors but need not con-
clude that they are dispositive. See id.D
Next, the Second Circuit inquires ‘‘[h]ow, if at all,
does public policy inform the identification of a [pro-
ceeding] as quasi-judicial and, if it does, is this consider-
ation in addition to, or independent of, a [law to fact]
requirement and the enumerated Kelley/Craig factors?’’
Khan v. Yale University, supra, 27 F.4th 833. In Priore,
we clarified that ‘‘courts must always carefully scruti-
nize whether there is a sound public policy justification
for the application of absolute immunity in any particu-
lar context.’’ Priore v. Haig, supra, 344 Conn. 653.
We explained in Priore that, ‘‘[i]n most cases, the
policy considerations require balancing the public inter-
est of encouraging public participation and candor, on
the one hand, and the private interest of protecting
individuals from false and malicious statements, on the
other.’’ Id., 652. ‘‘The rationale underlying the [absolute]
privilege is grounded [on] the proper and efficient
administration of justice. . . . Participants in a judicial
process must be able to testify or otherwise take part
without being hampered by fear of [actions seeking
damages for their statements].’’ (Internal quotation
marks omitted.) Id., 646. However, because ‘‘[a]bsolute
immunity . . . is strong medicine’’; (internal quotation
marks omitted) id., 652; it ‘‘must be reserved for those
situations [in which] the public interest is so vital and
apparent that it mandates complete freedom of expres-
sion without inquiry into a [speaker’s] motives.’’ (Inter-
nal quotation marks omitted.) Id., 663. It is only in these
situations and judicial-like forums that ‘‘[t]he inconve-
nience of the individual [will] yield to a rule for the
good of the general public.’’ (Internal quotation marks
omitted.) Post v. Mendel, 510 Pa. 213, 221, 507 A.2d
351 (1986).
Therefore, even if an entity applies law to facts in a
proceeding with adequate procedural safeguards, the
proceeding is not quasi-judicial if there is no discernable
public policy supporting absolute immunity for pro-
ceeding participants. Likewise, public policy alone will
not justify affording absolute immunity to proceeding
participants if the proceeding is devoid of the basic,
fundamental procedural protections inherent in judicial
and quasi-judicial proceedings. Rather, a proceeding is
quasi-judicial if, in addition to satisfying the indicia of
an official judicial proceeding, as discussed in part II A
through C of this opinion, public policy favors providing
absolute immunity for proceeding participants.
III
Next, we are asked whether, in light of our responses
to the above questions, the 2018 Yale UWC proceeding
at issue was properly recognized as quasi-judicial. See
Khan v. Yale University, supra, 27 F.4th 833. We answer
that question in the negative; the UWC proceeding can-
not properly be recognized as quasi-judicial because it
lacked the adequate procedural safeguards necessary
for absolute immunity to apply.25
A
As a threshold matter, we recognize that disciplinary
proceedings in response to allegations of sexual assault
at institutions of higher education are specifically
authorized by Connecticut law. Section 10a-55m (b)
requires each Connecticut institution of higher educa-
tion to adopt policies regarding sexual assault.26 Such
policies provide for, among other requirements, an
investigation and disciplinary proceedings related to
allegations of sexual violence. See General Statutes
§ 10a-55m (b) (6). If a disciplinary hearing is held, cer-
tain procedures and substantive requirements must be
followed as specifically governed by state law. See Gen-
eral Statutes § 10a-55m (b) (6) (mandating procedural
requirements and affirmative consent standards).
Therefore, because the UWC proceeding was specifi-
cally authorized by law,27 we now analyze whether it
satisfies the requirements necessary for a proceeding to
be recognized as quasi-judicial under Connecticut law.
B
Khan asserts that the UWC proceeding should not
be recognized as quasi-judicial because the proceeding
lacked judicial-like procedures and other indicia of
reliability. Doe responds that the proceeding provided
more than the minimum procedural safeguards that
fundamental fairness requires. We agree with Khan and
conclude that, even if the UWC hearing panel applied
law to fact,28 that the UWC proceeding did not have
adequate procedural safeguards to be recognized as
quasi-judicial for the purpose of affording absolute
immunity to Doe. In reaching this conclusion, we reiter-
ate that, in light of the procedural posture in which this
case reaches us, we are obliged to accept the factual
allegations as true and to draw all inferences in Khan’s
favor, and that we have considered in that light the
complaint and all the documents appended to the com-
plaint or incorporated in the complaint by reference,
including the UWC procedures. See part I of this opin-
ion.
After reviewing the record before us, we conclude
that the UWC proceeding did not incorporate sufficient
procedural safeguards to be considered quasi-judicial.
Specifically, the UWC proceeding failed (1) to require
complainants to testify under oath or to subject them
to explicit and meaningful penalties for untruthful state-
ments, (2) to provide Khan, or his counsel, the meaning-
ful opportunity to cross-examine adverse witnesses in
real time, (3) to provide parties a reasonable opportu-
nity to call witnesses to testify, (4) to afford Khan the
opportunity to have the active assistance of counsel
during the UWC hearing, and (5) to provide Khan any
record or transcript of the proceeding that would assist
him in obtaining adequate review of the UWC decision
or to expose the legitimacy or fairness of the proceeding
to public scrutiny. 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 ade-
quate safeguards to ensure reliability and promote fun-
damental fairness.
1
First, witnesses in the UWC proceeding did not testify
under oath, provide sworn statements, or certify to the
truth of their statements. The UWC’s only protection
against false statements is the threat that the ‘‘[f]ailure
to provide truthful information . . . may result in a
recommendation for a more severe penalty or a referral
for discipline.’’ Because Doe had graduated from Yale
by the time of the proceedings; Khan v. Yale University,
supra, 511 F. Supp. 3d 218; she presumably could not
be subject to any disciplinary consequences for failing
to testify truthfully.
The failure of the UWC to place Doe under oath or
otherwise have her certify to the truth of her statements,
subject to a penalty for untruthfulness, undermined the
reliability of Doe’s statements. See Priore v. Haig,
supra, 344 Conn. 655 (declining to recognize town plan-
ning and zoning commission’s public hearing as quasi-
judicial in part because declarants were not under oath
or required to certify truth of statements). As we
explained in Petyan, the penalty of perjury is ‘‘simply
part of the price that is paid for witnesses who are free
from intimidation by the possibility of civil liability for
what they say.’’ (Internal quotation marks omitted.) Pet-
yan v. Ellis, supra, 200 Conn. 251; see Priore v. Haig,
supra, 655 n.4 (‘‘[a] witness’ reliability is ensured by his
[or her] oath, the hazard of cross-examination and the
threat of prosecution for perjury’’ (internal quotation
marks omitted)). The oath or certification requirement
is fundamental to the reliability of the information pre-
sented. Yale’s failure to display any means of holding
witnesses accountable for untruthful statements signifi-
cantly weakens Doe’s contention that the UWC pro-
ceeding is quasi-judicial.
2
Second, the UWC proceeding did not permit live, real-
time cross-examination of witnesses or any reasonable
opportunity for parties to confront witnesses. In fact,
neither Khan nor his counsel was permitted to be in
the hearing room when Doe was questioned. Rather,
they were required to sit in an anteroom, where they
could only listen to an audio feed of the hearing and
could not see or be seen by Doe. Khan claims that he
and his counsel were denied the opportunity to ask any
questions of Doe or to cross-examine her in any way.29
As a result, Khan alleges that he was ‘‘denied any reason-
able opportunity to confront, question, or otherwise
face his accuser.’’
The opportunity to meaningfully cross-examine
adverse witnesses is vitally important to the truth seek-
ing function of any judicial or quasi-judicial proceeding
and is necessary if a university’s disciplinary proceeding
is to be considered quasi-judicial. In Doe v. Baum, 903
F.3d 575 (6th Cir. 2018), the United States Court of
Appeals for the Sixth Circuit concluded that due pro-
cess required that universities allow for some form of
live cross-examination when a witness’ ‘‘credibility’’ is
at issue in a school disciplinary hearing. Id., 581; see also
id., 583. The court explained that, ‘‘when the university’s
determination turns on the credibility of the accuser,
the accused, or witnesses, that hearing must include
an opportunity for cross-examination.’’ Id., 581.30
The California Court of Appeal reached a similar con-
clusion in Doe v. Allee, 30 Cal. App. 5th 1036, 242 Cal.
Rptr. 3d 109 (2019). There, the court held that, ‘‘when
a student accused of sexual misconduct faces severe
disciplinary sanctions, and the credibility of witnesses
(whether the accusing student, other witnesses, or
both) is central to the adjudication of the allegation,
fundamental fairness requires, at a minimum, that the
university provide a mechanism by which the accused
may cross-examine those witnesses, directly or indi-
rectly . . . .’’ Id., 1039.
Meaningful cross-examination allows for witness tes-
timony to be challenged in real time, whether in person
or through advanced video technology that allows for
instant two-way communications and follow-up ques-
tions. 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. See, e.g., id., 1065–66.
Our review of the UWC procedures provides us with
no assurance that Khan had a meaningful opportunity
to cross-examine or otherwise confront Doe in real
time. We also have no record of the proceeding to dem-
onstrate that the UWC varied from the procedures
incorporated in the complaint in a manner that afforded
Khan fundamental fairness. Although, under the UWC
procedures, Khan and Doe were able to submit ques-
tions that they wanted the UWC hearing panel to ask,
the panel had sole discretion to reject the questions or
not to ask them. Thus, the UWC procedures hampered
Khan’s ability to ask legitimate questions or to sequence
questions in a way he believed would test the veracity
of Doe’s testimony at the hearing. Accordingly, the pro-
cedures utilized by the UWC failed to provide Khan
with an opportunity to challenge the statements Doe
made to the investigator and to the UWC panel.
Allowing for confrontation of an accuser while still
preventing abusive questioning is no doubt a difficult
balance to strike, but fundamental fairness requires
some measure of meaningful cross-examination, and
the present record compels us to conclude that the
UWC procedures fall short. Therefore, Khan was denied
a fundamental procedural protection essential to quasi-
judicial proceedings because he was not given a mean-
ingful opportunity to test the veracity or reliability of
Doe’s testimony in real time.
3
Third, unlike most of the proceedings that this court
has recognized as quasi-judicial, the UWC proceeding
did not provide the parties a reasonable opportunity to
call witnesses. Although the UWC procedures allowed
parties to request that the UWC hearing panel call wit-
nesses to testify, the procedures provided no standards
regarding whether the panel would in fact call or inter-
view them, and there was no independent mechanism
by which parties could call their own witnesses.31
At private universities, as in other settings, ‘‘basic
principles of . . . fundamental fairness [are] adhered
to [when] the students involved . . . [are allowed,
among other things] to call their own witnesses . . . .’’
(Emphasis added; internal quotation marks omitted.)
Doe v. University of the Sciences, 961 F.3d 203, 214 (3d
Cir. 2020); see, e.g., id., 211, 215–16 (determining that
student conduct procedures were not fair in breach of
contract case). Supporting this basic tenet of proce-
dural fairness, § 10a-55m (b), the Connecticut statutory
provision that authorizes sexual assault disciplinary
proceedings at institutions of higher education, requires
that ‘‘[e]ach institution of higher education . . . adopt
and disclose . . . (6) . . . a summary of such institu-
tion’s student investigation and disciplinary proce-
dures, including clear statements . . . (C) [that the stu-
dent responding to reports of sexual assault] . . . (ii)
shall have the opportunity to present evidence and
witnesses on their behalf during any disciplinary pro-
ceeding . . . .’’ (Emphasis added.)
The fact that the UWC hearing panel could, ‘‘[a]t its
sole discretion,’’ reject any witnesses recommended by
Khan deprived Khan of a fair opportunity to present a
defense by calling or presenting witnesses, if he so
chose,32 to testify on his behalf. Under these circum-
stances, a person in Khan’s position is left to rely on
the grace of the panel to aid in his defense by presenting
the in-person testimony of favorable witnesses. As a
result, Yale’s UWC policy does not comport with the
protections typical of quasi-judicial proceedings.
4
Fourth, the UWC proceeding materially limited the
assistance of counsel throughout the hearing. Under
the UWC 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 writ-
ing, on Khan’s behalf, raise objections, or be present
during—let alone participate in—the questioning of wit-
nesses. 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 pro-
cedural safeguard to ensure the procedural and eviden-
tiary fairness of a judicial proceeding. See part II B of
this opinion. The active assistance of counsel is espe-
cially 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 conse-
quences for the individual parties. Limitations on coun-
sel’s assistance during the proceeding will bear on
whether the proceeding is quasi-judicial. In the present
case, the UWC’s procedures prohibited Khan’s counsel
from speaking on Khan’s behalf, objecting to evidence,
examining Khan’s accusers, and submitting documents
to the UWC panel. Although we do not agree with Khan’s
contention that these prohibitions predetermined the
outcome of the hearing, we do agree that the restric-
tions placed on counsel’s participation in the proceed-
ing support the conclusion that the proceeding was not
quasi-judicial.
5
Finally, the UWC proceeding limited a party’s ability
to seek review of the UWC panel’s decision because it
failed to establish an adequate record of the proceed-
ings.33 Although the UWC procedures require that the
secretary of the UWC keep minutes from the meeting
and a record of all the actions and reports filed, they
explicitly provide that ‘‘[t]he minutes do not record
statements, testimony, or questions.’’ The UWC panel
specifically denied Khan’s request that it make a tran-
script or other electronic recording of the hearing for
the purpose of further review.
We have long recognized that the maintenance of a
transcript or record is critical and a key feature of any
quasi-judicial proceeding. For instance, in concluding
that the proceeding in Craig was quasi-judicial, we
relied on the fact that, ‘‘[d]uring the hearing, the hearing
officer [took] notes on the testimony and evidence pre-
sented and, thereafter, transcribes his notes into typed
form, which constitute[d] the record for the purposes
of the hearing.’’ Craig v. Stafford Construction, Inc.,
supra, 271 Conn. 88. After the hearing, the record could
be reviewed on appeal. See id. Similarly, in Kelley, the
applicable state Board of Education regulation required
that ‘‘[a] verbatim transcript of the hearing . . . be sup-
plied to all members of the board, to the holder, to
the requesting party, and to the secretary of the local
board.’’ (Internal quotation marks omitted.) Kelley v.
Bonney, supra, 221 Conn. 570 n.14.
In the present case, Khan’s ability to appeal was
severely constrained by the absence of any transcript or
recording of statements, testimony, or questions raised
during the UWC hearing. That restriction was especially
prejudicial in light of the fact that his counsel was not
permitted to object when UWC panel members alleg-
edly assumed facts not in evidence and otherwise vio-
lated core evidentiary principles.
C
On the basis of the foregoing, we conclude that the
UWC proceeding lacked adequate procedural safe-
guards to ensure the reliability of the statements made
in the proceeding and, therefore, did not qualify as
quasi-judicial for purposes of absolute immunity. Our
conclusion finds support in the decisions of other courts
determining whether a university disciplinary proceed-
ing had adequate procedural protections.
We find persuasive the decision of the United States
District Court for the Eastern District of Virginia in Doe
v. Roe, supra, 295 F. Supp. 3d 664. In that case, the
District Court determined that disciplinary proceedings
conducted at Marymount University were not quasi-
judicial because they failed to afford the plaintiff basic
due process protections. See id., 674. The District Court
explained that, ‘‘[i]n determining whether a proceeding
is quasi-judicial in nature, [courts] have stressed ele-
ments associated with notions of due process, including
requirements for notice, a hearing, an unbiased adjudi-
cator, and the ability to [marshal and present evidence
and to call and cross-examine witnesses].’’ (Internal
quotation marks omitted.) Id. The court ultimately held
that, because the plaintiff ‘‘was not permitted to present
exculpatory or documentary evidence, to call witnesses,
or to confront and cross-examine his accuser, and sig-
nificantly . . . was denied the opportunity to have an
in-person hearing before [an] adjudicator . . . [there
were no] guarantees of due process and fairness . . . .’’
(Citation omitted; footnote omitted.) Id., 674–75.
That court’s reasoning is echoed in federal appellate
decisions. For example, in Overall v. University of Penn-
sylvania, 412 F.3d 492 (3d Cir. 2005), the United States
Court of Appeals for the Third Circuit declined to recog-
nize a private grievance proceeding at a university as
quasi-judicial in nature. See id., 498. Observing that
quasi-judicial proceedings ‘‘involve basic procedural
safeguards,’’ the court relied on the fact that the private
grievance proceeding at issue ‘‘did not require sworn
testimony. The volunteer faculty members who pre-
sided over the hearing lacked the power to make any
binding judgment or enforce any disciplinary measures
. . . [a]nd of particular relevance to [the] case, no one
kept a transcript of what was said during the hearing,
so there is no record of exactly what [the defendant]
said when he allegedly defamed [the plaintiff].’’ Id.Likewise, in Doe v. University of the Sciences, supra,
961 F.3d 203, the Third Circuit determined that, at pri-
vate universities, ‘‘basic principles of . . . fundamental
fairness [are] adhered to [when] the students [involved]
. . . [are] given notice of the charges and evidence
against them, [are] allowed to be present and to partici-
pate in the hearing assisted by faculty, to call their own
witnesses and to cross-examine the witnesses against
them, and [are] fully apprised of the findings of the
[h]earing [p]anel.’’ (Internal quotation marks omitted.)
Id., 214. The Third Circuit cautioned that fair process
at a private university’s sexual misconduct investigation
would require, at a minimum, ‘‘the modest procedural
protections of a live, meaningful, and adversarial hear-
ing and the chance to test witnesses’ credibility through
some method of cross-examination.’’ Id., 215.
Accordingly, because the UWC proceeding lacked the
basic procedural safeguards that this court and other
courts have deemed necessary to ensure the reliability
of the information presented, we decline to recognize
the UWC proceeding as quasi-judicial in nature for the
purpose of affording Doe absolute immunity for her
statements.34
IV
The Second Circuit next asks us, in light of our deter-
mination that the UWC proceeding was not quasi-judi-
cial, whether Connecticut law would afford Doe quali-
fied immunity or no immunity at all. Khan v. Yale
University, supra, 27 F.4th 834.35 We answer that public
policy supports a qualified privilege for participants in
certain sexual misconduct proceedings. Nevertheless,
because this matter is at the motion to dismiss stage
and Khan has sufficiently alleged malice, we are unable
to determine whether Doe is entitled to qualified immu-
nity as a matter of law. At a later stage in the case, a
court may reconsider the privilege as the factual record
is developed.
Our standard of review is clear: ‘‘A defendant may
shield himself from liability for defamation by asserting
the defense that the communication is protected by a
qualified privilege. . . . When considering whether a
qualified privilege protects a defendant in a defamation
case, the court must resolve two inquiries. . . . The
first is whether the privilege applies, which is a question
of law over which our review is plenary. . . . The sec-
ond is whether the applicable privilege nevertheless
has been defeated through its abuse, which is a question
of fact.’’ (Citations omitted.) Gambardella v. Apple
Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736(2009).
A
We first consider whether a qualified privilege should
apply to statements made by alleged victims in a sexual
misconduct hearing at an institution of higher educa-
tion.
Unlike absolute immunity, which provides a blanket
protection for a speaker’s false statements, a qualified
privilege protects only those allegedly defamatory state-
ments that are not made maliciously. See Gallo v. Barile,
supra, 284 Conn. 463 n.6. A qualified privilege is appro-
priate when it ‘‘is based [on] a public policy that recog-
nizes that it is desirable that true information be given
whenever it is reasonably necessary for the protection
of the actor’s own interests, the interests of a third
person or certain interests of the public . . . .’’ (Inter-
nal quotation marks omitted.) Id., 468 n.12; see 3
Restatement (Second), Torts §§ 594 through 598, pp.
263–81 (1977). In other words, a qualified privilege is
appropriate when the legitimate public or private inter-
est underlying the publication of statements outweighs
the important reputational interests of the individual.
See 50 Am. Jur. 2d 624, Libel and Slander § 259 (2017);
see also Rioux v. Barry, 283 Conn. 338, 346, 927 A.2d 304(2007) (‘‘whether and what form of immunity applies
in any given case is a matter of policy that requires a
balancing of interests’’). Importantly, a qualified privi-
lege for communications made to advance certain pub-
lic interests or to protect individuals is applicable only
when the communications are made to those who may
be expected to take official action of some kind for the
protection of those interests or individuals. See, e.g.,
Gallo v. Barile, supra, 468–69 n.12, citing W. Keeton et
al., supra, § 115, p. 830; Government Micro Resources,
Inc. v. Jackson, 271 Va. 29, 43, 624 S.E.2d 63 (2006)
(‘‘qualified privilege protects a communication from
allegations of defamation if made in good faith, to and
by persons who have corresponding duties or interests
in the subject of the communication’’); see also, e.g., 3
Restatement (Second), supra, § 598, p. 281.
For example, in Gallo v. Barile, supra, 284 Conn. 459,
this court engaged in a balancing test to determine
whether an absolute or a qualified privilege is appro-
priate for statements made to the police in connection
with a criminal investigation. See id., 468–72. This court
concluded that those statements were subject to a quali-
fied privilege, explaining that ‘‘a qualified privilege is
sufficiently protective of [those] wishing to report
events concerning [a] crime . . . [because] [t]here is
no benefit to society or the administration of justice
in protecting those who make intentionally false and
malicious defamatory statements to the police. The
countervailing harm caused by the malicious destruc-
tion of another’s reputation by false accusation can have
irreparable consequences. . . . [T]he law should pro-
vide a [judicial] remedy in [such] situations . . . .’’
(Internal quotation marks omitted.) Id., 471–72; see also
Petyan v. Ellis, supra, 200 Conn. 252 (recognizing quali-
fied immunity for complaining witness who initiates
prosecution).
Although the question of whether a qualified privilege
should be afforded to statements made at sexual mis-
conduct hearings at institutions of higher education is
one of first impression for this court, we find instructive
the decision of the United States District Court for the
District of Maryland in Doe v. Salisbury University, 123
F. Supp. 3d 748 (D. Md. 2015). In that case, the District
Court recognized that defamatory statements made
regarding an alleged sexual assault on a college campus
would enjoy a conditional, or qualified, privilege under
Maryland law. See id., 758–59. The court reasoned that
Maryland courts recognize a conditional privilege for
statements ‘‘made in furtherance of [the victims’] legiti-
mate interest in personal safety and the safety of those
closest to [them].’’ Id., 758; see also id., 759. Without
such privilege, ‘‘[v]ictims would have to weigh, on the
one hand, the value of reaching out for help in the
aftermath of a traumatic sexual assault, and on the
other hand the risk that they could be subject to civil
liability for defamation if the occurrence of sexual
assault is contested by the alleged perpetrator.’’ Id., 759.
Similarly, in Doe v. Roe, supra, 295 F. Supp. 3d 664,
the District Court for the Eastern District of Virginia
concluded that, when allegations of sexual assault are
made during a university Title IX investigation, ‘‘quali-
fied immunity, not absolute immunity, is the appro-
priate privilege to apply . . . .’’ Id., 676. The court
reached that conclusion after determining that the pro-
ceeding lacked basic due process protections to afford
proceeding participants absolute immunity. See id.,674–75; see also part III C of this opinion.
Just as our case law provides a qualified privilege to
individuals reporting crimes to the police, the public
policy of this state supports providing a qualified privi-
lege for statements made by individuals alleging sexual
assault to proper authorities at institutions of higher
education. See General Statutes § 10a-55m. As the amici
explain, sexual assault remains a serious and vastly
underreported crime. The hesitation of victims to report
such crimes is, in no small part, due to a fear of retalia-
tion.36 The hesitation to report sexual misconduct may
be especially pronounced on college campuses, and fears
and concerns surrounding such reports would undoubt-
edly be compounded if victims had to worry that any
report they made could also be the subject of a defama-
tion suit. See, e.g., Sagaille v. Carrega, 194 App. Div.
3d 92, 94, 143 N.Y.S.3d 36 (‘‘defamation suits . . . con-
stitute [one] form of retaliation against those with the
courage to speak out’’), appeal denied, 37 N.Y.3d 909,
174 N.E.3d 710, 152 N.Y.S.3d 685 (2021).
Our legislature has responded aggressively to address
these concerns. As we discussed, § 10a-55m requires
institutions of higher education to establish disciplinary
committees and related reporting systems for crimes
of sexual violence. See part III A and footnote 26 of
this opinion. In 2012, the Connecticut legislature expanded
on the federal Jeanne Clery Disclosure of Campus Secu-
rity Policy and Campus Crime Statistics Act (Clery
Act)37 by enacting No. 12-78 of the 2012 Public Acts
(P.A. 12-78), titled ‘‘An Act Concerning Sexual Violence
on College Campuses.’’38 Public Act 12-78, § 1, requires
higher education institutions to run prevention and aware-
ness programs for all students that provide information
concerning the reporting of incidences of sexual assault
and violence. In addition, P.A. 12-78, § 1, as codified,
requires institutions to establish a campus resource team
dedicated to providing support and a victim centered
response to reported sexual assault victims and to pro-
vide free counseling and advocacy services. See General
Statutes (Rev. to 2013) § 10a-55m (b) (2) (now § 10a-
55m (b) (3)).
In 2014, our legislature passed a law to provide addi-
tional services for those victimized by sexual violence
on college campuses. Public Acts 2014, No. 14-11, § 2
(P.A. 14-11). Specifically, P.A. 14-11, § 2, as codified, per-
mits anonymous reporting to authorities at institutions
of higher education.39 General Statutes (Rev. to 2015)
§ 10a-55m (d). Public Act 14-11, § 2, as codified, also
mandates that institutions of higher education disclose
their disciplinary and reporting procedures to the joint
standing committee of the General Assembly having
cognizance of matters relating to higher education. See
General Statutes (Rev. to 2015) § 10a-55m (f).
The legislature took further action in 2016, enacting
No. 16-106 of the 2016 Public Acts, which required all
campus hearings regarding claims of sexual misconduct
to apply an affirmative consent40 standard. See Public
Acts 2016, No. 16-106, § 1. Each of these measures reflects
a strong public commitment to protecting alleged vic-
tims of sexual assault on college and university cam-
puses, encouraging them to report claims of sexual vio-
lence, and allowing them to obtain justice with dignity
and privacy.
Thus, given the legitimate public interests that our
legislature has articulated, we conclude that a qualified
privilege is appropriate to afford alleged victims of sex-
ual assault who report their abuse to proper authorities
at institutions of higher education. ‘‘On the one hand,
the privilege encourages victims of sexual assault to
speak candidly with university officials and to report
abuse by immunizing their good-faith reports. . . . At
the same time, the qualified nature of the privilege pro-
vides plaintiffs with an opportunity to overcome the
privilege in those rare instances [in which] a report is
made, not in good faith, but rather with malice.’’ Doe
v. Roe, supra, 295 F. Supp. 3d 677.
B
Because a qualified privilege is available to Doe, the
question becomes whether the privilege has been
defeated. See Bleich v. Ortiz, 196 Conn. 498, 504, 493
A.2d 236 (1985) (‘‘[e]ven [if the court determines that]
a legitimate interest is at stake, a claim of conditional
[or qualified] privilege is defeated if the defendant acts
with malice in making the defamatory communication
at issue’’).41
At the motion to dismiss stage, the court must accept
the factual allegations in the complaint as true and must
draw inferences in the plaintiff’s favor. See Fed. R. Civ.
P. 12 (b) (6). Consequently, if the plaintiff sufficiently
alleges with particular facts that the defendant acted
with malice when making the statement(s) at issue, at
the motion to dismiss stage, the court must take those
allegations as true, and, therefore, the privilege will be
defeated at this stage of the proceedings.42 See Doe v.
College of Wooster, Docket No. 5:16-cv-979, 2018 WL
838630, *9 (N.D. Ohio February 13, 2018) (denying
motion to dismiss sexual assault defamation claim
based on qualified privilege because pleadings demon-
strated actual malice sufficient to defeat qualified privi-
lege); Jackson v. Liberty University, Docket No. 6:17-
CV-00041, 2017 WL 3326972, *14 (W.D. Va. August 3,
2017) (at motion to dismiss stage, ‘‘there [were] suffi-
cient, [nonconclusory] facts showing the malice
required to overcome the qualified privilege [because
the plaintiff pleaded facts indicating that sexual assault
accusations were unjustifiably motivated]’’); Routh v.
University of Rochester, 981 F. Supp. 2d 184, 213
(W.D.N.Y. 2013) (‘‘consideration of facts outside of the
complaint [is] inappropriate . . . on a motion to dis-
miss’’ (internal quotation marks omitted)), appeal with-
drawn, United States Court of Appeals, Docket No. 13-
4623 (2d Cir. January 9, 2014).
In this case, Khan alleged in his complaint that Doe
made false accusations for the sake of trying to expel
Khan as part of a larger political movement and personal
vendetta. Khan asserts that Doe made romantic
advances toward him. He further alleges that, at first,
she told a campus health care worker that she had
engaged in consensual unprotected sex. Khan contends
that Doe reported rape to her friends and, ultimately,
to the Title IX coordinator only because she was ashamed
of her sexual advances and encouraged by the larger
political movement waged against Khan. Specifically,
Khan cites in his complaint how, despite a jury’s dis-
missing Doe’s allegation and finding Khan not guilty of
criminal sexual assault charges, more than 77,000 peo-
ple signed a petition protesting Khan’s readmission to
Yale. On the basis of these assertions, which must be
accepted as true for the purpose of reviewing Doe’s motion
to dismiss, a reasonable inference could be drawn that
Doe knowingly fabricated claims of sexual assault.
Therefore, we conclude that, although a qualified
privilege against claims of defamation is available to
participants in sexual misconduct proceedings at insti-
tutions of higher education, Khan has alleged sufficient
facts in his complaint to defeat Doe’s qualified privilege
at the motion to dismiss stage. A more complete factual
record, however, may warrant revisiting Doe’s qualified
privilege at the summary judgment stage or when sub-
mitting the matter to a jury. See Doe v. Roe, supra, 295
F. Supp. 3d 677–78 (concluding that defendant was not
entitled to qualified immunity at motion to dismiss stage
but not foreclosing that qualified immunity may be
established as matter of law during later stage of pro-
ceedings).
SUMMARY
The answer to the first certified question as modified
is: A quasi-judicial proceeding is an adjudicative one,
in which the proceeding is specifically authorized by
law, the entity conducting the proceeding applies the
law to the facts within a framework that contains proce-
dural safeguards, and there is a sound public policy
justification for affording proceeding participants abso-
lute immunity.
The answer to the second certified question as modi-
fied is: No, the UWC proceeding was not quasi-judicial
because it lacked important procedural safeguards.
Accordingly, we need not answer the third certified
question.
The answer to the fourth certified question as modi-
fied is: Yes, a qualified privilege is available to alleged
victims of sexual assault who report their abuse to
proper authorities at institutions of higher education,
but, at this stage of the proceedings, the allegations of
malice in Khan’s complaint are sufficient to defeat Doe’s
entitlement to qualified immunity as a matter of law.
No costs shall be taxed in this court to any party.
In this opinion the other justices concurred.
1
In accordance with our policy of protecting the privacy interests of the
victims of sexual assault, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
2
As we discuss hereinafter, Khan was tried for and acquitted of criminal
sexual assault charges arising from Doe’s accusations. Khan v. Yale Univer-
sity, 27 F.4th 805, 811 (2d Cir. 2022). Khan has not raised any claims against
Doe for her statements to law enforcement or her testimony at his criminal
trial. See Khan v. Yale University, 511 F. Supp. 3d 213, 227 (D. Conn. 2021).
3
General Statutes § 51-199b (d) provides in relevant part: ‘‘The Supreme
Court may answer a question of law certified to it by a court of the United
States . . . if the answer may be determinative of an issue in pending
litigation in the certifying court and if there is no controlling appellate
decision, constitutional provision or statute of this state.’’
4
After accepting the certified questions of law, we granted permission to
Legal Momentum, Fierberg National Law Group and thirteen coamici to file
an amici curiae brief in support of Doe’s claim that statements made in the
course of Title IX processes should be afforded absolute immunity.
5
The court cited to M. Sable et al., ‘‘Barriers to Reporting Sexual Assault
for Women and Men: Perspectives of College Students,’’ 55 J. Am. Coll.
Health 157, 157–62 (2006).
6
Although § 10a-55m was the subject of certain amendments since the
events underlying this appeal; see, e.g., Public Acts 2021, No. 21-81, §§ 1
and 4; Public Acts 2019, No. 19-189, § 2; those amendments have no bearing
on the merits of this appeal. In the interest of simplicity, unless otherwise
indicated, we refer to the current revision of the statute.
7
Although we do not doubt that false accusations of this nature are uncom-
mon, they can be made, especially if certain fundamental procedural safeguards
are not securely in place. See National Sexual Violence Resource Center, False
Reporting: Overview (2012) pp. 2–3, available at https://www.nsvrc.org/sites/
default/files/Publications_NSVRC_Overview_False-Reporting.pdf (last vis-
ited June 21, 2023) (estimating that prevalence of false reporting of sexual
assaults is between 2 and 10 percent of total reports).
8
Khan also alleged violations of Title IX; see footnote 11 of this opinion;
breach of contract, breach of the implied warranty of fair dealing, negligent
infliction of emotional distress, intentional infliction of emotional distress,
and breach of privacy against Yale and various employees of Yale. See Khan
v. Yale University, 511 F. Supp. 3d 213, 216, 219 (D. Conn. 2021). Yale and
its employees also were named as defendants, but they are not parties to
this appeal. For the sake of simplicity, we refer to Doe by name throughout
this opinion and to the other defendants by name when necessary.
9
Section 51-199b (g) directs that, ‘‘[i]f the parties cannot agree upon a
statement of facts, then the certifying court shall determine the relevant
facts and shall state them as a part of its certification order.’’
However, given the procedural posture of this case, no facts have yet
been found because Khan appealed to the Second Circuit from the District
Court’s granting of Doe’s motion to dismiss pursuant to rule 12 (b) (6) of
the Federal Rules of Civil Procedure.
10
Yale College is the undergraduate branch of Yale University. We herein-
after refer to Yale College by its full name.
11
Title IX was enacted as part of the Education Amendments of 1972.
Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235, 373–75
(codified as amended at 20 U.S.C. § 1681 et seq.). Title IX provides in relevant
part: ‘‘No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimina-
tion under any education program or activity receiving Federal financial
assistance . . . .’’ 20 U.S.C. § 1681 (a) (2018).
12
As we explain later, ‘‘[the UWC procedures] explicitly provide that ‘[t]he
minutes [of the UWC hearing] do not record statements, testimony, or
questions.’ ’’ Part III B 5 of this opinion.
13
In his complaint, Khan alleges that he was born in a refugee camp in
Pakistan after his family fled from the Taliban in Afghanistan and that he
and his family subsequently fled from a Pakistani terrorist group to the
United Arab Emirates.
14
Khan v. Yale University, supra, 27 F.4th 834 (‘‘the Connecticut Supreme
Court may modify or expand these certified questions or address any other
issues of Connecticut law pertinent to this appeal’’).
15
On September 7, 2022, after the parties filed briefs in this appeal, we
released our decision in Priore v. Haig, supra, 344 Conn. 636, which
addressed issues relating to quasi-judicial proceedings and absolute immu-
nity. Accordingly, prior to oral arguments before this court, we ordered
the parties to file supplemental briefs to address the applicability, if any,
of Priore.
16
See, e.g., Briscoe v. LaHue, 460 U.S. 325, 330–31, 103 S. Ct. 1108, 75 L.
Ed. 2d 96 (1983) (tracing judicial immunity to sixteenth century); Khan v.
Yale University, supra, 27 F.4th 818 (explaining origins of absolute immu-
nity); see also, e.g., Buckley v. Wood, 76 Eng. Rep. 888, 889 (K.B. 1591)
(holding that accused could not pursue defamation action because accuser’s
statements were made in ‘‘[the] course of justice’’).
17
Kelley further explained that ‘‘an absolute privilege also attaches to
relevant statements made during administrative proceedings [that] are
[quasi-judicial] in nature. . . . Once it is determined that a proceeding is
[quasi-judicial] in nature, the absolute privilege that is granted to statements
made in furtherance of it extends to every step of the proceeding until final
disposition.’’ (Citations omitted; internal quotation marks omitted.) Kelley
v. Bonney, supra, 221 Conn. 566.
18
Other courts have adhered to a similar requirement. See, e.g., Overall
v. University of Pennsylvania, 412 F.3d 492, 497 (3d Cir. 2005) (‘‘quasi-
judicial privilege consistently involve[s] proceedings before federal, state,
or local governmental bodies, or proceedings held pursuant to a statute or
administrative regulation’’ (emphasis added)); see also, e.g., Bose v. Bea,
947 F.3d 983, 995 (6th Cir. 2020) (‘‘[quasi-judicial proceedings must be] tied
to a statute or to powers [that] the [state] legislature had specifically granted
to the tribunal at issue’’ (emphasis added)), cert. denied, U.S. , 141
S. Ct. 1051, 208 L. Ed. 2d 521 (2021).
19
Although arbitration proceedings fall outside of the scope of traditional
governmental proceedings and administrative hearings, we nonetheless rec-
ognize that arbitrations are statutorily authorized, designed to be an alterna-
tive dispute resolution forum to official judicial proceedings, contain proce-
dural safeguards, and are subject to judicial review. Thus, we have concluded
that arbitrations may be quasi-judicial. See Larmel v. Metro North Commuter
Railroad Co., 341 Conn. 332, 341, 267 A.3d 162 (2021).
20
We note that, ‘‘[a]lthough Connecticut appellate courts have not
addressed [legislative immunity for witnesses], other jurisdictions have held
that witnesses in a legislative proceeding are entitled to absolute immunity.’’
Priore v. Haig, supra, 344 Conn. 670 (D’Auria, J., concurring in part and
concurring in the judgment); see, e.g., Beverly Enterprises, Inc. v. Trump,
1 F. Supp. 2d 489, 493 (W.D. Pa. 1998) (‘‘the definition of a legislative
proceeding is broad enough to encompass proceedings—including informal
fact-finding, information gathering, or investigative activities—that are con-
ducted by legislators with the objective purpose of aiding the legislators in
the drafting, debating, or adopting of proposed legislation’’), aff’d, 182 F.3d
183 (3d Cir. 1999), cert. denied, 528 U.S. 1078, 120 S. Ct. 795, 145 L. Ed. 2d
670 (2000); 3 Restatement (Second), Torts § 590A, p. 254 (1977) (‘‘[a] witness
is absolutely privileged to publish defamatory matter as part of a legislative
proceeding in which he is testifying or in communications preliminary to
the proceeding, if the matter has some relation to the proceeding’’). In this
matter, the doctrine of legislative immunity has no application.
21
The collective bargaining agreement in Craig was governed by the
Municipal Employee Relations Act. See Khan v. Yale University, supra, 27
F.4th 822 n.22.
22
Although we determined that the zoning commission applied law to
fact, we concluded that the proceeding was not quasi-judicial for the reasons
articulated in part II B of this opinion. See Priore v. Haig, supra, 344 Conn.
655, 661.
23
General Statutes § 53a-156 (a) provides that ‘‘[a] person is guilty of
perjury if, in any official proceeding, such person intentionally, under oath
or in an unsworn declaration under sections 1-65aa to 1-65hh, inclusive,
makes a false statement, swears, affirms or testifies falsely, to a material
statement which such person does not believe to be true.’’ (Emphasis added.)
General Statutes § 53a-146 (1) defines an ‘‘official proceeding’’ as ‘‘any
proceeding held or which may be held before any legislative, judicial, admin-
istrative or other agency or official authorized to take evidence under oath,
including any referee, hearing examiner, commissioner or notary or other
person taking evidence in connection with any proceeding.’’ (Emphasis
added.)
For purposes of this appeal, we need not decide whether it would ever
be appropriate to afford absolute immunity to participants in a proceeding
that did not qualify as official for purposes of §§ 53a-146 and 53a-156, or
that did not provide explicit and meaningful penalties for false testimony
made during the proceeding.
24
We note that ‘‘the first two factors largely mirror Petyan’s law to fact
requirement.’’ Priore v. Haig, supra, 344 Conn. 648.
25
We need not consider whether participants to a proceeding may receive
absolute immunity on some ground other than quasi-judicial immunity, as
‘‘the only question before [this] court is whether the UWC disciplinary
proceeding itself is quasi-judicial. Doe does not assert, and the [D]istrict
[C]ourt did not find, that, even if that proceeding was not quasi-judicial, there
was some other basis for extending absolute immunity to Doe’s statements
at the proceeding.’’ Khan v. Yale University, supra, 27 F.4th 830.
26
General Statutes § 10a-55m (b) provides in relevant part: ‘‘Each institu-
tion of higher education shall adopt and disclose in such institution’s annual
uniform campus crime report one or more policies regarding sexual assault
. . . . Such policy or policies shall include provisions for:
‘‘(1) Informing students and employees that . . . (A) affirmative consent
is the standard . . .
***
‘‘(6) Disclosing a summary of such institution’s student investigation and
disciplinary procedures, including clear statements advising that (A) a stu-
dent or employee who reports or discloses being a victim of sexual assault
. . . shall have the opportunity to request that an investigation begin
promptly, (B) the investigation and any disciplinary proceedings shall be
conducted by an official trained annually . . . (C) both the student or
employee who reports or discloses the alleged assault . . . and the student
responding to such report or disclosure (i) are entitled to be accompanied
to any meeting or proceeding relating to the allegation of such assault . . .
by an advisor or support person of their choice, provided the involvement
of such advisor or support person does not result in the postponement or
delay of such meeting as scheduled, and (ii) shall have the opportunity
to present evidence and witnesses on their behalf during any disciplinary
proceeding, (D) both the student or employee reporting or disclosing the
alleged assault . . . and such responding student are entitled to be informed
in writing of the results of any disciplinary proceeding not later than one
business day after the conclusion of such proceeding, (E) the institution of
higher education shall not disclose the identity of any party to an investiga-
tion or disciplinary proceeding, except as necessary to carry out the investi-
gation or disciplinary proceeding or as permitted under state or federal law,
(F) a standard of affirmative consent is used in determining whether consent
to engage in sexual activity was given by all persons who engaged in the
sexual activity, and . . .
***
‘‘(8) Disclosing the range of sanctions that may be imposed following
the implementation of such institution’s student and employee disciplinary
procedures in response to such assault . . . .’’
27
We need not address whether the UWC proceeding was specifically
authorized by federal law because it was specifically authorized by state
law. Nonetheless, we note that many of the Title IX disciplinary procedures
for sexual assault at the time of Khan’s hearing were guidance and not yet
codified at 34 C.F.R. § 106.45 (b) (6) (i) (2020).
28
The parties disagree as to whether the UWC hearing panel had the
power of discretion to apply law to fact. Doe argues that the UWC panel
applied both Title IX regulations and § 10a-55m, which mandated that the
panel determine whether she affirmatively consented to the parties’ sexual
encounter. Khan argues that Title IX simply requires the development and
application of a sexual misconduct policy, whereas § 10a-55m only mandated
the application of an affirmative consent standard. Therefore, he argues
that the only authority being applied is university policy, not the law. Beyond
the dispute about whether the UWC panel applied established law, we have
doubts regarding whether the panel functioned in an adjudicatory manner,
or had the power to apply law to fact, considering that the panel merely
penned a recommendation to the dean of Yale College, who ultimately
decided the fate of Khan without conducting a fact-finding inquiry. See UWC
Procedures § 7.5, p. 107 (October 26, 2015) (‘‘the [dean of Yale College] will
. . . accept the panel’s findings of fact, but may accept, reject, or modify the
panel’s conclusions or recommendations, in whole or in part’’). Nonetheless,
because we conclude that minimum procedural safeguards were lacking,
we need not resolve this dispute and determine whether the proceeding
satisfied the law to fact requirement.
29
Doe argues that the UWC procedures allowed Khan to submit questions
to the UWC panel, but neither the policies nor Doe specified the timing of
when those questions could be submitted. Khan argues that neither he nor
his counsel had any opportunity to ask Doe questions because the UWC
procedures permitted only the UWC panel to ask questions and provided
the panel with sole discretion to reject or not to ask any questions.
30
The importance of cross-examination is also reflected in the preamble
to the Title IX final rules. The United States Department of Education wrote
that it ‘‘believes that in the context of sexual harassment allegations under
Title IX, a rule of [nonreliance] on untested statements is more likely to
lead to reliable outcomes than a rule of reliance on untested statements. If
statements untested by cross-examination may still be considered and relied
on, the benefits of cross-examination as a truth-seeking device will largely
be lost in the Title IX grievance process.’’ Nondiscrimination on the Basis
of Sex in Education Programs or Activities Receiving Federal Financial
Assistance, 85 Fed. Reg. 30,026, 30,347 (May 19, 2020).
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. See Nondiscrimina-
tion on the Basis of Sex in Education Programs or Activities Receiving
Federal Financial Assistance, 87 Fed. Reg. 41,390, 41,502–41,503 (proposed
July 12, 2022). 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.
31
Specifically, the UWC procedures provide that, ‘‘[i]f a party believes the
panel should interview witnesses, the party must submit to the [s]ecretary
[of the UWC] the names of the witnesses and the subject of their testimony
at least four days before the hearing. . . . At its sole discretion, the panel
may request the testimony of additional witnesses.’’ There is no indication
in the record that the UWC panel called any witnesses other than Doe
and Khan.
32
We note that the record, which lacks a transcript of the hearing, does
not indicate whether Khan attempted, but was denied the opportunity, to
call witnesses.
33
If Khan wished to appeal the UWC hearing panel’s or Yale College
dean’s decision, according to the UWC procedures, he could appeal to Yale’s
provost, but only on two grounds: (1) procedural error preventing a fair
adjudication, or (2) new evidence not reasonably available at the time of
the hearing. The provost may, in his or her discretion, return the matter to
‘‘the hearing panel for reconsideration.’’
34
In light of this conclusion, it is unnecessary to address the other criteria
discussed in Priore and in part II of this opinion.
35
‘‘[A]bsolute privileges are properly . . . classified as immunities . . .
[because] they are based [on] the personal position or status of the actor.
. . . [However], over a period of some centuries, these particular immunities
always have been called privileges by the courts when they arise in connec-
tion with defamation . . . .’’ (Internal quotation marks omitted.) 2 F. Harper
et al., Harper, James and Gray on Torts (3d Ed. 2006) § 5.21, pp. 209–10;
see also, e.g., 3 Restatement (Second), Torts §§ 583 through 592A, pp. 240–57
(1977) (discussing absolute privileges). ‘‘Privileges of the second class . . .
are commonly called conditional or qualified privileges. . . . They are more
properly to be classified as privileges, [as] they arise out of the particular
occasion [on] which the defamation is published.’’ 2 F. Harper et al., supra,
§ 5.21, p. 210; see also 8 S. Speiser et al., The American Law of Torts (1991)
§ 29:87, p. 596 (‘‘this ‘privilege’ is more properly termed an ‘immunity’ ’’).
36
See, e.g., Conn. Joint Standing Committee Hearings, Higher Education
and Employment Advancement, Pt. 3, 2012 Sess., p. 862, testimony of Wom-
en’s Center of Greater Danbury (identifying fear of reprisal as dominant
reason for victims not to report sexual assault); see also, e.g., Bureau of
Justice Statistics, Office of Justice Programs, United States Department of
Justice, Female Victims of Sexual Violence, 1994–2010 (Rev. May 31, 2016) p.
7, available at https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf (last visited
June 21, 2023).
37
The Clery Act, which is codified at 20 U.S.C. § 1092 (f), was enacted in
1990, after the 1986 rape and murder of Jeanne Clery, a nineteen year old
college student. T. Franklin, Note, ‘‘Brown v. Delta Tau Delta: In a Claim
of Premises Liability, How Far Should the Law Court Go To Assign a Duty
of Care,’’ 68 Me. L. Rev. 363, 369 (2016). The Clery Act requires colleges
and universities that participate in federal financial aid programs (known
as Title IX schools) to disclose information about crimes occurring on their
campuses, as well as to have specific campus safety and security related
policies and procedures in place. See id.38
Representative Roberta B. Willis, the bill’s sponsor, stated that the act
‘‘asks our schools, both private and public, to play an active role in preventing
[sexual] assaults . . . . [P]reventing sexual assault on college campuses
takes a [community-wide] commitment to changing the culture and condi-
tions that allow violence to occur.’’ 55 H.R. Proc., Pt. 13, 2012 Sess., p. 4297.
39
Anonymous reporting may trigger further investigations and, if a subse-
quent hearing ensues, require that the victim’s identity be disclosed. See
General Statutes § 10a-55m (d).
40
The law defines ‘‘affirmative consent’’ as ‘‘an active, clear and voluntary
agreement by a person to engage in sexual activity with another person
. . . .’’ General Statutes § 10a-55m (a) (1). Connecticut does not require a
covered institution to adopt this statutory definition verbatim, as long as it
uses a definition with a substantially similar meaning. General Statutes § 10a-
55m (h).
41
‘‘[T]he malice required to overcome a qualified privilege in defamation
cases is malice in fact or actual malice.’’ Hopkins v. O’Connor, supra, 282
Conn. 845. ‘‘Actual malice requires that the statement, when made, be made
with actual knowledge that it was false or with reckless disregard of whether
it was false. . . . A negligent misstatement of fact will not suffice; the
evidence must demonstrate a purposeful avoidance of the truth. . . . Malice
in fact is sufficiently shown by proof that the [statement was] made with
improper and unjustifiable motives.’’ (Citation omitted; internal quotation
marks omitted.) Id., 846–47; see also Bleich v. Ortiz, supra, 196 Conn. 504(‘‘[f]or purposes of our law of defamation, malice is not restricted to hatred,
spite or ill will against a plaintiff, but includes any improper or unjustifi-
able motive’’).
42
We note that ‘‘[c]onclusory allegations or legal conclusions masquerad-
ing as factual conclusions will not suffice to [defeat] a motion to dismiss.’’
(Internal quotation marks omitted.) Kirch v. Liberty Media Corp., 449 F.3d
388, 398 (2d Cir. 2006).