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We can and should seek justice for victims of sexual assault while also protecting due process and seeking justice for the wrongly accused. It is not a zero-sum game. But what happens when elite institutions and powerful advocacy organizations disagree?

Last November, I reported that a coalition of fifteen accuser advocacy organizations, including well-known organizations like Know Your IX, the National Women’s Law Center, and Women’s Law Project, filed an amicus brief in Khan v. Yale demanding immunity from prosecution for campus accusers, including those who make false and malicious rape accusations in Title IX proceedings.

As KC Johnson noted, their amicus brief “went out of its way to attack Khan personally,” including “labeling Khan (acquitted by jury) as a rapist.” So far did the brief stray that the Connecticut Supreme Court initially refused to accept it, granting them leave to refile one “shorn of all facts not supported by the record.”

The Amici

The full list of organizations that signed the amicus brief demanding immunity from prosecution for campus rape accusers – including false and malicious accusers – is below:

1. Know Your IX
2. National Women’s Law Center
3. Women’s Law Project
4. Legal Momentum (interesting: Legal Momentum’s Legal Director and filer of the brief, Jennifer Becker, is a former Title IX Coordinator for the NYC Department of Education)
5. Fierberg National Law Group
6. Chicago Alliance Against Sexual Exploitation
7. Connecticut Coalition Against Domestic Violence
8. Futures Without Violence
9. Jewish Women International
10. National Alliance to End Sexual Violence
11. National Coalition Against Domestic Violence
12. National Crime Victim Law Institute
13. National Network to End Domestic Violence
14. Network for Victim Recovery of DC
15. Sanctuary for Families

As we have often argued, a false allegation of abuse isn’t mere name calling. It is an attempt to destroy everything that makes life worth living: a good name, loving relationships, a decent job, a quality education, and more.

While reasonable people can debate the exact boundaries of due process in an academic setting, whether courts should grant immunity from prosecution to abusers – including those whose preferred method of abuse is intentional and malicious false accusations – is where we should all draw a sharp line.

Litigation Background

Before the 2020 Title IX regulations granting increased due process protections went into effect, Yale student Saifullah Khan was accused of sexual assault and expelled via a sham proceeding. He was also criminally charged but acquitted by a jury.

In 2019, he sued Yale and his accuser in U.S. District Court for the District of Connecticut. Judge Kari Dooley (a Trump nominee) dismissed Khan’s defamation and tortious interference claims against his accuser-turned-defendant Jane Doe, holding that a school’s investigation and adjudication “constitute a quasi-judicial proceeding entitling Ms. Doe to absolute immunity as to any allegedly defamatory statements made therein.”

Khan appealed to the U.S. Court of Appeals for the Second Circuit which then certified (asked another court to opine on) the legal questions at issue to the Connecticut Supreme Court. This was not a mere punting of the decision to another court; the Second Circuit noted that “this panel retains jurisdiction for the purpose of resolving this appeal once the Connecticut Supreme Court has responded to our certification.” But it was clear that whatever the Connecticut Supreme Court decided could have a substantial impact on the Second Circuit’s decision – and consequently, Khan’s case and victims of campus false accusations generally.

The Connecticut Supreme Court Decision

On Friday, June 23^rd, the Connecticut Supreme Court issued its opinion. Not only did the panel of seven Democrat-nominated judges unanimously reject the claim that accusers are entitled to immunity from prosecution for defamatory statements made in a Title IX proceeding, it went further to perform a laudatory guided tour of procedural safeguards that Yale failed to provide as well as key due process decisions from various courts over the past seven years. “There are passages from this opinion that I suspect will be quoted in basically every accused student’s brief moving forward,” U.S. News quotes KC Johnson as saying.

The decision is thirty-nine pages long, but I will summarize and provide quotes from the most relevant parts. From the opinion:

“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 safeguards, the more likely the proceeding will be deemed quasi-judicial.”

Analyzing Yale’s procedural deficiencies, the court held its Title IX proceedings “did not have adequate procedural safeguards to be recognized as quasi-judicial for the purpose of affording absolute immunity” to Khan’s accuser.

The procedural inadequacies Connecticut Supreme Court identified are as follows. Note that the opinion occasionally pseudonymizes Khan’s accuser with the name “D.”

No Testimony Under Oath

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.

No Cross-Examination/Confrontation

The committee’s procedures…did not afford the plaintiff or his counsel a meaningful opportunity to cross-examine or otherwise to confront D in real time…those procedures hampered the plaintiff’s ability to ask legitimate questions or sequence questions 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 meaningfully cross-examine adverse witnesses has to the truth-seeking function of any judicial or quasi-judicial proceeding.

Since cross-examination is fiercely opposed by advocates for complainants, it is noteworthy that the court emphasized this safeguard. Citing Spencer v. Klementi, Justice Mullins stated:

“…to qualify as a quasi-judicial proceeding for purposes of the absolute privilege, a proceeding must, at a minimum…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.

The court noted that cross-examination benefits complainants as well:

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.

No Opportunity to Call Witnesses

The committee’s procedures did not afford the parties a reasonable opportunity to call witnesses, insofar as the parties could not independently 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.

No Meaningful Assistance of Counsel…

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.

…Or Even an Adviser

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 writing, on Khan’s behalf, raise objections, or be present during—let alone participate in—the questioning of witnesses. These restrictions effectively rendered counsel irrelevant, relegating Khan’s attorney to the status of the proverbial potted plant.

No Meaningful Appeal

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.

No Access to Records

There was no adequate record of the proceeding because the committee’s procedures did not require the keeping of record statements, 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 violated core evidentiary principles.

Citations of Appellate Decisions

Justice Raheem Mullins favorably cited key appellate due process decisions from one state court and two federal courts:

Doe v. Baum (Sixth Circuit)

In Doe v. Baum, 903 F.3d 575 (6th Cir. 2018), the United States Court of Appeals for the Sixth Circuit concluded that due process required that universities allow for some form of live cross-examination when a witness’ ‘‘credibility’’ is at issue in a school disciplinary hearing.

Doe v. University of the Sciences (Third Circuit)

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);

Doe v. Allee (California Court of Appeal, Second Appellate District)

The California Court of Appeal reached a similar conclusion 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 indirectly . . . .’’ Id., 1039

Unfortunately, contrary to the above holding in Doe v. Allee against a private university (USC), the Supreme Court of California later held in Boermeester v. Carry that “private universities…are not required to provide accused students the opportunity to directly or indirectly cross-examine the accuser and other witnesses at a live hearing with the accused student in attendance, either in person or virtually.”

Guardrails on the Court’s Decision

While much of the opinion was favorable to due process, the court was careful to establish guardrails on its opinion. For example, the court cautioned that not all such safeguards are required:

Although we do not maintain that all of these procedural features are required for our recognition of a quasi-judicial proceeding, we conclude that the collective absence of such features militates against a determination that the proceeding had adequate safeguards to ensure reliability and promote fundamental fairness.

Additionally, the court noted that while Khan’s claims should survive a motion to dismiss, they may not necessarily survive post-discovery:

Because this matter is only at the motion to dismiss stage, however, 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 proceedings, with a more complete factual record, it may be appropriate to revisit whether Doe’s qualified privilege has been defeated.

In summary:

On the basis of the foregoing, we conclude that the UWC proceeding lacked adequate procedural safeguards to ensure the reliability of the statements made in the proceeding and, therefore, did not qualify as quasi-judicial for purposes of absolute immunity

“Campuses Are Not Courts” Rhetoric

Should Title IX proceedings be quasi-judicial, or not? Or perhaps more to the point, are Title IX proceedings only supposed to be quasi-judicial when immunizing (false) rape accusers from accountability and empowering schools to railroad accused students, but not quasi-judicial when providing meaningful procedural safeguards for accused students?

Many schools and advocacy organizations such as The National Women’s Law Center opposed the 2020 Title IX regulations, specifically §106.45 (the section requiring live hearings and cross-examination), on the grounds that Title IX proceedings under such requirements would be too quasi-judicial. The DeVos regulations directly responded to these comments as follows:

Commenters expressed concerns that the §106.45 grievance process is too quasi-judicial to be applied in a setting where schools and colleges are not courts of law and that it ignores the educational purpose of school discipline.

The double-standard regarding whether Title IX proceedings should be “court-like” has a long history in accused student litigation. Recall the words of Judge Dennis Saylor in Doe v. Brandeis seven years ago:

The proceeding was not, of course, conducted in a court of law, according to the rules of procedure and evidence. Nonetheless, Brandeis engaged an outside attorney, presumably with years of experience and training, to investigate and prosecute serious charges of sexual assault and other sexual misconduct. But it expected a student, approximately 21 years old, with no legal training or background, to defend himself, alone, against those same charges.

To a discerning ear, the rhetoric of “campuses aren’t courts” was always flawed at best, duplicitous at worst.

More Hostility to Due Process and the Presumption of Innocence

This is not the only time a coalition of advocates for accusers has made unusual and extreme demands. In another lawsuit, a coalition of ten such organizations – again including Know Your IX, National Women’s Law Center, and Women’s Law project – unsuccessfully argued that an accuser had the right to force the school to “preserve a guilty finding” entered against a student accused of sexual assault even after courts held the school’s finding resulted from an unconstitutional proceeding.

During the Biden administration’s initial rewrite of Title IX regulations, a coalition of seventy-eight “anti-sexual violence” organizations and nineteen senators sent letters to the Department of Education explicitly demanding the removal of the presumption of innocence in Title IX proceedings.

Lastly, after Khan was found not guilty of all criminal charges but before he filed suit in federal court, no less than 77,000 “MeToo” activists signed a guilt-presuming petition demanding Yale refuse to reinstate him.

No one benefits from such extreme and one-sided advocacy. It is entirely possible to perform the vitally necessary work of advocating for victims without the bloodthirst of due process denialism and the zero-sum approach that to serve one class of victims and hold one class of abusers accountable, another class of abusers must be allowed to abuse with impunity and another class of victims must suffer without legal remedy.