Khan v. Yale Univ.

21-95

Khan v. Yale Univ.

In the

United States Court of Appeals

for the Second Circuit

AUGUST TERM 2021

No. 21-95-cv

SAIFULLAH KHAN,

Plaintiff-Appellant,

v.

YALE UNIVERSITY, PETER SALOVEY, JONATHON HALLOWAY, MARVIN

CHUN, JOE GORDON, DAVID POST, MARK SOLOMON, ANN KUHLMAN,

LYNN COOLEY, PAUL GENECIN, STEPHANIE SPANGLER, SARAH DEMERS,

CAROLE GOLDBERG, UNKNOWN PERSONS,

Defendants,

&

JANE DOE,

Defendant-Appellee.

__________

On Appeal from the United States District Court

for the District of Connecticut

__________

ARGUED: OCTOBER 29, 2021

DECIDED: MARCH 4, 2022

__________

Before: LIVINGSTON, Chief Judge, KEARSE, and RAGGI, Circuit Judges.

________________

Plaintiff Saifullah Khan appeals from a February 9, 2021 partial

final judgment of the United States District Court for the District of

Connecticut (Dooley, J.), dismissing his claims for defamation and

tortious interference with contract against defendant “Jane Doe”

insofar as Doe’s assertions that Khan sexually assaulted her in 2015

while the two were students at Yale University resulted in Khan’s

expulsion from the school. The district court concluded that Khan

failed to state claims for which relief could be granted because Doe’s

initial 2015 assertions of sexual assault fell outside the applicable

statute of limitations and her 2018 reassertions of the sexual assault at

a Yale disciplinary hearing were shielded by quasi-judicial immunity,

precluding both defamation and tortious interference claims. See Fed.

R. Civ. P. 12(b)(6). Khan argues error in the application of quasi-

judicial immunity to a private university’s disciplinary proceedings

and, thus, maintains that he states a plausible claim for defamation

and for tortious interference. Because existing Connecticut law does

not permit us to predict whether the Supreme Court of that state

would extend quasi-judicial immunity to statements made at non-

government proceedings generally, or at Yale’s sexual misconduct

disciplinary hearings specifically, we certify those questions to the

Connecticut Supreme Court, deferring our resolution of this appeal

in the interim.

QUESTIONS CERTIFIED AND DECISION RESERVED.

CAMERON LEE ATKINSON (Norman A. Pattis,

on the brief), The Pattis Law Firm, LLC, New

Haven, CT, for Plaintiff-Appellant.

2

JAMES M. SCONZO (Brendan N. Gooley, on

the brief), Carlton Fields, P.A., Hartford, CT,

for Defendant-Appellee.

REENA RAGGI, Circuit Judge:

In 2015, while both were students at Yale University, defendant

“Jane Doe” accused plaintiff Saifullah Khan of sexual assault. 1 As a

consequence, Yale initiated university disciplinary proceedings

against Khan, and the State of Connecticut criminally charged him

with sexual assault. Khan and Doe each testified at both

proceedings—in each other’s presence, under oath, and subject to

cross examination at trial, but with none of those procedures at the

university hearing. Holding the prosecution to a proof-beyond-a-

reasonable-doubt standard at trial, a jury acquitted Khan of all

criminal charges. Applying a lesser, preponderance standard of proof

1 While Doe’s real name is known to the parties, Khan moved to pursue this civil

action against her pseudonymously to avoid violating the privacy requirement of

Yale’s Sexual Misconduct Policy. That policy does not bind the federal courts,

which generally require a complaint to “name all the parties.” Fed. R. Civ. P. 10(a);

see Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 189 (2d Cir. 2008) (observing

that public has “right to know who is using their courts” (internal quotation marks

omitted)). This court has, however, recognized judicial discretion to depart from

Rule 10(a) when a party’s interest in anonymity outweighs “both the public

interest in disclosure and any prejudice” to the adverse party. Id. at 189-90

(identifying factors properly considered in balancing interests). Because no party

complains that the district court failed to balance these interests here or otherwise

abused its discretion, we do not pursue the matter further and simply refer to

defendant as “Jane Doe” in this opinion.

3

to its disciplinary proceeding, Yale found Khan to have violated its

Sexual Misconduct Policy and expelled him.

Khan seeks to litigate Doe’s sexual assault accusations for a

third time, suing Doe in the United States District Court for the

District of Connecticut (Kari A. Dooley, Judge) for defamation and

tortious interference with contract, claims on which he would bear a

preponderance burden at any trial. 2 Khan now appeals from a

February 9, 2021 partial final judgment of the district court dismissing

his complaint against Doe in its entirety on absolute quasi-judicial

immunity and statute of limitations grounds. See Khan v. Yale Univ.,

511 F. Supp. 3d 213 (D. Conn. 2021); Fed. R. Civ. P. 12(b)(6).

Specifically, Khan argues that the proceedings of non-government

entities cannot be quasi-judicial and, thus, Doe’s accusations of sexual

assault in a private university’s disciplinary hearing are not shielded

by absolute immunity. Neither the Connecticut Supreme Court nor

its intermediate Appellate Court has yet addressed whether quasi-

judicial immunity can extend to non-government proceedings.

Because we cannot predict whether Connecticut’s Supreme Court

would endorse such an extension, either generally or specifically as

to Yale’s disciplinary proceeding against Khan, we certify those and

related questions to the Connecticut Supreme Court, deferring our

resolution of this appeal in the interim.

2 In the same complaint, Khan also sued Yale and various of its employees for

violating Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.,

as well as for state law breaches of privacy, contract, and the implied warranty of

fair dealing, and for negligent and intentional infliction of emotional distress.

4

BACKGROUND

The following facts are drawn from Khan’s complaint,

documents incorporated therein, and facts of which we may take

judicial notice. For present purposes, “we evince no views concerning

whether the ‘facts’ we detail below are actually true. Our task is

limited to determining whether, if [Khan’s] allegations were true, they

would state a . . . claim.” Menaker v. Hofstra Univ., 935 F.3d 20, 26 n.1

(2d Cir. 2019) (emphasis in original). In applying this standard, we

are obliged to view the facts in the light most favorable to Khan. See

Littlejohn v. City of New York, 795 F.3d 297, 306-07 (2d Cir. 2015).

I. Doe’s 2015 Claim of Sexual Assault

Saifullah Khan, a citizen of Afghanistan, was born in a refugee

camp in Pakistan, to which country his family had fled after having

their lives threatened by the Taliban. When Khan was sixteen, his

family settled in the United Arab Emirates, and it was from there that

Khan applied for and received acceptance to Yale’s undergraduate

class of 2016. In addition to providing Khan with the financial

assistance necessary for him to attend Yale, the university helped

Khan receive admission to (and financial support for attendance at)

the Hotchkiss School, where he spent a preparatory year before

entering Yale in the fall of 2012.

On Halloween night in 2015, Khan and fellow Yale student Jane

Doe separately attended an off-campus party hosted by one of the

university’s “secret societies.” At some point, Khan and Doe left the

party together to attend an on-campus event. When Doe began to feel

unwell, she and Khan left the event and returned to Trumbull

College, the Yale dormitory where both resided. Khan asserts that

5

after he dropped Doe off at her room and started to return to his own,

Doe called him back and asked him to check on a friend. After Khan

did so, he returned to Doe’s room where the two had consensual sex

before falling asleep.

The next morning, Doe told friends that Khan had raped her.

That same day, however, when Doe sought contraceptive assistance

at the university’s health center, she reported having engaged in

consensual, unprotected sex. A few days later, when Doe publicly

repeated her rape claim, she was directed to the Yale Women’s

Center. There, a counselor (defendant David Post), assisted Doe in

preparing a formal university complaint against Khan. Upon receipt

of that complaint, a Yale deputy dean (defendant Joe Gordon)

suspended Khan, ordering him to vacate his dormitory room and to

leave campus. Soon thereafter, Yale began a disciplinary proceeding

against Khan under the university’s Sexual Misconduct Policy.

At and about the same time, the Yale Police Department

opened an investigation into Doe’s sexual assault claim. This

ultimately resulted in the State of Connecticut criminally charging

Khan with sexual assault in the first, second, third, and fourth

degrees. See Conn. Gen. Stat. §§ 53a-70, -71, -72a, -73a. At Khan’s

request, Yale agreed to stay its disciplinary proceedings pending the

conclusion of his criminal case. 3

3 As then in effect, Yale’s Sexual Misconduct Policy, which we discuss infra at 13-

16, stated that university disciplinary proceedings should not be deferred pending

criminal proceedings. See App’x at 79. But see Procedures of the University-Wide

Committee on Sexual Misconduct, Yale Univ. (eff. Sept. 10, 2021),

6

II. State Criminal Trial

The state’s criminal case against Khan would not be resolved

for approximately two and a half years. On March 7, 2018, after a

two-week trial, a Connecticut jury acquitted Khan of all charges after

less than a full day’s deliberations. Khan attributes this outcome to

his attorney’s ability to cross-examine Doe, highlighting various

memory lapses and inconsistences in her accounts of the alleged

sexual assault, and eliciting flirtatious communications that she had

sent Khan in the days before Halloween 2015. 4

Khan’s trial and its outcome were unfavorably reported on in

the Yale Daily News. Thereafter, over 77,000 persons signed a petition

urging Yale not to readmit Khan, notwithstanding his acquittal. Yale

nevertheless permitted Khan to resume full-time student status at the

start of the Fall 2018 term.

III. New Sexual Assault Allegations

On October 5, 2018, the Yale Daily News reported new sexual

assault accusations against Khan by a man—not a Yale student—who

https://uwc.yale.edu/sites/default/files/files/UWC%20Procedures.pdf (now listing

“concurrent criminal investigation” among “good causes” for extending

disciplinary proceeding timelines). Because no party to this appeal relies on this

provision in their arguments to this court, we do not consider it further.

4 Khan does not sue Doe for statements made at trial, conceding that such

testimony is shielded by absolute judicial immunity. See, e.g., Bruno v. Travelers

Cos., 172 Conn. App. 717, 727-29, 161 A.3d 630 (App. Ct. 2017) (affirming

application of absolute immunity to testimony of witness in Superior Court

hearing); Doe v. Roe, No. CV165037281, 2017 WL 3248167, at *1-2 (Conn. Super. Ct.

July 3, 2017) (dismissing complaint for lack of subject matter jurisdiction, based on

absolute immunity, where plaintiff claimed defamation in defendants’ testimony

in legal proceeding).

7

claimed Khan had assaulted him on a number of occasions at

locations outside Connecticut. 5 The day the article was published,

Yale police and administrators contacted Khan to see if he was unduly

distressed so as to require professional help. Khan assured them that

he was not distressed but agreed to a mental health consultation at

the Yale infirmary. Khan asserts that the consultation indicated no

cause for concern. Two days later, however, on Sunday morning,

October 7, 2018, Yale administrators requested a meeting with Khan.

When Khan refused, a letter from a Yale dean (defendant Marvin

Chun) was hand-delivered to Khan advising him that his immediate

suspension from the university and exclusion from campus were

“necessary for your physical and emotional safety and well-being

and/or the safety and well-being of the university community.”

Compl. ¶ 64.

Thereafter, Khan was not permitted to return to Yale’s campus

until November 2018, when Yale resumed its sexual misconduct

disciplinary proceeding against Khan based on Doe’s 2015 complaint.

IV. Yale Disciplinary Proceeding on Doe’s Sexual Assault Claim

Yale’s Sexual Misconduct Policy

Yale’s disciplinary proceeding against Khan was conducted

pursuant to the university’s formal Sexual Misconduct Policy,

adopted in or about 2011. Because Khan asserts that this policy was

prompted by communications that Yale received from the United

5 Khan asserts that these accusations did not prompt any criminal charges or

university disciplinary proceedings against him.

8

States Department of Education Office for Civil Rights (“DOE”), we

briefly summarize those communications at the outset.

1. DOE Communications

In a communication dated April 4, 2011, DOE advised colleges

and universities generally that their continued receipt of federal

funding under Title IX of the Education Amendments of 1972 (“Title

IX”), 20 U.S.C. §§ 1861 et seq., required them to take more rigorous

action against sexual misconduct on their campuses. This

communication, which came widely to be known as the “Dear

Colleague Letter,” told schools that to avoid themselves being

charged with sexual harassment in violation of Title IX, they were

obliged “to take immediate action” to address, prevent, and eliminate

peer sexual misconduct about which they “know[] or reasonably

should know.” App’x at 90. 6 Toward that end, the letter instructed

schools, inter alia, “to adopt and publish grievance procedures,” and

to provide employee training with respect to “report[ing]” and

“respond[ing] properly” to sexual misconduct. Id. In so instructing,

the letter emphasized that a school’s investigation of sexual

misconduct “is different from any law enforcement investigation.” Id.

Thus, while stating that parties should be afforded “the opportunity

. . . to present witnesses and other evidence,” id. at 95, the letter made

6 The “Dear Colleague Letter” was not promulgated through the formal

rulemaking process. See 5 U.S.C. § 553; see also Olatunde C.A. Johnson, Overreach

and Innovation in Equality Regulation, 66 DUKE L.J. 1771, 1779-81 (2017) (noting

criticism of DOE’s avoidance of formal rulemaking in issuing “Dear Colleague

Letter”). Thus, the letter is properly understood simply to provide “guidance.”

See App’x at 87 (“This letter does not add requirements to applicable law, but

provides information and examples to inform recipients about how OCR evaluates

whether covered entities are complying with their legal obligations.”).

9

no mention of such presentation needing to be under oath, subject to

confrontation, or consistent with any particular evidentiary standards

of reliability. Indeed, the letter “strongly discourage[d] schools from

allowing the parties personally to question or cross-examine each

other during the hearing” and advised schools that they did not have

to permit parties to be represented by attorneys. Id. at 98. The letter

also instructed schools to use “a preponderance of the evidence

standard to evaluate [sexual misconduct] complaints,” rejecting the

higher “‘clear and convincing’ standard” then being “used by some

schools.” Id. at 96-97. 7

7 Several provisions in the “Dear Colleague Letter” prompted controversy, such

that the letter, issued during the Obama administration, was rescinded by the

Trump administration in 2017 (i.e., before Khan’s 2018 disciplinary hearing). See

Letter from Candice Jackson, Acting Assistant Sec’y for Civil Rights, Office for

Civil Rights, U.S. Dep’t of Educ., to Colleagues (Sept. 22, 2017),

https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.

In 2020 (i.e., after Khan’s disciplinary hearing and expulsion), DOE issued final

Title IX regulations for how public and private educational institutions receiving

federal funds should respond to sexual harassment. See 34 C.F.R. § 106.45(b)

(stating that “recipient’s grievance process must comply with the requirements of

this section”). Among other things, these regulations require colleges and

universities (1) to provide for a live hearing to resolve sexual misconduct

complaints, though parties may appear either in person or, at the institution’s

discretion, “virtually, with technology enabling participants simultaneously to see

and hear each other,” id. § 106.45(b)(6)(i); (2) at the request of either party, to locate

the parties “in separate rooms” during a hearing so long as technology permits

them “simultaneously [to] see and hear the party or witness answering questions,”

id.; (3) to afford respondents a presumption of innocence, see id. § 106.45(b)(1)(iv);

(4) to afford complainants and respondents the opportunity for direct cross-

examination of witnesses by party advisors (who can be attorneys), see id.

§ 106.45(b)(6)(i); (5) to provide advisors for parties who do not have one, id.; and

(6) to state in writing “[c]onclusions regarding the application of the [school’s]

code of conduct to the facts,” id. § 106.45(b)(7)(ii)(D). The Biden administration is

10

In another 2011 communication, this one prompted by a

student complaint, DOE advised Yale that it had been deficient in

responding to student reports of sexual misconduct. The Complaint

does not indicate whether DOE pursued the matter further after Yale

adopted its Sexual Misconduct Policy.

2. Connecticut Law

Although Khan does not plead Connecticut law’s effect on

Yale’s Sexual Misconduct Policy, we take judicial notice that in 2012—

i.e., within months of Yale adopting its policy, and almost six years

before the university’s 2018 hearing on Doe’s claims against Khan—

Connecticut enacted General Statute § 10a-55m. See Oneida Indian

Nation of N.Y. v. New York, 691 F.2d 1070, 1086 (2d Cir. 1982) (stating

that court may take judicial notice of law). That law requires all

institutions of higher education within the state—private as well as

public—to adopt programs for the awareness, prevention, and

investigation of sexual assaults. 8 Each covered institution must file

with a committee of the Connecticut General Assembly copies of its

policies regarding campus sexual misconduct and the materials used

presently reconsidering these rules. See Exec. Order No. 14021, 86 Fed. Reg. 13803

(Mar. 8, 2021); Letter from Suzanne B. Goldberg, Acting Assistant Sec’y for Civil

Rights, Office for Civil Rights, Dep’t of Educ., to Students, Educators, and other

Stakeholders (Apr. 6, 2021), https://www2.ed.gov/about/offices/list/ocr/

correspondence/stakeholders/20210406-titleix-eo-14021.pdf.

We need not discuss these policy changes further. For our purposes, it is sufficient

to note this history and to credit Khan’s allegation that the “Dear Colleague Letter”

informed the formulation of Yale’s Sexual Misconduct Policy.

8 Connecticut’s definition of an “institution of higher education” encompasses

both public and private universities. See Conn. Gen. Stat. §§ 10a-55, 10a-173(3).

11

to implement them, and advise as to the number and outcome of any

sexual assault, stalking, or intimate partner violence reports made to

the institution. See Conn. Gen. Stat. § 10a-55m(f). 9

In addition to reporting requirements, Connecticut law

mandates, among other things, that covered institutions employ an

“affirmative consent” standard in reviewing sexual assault claims. Id.

§ 10a-55m(b)(1)(A). The law defines “affirmative consent” as “an

active, clear and voluntary agreement by a person to engage in sexual

activity with another,” id. § 10a-55m(a)(1); 10 and precludes finding

affirmative consent by a person who was intoxicated or otherwise

incapacitated at the time of a sexual encounter, see id. § 10a-

55m(b)(1)(D). 11 While the law affords parties the right to present

9 Some twenty years earlier, in 1990, Congress had enacted the Jeanne Clery

Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C.

§ 1092, which requires federally funded colleges and universities publicly to report

campus crime and the policies promulgated to ensure safety. That law was

amended in 2013 by the Campus Sexual Violence Elimination Act, or Campus

SaVE Act (part of the Violence Against Women Reauthorization Act of 2013). See

Pub. L. 113-4 § 304, 127 Stat. 54, 89-92 (Mar. 7, 2013). As neither party cites this

legislation to this court, we do not here consider how, if at all, it may have

informed Yale’s 2011 promulgation of its Sexual Misconduct Policy or the 2018

disciplinary proceeding pursuant to that policy conducted against Khan. Instead,

we focus on Connecticut law because of further requirements that we now discuss

in text.

Connecticut does not require a covered institution to adopt this statutory

10

definition in haec verba as long as it uses a definition with a “substantially similar”

meaning. Id. § 10a-55m(h).

11 The provisions regarding affirmative consent were added to the law in 2016, see

An Act Concerning Affirmative Consent, 2016 Conn. Legis. Serv. 16-106 (West), i.e.,

after Doe’s 2015 sexual assault complaint but before Khan’s 2018 disciplinary

hearing. Because we have no record of the hearing before us, see infra n. 13, we do

12

witnesses and evidence at any disciplinary hearing and to be

accompanied by an advisor, see id. § 10a-55m(b)(6)(C)(i)-(ii), it says

nothing about whether the advisor may question witnesses or

otherwise speak at the proceedings. Nor does the law impose any

oath, confrontation, cross-examination, or other evidentiary-

reliability requirements for such hearings. Also, it does not prescribe

particular punishments for sexual misconduct established at

disciplinary hearings.

3. Yale’s Sexual Misconduct Policy

Yale’s Sexual Misconduct Policy proscribes its faculty,

employees, and students from engaging in sexual misconduct. The

policy defines sexual misconduct

[to] incorporate[] a range of behaviors including sexual

assault (which includes rape, groping and any other non-

consensual sexual contact), sexual harassment, intimate

partner violence, stalking, and any other conduct of a

sexual nature that is non-consensual, or has the purpose

or effect of threatening or intimidating a person or

persons.

App’x at 75. Otherwise, the policy focuses mainly on procedures for

reporting and investigating such misconduct.

The policy provides, among other things, for a University-Wide

Committee on Sexual Misconduct (“UWC”), consisting of

approximately thirty members appointed by Yale’s provost from

across the university’s faculty, student body, and managerial or

not know what role, if any, the affirmative consent standard (or, indeed, any

portion of Connecticut law) played in the hearing.

13

professional employees. 12 Upon the filing of a formal sexual

misconduct complaint, the policy calls for the tenured faculty

member chairing the UWC to appoint “an impartial fact-finder” to

investigate the allegations, as well as five UWC members to constitute

a hearing panel (the “UWC hearing panel”) to determine if university

policy was violated, and if so, to recommend appropriate discipline.

Id. at 79-80.

Yale’s policy empowers the appointed fact-finder to “gather

documents and conduct interviews as necessary to reach a thorough

understanding of the facts and circumstances surrounding the

allegations of the complaint,” which are then described in a “report”

that may also address the credibility of witnesses, but not reach

conclusions as to any violation of University policy. Id. at 80. While

there is no requirement that statements made or evidence submitted

to the fact-finder (or, later, to the UWC hearing panel) be sworn or

otherwise satisfy any rules of reliability, Yale policy does state that a

“[f]ailure to provide truthful information or any attempt to impede

the UWC process may result in a recommendation for a more severe

penalty or a referral for discipline.” Id. at 77.

12 All UWC members must participate in training pertaining to

University resources for redress of sexual misconduct; sexual

misconduct and equal employment, educational, and professional

opportunity; methods of informal resolution; the interaction

between University disciplinary processes and criminal processes;

responding to retaliation; and other topics suggested by experts

from within and outside the University.

App’x at 77.

14

The fact-finder’s report is transmitted to the UWC hearing

panel and to the complainant and respondent (“the parties”),

whereupon the panel conducts a hearing “intended primarily” to

allow its members “to interview the complainant and the respondent

with respect to the fact-finder’s report.” Id. at 80. The parties do “not

appear jointly before the panel” unless they expressly agree to do so.

Id. Rather, when one is being interviewed by the panel, the other

must remain in a separate room with only “audio access to the

proceedings.” Id. Preliminary to any panel interview, each party may

make a 10-minute preliminary statement, a written copy of which is

provided to the other party. The panel alone then poses questions to

the party. And while parties may propose questions to the panel, the

panel, “at its sole discretion,” decides what questions to ask. Id. The

policy appears to afford no opportunity for parties to offer closing

statements. Further, while the policy permits parties to be

accompanied by an advisor (who may be an attorney) at any step in

the disciplinary process, it specifically prohibits an advisor from

speaking for a party or offering evidence on his or her behalf.

Within 10 days of the final hearing session, the UWC hearing

panel must set out its findings of fact and its violation conclusion in a

written report to the relevant final Yale decisionmaker who, in the

case of an accused student, is “the dean of the respondent’s school.”

Id. at 81. Copies of this report are furnished to the parties, who have

three days to submit a written response. The decisionmaker then

determines whether any further hearings are necessary and, if not,

renders a written decision setting forth the decisionmaker’s

conclusions as to any violation of Yale’s Sexual Misconduct Policy

and any penalties to be imposed. Student parties can appeal a

15

decisionmaker’s determination to Yale’s provost, but only on two

grounds: (1) procedural error preventing a fair adjudication, and (2)

new evidence not reasonably available at the time of the hearing.

Yale’s UWC Proceeding Against Khan

In November 2018, a UWC hearing panel convened to consider

Doe’s complaint that Khan had sexually assaulted her on campus

three years earlier. 13 Both Doe and Khan appeared at the hearing:

Khan in person; Doe (who had by this time graduated from Yale) by

teleconference from a remote location. Despite the fact that Doe was

not physically present, neither Khan nor his attorney-advisor was

permitted to be in the hearing room when Doe made her preliminary

statement and answered panel questions. Rather, Khan and his

attorney were required to remain in another room, provided with

only an audio feed of Doe’s appearance. 14 Nor was Khan’s attorney

permitted to speak on his client’s behalf or to voice objections to panel

questions that Khan now asserts were compound or assumed facts

not in evidence.

The final UWC hearing panel report is not before this court.

Khan, however, asserts that the panel found him to have violated

13We rely on Khan’s complaint in describing the UWC hearing as no transcript of

that proceeding is before the court. While Yale policy calls for retention of the

“minutes from each UWC hearing session,” App’x at 83, Khan asserts that his

request for a transcript or recording at the conclusion of his hearing was denied.

14 Excluding Khan and his attorney from the hearing room during Doe’s

appearance is perplexing not only because Doe was not physically present but also

because the parties had already testified in each other’s presence at Khan’s

criminal trial.

16

Yale’s Sexual Misconduct Policy in his 2015 encounter with Jane Doe,

as a result of which Yale expelled him.

V. The Instant Action

On December 13, 2019, Khan brought this federal action against

Yale, various of its employees, and Doe. On January 7, 2021, the

district court granted Doe’s motion to dismiss all claims against her.

Insofar as Khan sued Doe for defamation based on her assertions of

sexual assault before the UWC panel, the district court concluded that

Doe enjoyed absolute immunity for her statements in this quasi-

judicial proceeding. See Khan v. Yale Univ., 511 F. Supp. 3d at 226.

While acknowledging that no binding Connecticut authority had

extended absolute immunity to statements made during the

proceedings of a non-government entity, the district court concluded

that extending such immunity to a complaining party in a Yale UWC

proceeding was warranted by the functional six-factor test employed

by Connecticut to identify quasi-judicial proceedings, see id. at 220-21,

and by public policy, see id. at 225-26. Insofar as Khan sued Doe for

tortious interference with contract based on her initial rape

accusations in 2015, the district court concluded that his claim was

barred by Connecticut’s three-year statute of limitations for tort

actions. See id. at 226-27. Moreover, because absolute immunity

shielded Doe’s 2018 statements to the UWC panel, the district court

ruled that Khan could not rely on these later statements to

demonstrate a continuing course of tortious interference falling

within the limitations period. See id. at 227-28.

The district court subsequently granted Khan’s motion to

reduce the ruling in favor of Doe to a partial final judgment, see Fed.

17

R. Civ. P. 54(b), from which judgment, entered on February 9, 2021,

Khan timely filed this appeal. 15

DISCUSSION

I. Standard of Review

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fed.

R. Civ. P. 12(b)(6). Where a party invokes diversity or supplemental

jurisdiction to pursue state claims in federal court, a district court

properly looks to the law of the forum state to assess the plausibility

of the claims. See Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643, 650 (2d

Cir. 1994); Rogers v. Grimaldi, 875 F.2d 994, 1002 n.10 (2d Cir. 1989).

This court does the same in reviewing de novo the dismissal of those

claims under Rule 12(b)(6). See Kelleher v. Fred A. Cook, Inc., 939 F.3d

465, 467 (2d Cir. 2019).

To state a claim for defamation under Connecticut law, a party

must plead facts plausibly demonstrating that,

(1) the defendant published a defamatory statement;

(2) the defamatory statement identified the plaintiff to

a third person; (3) the defamatory statement was

published to a third person; and (4) the plaintiff’s

reputation suffered injury as a result of the statement.

Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).

15The district court appears to have held Khan’s remaining claims against Yale

and its employees in abeyance pending resolution of this appeal.

18

To state a claim for tortious interference with contract under

Connecticut law, a party must plead facts plausibly demonstrating,

(1) the existence of a contractual or beneficial

relationship; (2) the defendant’s knowledge of that

relationship; (3) the defendant’s intent to interfere

with the relationship; (4) that the interference was

tortious; and (5) a loss suffered by the plaintiff that

was caused by the defendant’s tortious conduct.

Rioux v. Barry, 283 Conn. 338, 351, 927 A.2d 304 (2007).

Essential to both Khan’s defamation and tortious interference

claims is his allegation that Doe falsely accused him of sexual assault

at the 2018 UWC hearing. While Khan also pleads that Doe falsely

accused him of the same sexual assault in 2015, her 2018 repetition of

the accusation is necessary for Khan’s claim of a continuous, timely

tortious interference with his contract with Yale. Thus, on this appeal,

we need only consider whether the district court correctly dismissed

all of Khan’s claims against Doe because her 2018 statements were

shielded by the absolute immunity that Connecticut extends to

statements made by witnesses or complainants during the course of

quasi-judicial proceedings.

In urging error, Khan does not dispute that Connecticut affords

absolute quasi-judicial immunity from damages actions sounding

both in defamation and tortious interference. See Rioux v. Barry, 283

Conn. at 311, 927 A.2d 304 (distinguishing such torts from action for

vexatious litigation for purposes of quasi-judicial immunity). Instead,

he argues that quasi-judicial immunity does not apply to proceedings

by non-government entities such as Yale.

19

In deciding de novo whether Connecticut extends quasi-judicial

immunity to Yale’s UWC proceeding, we give the “fullest weight to

pronouncements of the state’s highest court.” Schwab Short-Term Bond

Mkt. Fund v. Lloyds Banking Grp. PLC, 22 F.4th 103, 120 (2d Cir. 2021)

(internal quotation marks omitted). Because the Connecticut

Supreme Court has not addressed the application of quasi-judicial

immunity to participants in non-government proceedings, we must

endeavor, in the first instance, to “predict” how that court would

resolve these questions. DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir.

2005). Toward that end, we consider the highest court’s decisions in

related cases, as well as relevant decisions of the state’s lower courts

and of other jurisdictions. See Schwab Short-Term Bond Mkt. Fund v.

Lloyds Banking Grp. PLC, 22 F.4th at 120; Caronia v. Philip Morris USA,

Inc., 715 F.3d 417, 449 (2d Cir. 2013). Only if, after doing so, we

conclude that Connecticut law “is so uncertain that we can make no

reasonable prediction” as to how it would apply in this case will we

consider certifying determinative questions to the state Supreme

Court “for a definitive resolution.” DiBella v. Hopkins, 403 F.3d at 111;

see Conn. Gen. Stat. § 51-199b; 2d Cir. R. 27.2. This is such a case.

II. Quasi-Judicial Immunity

Common Law Origin

The doctrine of absolute judicial immunity is not unique to

Connecticut. Rather, this immunity, which shields judges, parties,

and witnesses from damages actions for statements made by them in

judicial and quasi-judicial proceedings, has its origins in English

common law. See Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983) (tracing

judicial immunity to sixteenth century). With respect to witnesses,

20

the immunity is grounded in a public policy concern that the risk of

damages actions could discourage persons from providing evidence

or cause them to shade their testimony, thereby impeding the judicial

search for truth. Id. at 333. Absolute immunity removes this risk, with

the law relying instead on the adversarial process to identify truth

and expose falsehood. Id. at 333-34 (observing that, underlying

absolute immunity afforded witnesses is view that “truth-finding

process is better served if the witness’s testimony is submitted to ‘the

crucible of the judicial process so that the factfinder may consider it,

after cross-examination, together with the other evidence in the case

to determine where the truth lies’”). 16

Connecticut Supreme Court Precedents

Consistent with common law, “Connecticut courts have long

held that ‘[p]articipants in a judicial process must be able to

testify . . . without being hampered by fear of actions seeking

damages for statements made . . . in the course of the judicial

proceeding.’” Vidro v. United States, 720 F.3d 148, 151 (2d Cir. 2013)

(quoting Gallo v. Barile, 284 Conn. 459, 466, 935 A.2d 103 (2007)); see

Blakeslee & Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894)

(recognizing privilege). But, as Connecticut courts themselves

acknowledge, they have not always been clear as to “the extent of the

16 The absolute immunity from damages afforded complainants or witnesses in

judicial or quasi-judicial proceedings is sometimes also referred to as a “litigation

privilege” or “testimonial privilege.” See, e.g., Cohen v. King, 189 Conn. App. 85,

206 A.3d 188 (App. Ct. 2019) (“litigation privilege”); Preston v. O’Rourke, No. CV

990071011S, 2000 WL 1281825 (Conn. Super. Ct. Aug. 28, 2000) (“testimonial

privilege”). We use the phrase “quasi-judicial immunity” because the matter here

at issue is whether a Yale UWC proceeding is “quasi-judicial.”

21

privilege, or . . . the occasions” to which it applies, particularly with

respect to quasi-judicial proceedings. Blakeslee & Sons v. Carroll, 64

Conn. at 233, 29 A. 473. The ambiguity persists to this day. See, e.g.,

Kenneson v. Eggert, 196 Conn. App. 773, 782, 230 A.3d 795 (App. Ct.

2020) (“The judicial proceeding to which absolute immunity attaches

has not been defined very exactly.” (internal alteration and quotation

marks omitted)).

At the end of the nineteenth century, the Connecticut Supreme

Court was cautious in recognizing quasi-judicial immunity,

explaining that because “[t]he doctrine of absolute privilege is so

inconsistent with the rule that a remedy should exist for every

wrong,” the class of proceedings to which it applied “is

comparatively a narrow one, . . . generally strictly confined to

legislative proceedings, judicial proceedings in the established courts

of justice, acts of State, and acts done in the exercise of military and

naval authority.” Blakeslee & Sons v. Carroll, 64 Conn. at 232, 235, 29

A. 473. Thus, in Blakeslee & Sons, the Connecticut Supreme Court

declined to recognize an investigative hearing by a committee of the

New Haven board of aldermen as a “judicial or quasi judicial”

proceeding, even though the committee had the power to issue

subpoenas and administer oaths according to the same rules as

Connecticut’s judicial courts. Id. at 234-35, 29 A. 473 (emphasis in

original). The court reasoned that the committee could in “no proper

sense . . . be called a judicial body or its proceedings judicial” because

its singular purpose and duty was to “investigate the truth of certain

statements made to the board of aldermen” in order to “report to the

board . . . which might altogether disregard what the committee had

done.” Id. at 234, 29 A. 473. It ruled that “[a] judicial proceeding

22

within the meaning of the rule as to absolute privilege must . . . be one

carried on in a court of justice established or recognized by law,

wherein the rights of the parties which are recognized and protected

by law are involved and may be determined.” Id.

For almost a century, the Connecticut Supreme Court cited

Blakeslee & Sons as support for recognizing “an absolute privilege for

statements made in judicial proceedings.” Petyan v. Ellis, 200 Conn.

243, 245, 510 A.2d 1337 (1986). But in Petyan, a sharply divided

Supreme Court was more receptive than it had been in Blakeslee &

Sons to extending the privilege to quasi-judicial administrative

proceedings. The proceeding at issue in Petyan was a State Labor

Department unemployment eligibility hearing. In affording absolute

immunity to an employer who did not testify at the hearing but whose

statements on a department form were considered by the hearing

panel, the Connecticut Supreme Court observed that “the

proceedings of many administrative . . . boards and commissions” are

properly recognized as quasi-judicial and, thus, warrant absolute

immunity “so far as they have powers of discretion in applying the

law to the facts which are regarded as judicial or quasi-judicial, in

character.” Id. at 246, 510 A.2d 1337 (internal quotation marks

omitted). 17 The Court concluded that this power was evident in the

Labor Department proceeding because, “[i]n the processing of

unemployment compensation claims, the administrator, the referee

and the employment security board of review decide the facts and

17 See Chadha v. Charlotte Hungerford Hosp., 272 Conn. 776, 793 n.21, 865 A.2d 1163

(2005) (identifying Petyan v. Ellis as “first case in which [the Connecticut Supreme

Court] expressly recognized that, at common law, persons who make statements

in connection with quasi-judicial proceedings are afforded absolute immunity”).

23

then apply the appropriate law.” Id. at 248, 510 A.2d 1337 (citing

applicable statutes). In short, unlike the committee in Blakeslee & Sons,

whose power was only investigative, the hearing panel in Petyan had

adjudicative power in the application of particular laws to facts.

At the same time that the Connecticut Supreme Court’s

decision in Petyan appears liberally to apply quasi-judicial immunity

to adjudicating administrative agencies, its focus on the application of

law to facts might be understood to state a limiting principle, one that

cabins absolute quasi-judicial immunity to proceedings before

government entities charged with applying particular laws. In short,

a host of private entities—employers, social organizations (even some

criminal enterprises)—may conduct factfinding proceedings to

adjudicate disputes, but insofar as they apply their own rules, rather

than the law, to disputed facts, their proceedings would arguably not

qualify as quasi-judicial under Petyan. 18

This, however, does not permit us to predict that the

Connecticut Supreme Court would never recognize a non-

government proceeding as quasi-judicial. What about circumstances

where a non-government entity conducts a hearing mandated by

certain laws? Or a hearing in conformity with certain laws? To date,

the Connecticut Supreme Court has not considered, much less

answered, any of these questions.

18 Petyan drew its language on this point from the leading torts treatise. See id. at

246, 510 A.2d 1337 (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser

& Keeton on Law of Torts § 114, at 818-19 (5th ed. 1984)). Nowhere does the

treatise suggest that such immunity would apply to non-government proceedings.

24

To be sure, that court has stated that it defines “‘judicial

proceeding’ . . . liberally to encompass much more than civil litigation

or criminal trials.” Hopkins v. O’Connor, 282 Conn. 821, 839, 925 A.2d

1030 (2007). 19 But its extensions of quasi-judicial immunity after

Petyan have all been in the context of administrative proceedings by

government entities. See, e.g., Kelley v. Bonney, 221 Conn. 549, 606 A.2d

693 (1992) (extending quasi-judicial immunity to State Board of

Education teaching certificate revocation proceeding); Craig v. Stafford

Const., Inc., 271 Conn. 78, 856 A.2d 372 (2004) (same re: Hartford

Police Department internal affairs investigation). 20 Indeed, in both

Kelley and Craig, the court reiterated Petyan’s pronouncement that the

proceedings of administrative entities can be quasi-judicial “so far as

they have powers of discretion in applying the law to the facts.” See

19 In Hopkins, the Connecticut Supreme Court ruled that an allegedly defamatory

statement in a police report that was a required first step to a court commitment

proceeding fell within the scope of a “judicial proceeding,” but that a statute

criminalizing malicious falsity in such reports signaled a legislative decision to

afford only qualified immunity to such statements. 282 Conn. at 841-48, 925 A.2d

1030.

20 The identified quasi-judicial proceeding in Rioux v. Barry, 283 Conn. 338, 927

A.2d 304, was also governmental: a police internal affairs investigation. But at

issue there was whether absolute immunity shielded against a vexatious litigation

action. The Connecticut Supreme Court ruled that only qualified immunity

applied to such an action because the elements of a vexatious litigation tort

provided a level of protection against chilling witness testimony lacking in the

elements of defamation and intentional interference with contracts. See id. at 347-

51, 927 A.2d 304. Similarly, the proceeding at issue in Chadha v. Charlotte

Hungerford Hosp., 272 Conn. 776, 865 A.2d 1163, was governmental—a medical

license suspension proceeding by the Connecticut Board of Health. But there the

Connecticut Supreme Court ruled that the state legislature had explicitly

abrogated absolute quasi-judicial immunity in favor of qualified immunity for

evidence given in such proceedings. Id. at 789-90, 865 A.2d 1163 (citing Conn. Gen.

Stat. §§ 19a-17b & 19a-20).

25

Kelley v. Bonney, 221 Conn. at 566, 606 A.2d 693; accord Craig v. Stafford

Const., Inc., 271 Conn. at 85, 856 A.2d 372.

In each case, the court then went on to identify factors that

could “assist in determining whether a proceeding is quasi-judicial,”

specifically,

whether the body has the power to: (1) exercise judgment

and discretion; (2) hear and determine or . . . ascertain

facts and decide; (3) make binding orders and

judgments; (4) affect the personal 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.

Craig v. Stafford Const., Inc., 271 Conn. at 85, 856 A.2d 372 (quoting

Kelley v. Bonney, 221 Conn. at 567, 606 A.2d 693). 21 But these were “in

addition” to, not in lieu of, the foundational law-to-fact requirement.

Id. And, in each case, the court instructed “[f]urther” that it was

“important to consider whether there is a sound public policy reason

for permitting the complete freedom of expression that a grant of

absolute immunity provides.” Id. (quoting Kelley v. Bonney, 221 Conn.

at 567, 606 A.2d 693).

We understand these three principles to instruct as follows:

First, a quasi-judicial proceeding is one that applies law to facts.

Second, even some proceedings applying law to facts might not be

quasi-judicial where consideration of the additional six factors

21 While an administrative body need not possess all six powers to be identified

as quasi-judicial, “the more powers it possesses, the more likely the body is acting

in a quasi-judicial manner.” Craig v. Stafford Const., Inc., 271 Conn. at 95, 856 A.2d

372 (internal quotation marks omitted).

26

indicates that the entity at issue does not exercise powers akin to a

judicial entity. And third, a separate inquiry into public policy may

show that, even where proceedings satisfy the initial law-to-fact and

adjudicative powers requirements, the public interest sometimes may

support absolute immunity, but sometimes may not. For example, in

some circumstances, public policy may be adequately served by

qualified immunity, which shields all but malicious or knowing

falsehoods. See infra at 39-41 (discussing Cleavinger v. Saxner, 474 U.S.

193, 204-206 (1985) (affording federal officials presiding at prison

disciplinary proceeding only qualified immunity), and Rom v. Fairfield

Univ., No. CV020391512S, 2006 WL 390448 (Conn. Super. Ct. Jan. 30,

2006) (affording qualified rather than absolute immunity to witnesses

in private university disciplinary proceeding)); see also Doe v. Roe, 295

F. Supp. 3d 664, 676-77 (E.D. Va. 2018) (holding, under Virginia law,

that weak procedural safeguards and absence of government

involvement in private university misconduct hearing made qualified

rather than absolute immunity “appropriate privilege to apply”).

III. Inability to Predict Connecticut’s Application of Quasi-

Judicial Immunity to this Case

Connecticut Supreme Court Precedents Admit No

Prediction

Applying these precedents to this case, we cannot predict

whether Connecticut would recognize a Yale UWC hearing as quasi-

judicial so as to afford Doe absolute immunity.

1. The Law-to-Fact Requirement

In Kelley, the Connecticut Supreme Court found the initial law-

to-fact requirement satisfied because the Board of Education there

27

was required to apply particular laws and regulations to its findings

of fact in order to revoke a teaching certification. See Kelley v. Bonney,

221 Conn. at 567-68, 606 A.2d 693 (identifying relevant law and

regulation). In Craig, the court found the requirement satisfied by the

police department’s obligation to apply its “official code of conduct”

and “collective bargaining agreement” to facts found during an

internal affairs investigation. Craig v. Stafford Const., Inc., 271 Conn.

at 86, 856 A.2d 372. 22 By contrast, a UWC hearing panel is charged

with applying not a particular law but Yale’s own Sexual Misconduct

Policy in determining whether found facts demonstrate student

sexual misconduct warranting discipline. 23

But if this makes it difficult to predict that Connecticut would

recognize a UWC hearing as quasi-judicial, it does not necessarily

resolve the immunity question in Khan’s favor. As Khan asserts,

Yale’s Sexual Misconduct Policy was formulated to conform to the

requirements of Title IX—or, at least, DOE guidance as to the

requirements of that law. And, as we have judicially noticed, by the

time Khan’s UWC hearing was held in 2018, Yale was also subject to

Conn. Gen. Stat. § 10a-55m, which sets out certain requirements for

campus sexual misconduct proceedings. Thus, assuming that the

The collective bargaining agreement was statutorily governed by Connecticut’s

22

Municipal Employee Relations Act, Conn. Gen. Stat. §§ 7-467 et seq.

23 This comports with subsequent 2020 regulations pertaining to Title IX, which

required colleges and universities to issue written “[c]onclusions regarding the

application of the [school’s] code of conduct to the facts.” 34 C.F.R. § 106.45(7)(ii)(D)

(emphasis added). The parties point us to nothing in these regulations, or in laws

or guidance in effect at the time of the 2018 UWC hearing, that required colleges

and universities to apply law to facts in disciplining student sexual misconduct.

28

Connecticut Supreme Court does use a law-to-fact requirement at the

first step in identifying quasi-judicial proceedings, a question arises

as to how that court might view the mandates of these federal and

state laws in deciding whether Yale’s UWC proceedings satisfy that

requirement. We cannot tell.

2. Judicial-Like Procedures

Indeed, our ability to predict an answer to that question is

complicated by the fact that, in identifying certain government

administrative proceedings as quasi-judicial in Kelley and Craig, the

Connecticut Supreme Court not only reiterated Petyan’s law-to-fact

requirement, but also highlighted the employment of certain

procedures akin to those used in traditional judicial proceedings to

“ensure . . . reliability.” Kelley v. Bonney, 221 Conn. at 571, 606 A.2d

693. Specifically, in both the Board of Education and Police

Department proceedings at issue in those cases, (1) either witnesses

(in Craig) or the complainant (in Kelley) were required to be under

oath; and (2) parties were permitted (a) to “be present throughout the

hearing,” (b) to “be represented by counsel,” (c) “to call and cross-

examine witnesses,” and (d) “to present oral argument.” Id. at 569-

70, 606 A.2d 693; see Craig v. Stafford Const., Inc., 271 Conn. at 87-88,

856 A.2d 372. To be sure, in Petyan, the Connecticut Supreme Court

had held that the absence of an oath requirement was not fatal to

identifying a proceeding as quasi-judicial. See Petyan v. Ellis, 200

Conn. at 251-52, 510 A.2d 1337. 24 And in Kelley and Craig, the court

observed that non-public, even ex parte, proceedings can be “judicial.”

24 The employer in Petyan certified—but did not swear to—the truthfulness of his

form responses. See id. at 250, 510 A.2d 1337.

29

See Kelley v. Bonney, 221 Conn. at 566, 606 A.2d 693; accord Craig v.

Stafford Const., Inc., 271 Conn. at 84-85, 856 A.2d 372. 25 Nevertheless,

the emphasis that Kelley and Craig place on traditional reliability-

ensuring judicial procedures suggests that the more such procedures

are employed in an administrative proceeding, the more likely it is to

be identified as quasi-judicial. See also Hopkins v. O’Connor, 282 Conn.

at 831 & n.3, 925 A.2d 1030 (citing “significant procedural protections

afforded in [court] commitment proceedings”—including rights to be

present at hearing, to appointed counsel, and to cross-examination—

in identifying such proceedings as “judicial” for purposes of

immunity); Vidro v. United States, 720 F.3d at 152 (citing Craig in

stating that whether statement is “taken under oath is . . . relevant to

whether it deserves an absolute privilege”). Presumably, no lesser

standard would apply to non-government proceedings.

By that standard, it is difficult to identify Khan’s UWC hearing

as quasi-judicial. Nothing in the present record indicates that UWC

hearing witnesses testify under oath—only that there can be adverse

disciplinary consequences for failing to testify truthfully (though

what those might be for persons such as Doe, who have graduated

and left Yale, is not clear). See App’x at 77. What the record does

show is that a person under investigation is specifically not permitted

to be physically present throughout UWC hearings. Rather, when a

complainant is interviewed by the committee—even remotely by

teleconference, as in Doe’s case—the person under investigation is

25 The most obvious non-public, ex parte proceeding to which absolute judicial

immunity applies is a grand jury proceeding. See Vidro v. United States, 720 F.3d

at 152.

30

excluded from the hearing room and provided with only an audio

feed of the proceeding. See id. at 80. Moreover, cross-examination is

expressly denied, and there appears to be no opportunity for closing

argument. As for an attorney, a person may enlist counsel as his

hearing advisor, but the attorney may not speak on the party’s behalf,

question witnesses, raise objections, or actively participate in ways

generally associated with the idea of “representation” in judicial

proceedings. See id. at 78. Moreover, to the extent these departures

from traditional judicial proceedings were informed or sanctioned by

DOE’s 2011 “Dear Colleague Letter,” the result appears to have been

intentional. See id. at 90 (stating that “school’s Title IX investigation”

into sexual misconduct “is different from any law enforcement

investigation”).

Thus, even assuming the possibility of the Connecticut

Supreme Court recognizing a non-government proceeding as quasi-

judicial, at least when law is being applied to facts, it is difficult to

predict whether that court would recognize Yale’s UWC hearing as

quasi-judicial in the absence of so many of the judicial reliability

procedures emphasized in Kelley and Craig.

3. Additional Six Factors

The uncertainty identified at the law-to-fact step of analysis is

not removed by the additional six factors that Kelley and Craig list as

relevant to identifying quasi-judicial proceedings. The Connecticut

Supreme Court has plainly stated that “a quasi-judicial body need not

possess all six powers” referenced in these factors to be identified as

quasi-judicial. Craig v. Stafford Const., Inc., 271 Conn. at 94-95, 856

A.2d 372 (internal alteration and quotation marks omitted).

31

Nevertheless, because “the more [such] powers it possesses, the more

likely the body is acting in a quasi-judicial manner,” id. (internal

quotation marks omitted), it is important for us to understand just

how the Connecticut Supreme Court would apply those factors in the

circumstances of this case.

As earlier noted, we understand the six factors enumerated in

Kelley and Craig to apply in addition to an initial law-to-fact

requirement. Thus, we assume the factors are properly considered in

light of that requirement. In short, we understand the first two factors

to ask whether a hearing entity has the power (1) to “exercise

judgment and discretion” in applying law to fact, and (2) to “hear and

determine or to ascertain facts and decide” how the law applies to

those facts. Kelley v. Bonney, 221 Conn. at 567, 606 A.2d 693. If that

understanding is, indeed, correct, we cannot weigh these two factors

without first knowing whether the Connecticut Supreme Court

would consider Yale to be applying law to facts in conducting a UWC

hearing. If the court would so conclude, then these discretion and

decision factors would weigh in favor of finding a UWC hearing a

quasi-judicial proceeding. If the court would not so conclude, then

these factors would weigh against such a finding. For reasons already

stated, we cannot predict the Connecticut Supreme Court’s

conclusion on that preliminary question.

Similarly, as to the third, fourth, and sixth factors (whether the

body has the power to “make binding orders and judgments,” “affect

the personal or property rights of private persons,” and “enforce

decisions or impose penalties”), it may be important to know how, if

at all, the Connecticut Supreme Court understands Yale to be

32

applying law in a UWC proceeding. Compare Craig v. Stafford Const.,

Inc., 271 Conn. at 89, 856 A.2d 372 (identifying internal affairs inquiry

as quasi-judicial proceeding because, inter alia, police chief could

himself act on inquiry’s recommendations), with Preston v. O’Rourke,

74 Conn. App. 301, 314, 811 A.2d 753 (App. Ct. 2002) (equating

arbitration award to binding order and judgment because it could be

converted to a court judgment). Further, we cannot predict how the

Connecticut Supreme Court would weigh the fifth factor (whether the

body may “examine witnesses and hear the litigation of the issues on

a hearing”) without knowing whether, in light of Kelley and Craig, the

court contemplates that “witnesses” in judicial and quasi-judicial

proceedings will be under oath and/or subject to cross-examination,

and that the “litigation of the issues on a hearing” will occur with

persons under investigation being present throughout the hearing,

represented by counsel who can speak on their behalf, and afforded

some opportunity for a closing statement. See Kelley v. Bonney, 221

Conn. at 567, 606 A.2d 693.

4. Public Policy

Finally, as for public policy considerations, the Connecticut

Supreme Court in Kelley appears to have assumed that—and,

therefore, did not discuss why—the public interest in full and frank

Board of Education inquiries into a teacher’s misconduct toward

students warranted absolute immunity. See id. at 571, 606 A.2d 693.

In extending absolute immunity to police internal affairs

investigations in Craig, however, the Connecticut Supreme Court

offered a public policy rationale that seems to apply to both cases. The

court there first identified the public concern: because of “the costs

and inconvenience associated with defending a defamation suit,”

33

without absolute immunity, “good faith criticism of governmental

misconduct might be deterred by concerns about unwarranted

litigation.” Craig v. Stafford Const., Inc., 271 Conn. at 95, 856 A.2d 372

(internal quotation marks omitted). It then reached its public policy

conclusion: “the policy of encouraging citizen complaints against

those people who wield extraordinary power within the community

outweighs the need to protect the reputation of the [person] against

whom the complaint is made.” Id. at 96, 856 A.2d 372.

This reasoning is not clearly analogous to this case. Craig’s

policy rationale for applying absolute quasi-judicial immunity

focuses on the public interest in the reporting of “governmental

misconduct” because of the “extraordinary power” government

officials frequently wield within a community. Id. at 95-96, 856 A.2d

372. By contrast, Khan’s alleged misconduct, as recounted by Doe at

the UWC hearing, while undoubtedly serious, is not “governmental”

misconduct. And, as an undergraduate, Khan hardly wielded

“extraordinary power” within the Yale community akin to that of a

government official. Thus, we cannot predict from the Connecticut

Supreme Court’s reasoning in Craig whether the court would think

public policy warranted the extension of absolute quasi-judicial

immunity to a non-government proceeding, such as Yale’s UWC

hearing.

At the same time, and for reasons already discussed, we

recognize that Yale’s UWC proceedings, at least in some respect, may

be required by federal and state law. Just as this raises questions

about whether the proceedings themselves might be deemed to apply

law to fact, it also presents a possible distinct public policy rationale

34

for affording immunity to participants in such proceedings. But that

hardly means the immunity would have to be absolute. Connecticut’s

public interest might be adequately served by affording qualified

immunity. In short, these questions “require[ ] value judgments and

important public policy choices” that the Connecticut Supreme Court

is better situated to make than this court. Penguin Grp. (USA) v. Am.

Buddha, 609 F.3d 30, 42 (2d Cir. 2010).

* * *

For all these reasons, our review of the Connecticut Supreme

Court’s quasi-judicial immunity precedents does not permit us to

predict whether that court would extend such absolute immunity to

non-government proceedings generally or to Yale’s UWC

disciplinary proceeding specifically.

Connecticut Lower Court Decisions Admit No

Prediction

Just as we are not able to resolve that question by reference to

Connecticut Supreme Court decisions, so also are we unable to do so

by looking to decisions of Connecticut’s lower courts. While the

decisions of such courts are “not controlling,” where, as here, “the

highest court of the State has not spoken on the point,” we may

nevertheless give them “some weight” in identifying state law.

Commissioner v. Bosch’s Est., 387 U.S. 456, 465 (1967).

1. Connecticut Appellate Court

Like the state Supreme Court, the Connecticut Appellate Court

has extended quasi-judicial immunity to a variety of administrative

proceedings. See, e.g., Priore v. Haig, 196 Conn. App. 675, 705, 230 A.3d

35

714 (App. Ct.) (identifying planning and zoning commission hearing

as quasi-judicial), cert. granted 335 Conn. 955, 239 A.3d 317 (2020);

Cohen v. King, 189 Conn. App. 85, 91, 206 A.3d 188 (App. Ct. 2019)

(extending absolute quasi-judicial immunity to chief counsel in

disciplinary proceeding conducted pursuant to Connecticut Judicial

Branch Administrative Policy), cert. denied 336 Conn. 925, 246 A.3d

986 (2021); Mercer v. Blanchette, 133 Conn. App. 84, 93, 33 A.3d 889

(App. Ct. 2012) (extending absolute immunity to statements made by

member of panel monitoring compliance with federal consent

judgment); Morgan v. Bubar, 115 Conn. App. 603, 617-21, 975 A.2d 59

(App. Ct. 2009) (extending absolute immunity to witness in

Department of Correction internal investigation); Preston v. O’Rourke,

74 Conn. App. at 312, 811 A.2d 753 (identifying as quasi-judicial

arbitration proceeding conducted pursuant to state statute, which

upheld dismissal of state prosecutor). But the Appellate Court has

never extended such immunity to a purely private proceeding.

In urging this court to do so here, Doe argues that Preston

should be viewed as a run-of-the-mill employment arbitration, which

the Appellate Court itself described as a “hybrid” public-private

proceeding. Preston v. O’Rourke, 74 Conn. App. at 314, 811 A.2d 753.

The reason this does not persuade is that the Appellate Court so

described the case in rejecting a contention that the arbitration at issue

was a purely private proceeding. Indeed, the court emphasized both

the public roles of the opposing parties as well as the specific state

laws that governed their employment contract and that approved

arbitration for disputes arising thereunder. Id. at 313-15, 811 A.2d 753.

36

To be sure, in explaining its conclusion, the Connecticut

Appellate Court made a general observation: “If witnesses in

arbitration proceedings were not afforded the protection of absolute

immunity, as in more formal judicial proceedings, arbitration no

longer would be seen as a desirable alternative form of dispute

resolution.” Id. at 314, 811 A.2d 753. But even if this might lend some

support to an argument that a private proceeding can be deemed

“public” by virtue of playing a role in a larger statutory scheme, it is

not enough to let us predict that the Connecticut Supreme Court

would reach that conclusion with respect to a Yale UWC hearing

insofar as that proceeding and the policy underlying it is informed by

Title IX and Conn. Gen. Stat. § 10a-55m. Much less can we predict

that the Connecticut Supreme Court would identify the Yale

proceeding as quasi-judicial in the absence of many of the judicial-like

procedures highlighted in Kelley and Craig.

Indeed, that hesitancy is reinforced by the Connecticut

Appellate Court’s repeated use of language in Priore implying a

background assumption that quasi-judicial proceedings are

conducted by government entities. See Priore v. Haig, 196 Conn. App.

at 703, 230 A.3d 714 (identifying “public policy” as final consideration

identified in Kelley v. Bonney for determining “whether a government

body’s proceeding is quasi-judicial in nature” (emphasis added)); id.

at n.12 (observing that quasi-judicial nature of proceeding

determined “by assessing whether the government body conducting

the proceeding has powers that are characteristic of a body acting in

a quasi-judicial capacity” (emphasis added)); id. at 704, 230 A.3d 714

(stating that rationale for absolute quasi-judicial immunity “rests in

the public policy that every citizen should have the unqualified right

37

to appeal to governmental agencies for redress without the fear of being

called to answer in damages” (emphasis added) (quoting 50 Am. Jur.

2d, Libel and Slander § 283 (2017))). 26

We recognize that such language is dicta in Priore and not found

in other Connecticut court decisions. Thus, we cannot predict

whether the Connecticut Supreme Court will adopt it, or assign it any

weight, in its pending review of Priore. See 335 Conn. 955, 239 A.3d

317 (granting writ of certiorari). Nor can we predict whether, and

how, the Connecticut Supreme Court might view Priore’s

observation—this one seemingly favorable to Doe—that the absence

of an oath requirement not only does not foreclose identifying a

proceeding as quasi-judicial, see supra at 29-30 & n.24 (discussing

Petyan), but also “does not weigh against” such a determination,

Priore v. Haig, 196 Conn. App. at 702, 230 A.3d 714, a conclusion

difficult to reconcile with Kelley and Craig. 27

In sum, because the quasi-judicial immunity decisions of the

Connecticut Appellate Court do not speak clearly and consistently on

26 Other statements in this treatise also discuss quasi-judicial immunity in the

context of government proceedings. See 50 Am. Jur. 2d, Libel and Slander § 283

(Jan. 2022 update) (“Moreover, a proceeding is quasi-judicial in nature . . . if it is

conducted by a governmental executive officer, board, or commission that has the

authority to hear and decide the matters coming before it or to redress the

grievances of which it takes cognizance.” (emphasis added)).

27 We also cannot predict how the Connecticut Supreme Court will view Priore’s

assertion that “statements . . . made during the proceeding [may] be entitled to

absolute immunity as a matter of public policy,” “regardless of whether [the]

proceeding is quasi-judicial in nature.” Id. at 703 n.12, 230 A.3d 714. The district

court did not reach such a conclusion in identifying Yale’s UWC proceeding as

quasi-judicial, nor does Doe urge affirmance on that ground.

38

issues pertinent to the question of whether absolute immunity might

extend to statements made at non-government proceedings generally

or to Yale’s UWC proceedings specifically, they do not allow us to

predict how the Connecticut Supreme Court would rule on that

matter.

2. Connecticut Superior Court

One Connecticut Superior Court decision bears mention, if only

because of its factual similarity to this case. In Rom v. Fairfield

University, 2006 WL 390448, a student suspended from the defendant

private university after a disciplinary hearing sued two hearing

witnesses for defamation. The Superior Court appears to have

identified the disciplinary proceeding as quasi-judicial. See id. at *5.

But there is reason to question whether that was, indeed, the court’s

ultimate conclusion because witnesses at a quasi-judicial proceeding

are entitled to absolute immunity but, in Rom, the court afforded them

only qualified immunity. See id. at *7.

The Superior Court quoted Kelley in observing that absolute

quasi-judicial immunity could extend to administrative proceedings,

“so far as [officers] have powers of discretion in applying the law to

the facts.” Id. at *2 (quoting Kelley v. Bonney, 221 Conn. at 566, 606

A.2d 693). But nowhere did the court in Rom identify what “law”

defendant’s disciplinary committee was applying in finding plaintiff

impermissibly to have been in a women’s restroom and to have torn

down posters in a campus residence hall. Nor did the court anywhere

discuss whether, and under what circumstances, a non-government

proceeding could properly be identified as quasi-judicial. Instead, the

Superior Court relied almost exclusively on Cleavinger v. Saxner, 474

39

U.S. 193, in extending only qualified immunity to the university

disciplinary proceeding.

But that reliance itself raises doubt. In Cleavinger, the United

States Supreme Court ruled that members of a federal prison

disciplinary committee were entitled only to qualified immunity,

rather than to absolute immunity, because, although the committee

performed “an adjudicatory function” of “some societal importance,”

its members and procedures “had no identification with the judicial

process of the kind and depth that has occasioned absolute [judicial]

immunity.” Id. at 203, 206. 28 In short, Cleavinger specifically did not

find the prison discipline proceeding there at issue to be quasi-

judicial, much less did it rule that quasi-judicial proceedings

sometimes warranted only qualified, rather than absolute, immunity

to witnesses or judges. Rather, Cleavinger signals that the absence of

processes such as representation, confrontation, cross-examination,

etc., cautions against recognizing even some adjudicatory functions

as quasi-judicial. See id. at 206. While the Supreme Court was not

applying Connecticut law in Cleavinger, its focus on process in

28 The Supreme Court observed that the prison committee heard testimony,

received documentary evidence, evaluated credibility and weighed evidence, and

rendered a decision on guilt or innocence. See id. at 203. But the committee’s

members were not independent or professional adjudicators; rather, they were

employees of the same institution that had brought the charges at issue.

Meanwhile, charged prisoners were not afforded lawyers or independent non-

staff representatives, had no right to compel or cross-examine witnesses, and no

right to discovery. The proceedings were conducted with no cognizable burden

of proof and no verbatim transcript, and hearsay and self-serving information

were received. In such circumstances, the Supreme Court declined to identify a

judicial or quasi-judicial proceeding warranting absolute immunity. Instead, it

ruled that the committee members were shielded by qualified immunity, a lesser

protection, but one “not of small consequence.” Id. at 206.

40

identifying quasi-judicial proceedings is somewhat analogous to the

concern with process expressed in the Connecticut Supreme Court’s

decisions in Kelley and Craig.

For all these reasons, we cannot predict from the single

Superior Court decision in Rom that the Connecticut Supreme Court

would extend absolute, or even qualified, immunity to non-

government proceedings generally or to Yale’s UWC disciplinary

proceedings specifically.

Precedent from Other Jurisdictions Admit No

Prediction

Insofar as the parties point us to cases from other jurisdictions,

these precedents are not binding. Nevertheless, we may consider

them too in endeavoring to predict how the Connecticut Supreme

Court would decide the immunity question presented by this appeal.

See Caronia v. Philip Morris USA, Inc., 715 F.3d at 449 (acknowledging

this court’s ability “to consider all of the resources to which the

highest court of the state could look, including decisions in other

jurisdictions on the same or analogous issues” (internal quotation

marks omitted)); see also Kelley v. Bonney, 221 Conn. at 567, 606 A.2d

693 (drawing six-factor test from Illinois law). In fact, precedents

from out of Connecticut do not speak with sufficient clarity or

consistency to permit us to make such a prediction.

1. Federal Cases

Beginning with our sister circuits, we note that more than a

half-century ago, the Fourth Circuit adopted a district court opinion

ruling that, under South Carolina law, a private arbitration qualified

as a quasi-judicial proceeding. Corbin v. Wash. Fire & Marine Ins. Co.,

41

398 F.2d 543, 544 (4th Cir. 1968). 29 The district court there reasoned

that “unqualified privilege does not depend on the rigid requirement

of a strictly legislative or judicial proceeding; its limits are fixed rather

by considerations of public policy,” which, in South Carolina,

accorded arbitration proceedings a “favored” status. Corbin v. Wash.

Fire & Marine Ins. Co., 278 F. Supp. 393, 396 (D.S.C. 1968).

We cannot predict whether Connecticut would adopt this

reasoning. As already discussed supra at 36-37, the Connecticut

Appellate Court has recognized an arbitration proceeding involving

a state prosecutor and his government employer as a quasi-judicial

proceeding but, in doing so, has emphasized the disputing parties’

government roles and the state laws that both informed their

contractual relationship and authorized arbitration of their dispute.

See Preston v. O’Rourke, 74 Conn. App. at 313-15, 811 A.2d 753.

Further, while the Connecticut Supreme Court has identified public

policy as an important factor in identifying a quasi-judicial

proceeding, we cannot predict that it would rely on that ground

alone, given its repeated reference to the application of law to facts

and the emphasis it has placed on procedural safeguards akin to those

afforded in traditional judicial proceedings. See supra at 28-31.

Certainly, these last two factors have informed other, more

recent decisions by Courts of Appeals declining to identify non-

government proceedings as quasi-judicial. In Overall v. University of

Pennsylvania, 412 F.3d 492 (3d Cir. 2005), the Third Circuit—in an

29 We necessarily proceed cautiously in reviewing federal court decisions

discussing quasi-judicial immunity, mindful that they apply state laws that may

not take identical views of the privilege.

42

opinion authored by then-Judge Alito—ruled that a private

university’s faculty grievance proceeding was not quasi-judicial. The

court observed that those grievance proceedings that Pennsylvania

had identified as quasi-judicial had all involved either “a government

entity or an ostensibly private entity operating pursuant to a state or

federal statute.” Id. at 497. Further, the court noted that “sound

reasons” supported a “public-private distinction,” in that public

proceedings “typically involve basic procedural safeguards that may

be lacking in private proceedings.” Id. at 498 (noting that University

of Pennsylvania grievance procedure at issue “did not require sworn

testimony”).

The Sixth Circuit recently echoed the first point in Bose v. Bea,

947 F.3d 983 (6th Cir. 2020). In declining to accord absolute immunity

to allegedly defamatory statements made during a private college

disciplinary proceeding, the court observed that, under Tennessee

law, the rationale for absolute quasi-judicial immunity was “a strong

benefit to the public, often tied to a statute or to powers which the

Tennessee legislature had specifically granted to the tribunal at

issue.” Id. at 995. 30

In Cuba v. Plyant, the Fifth Circuit, applying Texas law, was still

more emphatic in declining to extend absolute immunity to private

university disciplinary proceedings, observing that the school did

30 In an earlier, unpublished order, the Sixth Circuit observed that the plaintiff had

not disputed that, under Ohio law, absolute immunity shielded his accuser’s

statements during a private university disciplinary proceeding. See Doe v. Univ. of

Dayton, 766 F. App’x 275, 290 (6th Cir. 2019). For that proposition, the court cited

Savoy v. Univ. of Akron, 2014-Ohio-3043, 15 N.E.3d 430, at ¶ 20 n.3 (Ohio Ct. App.

2014), which involved a public university proceeding.

43

“not have any law enforcement or law interpreting authority.” 814

F.3d 701, 717 (5th Cir. 2016) (emphasis deleted).

Here, we do not know, and cannot predict, whether the

Connecticut Supreme Court would view Yale to have been “operating

pursuant to” Title IX or Conn. Gen. Stat. § 10a-55m in conducting the

UWC proceedings that resulted in Khan’s expulsion. See Overall v.

Univ. of Penn., 412 F.3d at 497. Nor do we know whether or to what

degree the Connecticut Supreme Court would view Yale’s UWC

proceeding obligations under those federal and state laws to involve

the enforcement, interpretation, or even application of those laws.

Much depends on how strictly the Connecticut Supreme Court might

require a non-government entity to be applying law to facts for its

proceedings to be deemed quasi-judicial. Much also depends on how

the Connecticut Supreme Court weighs the absence of judicial-like

procedures highlighted in Kelley and Craig from Yale’s UWC

proceedings. 31

2. State Cases

A few cases from other states have extended absolute immunity

to witnesses in private college disciplinary proceedings. While the

extension of immunity in such circumstances might well influence the

31 District court decisions cited by the parties similarly lack the clarity and

consistency necessary to permit us to predict how the Connecticut Supreme Court

would answer these questions. Compare, e.g., Fogel v. Univ. of the Arts, No. 18-cv-

5137, 2019 WL 1384577, at *10 (E.D. Pa. Mar. 27, 2019) (holding, with no mention

of Overall, that absolute judicial immunity shielded author of letter to private

university accusing professor of sexual harassment), with Doe v. Roe, 295 F. Supp.

3d at 676-77 (citing due process deficiencies in private university’s disciplinary

proceedings in denying accuser’s statements absolute immunity).

44

Connecticut Supreme Court, because the underlying facts and

reasons for decision do not yield easy analogies to this case, we cannot

predict that the ultimate conclusion would be to afford absolute

immunity here.

For example, in Constantine v. Teachers College, a New York trial

court ruled that a private college’s faculty advisory committee

proceedings were shielded by absolute immunity from an action for

defamation because, under New York law, that committee’s

disciplinary actions were ultimately judicially reviewable in an

Article 78 proceeding. 29 Misc. 3d 1214(A), at *8-9, 918 N.Y.S.2d 397

(N.Y. Sup. Ct. 2010) aff’d 93 A.D.3d 493, 940 N.Y.S.2d 75 (1st Dep’t

2012). Because it is not evident—and the parties do not urge—that

Connecticut courts might play any similar review role with respect to

action taken at a Yale UWC proceeding, this New York case does not

permit us to predict that the Connecticut Supreme Court would

identify a comparable hybrid private/public process here.

No more helpful is Razavi v. School of the Art Institute of Chicago,

122 N.E.3d 361, 2018 (1st) 171409 (Ill. App. Ct. 2018), dismissed, 124

N.E.3d 475 (Ill. 2019). While the Illinois Appellate Court there ruled

that absolute immunity shielded student sexual assault complaints

against a faculty member in the course of the defendant private

school’s investigatory proceeding, its rationale was not that the

proceeding was quasi-judicial. Indeed, the court concluded that it

was not. See 122 N.E.3d at 373. 32 Rather, the court reasoned that the

32 The court found it “unnecessary to address” whether the subsequent

disciplinary proceeding, which appeared to be governed, at least indirectly, by

45

investigation was part of a “continuum” that started with a report of

alleged criminal conduct to campus security officers, and plaintiff

conceded that absolute immunity shielded reports of crime. See id.

By contrast, here, the only question before the court is whether the

UWC disciplinary proceeding itself is quasi-judicial. Doe does not

assert, and the district court 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.

Finally, in Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008), the

Indiana Supreme Court extended absolute immunity to a public

university’s proceeding for investigating sexual harassment

complaints. In reaching that conclusion, the court noted that three

states—Maryland, California, and New York—had extended absolute

quasi-judicial immunity to participants in school disciplinary

proceedings. See id. at 777. But the cases cited all also involved public

entities. See id. Thus, Hartman does not permit us to predict that the

Connecticut Supreme Court would extend quasi-judicial immunity to

a private school.

Making that task still more difficult is the Hartman majority’s

dismissal of the lack of judicial-like procedures in the university

process—there, the absence not only of an oath requirement,

confrontation, or cross-examination, but also of any hearing. The

court concluded that these circumstances might support a

respondent’s complaint against the university, but not the denial of

absolute immunity to persons who made statements to the

federal law, was quasi-judicial. See id. at 375; see also id. at 369-71 (discussing

Campus SaVE Act).

46

investigating officer. See id. at 777-78 (observing that “ultimate issue

focuses less on the particular process and more on the recognition of

the institution’s interest in assuring a proper educational

environment”). 33 We cannot predict that the Connecticut Supreme

Court would adopt this reasoning given its own emphasis on—if not

requirement of—some judicial-like processes in various cases

identifying quasi-judicial proceedings. We also note that to the extent

the Indiana Supreme Court identified a particular need for protection

from suit in the educational setting because “the subject of the

complaint—the educator—is in a position of authority over the

student,” id. at 778, that reasoning does not translate to this case

where the complainant and respondent were both students.

* * *

In sum, after reviewing relevant decisions of Connecticut’s

Supreme Court and its lower courts, as well as decisions from other

jurisdictions, we cannot predict whether the Connecticut Supreme

Court would extend absolute quasi-judicial immunity either to non-

government proceedings generally or to Yale’s UWC proceedings as

applied specifically in this case.

33 But see id. at 780 (Rucker, J., concurring in result) (observing that proceeding

itself must be quasi-judicial for participants in it to be afforded immunity).

47

IV. Certification

Connecticut law, as well as this court’s local rules, permit us to

certify questions of Connecticut law to the state’s Supreme Court. See

Conn. Gen. Stat. § 51-199b(d); 34 2d Cir. R. 27.2. 35

As earlier noted, we do not certify questions lightly. “Because

it is our job to predict how the forum state’s highest court would

decide the issues before us, we will not certify questions of law where

sufficient precedents exist for us to make this determination.” DiBella

v. Hopkins, 403 F.3d at 111 (quoting Elliott Assocs., L.P. v. Banco de la

Nacion, 194 F.3d 363, 370 (2d Cir. 1999)). For the reasons detailed, we

cannot make that determination in this case. The Connecticut

Supreme Court has “not squarely addressed” the questions of (1)

whether a non-government proceeding can ever be quasi-judicial;

and (2) if so, whether a Yale UWC proceeding is quasi-judicial.

Moreover, decisions by that state’s lower courts, as well as decisions

of courts of other jurisdictions, also do not permit us to predict how

the Connecticut Supreme Court would answer them. See Penguin Grp.

(USA) Inc. v. Am. Buddha, 609 F.3d at 42 (identifying factors relevant

to decision to certify). Insofar as answers to these questions

“require[ ] value judgments and important public policy choices,” the

Connecticut Supreme Court “is better situated . . . to make” these than

34 “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.” Id.

35“If state law permits, the court may certify a question of state law to that state’s

highest court. When the court certifies a question, the court retains jurisdiction

pending the state court’s response to the certified question.” Id.

48

this court. Id. Finally, the fact that answers to the identified questions

“will control the outcome of this case” further supports certification.

Id.

Doe’s arguments to the contrary do not persuade. First, Doe

argues that there is no need for certification because when this court

certified a judicial immunity question to the Connecticut Supreme

Court in Gross v. Rell, 585 F.3d 72 (2d Cir. 2009), certified question

answered, 304 Conn. 234, 40 A.3d 240 (2012), the Connecticut Supreme

Court “could have easily held that quasi-judicial immunity does not

apply to private entities but it did not,” instead, analyzing whether

the private nursing home in that case “was performing a judicial

function.” Appellee Br. at 17. Doe urges us to infer from this action

the Connecticut Supreme Court’s implicit rejection of a public/private

distinction in the application of absolute quasi-judicial immunity. We

do not think such an inference is warranted. The question in Gross

was not whether some proceeding conducted by the nursing home

was properly recognized as quasi-judicial so as to afford witnesses at

the proceeding absolute immunity. Rather, it was whether the

absolute immunity of an undeniably judicial entity, the Probate

Court, extended to the private nursing home’s care of a resident

subject to a court-ordered conservancy. In concluding that it did not,

the Connecticut Supreme Court stated that the nursing home “was

neither executing the orders of the Probate Court nor performing a

function comparable to that of the Probate Court when it admitted

and cared for [the resident], but was merely following the instructions

of the conservator and performing its ordinary function as a nursing

home.” Gross v. Rell, 304 Conn. at 274, 40 A.3d 240. Nothing in this

49

response indicates the Connecticut Supreme Court’s views about the

questions raised on this appeal.

Second, Doe cites various cases emphasizing that “certification

is an exceptional procedure.” Ruzhinskaya v. HealthPort Techs., 942

F.3d 69, 73 (2d Cir. 2019) (internal quotation marks omitted). We have

explained at some length why this case is exceptional: “[In]sufficient

precedents exist for us to make” a prediction as to whether

Connecticut law would extend quasi-judicial immunity to non-

government proceedings generally, or to the Yale’s UWC proceedings

specifically; and answers to those questions require value judgments

and important public policy choices that the Connecticut Supreme

Court is better situated to make than this court. DiBella v. Hopkins, 403

F.3d at 111 (internal quotation marks omitted); see also Penguin Grp.

(USA) Inc. v. Am. Buddha, 609 F.3d at 42. As Doe acknowledges, the

decision to certify is “discretionary,” Alphonse Hotel Corp. v. Tran, 828

F.3d 146, 156 (2d Cir. 2016), and, in the circumstances of this case, we

think it appropriate to exercise that discretion in favor of certification.

Third, Doe argues that she has “a constitutionally-recognized

interest in not being put back in state court through the process of

certification, an interest which is entitled to significant weight in a

federal court’s decision whether to certify.” Appellee Br. at 29

(quoting Valls v. Allstate Ins. Co., 919 F.3d 739, 743 (2d Cir. 2019)). We

do accord proper weight to Doe’s interest, but find it outweighed by

another interest, also grounded in the constitutional principle of

federalism: a state’s interest in pronouncing its own law, particularly

in matters requiring value judgments and important public policy

choices.

50

Fourth, Doe argues that the added delay, cost, and stress of

further litigation in the Connecticut Supreme Court counsels against

certification. We do not ignore these concerns, which are present, to

some extent, in any certification. See Ferreira v. City of Binghamton, 975

F.3d 255, 291 (2d Cir. 2020). Nevertheless, we think those concerns

are outweighed here by the benefit of obtaining determinative

answers from Connecticut’s highest court on questions of state law

implicating serious policy concerns about how broadly the state

wishes to afford absolute quasi-judicial immunity.

CONCLUSION

A review of absolute quasi-judicial immunity cases from the

Supreme Court of Connecticut, the lower courts of that state, and

other jurisdictions does not permit this court to predict whether

Connecticut’s highest court would conclude, as the district court here

did, that such immunity shields defendant Doe from plaintiff Khan’s

claims for defamation and tortious interference with contract.

Accordingly, we CERTIFY the following questions to the Connecticut

Supreme Court:

1. Under Connecticut law, can a proceeding before a non-

government entity ever be deemed quasi-judicial for purposes

of affording absolute immunity to proceeding participants?

2. If the answer to the first question is “yes,” what requirements

must be satisfied for a non-government proceeding to be

recognized as quasi-judicial? Specifically,

a. Must an entity apply controlling law, and not simply its own

rules, to facts at issue in the proceeding? See Petyan v. Ellis,

51

200 Conn. at 246, 510 A.2d 1337; see also W. Keeton, D.

Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of

Torts § 114, at 818-19 (5th ed. 1984).

b. How, if at all, do the “power” factors enumerated in Kelley

v. Bonney, 221 Conn. at 567, 606 A.2d 693, and Craig v.

Stafford Construction, Inc., 271 Conn. at 85, 856 A.2d 372,

apply to the identification of a non-government entity as

quasi-judicial; and, if they do apply, are these factors “in

addition” to, id., or independent of, a preliminary law-to-

fact requirement?

c. How, if at all, does public policy inform the identification of

a non-government entity as quasi-judicial and, if it does, is

this consideration in addition to, or independent of, a law-

to-fact requirement and the enumerated 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 physically present

throughout a proceeding; an oath requirement; the ability to

call, examine, confront, and cross-examine witnesses; the

ability to be represented by counsel—inform the

identification of a proceeding as quasi-judicial? See Craig v.

Stafford Const., Inc., 271 Conn. at 87-88, 856 A.2d 372; Kelley

v. Bonney, 221 Conn. at 568-70, 606 A.2d 693.

3. If it is possible under Connecticut law to identify a non-

government proceeding as quasi-judicial, then, in light of

responses to the above questions, was the 2018 Yale University

52

UWC proceeding at issue on this appeal properly recognized

as quasi-judicial?

4. If the answer to Question 3 is “yes,” would Connecticut extend

absolute quasi-judicial immunity to defendant Jane Doe for her

statements in that UWC proceeding?

5. If the answer to Question 3 is “no,” would Connecticut afford

defendant Jane Doe qualified immunity or no immunity at all?

The Connecticut Supreme Court may answer these questions in

whatever order it deems best to assist this court in understanding

how Connecticut law applies to this case. Similarly, and to the same

purpose, the Connecticut Supreme Court may modify or expand

these certified questions or address any other issues of Connecticut

law pertinent to this appeal.

This panel retains jurisdiction for the purpose of resolving this

appeal once the Connecticut Supreme Court has responded to our

certification.

It is, therefore, ORDERED that the Clerk of this Court transmit

to the Clerk of the Connecticut Supreme Court a certificate, as set

forth below, together with this opinion and a complete set of briefs,

appendices, and the record filed in this case by the parties.

CERTIFICATE

The foregoing is hereby certified to the Supreme Court of the

State of Connecticut pursuant to Second Circuit Rule 27 and Conn.

Gen. Stat. § 51-199b.

53