Khan v. Yale University

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SAIFULLAH KHAN v. YALE UNIVERSITY ET AL.

(SC 20705)

Robinson, C. J., and McDonald, D’Auria, Mullins,

Ecker, Alexander and Keller, Js.

Syllabus

The plaintiff, who was an undergraduate student at Yale College, sought to

recover damages in the United States District Court for the District of

Connecticut in connection with statements the defendant D, a classmate

of the plaintiff, made during a disciplinary hearing conducted by the

named defendant university’s committee on sexual misconduct (commit-

tee). In 2015, D accused the plaintiff of sexually assaulting her in her

dormitory, and the university suspended the plaintiff. The committee,

however, stayed the disciplinary proceedings against the plaintiff pend-

ing the outcome of a criminal case that the state had filed against him.

The plaintiff subsequently was acquitted on multiple counts of sexual

assault, and, in 2018, he resumed full-time student status at Yale. Shortly

thereafter, however, as a result of the reporting in a student newspaper

of additional allegations of sexual assault involving the plaintiff, the

plaintiff agreed to undergo a mental health consultation, but he refused

a request that he meet with university administrators. Subsequently,

the university again suspended the plaintiff on the ground that it was

necessary for the safety and well-being of the plaintiff and the university

community. Thereafter, the committee convened a hearing in connection

with D’s 2015 sexual assault complaint. At the hearing, D, who had since

graduated, provided a statement via teleconference, but she did not

testify under oath or provide any sworn statement. The plaintiff and his

counsel were not permitted in the hearing room when the hearing panel

questioned D and, instead, listened to an audio feed from an anteroom.

The plaintiff’s counsel was not permitted to speak, question D or any

other witness, or raise objections, and the hearing panel denied the

plaintiff’s request for a recording or transcript of the hearing. Addition-

ally, the committee’s procedures allowed the parties to submit questions

that they wanted the hearing panel to ask and to request that the panel

call witnesses to testify, but the panel had the sole discretion to reject

the proposed questions or witnesses. The university ultimately expelled

the plaintiff. In his complaint filed in the District Court, the plaintiff

alleged, inter alia, defamation and tortious interference with business

relations as to D in connection with the sexual assault allegations that

she had made during the disciplinary proceedings. He also alleged that

D had made false accusations in an effort to have him expelled as part

of the #MeToo political movement and a personal vendetta stemming

from D’s alleged romantic advances toward the plaintiff. The District

Court, however, granted D’s motion to dismiss the plaintiff’s claims,

concluding that the disciplinary proceedings were quasi-judicial in

nature and that D, therefore, enjoyed absolute immunity under Connecti-

cut law for any statements that she had made in the course of those

proceedings. The plaintiff appealed from the District Court’s granting

of D’s motion to dismiss to the United States Court of Appeals for the

Second Circuit, which concluded that the outcome of the plaintiff’s

appeal depended on whether the absolute immunity afforded in connec-

tion with quasi-judicial proceedings extends to proceedings of nongov-

ernmental entities and certified certain questions to this court regarding

the requirements that must be satisfied for a proceeding to be deemed

quasi-judicial for the purpose of affording absolute immunity to proceed-

ing participants, whether the disciplinary proceedings at issue properly

were recognized as quasi-judicial, and, if not, whether Connecticut law

extends qualified immunity to D for statements that she had made during

the disciplinary proceedings. Held:

1. This court addressed the requirements that must be satisfied for an

adjudicative proceeding to be recognized as quasi-judicial:

a. A proceeding is quasi-judicial for the purpose of affording its partici-

pants absolute immunity when the proceeding is specifically authorized

by law, the entity conducting the proceeding applies law to fact in an

adjudicatory manner, the proceeding contains adequate procedural safe-

guards, and there is a public policy justification for encouraging absolute

immunity for proceeding participants:

A review of this court’s case law revealed that a threshold requirement of

any quasi-judicial proceeding is that the proceeding must be specifically

authorized by law, meaning that the proceeding is governed by or con-

ducted pursuant to a state or federal statute, and that requirement was

consistent with the purposes of absolute immunity insofar as the imposi-

tion of absolute immunity is intended to be a public benefit and a societal

necessity, and a proceeding that is not specifically authorized by or

conducted pursuant to law provides little foundation for a court to

determine that the public has an interest in encouraging participation

and unfettered candor in the proceeding.

Moreover, in Priore v. Haig (344 Conn. 636), which was decided after

the Second Circuit certified questions to this court, this court explained

that a quasi-judicial proceeding is one in which the entity conducting

the proceeding has the power of discretion in applying the law to the

facts within a framework that contains procedural protections against

defamatory statements, and that courts charged with determining

whether a proceeding is quasi-judicial in nature may consider, in addition

to the six factors set forth in Kelley v. Bonney (221 Conn. 549), any

other factors that are relevant to the particular proceeding, including

whether there are procedural safeguards in place to ensure the reliability

of the information presented at the proceeding and the authority of the

entity to regulate the proceeding, and courts must carefully scrutinize

whether there is a sound public policy justification for affording absolute

immunity in any given context.

b. With respect to the law to fact requirement, the entity conducting the

proceeding must apply some form of public law, rather than its own

internal policies, to facts in rendering an adjudicatory decision:

The public law that the entity applies may be constitutional, statutory,

administrative, municipal, or common law, so long as it is promulgated

by a public official or entity, and the application of the law must either

be subject to judicial review or to alteration or repeal by a public official

or entity.

Accordingly, although a private entity may adopt publicly created law

to govern its affairs, the law applied must be controlled and formulated

by the public and be designed to benefit the greater public, and, when

an entity creates and applies only its own internal policies, there is a

lack of the necessary components of public participation and approval to

characterize its proceedings as quasi-judicial for the purpose of affording

participants absolute immunity.

c. A quasi-judicial proceeding, for the purpose of affording absolute

immunity, requires sufficient procedural safeguards to ensure reliability

and to promote fundamental fairness, and, the more robust the safe-

guards, the more likely the proceeding will be deemed quasi-judicial:

This court reviewed its case law, especially Priore, and identified various

procedural safeguards that it has considered in determining whether a

proceeding is quasi-judicial, including whether the declarant testifies

under oath or certifies to the truth of his or her statements, whether

there is an opportunity to cross-examine witnesses or to hold declarants

accountable for false or misleading statements, whether the accused

individual received notice, whether there is a right to appeal the adjudica-

tor’s decision, and, relatedly, whether there is an adequate record of the

proceeding.

d. In determining whether a proceeding is quasi-judicial, a court should

consider the factors enumerated in Kelley, but it need not conclude that

they are dispositive:

The Kelley factors, which concern the various powers of the entity

conducting the proceeding and which were intended to assist in the

determination of whether a proceeding is quasi-judicial in nature, are

not exclusive and supplement and function in addition to the other

procedural safeguards that this court identified in Priore.

e. In determining whether a proceeding is quasi-judicial, a court must

always carefully scrutinize whether there is a sound public policy justifi-

cation for the application of absolute immunity in any particular context:

Courts should consider public policy, and the attendant balancing of

the public interest of encouraging public participation with the private

interest of protecting individuals from false and malicious statements,

in addition to the law to fact requirement and the Kelley factors, such

that, even if an entity applies law to facts in a proceeding with adequate

procedural safeguards, the proceeding should not be deemed quasi-judi-

cial for purposes of conferring absolute immunity on its participants if

there is no discernable public policy supporting absolute immunity for

those participants.

2. The disciplinary proceeding at issue was not quasi-judicial for the purpose

of affording absolute immunity to D’s statements because it lacked

sufficient procedural safeguards necessary to ensure the reliability of

the information presented:

a. As a threshold matter, this court recognized that the disciplinary

proceeding was specifically authorized by statute (§ 10a-55m (b)), pursu-

ant to which each institution of higher education in Connecticut is

required to adopt policies regarding sexual assault, including policies

providing for an investigation and disciplinary proceedings for allegations

of sexual violence, and policies requiring that, if a disciplinary hearing

is held, certain procedures be followed.

b. Nonetheless, even if this court assumed that the hearing panel that

conducted the plaintiff’s disciplinary proceeding satisfied the law to

fact requirement, the collective absence of certain features during the

proceeding led this court to conclude that the proceeding did not have

adequate safeguards to ensure reliability and promote fundamental fair-

ness:

D did not testify under oath or certify to the truth of her statements,

she could not have been disciplined for failing to testify truthfully because

she had graduated from Yale before the hearing, and those shortcomings

undermined the reliability of D’s statements in view of how fundamental

the oath requirement is to the reliability of the information presented.

The committee’s procedures, which vested the hearing panel with discre-

tion to ask the questions submitted by the plaintiff, did not afford the

plaintiff or his counsel a meaningful opportunity to cross-examine or

otherwise to confront D in real time, there was nothing in the record to

indicate that the hearing panel varied from its procedures in a manner

that afforded the plaintiff fundamental fairness, those procedures ham-

pered the plaintiff’s ability to ask legitimate questions or sequence ques-

tions in a way that he believed would have tested the veracity of D’s

testimony, and, in view of the importance that the opportunity to mean-

ingfully cross-examine adverse witnesses has to the truth-seeking func-

tion of any judicial or quasi-judicial proceeding, the plaintiff was denied

a fundamental procedural protection inherent in such proceedings.

Likewise, the committee’s procedures did not afford the parties a reason-

able opportunity to call witnesses, insofar as the parties could not inde-

pendently call a witness but were required to submit names to the hearing

panel, which had the sole discretion to decide whether to call those

proposed witnesses for questioning, and, therefore, failed to comport

with the protections typical of quasi-judicial proceedings.

Moreover, although the plaintiff was accompanied by counsel at the

disciplinary hearing, the committee’s procedures prohibiting counsel

from submitting documents or arguing on the plaintiff’s behalf, raising

objections, or participating in the questioning of witnesses materially

limited the assistance of counsel to the point that counsel was effectively

rendered irrelevant, and those restrictions, although not dispositive, also

supported the conclusion that the disciplinary proceeding was not

quasi-judicial.

Furthermore, there was no adequate record of the proceeding because

the committee’s procedures did not require the keeping of record state-

ments, testimony, or questions, the hearing panel specifically denied the

plaintiff’s request that it make a transcript or other electronic recording

of the hearing for the purpose of further review, the plaintiff’s ability to

appeal was severely constrained by the lack of a transcript or recording,

and the restriction was especially prejudicial in light of the fact that the

plaintiff’s counsel was not permitted to object when members of the

hearing panel allegedly assumed facts not in evidence or otherwise vio-

lated core evidentiary principles.

3. A qualified, rather than an absolute, privilege is available to alleged victims

of sexual assault who report their abuse to proper authorities at institu-

tions of higher education, but the allegations of malice in the plaintiff’s

complaint were sufficient to defeat D’s entitlement to qualified immunity

as a matter of law at the motion to dismiss stage of the proceeding:

a. The public policy of this state, as articulated in § 10a-55m, supported

a qualified privilege for statements made by alleged victims of sexual

assault to proper authorities at institutions of higher education:

The legislature had responded aggressively to address concerns sur-

rounding the issue of hesitation by victims to report sexual misconduct

on college campuses when it enacted a series of measures reflecting a

strong public commitment to protecting such victims, those measures

served to encourage alleged victims to report claims of sexual violence

and to enable them to obtain justice with dignity and privacy, and, in

view of the legitimate public interests articulated by the legislature, it

was appropriate to afford a qualified privilege to the statements of alleged

victims of sexual assault who report their abuse to proper authorities

at institutions of higher education.

b. Accepting the factual allegations in the plaintiff’s complaint as true

and drawing all inferences in the plaintiff’s favor, as the court was

required to do at the motion to dismiss stage, this court concluded that

the plaintiff alleged sufficient facts to establish that D acted with malice

when making the statements at issue so as to defeat D’s qualified privilege

at this stage of the plaintiff’s federal action:

The plaintiff alleged in his complaint that D had made romantic advances

toward him, that she initially told a campus health care worker that she

had engaged in consensual unprotected sex, that she reported a sexual

assault only because she was ashamed of her sexual advances, and that

she was encouraged by the larger political movement waged against the

plaintiff, and, on the basis of those allegations, a reasonable inference

could be drawn that D knowingly fabricated claims of sexual assault

against the plaintiff.

Nevertheless, this court observed that a more complete factual record

could warrant revisiting the issue of D’s qualified privilege at a later

stage of the proceedings, such as at the summary judgment stage or if

and when the case is submitted to the jury.

Argued October 3, 2022—officially released June 27, 2023

Procedural History

Action to recover damages for, inter alia, defamation,

and for other relief, brought to the United States District

Court for the District of Connecticut, where the court,

Dooley, J., granted the motion to dismiss filed by the

defendant Jane Doe and rendered partial judgment thereon,

from which the plaintiff appealed to the United States

Court of Appeals for the Second Circuit, which certified

certain questions of law to this court.

Norman A. Pattis, with whom, on the brief, was

Cameron L. Atkinson, for the appellant (plaintiff).

James M. Sconzo, with whom was Brendan N.

Gooley, for the appellee (defendant Jane Doe).

Jennifer M. Becker filed a brief for Legal Momentum

et al. as amici curiae.

Opinion

MULLINS, J. This case arises from disciplinary pro-

ceedings conducted in 2018 by the University-Wide

Committee on Sexual Misconduct (UWC) of the named

defendant, Yale University (Yale). In those proceedings,

the defendant Jane Doe1 accused another student, the

plaintiff, Saifullah Khan, of sexual assault in violation

of Yale’s sexual misconduct policy, resulting in his expul-

sion from Yale. There is no question that, when Doe

made those accusations during a criminal trial, an official

governmental proceeding with inherent procedural safe-

guards, she enjoyed absolute immunity in any subsequent

civil action challenging her testimony during the criminal

proceeding as defamatory.2 The primary question pre-

sented by this appeal, which reaches us in the form of

questions of law certified by the United States Court of

Appeals for the Second Circuit; see General Statutes § 51-

199b (d);3 is whether Doe should likewise be afforded abso-

lute immunity from suit for her statements made during

the UWC proceeding.

As we explain in this opinion, absolute immunity

attaches to statements made in judicial or quasi-judicial

proceedings. Doe argues that the UWC proceeding is a

quasi-judicial proceeding. Therefore, she contends, her

statements made therein are entitled to absolute immu-

nity because such immunity furthers the important pub-

lic policy goal of permitting alleged victims of sexual

assault to speak candidly and frankly with university

officials without fear of retaliatory lawsuits.

Khan counters that the UWC proceeding is not quasi-

judicial because it was neither a governmental proceed-

ing nor a proceeding with sufficient judicial-like proce-

dures to protect against malicious and defamatory state-

ments. Khan asserts that, if absolute immunity is afforded

to testimony provided in proceedings such as that con-

ducted by the UWC, individuals who are falsely accused

will be left with no recourse or protection against mali-

cious and defamatory allegations.

Both parties’ arguments are compelling. Supporting

Doe’s position, the amici4 indicate that one in four

women, and one in fifteen men, will experience sexual

assault while attending college. These victims are often

reluctant to report such crimes. In one survey, for exam-

ple, college men and women identified these concerns

as affecting their decision to report sexual assaults:

(1) ‘‘shame, guilt, embarrassment,’’ and ‘‘not wanting

friends and family to know,’’ (2) ‘‘concerns about confi-

dentiality,’’ and (3) ‘‘fear of not being believed . . . .’’

Doe v. Roe, 295 F. Supp. 3d 664, 676 (E.D. Va. 2018).5

We are mindful of these concerns and sensitive to the

need to encourage alleged victims of sexual assault to

report their abuse to the appropriate authority at any

institution of higher education, free from fear of intimi-

dation and retribution. More generally, we consider it

foundational that all students must be able to attend

school, move about campus, and enjoy the manifold

privileges and benefits of their academic pursuits with-

out fear of sexual harassment or assault by members

of their own community. It is difficult to think of a right

more fundamental than the right to physical safety. Indeed,

the public policy of this state, established through General

Statutes § 10a-55m,6 demonstrates that sexual assault

at institutions of higher education must be addressed

by encouraging and supporting alleged victims of sexual

assault to speak out, to vindicate their rights, and to

bring the perpetrators to justice if the allegations are

proven. Likewise, the remedial powers of our judicial

system must not be used as a means of intimidation to

enable the perpetrators of sexual assault to silence their

accusers by using the threat of civil litigation and liabil-

ity for damages.

At the same time, however, we must recognize a

competing public policy that those accused of crimes,

especially as serious a crime as sexual assault, are enti-

tled to fundamental fairness before being labeled a sex-

ual predator. Statements made in sexual misconduct

disciplinary proceedings that are offered and accepted

without adequate procedural safeguards carry too great

a risk of unfair or unreliable outcomes. There is no benefit

to society or the administration of fair and impartial

disciplinary hearings in granting absolute immunity to

those who make intentionally false and malicious accu-

sations of sexual assault.7 Those accused of sexual assault

in the higher education context often face life altering

and stigmatizing consequences, including suspension

or expulsion, criminal referrals, lack or revocation of

employment offers, loss of future academic opportu-

nity, and deportation. In the face of these consequences,

we must acknowledge that the accused’s right to funda-

mental fairness is no less important than the right of

the accuser or the larger community to achieve justice.

Disciplinary proceedings that lack fundamental proce-

dural safeguards ‘‘do not adequately protect a critical

public policy undergirding the doctrine of absolute

immunity—to encourage robust participation and can-

dor in judicial and quasi-judicial proceedings while pro-

viding some deterrent against malicious falsehoods.’’

Priore v. Haig, 344 Conn. 636, 651, 280 A.3d 402 (2022).

To balance and protect both of the aforementioned

interests, we must clarify when a proceeding is quasi-

judicial for the purpose of affording proceeding partici-

pants absolute immunity. As we explain hereinafter, we

recognize a proceeding as quasi-judicial only when the

proceeding at issue is specifically authorized by law,

applies law to fact in an adjudicatory manner, contains

adequate procedural safeguards, and is supported by a

public policy encouraging absolute immunity for pro-

ceeding participants. In short, we accept the Second Cir-

cuit’s invitation to clarify the scope of Connecticut’s

absolute immunity doctrine and conclude that the UWC

proceeding did not meet the conditions necessary to be

considered quasi-judicial. Consequently, Doe is not enti-

tled to absolute immunity.

Nevertheless, because the public interest in encour-

aging the reporting of sexual assaults to the proper

authorities at institutions of higher education is suffi-

ciently compelling to warrant protection of a defama-

tory statement, a qualified privilege is appropriate for

alleged victims of sexual assault in this context. Because

this matter is only at the motion to dismiss stage, how-

ever, we must accept as true Khan’s factual allegations

in his complaint that Doe’s statements were made with

malice, which defeats Doe’s asserted privilege at this

stage of the proceedings. At a later stage of the proceed-

ings, with a more complete factual record, it may be

appropriate to revisit whether Doe’s qualified privilege

has been defeated.

I

Khan brought the underlying action in the United

States District Court for the District of Connecticut,

alleging, among other things, defamation and tortious

interference with business relationships against Doe.8

Khan v. Yale University, 511 F. Supp. 3d 213, 216, 219

(D. Conn. 2021). The District Court’s memorandum of

decision contains the following factual allegations,

taken from Khan’s complaint, which we are required

to accept as true and construe in Khan’s favor for pur-

poses of answering the certified questions of law.9 See,

e.g., Littlejohn v. New York, 795 F.3d 297, 306 (2d Cir.

2015) (on motion to dismiss pursuant to rule 12 (b) (6)

of Federal Rules of Civil Procedure, court must accept

complaint’s factual allegations as true and draw infer-

ences in plaintiff’s favor); Lunardini v. Massachusetts

Mutual Life Ins. Co., 696 F. Supp. 2d 149, 155 (D. Conn.

2010) (‘‘[a] motion to dismiss under [r]ule 12 (b) (6)

must be decided on facts stated on the face of the

complaint, in documents appended to the complaint or

incorporated in the complaint by reference’’ (internal

quotation marks omitted)), quoting Leonard F. v. Israel

Discount Bank of New York, 199 F.3d 99, 107 (2d

Cir. 1999).

‘‘Khan is a [foreign national] who at all relevant times

was enrolled as an undergraduate student at Yale. . . .

[In the fall of 2012, he enrolled as an undergraduate at

Yale.] He was expected to graduate Yale with the [c]lass

of 2016. . . .

‘‘[Doe] was a classmate of . . . Khan’s and was like-

wise enrolled at all relevant times as an undergraduate

student at Yale. . . . On Halloween night in 2015 . . .

Khan and . . . Doe, who were familiar with one

another from prior campus encounters, met at an [off

campus] Halloween party before attending a musical

performance at [Yale’s] Woolsey Hall. . . . Doe was

not feeling well and so the two left the performance

early and walked on campus together before returning

to Trumbull College, [a Yale residential college] where

they both resided. . . . After . . . Khan escorted . . .

Doe to her room, she asked him to [enter] and the two

. . . engaged in consensual sexual intercourse. . . . In

the morning . . . Doe reported to friends that she had

been raped, though she informed a health care worker

that she had engaged in unprotected consensual sex

when [she sought] contraception at the Yale [H]ealth

[C]enter [later] that same day. . . .

‘‘In the days that followed . . . Doe went public with

her rape claim and issued a formal complaint against

. . . Khan on the advice of the Yale Women’s Center.

. . . Khan was immediately suspended by Yale [Col-

lege]10 Deputy Dean Joe Gordon based on . . . Doe’s

written complaint alone and was ordered to vacate cam-

pus, which rendered him homeless. . . . The Yale

Police Department opened an investigation and by mid-

November [of 2015] the [s]tate . . . filed criminal

charges against . . . Khan for [first degree] sexual

assault. . . . In the meantime [the UWC] . . . [stayed]

any disciplinary proceedings pending the outcome of

the prosecution. . . . Khan subsequently faced trial

before a jury in early 2018 for first, second, third, and

[fourth degree] sexual assault during a nearly [two

week] trial and was acquitted on all counts after less

than [one] day of deliberations. . . .

‘‘Following his acquittal . . . Khan sought readmis-

sion [to] Yale, to which #MeToo activists galvanized an

opposition, generating more than 77,000 signatures on

a petition protesting his reenrollment. . . . Khan was

eventually readmitted and resumed full-time student

status in the fall of 2018, though he was denied [on

campus] housing and treated as unwelcome[d] on cam-

pus. . . . In early October 2018, the Yale Daily News

published an article relaying the allegations of a trou-

bled young man who claimed that he had a romantic

relationship with . . . Khan that included an episode

in which . . . Khan sexually assaulted him during an

act of role-playing with a woman in Washington, D.C.,

and an instance in which . . . Khan slapped him in

the face while the two were together in [Indianapolis,

Indiana]. . . . The article did not provide any indica-

tion that this young man had any affiliation with Yale

or had ever been to the Yale campus. . . .

‘‘Following publication of the article . . . Khan was

contacted by members of the Yale Police Department

and by two Yale administrators to inquire as to his well-

being and to determine whether he needed professional

help. . . . Khan agreed to undergo a mental health con-

sultation but reported that he was fine and had not

considered harming himself or others. . . . Khan was

then asked to meet with Yale administrators and after

indicating that he would not do so . . . Khan received

a letter informing him that he was suspended [effective]

immediately from Yale College . . . which Dean Mar-

vin Chun described as necessary for [Khan’s] physical

and emotional safety and well-being and/or the safety

and well-being of the university community. . . . Khan

was thus barred from campus and prohibited from

attending his classes; he was again rendered homeless

without warning and informed that he would lose his

health care coverage effective November 1, 2018. . . .

‘‘[Khan] alleges that Yale’s professed concern with

his safety and with the safety of the Yale community

[was] not credible, as there [was] no evidence that . . .

Khan posed a danger to himself or to anyone else . . . .

[Furthermore, Khan completed a psychiatric examina-

tion during his suspension, in which the evaluator con-

cluded that Khan posed no threat.] Instead . . . Khan

asserts that his suspension was pretextual and arose

from a confluence of factors that included his unique

history at Yale and the heightened sensibilities sur-

rounding sexual assault claims, which were often cred-

ited without investigation or due process at Yale as a

function of the university’s pervasive #MeToo culture.

. . . Following his suspension . . . Khan placed Yale

on notice that he intended to seek judicial relief and

open an investigation into Yale’s alleged Title IX11 viola-

tions in connection with his suspension and with the

university’s failure to convene a hearing on the claims

of . . . Doe . . . . Khan also requested and was

denied permission to attend his classes with an escort

to address Yale’s safety concerns, though Yale had

afforded other male students accused of sexual miscon-

duct the ability to complete their degrees off-site. . . .

‘‘In November 2018 . . . Khan was permitted to

return to campus for a hearing convened by the UWC

on . . . Doe’s 2015 sexual assault complaint. . . .

Doe, who had since graduated from Yale, was not pres-

ent and provided a statement via teleconference. . . .

Khan was not permitted to be in the room when the

UWC [hearing] panel questioned . . . Doe and was

instead required to sit in an anteroom where he listened

to an [audio feed] of the hearing; as a result . . . Khan

[claims that he] was denied an opportunity to confront

his accuser. . . . And although . . . Khan had counsel

present, his attorney was not permitted to speak, ques-

tion witnesses, or [raise] objections when panel mem-

bers assumed facts not in evidence and asked com-

pound questions. . . . A member of [Yale’s Office of

the General Counsel] was present throughout the pro-

ceedings to provide counsel to the UWC panel. . . .

Khan also requested a transcript or recording of the

hearing, which the panel denied.12 . . . The UWC panel

decided to expel . . . Khan as a result of the hearing,

which he contends failed to afford him the basic due

process that Title IX demands. . . . As a result of losing

his opportunity to complete his Yale education . . .

Khan [was] subject to immediate deportation to [his

country of citizenship], where he [faced] serious physi-

cal danger due to his family’s decision to seek refuge

in [another country].’’13 (Citations omitted; footnotes

added; footnote altered; footnote omitted; internal quo-

tation marks omitted.) Khan v. Yale University, supra,

511 F. Supp. 3d 216–18.

The following additional procedural history is rele-

vant. After Khan brought the federal action against Yale,

various Yale employees, and Doe, the District Court

granted Doe’s motion to dismiss Khan’s claims of defa-

mation and tortious interference with business relation-

ships. See id., 216, 219, 226, 228; see also footnote 8 of

this opinion. Insofar as Khan sued Doe for defamation

on the basis of her allegations of sexual assault in the

UWC proceeding, the District Court concluded that the

UWC proceeding was quasi-judicial in nature, and,

therefore, under Connecticut law, Doe enjoyed absolute

immunity for statements she made in that proceeding.

See Khan v. Yale University, supra, 511 F. Supp. 3d

226. Although the District Court acknowledged that it

was ‘‘reluctant to alter the landscape of Connecticut’s

immunity law’’ by extending absolute immunity to state-

ments made during the proceedings of a nongovernmen-

tal entity—an area it said Connecticut courts have not

resolved; id., 224; the court concluded that extending

such immunity in the present case was warranted, both

as a matter of public policy; id., 225–26; and under the

six factor test that this court had used to identify quasi-

judicial proceedings in Kelley v. Bonney, 221 Conn. 549,

567, 606 A.2d 693 (1992). See Khan v. Yale University,

supra, 220–22.

On appeal to the Second Circuit, ‘‘Khan argue[d] that

the proceedings of [nongovernmental] entities cannot

be quasi-judicial and, thus, Doe’s accusations of sexual

assault in a private university’s disciplinary hearing are

not shielded by absolute immunity.’’ Khan v. Yale Uni-

versity, 27 F.4th 805, 810 (2d Cir. 2022). The Second

Circuit concluded that the outcome of the appeal hinges

on a question of Connecticut state law—namely, whether

quasi-judicial immunity extends to proceedings like that

of the 2018 Yale UWC proceeding—and that it could

not predict how this court would resolve that question.

See id., 833. Consequently, the Second Circuit certified

the following questions of law, which we modify to address

issues of Connecticut law pertinent to this appeal:14

(1) What requirements must be satisfied for a pro-

ceeding to be recognized as quasi-judicial for purposes

of affording absolute immunity to proceeding partici-

pants? Specifically:

(a) Must an entity apply controlling law, and not

simply its own rules, to the facts at issue in the proceed-

ing? See Petyan v. Ellis, 200 Conn. 243, 246, 510 A.2d

1337 (1986); see also W. Keeton et al., Prosser and

Keeton on the Law of Torts (5th Ed. 1984) § 114, pp. 818–

19.

(b) How, if at all, do the power factors enumerated

in Kelley v. Bonney, supra, 221 Conn. 567, and Craig

v. Stafford Construction, Inc., 271 Conn. 78, 85, 856

A.2d 372 (2004), apply to the identification of a proceed-

ing as quasi-judicial; and, if they do apply, are these

factors in addition to; see id.; or independent of, a pre-

liminary law to fact requirement?

(c) How, if at all, does public policy inform the identi-

fication of a proceeding as quasi-judicial, and, if it does,

is this consideration in addition to, or independent of,

a law to fact requirement and the Kelley/Craig factors?

(d) How, if at all, do procedures usually associated

with traditional judicial proceedings—such as notice

and the opportunity to be heard; the ability to be physi-

cally present throughout a proceeding; an oath require-

ment; the ability to call, examine, confront, and cross-

examine witnesses; and the ability to be represented

by counsel—inform the identification of a proceeding

as quasi-judicial? See id., 87–88; Kelley v. Bonney, supra,

221 Conn. 568–70.15

(2) Was the 2018 Yale UWC proceeding at issue in the

present appeal properly recognized as quasi-judicial?

(3) If the answer to the second question is yes, would

Connecticut extend absolute quasi-judicial immunity to

Doe for her statements in the Yale UWC proceeding?

(4) If the answer to the second question is no, would

Connecticut afford Doe qualified immunity or no immu-

nity at all? See Khan v. Yale University, supra, 27

F.4th 833–34.

Although the Second Circuit also asked us to answer

whether, under Connecticut law, a proceeding before

a nongovernmental entity could ever be deemed quasi-

judicial for purposes of affording absolute immunity to

proceeding participants; id., 833; we conclude that it is

unnecessary to answer that question in order to resolve

whether Yale’s UWC proceeding was quasi-judicial.

Instead, we answer the certified questions focusing on

the requirements that any proceeding must satisfy to

be considered quasi-judicial.

II

We first address what requirements must be satisfied

for a proceeding to be recognized as quasi-judicial for

purposes of affording absolute immunity to proceeding

participants. See id. At the outset, we recognize that

‘‘the determination of whether [a proceeding] consti-

tutes a quasi-judicial proceeding is a question of law

over which our review is plenary.’’ Craig v. Stafford

Construction, Inc., supra, 271 Conn. 83. ‘‘[W]hether a

particular proceeding is quasi-judicial in nature, for the

purposes of triggering absolute immunity, will depend

on the particular facts and circumstances of each case.’’

(Internal quotation marks omitted.) Priore v. Haig,

supra, 344 Conn. 645.

The doctrine of absolute judicial immunity, or abso-

lute privilege, which shields judges, parties, and wit-

nesses from liability for their testimony in judicial and

quasi-judicial proceedings, has its origins in English

common law.16 In Connecticut, we have long held that

‘‘communications uttered or published in the course of

judicial proceedings are absolutely privileged [as] long

as they are in some way pertinent to the subject of the

controversy.’’ (Internal quotation marks omitted.) Gallo

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

also Charles W. Blakeslee & Sons v. Carroll, 64 Conn.

223, 232, 29 A. 473 (1894) (Blakeslee) (relying on English

common law to first recognize privilege), overruled in

part on other grounds by Petyan v. Ellis, 200 Conn.

243, 510 A.2d 1337 (1986).

Our earliest cases recognizing absolute immunity lim-

ited the privilege to official adjudicative proceedings,

i.e., formal dispute resolution proceedings or forums,

that were specifically authorized by law. In Blakeslee,

for example, this court held that ‘‘[a] judicial proceeding

within the meaning of the rule as to absolute privilege

must . . . be one carried on in a court of justice estab-

lished or recognized by law, [in which] the rights of

parties which are recognized and protected by law are

involved and may be determined.’’ (Emphasis added.)

Charles W. Blakeslee & Sons v. Carroll, supra, 64 Conn.

234.

Since Blakeslee, we have acknowledged that ‘‘[t]he

judicial proceeding to which [absolute] immunity atta-

ches has not been defined very exactly. [At the very

least, it] includes any hearing before a tribunal [that]

performs a judicial function, ex parte or otherwise, and

whether the hearing is public or not. It includes . . .

[competency], bankruptcy, or naturalization proceedings,

and an election contest. It extends also to the proceed-

ings of many administrative officers, such as boards and

commissions, so far as they have powers of discretion

in applying the law to the facts [that] are regarded as

judicial or [quasi-judicial], in character.’’17 (Internal quo-

tation marks omitted.) Kelley v. Bonney, supra, 221

Conn. 566; see also Hopkins v. O’Connor, 282 Conn.

821, 839, 925 A.2d 1030 (2007) (‘‘ ‘judicial proceeding’

has been defined liberally to encompass much more than

civil litigation or criminal trials’’).

Although we have never expressly said so, a review

of our case law demonstrates that a threshold require-

ment of any quasi-judicial proceeding is that the pro-

ceeding must be specifically authorized by law, meaning

that the proceeding is governed by or conducted pursu-

ant to a state or federal statute.18 For example, in Petyan

v. Ellis, supra, 200 Conn. 243, General Statutes (Rev.

to 1979) §§ 31-241, 31-242 and 31-249 authorized offi-

cials of the Employment Security Division of the state

Department of Labor to conduct reviews of unemploy-

ment compensation claims. See id., 248–49. In Kelley

v. Bonney, supra, 221 Conn. 549, a state Board of Educa-

tion’s hearing to revoke a teaching certificate was pre-

scribed by General Statutes (Rev. to 1987) § 10-145b

(m). See id., 567. In Craig v. Stafford Construction,

Inc., supra, 271 Conn. 78, a proceeding by the Hartford

Police Department was required by the department’s

official code of conduct, enacted pursuant to both city

charter and a collective bargaining agreement in accor-

dance with Connecticut’s Municipal Employee Rela-

tions Act. See id., 86; see also General Statutes § 7-467

et seq.

Similarly, our appellate courts have recognized that

arbitration proceedings, both contractual and court

mandated, were specifically authorized by law and qual-

ified as quasi-judicial.19 See Larmel v. Metro North Com-

muter Railroad Co., 341 Conn. 332, 341, 267 A.3d 162

(2021) (‘‘[court mandated] arbitration proceeding pur-

suant to [General Statutes] § 52-549u is, undoubtedly,

a quasi-judicial examination of the parties’ claims, as

arbitrators are statutorily authorized to carry out func-

tions that are judicial in nature’’); Preston v. O’Rourke,

74 Conn. App. 301, 310–12, 314–15, 811 A.2d 753 (2002)

(arbitration proceeding conducted pursuant to State

Employee Relations Act and governed by General Stat-

utes §§ 52-408 through 52-424 was quasi-judicial in

nature).

Requiring that a proceeding be specifically authorized

by or conducted pursuant to law is consistent with the

purposes of absolute immunity because, among other

things, the imposition of absolute immunity is intended

to be a public benefit and a societal necessity. A pro-

ceeding that is not specifically authorized by or con-

ducted pursuant to law provides little foundation for

this court to determine that the public has an interest

in encouraging participation and unfettered candor in

the proceeding. See Logan’s Super Markets, Inc. v.

McCalla, 208 Tenn. 68, 72, 343 S.W.2d 892 (1961)

(‘‘[absolute immunity] belongs to the public, not to the

individual, and the public should not stand to lose the

benefit it derives’’). Indeed, a proceeding that lacks

authorization by law provides no assurance that the

public interest in the proceeding is sufficiently vital to

justify affording absolute immunity to its participants.

Beyond a specific authorization by law, our decision

in Priore, which was released after the Second Circuit

certified this question, sets forth the general require-

ments that must be satisfied for any proceeding to be

recognized as quasi-judicial: ‘‘[A] quasi-judicial proceed-

ing is one in which the entity conducting the proceeding

has the power of discretion in applying the law to the

facts within a framework that contains procedural pro-

tections against defamatory statements. As part of their

inquiry into whether a proceeding is truly quasi-judicial,

courts may consider the relevant factors enumerated

by this court in Kelley to determine whether the entity

exercises powers akin to a judicial entity. . . . Courts

may also consider other factors that are relevant to a

given proceeding, including the procedural safeguards

of the proceeding and the authority of the entity to

regulate the proceeding. Finally, courts must always

carefully scrutinize whether there is a sound public

policy justification for the application of absolute immu-

nity in any particular context.’’ (Citation omitted.) Pri-

ore v. Haig, supra, 344 Conn. 652–53. We now discuss

in greater detail how each of these requirements applies

to adjudicative proceedings, in response to the auxiliary

questions posed by the Second Circuit.

A

The Second Circuit asks whether the entity conduct-

ing a quasi-judicial proceeding must ‘‘apply controlling

law, and not simply its own rules, to [the] facts at issue

in the proceeding . . . .’’ Khan v. Yale University,

supra, 27 F.4th 833. We have repeatedly held that ‘‘a

quasi-judicial proceeding is one in which the entity con-

ducting the proceeding has the power of discretion in

applying the law to the facts . . . .’’ Priore v. Haig,

supra, 344 Conn. 652. Although we have recognized

various sources of official law—statutes, regulations,

municipal codes—in each case in which we deemed

the proceeding at issue to be quasi-judicial, the entity

conducting the proceeding applied more than its own

internal policies or rules of decision.

The law to fact requirement originated in judicial

proceedings and was derived to distinguish proceedings

involving mere investigatory powers from proceedings

that involved investigation and adjudication of the mat-

ter.20 In the nineteenth century, this court determined

that a committee proceeding to investigate the truth of

certain statements made by the New Haven Board of

Aldermen did not constitute a judicial or quasi-judicial

proceeding. See Charles W. Blakeslee & Sons v. Carroll,

supra, 64 Conn. 234. The court explained that ‘‘the

power and the duty of the committee were simply to

obtain . . . information . . . . The persons who were

to make the inquiry had no judicial character or office

. . . had no settled jurisdiction or fixed mode of proce-

dure . . . and they had no judicial function to exercise,

for they could decide nothing, and could only report

their action to a board [that] might altogether disregard

what the committee had done.’’ Id.

Nearly one century later, in Petyan v. Ellis, supra,

200 Conn. 243, this court clarified that a proceeding can

be quasi-judicial if the entity conducting the proceeding

‘‘ha[s] powers of discretion in applying the law to the

facts . . . .’’ (Internal quotation marks omitted.) Id.,

246. Unlike in Blakeslee, the entity conducting the pro-

ceeding in Petyan ‘‘decide[d] the facts and then appl[ied]

the appropriate law’’ to the facts to render a decision.

Id., 248. At issue was whether statements provided by

a defendant-employer on a ‘‘ ‘fact-finding supplement’ ’’

form of the Employment Security Division of the state

Department of Labor were subject to absolute immu-

nity. Id., 247–48. The court concluded that, because,

‘‘[i]n the processing of unemployment compensation

claims, the administrator, the referee and the [E]mploy-

ment [S]ecurity [B]oard of [R]eview decide the facts and

then apply the appropriate law . . . [t]he [E]mploy-

ment [S]ecurity [D]ivision . . . acts in a quasi-judicial

capacity when it acts [on] claims for unemployment

compensation.’’ (Citation omitted; footnotes omitted.)

Id., 248–49. Specifically, in Petyan, the adjudicators

were authorized by statute to determine unemployment

claims. See id.

Similarly, in Kelley, this court placed special empha-

sis on the Board of Education’s duty to apply Connecti-

cut laws and regulations to its findings of fact in order

to properly revoke a teaching certificate. See Kelley v.

Bonney, supra, 221 Conn. 567–68. This court observed

that the proceedings had to conform to statutory regula-

tions that listed well delineated causes for a teacher’s

license revocation. Id., 568; see also Craig v. Stafford

Construction, Inc., supra, 271 Conn. 84–89 (Hartford

Police Department applied its official code of conduct

and collective bargaining agreement to facts, thus satis-

fying law to fact requirement).21

Most recently, in Priore v. Haig, supra, 344 Conn.

636, we likewise observed that ‘‘the [Greenwich Plan-

ning and Zoning Commission] has the discretion to

apply the law, [the Greenwich zoning regulations] . . .

to the facts set forth in the application before it.’’ Id.,

654. We explained that, ‘‘when acting in this administra-

tive capacity on a special permit application, a planning

and zoning commission . . . decides [whether] all of

the standards enumerated in the special permit regula-

tions are met . . . .’’ (Internal quotation marks omit-

ted.) Id., 653.22

A review of our cases thus demonstrates that the

entity conducting a quasi-judicial proceeding must apply

public law—whether it be constitutional, statutory,

administrative, municipal, or common law—to facts for

the purpose of rendering an adjudicatory decision. The

law that is applied is promulgated by a public official

or entity, and the application of the law is either subject

to judicial review or may be altered or repealed by a

public official or entity. In other words, although a

private entity may adopt publicly created law to govern

its affairs, the law applied is controlled and formulated

by the public and is designed to benefit the greater

public. Thus, an entity that creates and applies only its

internal policies lacks the necessary components of public

participation and approval to be considered quasi-judi-

cial for the purpose of affording participants absolute

immunity.

B

We next turn to the question of how ‘‘procedures

usually associated with traditional judicial proceed-

ings—such as notice and the opportunity to be heard;

the ability to be physically present throughout a pro-

ceeding; an oath requirement; the ability to call, exam-

ine, confront, and cross-examine witnesses; [and] the

ability to be represented by counsel—inform the identi-

fication of a proceeding as quasi-judicial?’’ Khan v. Yale

University, supra, 27 F.4th 833. Because the doctrine

of absolute immunity has applied to statements made

during official judicial proceedings, which feature all

of these procedures, the extent to which these proce-

dures are present will often be determinative of whether

a proceeding qualifies as quasi-judicial. Our recent deci-

sion in Priore provides guidance.

In that case, we concluded that, in addition to the

law to fact requirement, ‘‘our case law also looks to

the procedural safeguards that attend to the proceeding

. . . which promote reliability and due process, as part

of the analysis to determine whether a proceeding is

truly quasi-judicial in nature.’’ Priore v. Haig, supra,

344 Conn. 648–49. We explained that ‘‘it [is] eminently

reasonable for courts to consider the procedural safe-

guards attendant to a proceeding because [s]tatements

made during proceedings that lack basic [due process]

protections generally do not engender fair or reliable

outcomes.’’ (Internal quotation marks omitted.) Id., 651.

In Priore, we ultimately concluded that statements

made during a town planning and zoning commission

public hearing were not entitled to absolute immunity.

See id., 661, 663. Although the commission applied law

to fact and the public hearing satisfied many of the

Kelley factors; see id., 654, 661; see also part II C of

this opinion; we declined to recognize the hearing as

quasi-judicial because, among other things, ‘‘the hearing

before the commission had almost no procedural safe-

guards in place to ensure the reliability of the informa-

tion presented at the proceeding.’’ Priore v. Haig, supra,

344 Conn. 655. Specifically, we identified two significant

procedural safeguards that were missing: (1) the declar-

ant did not testify under oath or certify the truth of her

statements, and (2) there was no practical opportunity to

cross-examine witnesses or to hold declarants account-

able for false or misleading statements. See id., 655–57;

see also id., 655 n.4.

We explained in Priore that it is important for any

declarant receiving absolute immunity to make the

statements under oath or otherwise certify that the

information is true and correct because, without doing

so, there is no judicial remedy available to deter a wit-

ness from giving false information. See id., 655. This is

consistent with a long line of Connecticut cases holding

that, for absolute immunity to apply, it is vitally important

that statements be sworn, made under oath, or other-

wise subject to the penalty of perjury. See, e.g., Craig

v. Stafford Construction, Inc., supra, 271 Conn. 87

(emphasizing that ‘‘witnesses [gave] sworn statements

to the investigator during the investigation, and the form

on which they sign[ed] their statement inform[ed] the

witness that he or she [could] be criminally liable for

filing a false statement’’); Kelley v. Bonney, supra, 221

Conn. 568–69 (relying on fact that ‘‘a request for revok[-

ing] . . . [a teaching certificate had to be] made under

oath’’); DeLaurentis v. New Haven, 220 Conn. 225, 264,

597 A.2d 807 (1991) (holding that, ‘‘[although] no civil

remedies can guard against lies, the oath and the fear

of being charged with perjury are adequate to warrant

an absolute privilege for a witness’ statements’’); Pet-

yan v. Ellis, supra, 200 Conn. 250–51 (emphasizing that

defendant was required to certify that information pre-

sented was true and correct and that she could have

been summoned to testify under oath, subject to crimi-

nal penalties, if she perjured herself); see also Larmel

v. Metro North Commuter Railroad Co., supra, 341 Conn.

341 (relying on fact that arbitrators are statutorily

authorized to administer oaths); Preston v. O’Rourke,

supra, 74 Conn. App. 312 (noting that ‘‘witnesses [in con-

tractual arbitration] testified under oath’’). Because

absolute immunity removes the threat of private defa-

mation actions in order to incentivize witnesses to par-

ticipate candidly and willingly in the proceeding, it is

crucial that there be some strong deterrent, such as the

threat of a perjury prosecution, against abuse of the

privilege by the giving of untruthful testimony.23

The second missing safeguard in Priore was the

opportunity for parties to meaningfully challenge the

veracity of participants’ statements, whether through

cross-examination or other comparable means. See Pri-

ore v. Haig, supra, 344 Conn. 657. ‘‘For two centuries,

[common-law] judges and lawyers have regarded the

opportunity of cross-examination as an essential safe-

guard of the accuracy and completeness of testimony.’’

(Internal quotation marks omitted.) Pagano v. Ippoliti,

245 Conn. 640, 656, 716 A.2d 848 (1998) (McDonald, J.,

dissenting). It has been said many times that ‘‘cross-

examination is beyond any doubt the greatest legal

engine ever invented for the discovery of truth.’’ (Inter-

nal quotation marks omitted.) State v. Ali, 233 Conn.

403, 424, 660 A.2d 337 (1995). The procedure allows

counsel to ‘‘expose [testimonial infirmities, such as for-

getfulness, confusion, or evasion] . . . thereby calling

to the attention of the [fact finder] the reasons for giving

scant weight to the witness’ testimony.’’ (Internal quota-

tion marks omitted.) State v. Hutton, 188 Conn. App.

481, 504, 205 A.3d 637 (2019).

It is not surprising, then, that, as we discussed in

Priore, several of this court’s prior cases recognizing

quasi-judicial proceedings, including Hopkins, Craig,

and Kelley, relied on the respondent’s ability to cross-

examine adverse witnesses or to otherwise challenge

the credibility of witness testimony in quasi-judicial

proceedings. See Priore v. Haig, supra, 344 Conn.

649–51; see, e.g., Hopkins v. O’Connor, supra, 282 Conn.

834–37 (patient confined to hospital under emergency

certificate had right to cross-examine adverse witnesses);

Craig v. Stafford Construction, Inc., supra, 271 Conn.

88 (police officer who was under investigation had right

to cross-examine adverse witnesses); Kelley v. Bonney,

supra, 221 Conn. 570 n.14 (parties possessed right to

cross-examine adverse witnesses); see also, e.g., Spen-

cer v. Klementi, 136 Nev. 325, 332, 466 P.3d 1241 (2020)

(‘‘to qualify as a quasi-judicial proceeding for purposes

of the absolute privilege, a proceeding must, at a mini-

mum . . . allow opposing parties to cross-examine,

impeach, or otherwise confront a witness’’). The failure

to provide a mechanism to challenge the veracity of

testimony weighs heavily against the conclusion that a

proceeding is quasi-judicial.

In addition to these two key procedural protections

that were absent from the town planning and zoning

commission hearing in Priore, this court has frequently

relied on the presence of other procedural protections

in determining whether a proceeding qualifies as quasi-

judicial. One threshold requirement is notice. Indeed,

‘‘[t]he essence of due process is the requirement that

a person in jeopardy of a serious loss [be given] notice

of the case against him and [an] opportunity to meet

it.’’ (Internal quotation marks omitted.) State v. Lopez,

235 Conn. 487, 493, 668 A.2d 360 (1995). Thus, notice

to the accused, who may be subjected to serious loss,

is an important and necessary procedural safeguard

that accompanies any quasi-judicial proceeding. See

Craig v. Stafford Construction, Inc., supra, 271 Conn.

88 (police officer must be given notice of charges against

him and date of formal hearing); Kelley v. Bonney, supra,

221 Conn. 569 n.14 (teacher is required to be given notice

of teaching certificate decertification proceeding); Pres-

ton v. O’Rourke, supra, 74 Conn. App. 310–11 (contractual

arbitration proceedings require formal notice to parties).

This court has also stressed the importance of proce-

dures such as the opportunity for parties to call witnesses

or otherwise have them subpoenaed, to have the meaning-

ful assistance of counsel during the proceeding, and to

appeal on the record of the proceeding. Nearly all the

proceedings recognized by this court as quasi-judicial have

provided a reasonable opportunity for the decision mak-

ers or parties to subpoena or call witnesses. See, e.g.,

Larmel v. Metro North Commuter Railroad Co., supra,

341 Conn. 341 (arbitrator authorized to issue subpoenas

pursuant to General Statutes § 52-549w (c)); Craig v.

Stafford Construction, Inc., supra, 271 Conn. 88 (police

department officials had subpoena power and officer

being investigated could call witnesses on his or her own

behalf at formal hearing); Kelley v. Bonney, supra, 221

Conn. 570 n.14 (counsel were granted reasonable opportu-

nity to call witnesses); Petyan v. Ellis, supra, 200 Conn.

251 (officials of Employment Security Division of state

Department of Labor possessed subpoena power); see

also Preston v. O’Rourke, supra, 74 Conn. App. 312 (noting

arbitrator’s power to subpoena witnesses pursuant to

General Statutes § 52-412). Thus, the ability of the entity

conducting the proceeding to subpoena witnesses, or pro-

cedures that allow parties to call their own witnesses to

testify; see Kelley v. Bonney, supra, 570 n.14; are proce-

dural safeguards common to quasi-judicial proceedings.

This court also has recognized the opportunity for coun-

sel to be present and meaningfully assist their client during

the proceeding as an important safeguard that helps to

identify a quasi-judicial proceeding. The presence of coun-

sel in adjudicatory proceedings serves to protect the par-

ties from unfair or improper procedures and provides a

means by which parties may effectively defend them-

selves. In concluding that the revocation hearing in Kelley

was quasi-judicial, this court noted that the governing

legislation specifically allowed for counsel to call wit-

nesses, to cross-examine adverse witnesses, and to pres-

ent oral argument. Id. (quoting provision in State Board

of Education Regulations); see also id., 570. Indeed, many

of the proceedings recognized by this court as quasi-judi-

cial provided parties the same opportunity to have counsel

present and to assist them during the proceeding. See,

e.g., Larmel v. Metro North Commuter Railroad Co.,

supra, 341 Conn. 336, 341 (plaintiff to arbitration proceed-

ing was represented by counsel and could object to evi-

dence); Hopkins v. O’Connor, supra, 282 Conn. 831 n.3

(respondents to commitment proceeding were entitled

to representation by counsel, who could cross-examine

adverse witnesses); Craig v. Stafford Construction, Inc.,

supra, 271 Conn. 88 (police officer subject to internal affairs

investigation had right to counsel).

Finally, this court frequently has recognized a party’s

right to appeal the adjudicator’s decision as part of

its conclusion that the proceeding at issue was quasi-

judicial. In Petyan, the court relied on the fact that,

‘‘[a]t any time before the referee’s decision [on an unem-

ployment compensation claim] has become final within

the periods of limitation . . . any party including the

administrator, [could] appeal therefrom to the [Employ-

ment Security Board of Review].’’ (Internal quotation

marks omitted.) Petyan v. Ellis, supra, 200 Conn. 249

n.4; see also Craig v. Stafford Construction, Inc., supra,

271 Conn. 88 (‘‘the [police] officer ha[d] a right to appeal

to the personnel board of the city . . . [and] [t]here-

after . . . to the state labor board’’); Preston v.

O’Rourke, supra, 74 Conn. App. 312 (‘‘either party could

appeal to the trial court to request an order confirming

the arbitrator’s award or to vacate, modify or correct

the award’’).

The right to appeal, or to have the proceeding offi-

cially reviewed, requires that an adequate record of the

proceeding be available. See Craig v. Stafford Con-

struction, Inc., supra, 271 Conn. 88 (‘‘the hearing officer

[took] notes on the testimony and evidence presented

. . . which constitute[d] the record for the purposes

of the hearing’’); Kelley v. Bonney, supra, 221 Conn.

570 n.14 (‘‘[a] verbatim transcript of the hearing shall

be made and shall be supplied to all [parties and adjudi-

cators]’’ (internal quotation marks omitted)); Petyan v.

Ellis, supra, 200 Conn. 249 n.4 (‘‘[any] appeal to the

board shall be heard on the record of the hearing before

the referee’’ (internal quotation marks omitted)). There-

fore, when considering whether a proceeding is quasi-

judicial in nature, we recognize a party’s right to a

meaningful appeal, which requires an adequate record

of the proceeding, as an important procedural safeguard

to ensure that facts were properly found and that law

was appropriately applied.

In sum, there must be sufficient procedural safe-

guards to ensure reliability and to promote fundamental

fairness. The more robust the procedural safeguards,

the more likely a given proceeding will resemble a judi-

cial proceeding and thereby be considered a quasi-judi-

cial proceeding to which absolute immunity would

apply.

C

The Second Circuit next asks us ‘‘[h]ow, if at all . . .

the power factors enumerated in Kelley . . . and Craig

. . . apply to the identification of a [proceeding] as

quasi-judicial; and, if they do apply, are these factors

in addition to . . . or independent of, a preliminary

[law to fact] requirement?’’ (Citations omitted; internal

quotation marks omitted.) Khan v. Yale University,

supra, 27 F.4th 833. Kelley established, and Priore

affirmed, that the Kelley factors are in addition to, not

in lieu of, the other criteria discussed in this part of

the opinion.

In Kelley, we recognized ‘‘a number of factors that

assist in determining whether a proceeding is [quasi-

judicial] in nature. Among them are whether the body

has the power to: (1) exercise judgment and discretion;

(2) hear and determine or to ascertain facts and

decide;24 (3) make binding orders and judgments; (4)

affect the personal or property rights of private persons;

(5) examine witnesses and hear the litigation of the

issues on a hearing; and (6) enforce decisions or impose

penalties.’’ (Emphasis added; footnote added.) Kelley

v. Bonney, supra, 221 Conn. 567. Kelley explained that

courts must consider whether the entity conducting the

proceeding has the power to determine facts and to

apply appropriate law and requires proceeding partici-

pants to certify that statements were true and correct

and to determine if there are sound public policy rea-

sons for permitting absolute immunity. See id.

Since Kelley, we have explained that the Kelley fac-

tors are not exclusive and that, for the most part, they

supplement, and function in addition to, the criteria

already discussed in this part of the opinion. See Priore

v. Haig, supra, 344 Conn. 648. Accordingly, a court

should consider the Kelley factors but need not con-

clude that they are dispositive. See id.

D

Next, the Second Circuit inquires ‘‘[h]ow, if at all,

does public policy inform the identification of a [pro-

ceeding] as quasi-judicial and, if it does, is this consider-

ation in addition to, or independent of, a [law to fact]

requirement and the enumerated Kelley/Craig factors?’’

Khan v. Yale University, supra, 27 F.4th 833. In Priore,

we clarified that ‘‘courts must always carefully scruti-

nize whether there is a sound public policy justification

for the application of absolute immunity in any particu-

lar context.’’ Priore v. Haig, supra, 344 Conn. 653.

We explained in Priore that, ‘‘[i]n most cases, the

policy considerations require balancing the public inter-

est of encouraging public participation and candor, on

the one hand, and the private interest of protecting

individuals from false and malicious statements, on the

other.’’ Id., 652. ‘‘The rationale underlying the [absolute]

privilege is grounded [on] the proper and efficient

administration of justice. . . . Participants in a judicial

process must be able to testify or otherwise take part

without being hampered by fear of [actions seeking

damages for their statements].’’ (Internal quotation

marks omitted.) Id., 646. However, because ‘‘[a]bsolute

immunity . . . is strong medicine’’; (internal quotation

marks omitted) id., 652; it ‘‘must be reserved for those

situations [in which] the public interest is so vital and

apparent that it mandates complete freedom of expres-

sion without inquiry into a [speaker’s] motives.’’ (Inter-

nal quotation marks omitted.) Id., 663. It is only in these

situations and judicial-like forums that ‘‘[t]he inconve-

nience of the individual [will] yield to a rule for the

good of the general public.’’ (Internal quotation marks

omitted.) Post v. Mendel, 510 Pa. 213, 221, 507 A.2d

351 (1986).

Therefore, even if an entity applies law to facts in a

proceeding with adequate procedural safeguards, the

proceeding is not quasi-judicial if there is no discernable

public policy supporting absolute immunity for pro-

ceeding participants. Likewise, public policy alone will

not justify affording absolute immunity to proceeding

participants if the proceeding is devoid of the basic,

fundamental procedural protections inherent in judicial

and quasi-judicial proceedings. Rather, a proceeding is

quasi-judicial if, in addition to satisfying the indicia of

an official judicial proceeding, as discussed in part II A

through C of this opinion, public policy favors providing

absolute immunity for proceeding participants.

III

Next, we are asked whether, in light of our responses

to the above questions, the 2018 Yale UWC proceeding

at issue was properly recognized as quasi-judicial. See

Khan v. Yale University, supra, 27 F.4th 833. We answer

that question in the negative; the UWC proceeding can-

not properly be recognized as quasi-judicial because it

lacked the adequate procedural safeguards necessary

for absolute immunity to apply.25

A

As a threshold matter, we recognize that disciplinary

proceedings in response to allegations of sexual assault

at institutions of higher education are specifically

authorized by Connecticut law. Section 10a-55m (b)

requires each Connecticut institution of higher educa-

tion to adopt policies regarding sexual assault.26 Such

policies provide for, among other requirements, an

investigation and disciplinary proceedings related to

allegations of sexual violence. See General Statutes

§ 10a-55m (b) (6). If a disciplinary hearing is held, cer-

tain procedures and substantive requirements must be

followed as specifically governed by state law. See Gen-

eral Statutes § 10a-55m (b) (6) (mandating procedural

requirements and affirmative consent standards).

Therefore, because the UWC proceeding was specifi-

cally authorized by law,27 we now analyze whether it

satisfies the requirements necessary for a proceeding to

be recognized as quasi-judicial under Connecticut law.

B

Khan asserts that the UWC proceeding should not

be recognized as quasi-judicial because the proceeding

lacked judicial-like procedures and other indicia of

reliability. Doe responds that the proceeding provided

more than the minimum procedural safeguards that

fundamental fairness requires. We agree with Khan and

conclude that, even if the UWC hearing panel applied

law to fact,28 that the UWC proceeding did not have

adequate procedural safeguards to be recognized as

quasi-judicial for the purpose of affording absolute

immunity to Doe. In reaching this conclusion, we reiter-

ate that, in light of the procedural posture in which this

case reaches us, we are obliged to accept the factual

allegations as true and to draw all inferences in Khan’s

favor, and that we have considered in that light the

complaint and all the documents appended to the com-

plaint or incorporated in the complaint by reference,

including the UWC procedures. See part I of this opin-

ion.

After reviewing the record before us, we conclude

that the UWC proceeding did not incorporate sufficient

procedural safeguards to be considered quasi-judicial.

Specifically, the UWC proceeding failed (1) to require

complainants to testify under oath or to subject them

to explicit and meaningful penalties for untruthful state-

ments, (2) to provide Khan, or his counsel, the meaning-

ful opportunity to cross-examine adverse witnesses in

real time, (3) to provide parties a reasonable opportu-

nity to call witnesses to testify, (4) to afford Khan the

opportunity to have the active assistance of counsel

during the UWC hearing, and (5) to provide Khan any

record or transcript of the proceeding that would assist

him in obtaining adequate review of the UWC decision

or to expose the legitimacy or fairness of the proceeding

to public scrutiny. Although we do not maintain that

all of these procedural features are required for our

recognition of a quasi-judicial proceeding, we conclude

that the collective absence of such features militates

against a determination that the proceeding had ade-

quate safeguards to ensure reliability and promote fun-

damental fairness.

1

First, witnesses in the UWC proceeding did not testify

under oath, provide sworn statements, or certify to the

truth of their statements. The UWC’s only protection

against false statements is the threat that the ‘‘[f]ailure

to provide truthful information . . . may result in a

recommendation for a more severe penalty or a referral

for discipline.’’ Because Doe had graduated from Yale

by the time of the proceedings; Khan v. Yale University,

supra, 511 F. Supp. 3d 218; she presumably could not

be subject to any disciplinary consequences for failing

to testify truthfully.

The failure of the UWC to place Doe under oath or

otherwise have her certify to the truth of her statements,

subject to a penalty for untruthfulness, undermined the

reliability of Doe’s statements. See Priore v. Haig,

supra, 344 Conn. 655 (declining to recognize town plan-

ning and zoning commission’s public hearing as quasi-

judicial in part because declarants were not under oath

or required to certify truth of statements). As we

explained in Petyan, the penalty of perjury is ‘‘simply

part of the price that is paid for witnesses who are free

from intimidation by the possibility of civil liability for

what they say.’’ (Internal quotation marks omitted.) Pet-

yan v. Ellis, supra, 200 Conn. 251; see Priore v. Haig,

supra, 655 n.4 (‘‘[a] witness’ reliability is ensured by his

[or her] oath, the hazard of cross-examination and the

threat of prosecution for perjury’’ (internal quotation

marks omitted)). The oath or certification requirement

is fundamental to the reliability of the information pre-

sented. Yale’s failure to display any means of holding

witnesses accountable for untruthful statements signifi-

cantly weakens Doe’s contention that the UWC pro-

ceeding is quasi-judicial.

2

Second, the UWC proceeding did not permit live, real-

time cross-examination of witnesses or any reasonable

opportunity for parties to confront witnesses. In fact,

neither Khan nor his counsel was permitted to be in

the hearing room when Doe was questioned. Rather,

they were required to sit in an anteroom, where they

could only listen to an audio feed of the hearing and

could not see or be seen by Doe. Khan claims that he

and his counsel were denied the opportunity to ask any

questions of Doe or to cross-examine her in any way.29

As a result, Khan alleges that he was ‘‘denied any reason-

able opportunity to confront, question, or otherwise

face his accuser.’’

The opportunity to meaningfully cross-examine

adverse witnesses is vitally important to the truth seek-

ing function of any judicial or quasi-judicial proceeding

and is necessary if a university’s disciplinary proceeding

is to be considered quasi-judicial. In Doe v. Baum, 903

F.3d 575 (6th Cir. 2018), the United States Court of

Appeals for the Sixth Circuit concluded that due pro-

cess required that universities allow for some form of

live cross-examination when a witness’ ‘‘credibility’’ is

at issue in a school disciplinary hearing. Id., 581; see also

id., 583. The court explained that, ‘‘when the university’s

determination turns on the credibility of the accuser,

the accused, or witnesses, that hearing must include

an opportunity for cross-examination.’’ Id., 581.30

The California Court of Appeal reached a similar con-

clusion in Doe v. Allee, 30 Cal. App. 5th 1036, 242 Cal.

Rptr. 3d 109 (2019). There, the court held that, ‘‘when

a student accused of sexual misconduct faces severe

disciplinary sanctions, and the credibility of witnesses

(whether the accusing student, other witnesses, or

both) is central to the adjudication of the allegation,

fundamental fairness requires, at a minimum, that the

university provide a mechanism by which the accused

may cross-examine those witnesses, directly or indi-

rectly . . . .’’ Id., 1039.

Meaningful cross-examination allows for witness tes-

timony to be challenged in real time, whether in person

or through advanced video technology that allows for

instant two-way communications and follow-up ques-

tions. It is equally important, in our view, that the

accused and the accuser be provided a chance to cross-

examine one another so as to allow the fact finder to

assess the consistency of testimony and demeanor of

both the parties when their testimony is called into

question. See, e.g., id., 1065–66.

Our review of the UWC procedures provides us with

no assurance that Khan had a meaningful opportunity

to cross-examine or otherwise confront Doe in real

time. We also have no record of the proceeding to dem-

onstrate that the UWC varied from the procedures

incorporated in the complaint in a manner that afforded

Khan fundamental fairness. Although, under the UWC

procedures, Khan and Doe were able to submit ques-

tions that they wanted the UWC hearing panel to ask,

the panel had sole discretion to reject the questions or

not to ask them. Thus, the UWC procedures hampered

Khan’s ability to ask legitimate questions or to sequence

questions in a way he believed would test the veracity

of Doe’s testimony at the hearing. Accordingly, the pro-

cedures utilized by the UWC failed to provide Khan

with an opportunity to challenge the statements Doe

made to the investigator and to the UWC panel.

Allowing for confrontation of an accuser while still

preventing abusive questioning is no doubt a difficult

balance to strike, but fundamental fairness requires

some measure of meaningful cross-examination, and

the present record compels us to conclude that the

UWC procedures fall short. Therefore, Khan was denied

a fundamental procedural protection essential to quasi-

judicial proceedings because he was not given a mean-

ingful opportunity to test the veracity or reliability of

Doe’s testimony in real time.

3

Third, unlike most of the proceedings that this court

has recognized as quasi-judicial, the UWC proceeding

did not provide the parties a reasonable opportunity to

call witnesses. Although the UWC procedures allowed

parties to request that the UWC hearing panel call wit-

nesses to testify, the procedures provided no standards

regarding whether the panel would in fact call or inter-

view them, and there was no independent mechanism

by which parties could call their own witnesses.31

At private universities, as in other settings, ‘‘basic

principles of . . . fundamental fairness [are] adhered

to [when] the students involved . . . [are allowed,

among other things] to call their own witnesses . . . .’’

(Emphasis added; internal quotation marks omitted.)

Doe v. University of the Sciences, 961 F.3d 203, 214 (3d

Cir. 2020); see, e.g., id., 211, 215–16 (determining that

student conduct procedures were not fair in breach of

contract case). Supporting this basic tenet of proce-

dural fairness, § 10a-55m (b), the Connecticut statutory

provision that authorizes sexual assault disciplinary

proceedings at institutions of higher education, requires

that ‘‘[e]ach institution of higher education . . . adopt

and disclose . . . (6) . . . a summary of such institu-

tion’s student investigation and disciplinary proce-

dures, including clear statements . . . (C) [that the stu-

dent responding to reports of sexual assault] . . . (ii)

shall have the opportunity to present evidence and

witnesses on their behalf during any disciplinary pro-

ceeding . . . .’’ (Emphasis added.)

The fact that the UWC hearing panel could, ‘‘[a]t its

sole discretion,’’ reject any witnesses recommended by

Khan deprived Khan of a fair opportunity to present a

defense by calling or presenting witnesses, if he so

chose,32 to testify on his behalf. Under these circum-

stances, a person in Khan’s position is left to rely on

the grace of the panel to aid in his defense by presenting

the in-person testimony of favorable witnesses. As a

result, Yale’s UWC policy does not comport with the

protections typical of quasi-judicial proceedings.

4

Fourth, the UWC proceeding materially limited the

assistance of counsel throughout the hearing. Under

the UWC procedures, ‘‘[a] party may be accompanied

by an adviser . . . [but] [t]he adviser may not submit

documents, either directly or indirectly, on a party’s

behalf at any stage of the process, nor speak for the

party during an interview with a [fact finder] or during

a formal hearing.’’ In practice, this meant that counsel

could not present any argument, either orally or in writ-

ing, on Khan’s behalf, raise objections, or be present

during—let alone participate in—the questioning of wit-

nesses. These restrictions effectively rendered counsel

irrelevant, relegating Khan’s attorney to the status of

the proverbial potted plant.

Our cases recognize that the assistance of counsel

during a quasi-judicial proceeding is an important pro-

cedural safeguard to ensure the procedural and eviden-

tiary fairness of a judicial proceeding. See part II B of

this opinion. The active assistance of counsel is espe-

cially important in settings like the one at issue, when

the accused or accuser may lack experience with self-

advocacy or representing his or her interests in an

adversarial process that involves significant conse-

quences for the individual parties. Limitations on coun-

sel’s assistance during the proceeding will bear on

whether the proceeding is quasi-judicial. In the present

case, the UWC’s procedures prohibited Khan’s counsel

from speaking on Khan’s behalf, objecting to evidence,

examining Khan’s accusers, and submitting documents

to the UWC panel. Although we do not agree with Khan’s

contention that these prohibitions predetermined the

outcome of the hearing, we do agree that the restric-

tions placed on counsel’s participation in the proceed-

ing support the conclusion that the proceeding was not

quasi-judicial.

5

Finally, the UWC proceeding limited a party’s ability

to seek review of the UWC panel’s decision because it

failed to establish an adequate record of the proceed-

ings.33 Although the UWC procedures require that the

secretary of the UWC keep minutes from the meeting

and a record of all the actions and reports filed, they

explicitly provide that ‘‘[t]he minutes do not record

statements, testimony, or questions.’’ The UWC panel

specifically denied Khan’s request that it make a tran-

script or other electronic recording of the hearing for

the purpose of further review.

We have long recognized that the maintenance of a

transcript or record is critical and a key feature of any

quasi-judicial proceeding. For instance, in concluding

that the proceeding in Craig was quasi-judicial, we

relied on the fact that, ‘‘[d]uring the hearing, the hearing

officer [took] notes on the testimony and evidence pre-

sented and, thereafter, transcribes his notes into typed

form, which constitute[d] the record for the purposes

of the hearing.’’ Craig v. Stafford Construction, Inc.,

supra, 271 Conn. 88. After the hearing, the record could

be reviewed on appeal. See id. Similarly, in Kelley, the

applicable state Board of Education regulation required

that ‘‘[a] verbatim transcript of the hearing . . . be sup-

plied to all members of the board, to the holder, to

the requesting party, and to the secretary of the local

board.’’ (Internal quotation marks omitted.) Kelley v.

Bonney, supra, 221 Conn. 570 n.14.

In the present case, Khan’s ability to appeal was

severely constrained by the absence of any transcript or

recording of statements, testimony, or questions raised

during the UWC hearing. That restriction was especially

prejudicial in light of the fact that his counsel was not

permitted to object when UWC panel members alleg-

edly assumed facts not in evidence and otherwise vio-

lated core evidentiary principles.

C

On the basis of the foregoing, we conclude that the

UWC proceeding lacked adequate procedural safe-

guards to ensure the reliability of the statements made

in the proceeding and, therefore, did not qualify as

quasi-judicial for purposes of absolute immunity. Our

conclusion finds support in the decisions of other courts

determining whether a university disciplinary proceed-

ing had adequate procedural protections.

We find persuasive the decision of the United States

District Court for the Eastern District of Virginia in Doe

v. Roe, supra, 295 F. Supp. 3d 664. In that case, the

District Court determined that disciplinary proceedings

conducted at Marymount University were not quasi-

judicial because they failed to afford the plaintiff basic

due process protections. See id., 674. The District Court

explained that, ‘‘[i]n determining whether a proceeding

is quasi-judicial in nature, [courts] have stressed ele-

ments associated with notions of due process, including

requirements for notice, a hearing, an unbiased adjudi-

cator, and the ability to [marshal and present evidence

and to call and cross-examine witnesses].’’ (Internal

quotation marks omitted.) Id. The court ultimately held

that, because the plaintiff ‘‘was not permitted to present

exculpatory or documentary evidence, to call witnesses,

or to confront and cross-examine his accuser, and sig-

nificantly . . . was denied the opportunity to have an

in-person hearing before [an] adjudicator . . . [there

were no] guarantees of due process and fairness . . . .’’

(Citation omitted; footnote omitted.) Id., 674–75.

That court’s reasoning is echoed in federal appellate

decisions. For example, in Overall v. University of Penn-

sylvania, 412 F.3d 492 (3d Cir. 2005), the United States

Court of Appeals for the Third Circuit declined to recog-

nize a private grievance proceeding at a university as

quasi-judicial in nature. See id., 498. Observing that

quasi-judicial proceedings ‘‘involve basic procedural

safeguards,’’ the court relied on the fact that the private

grievance proceeding at issue ‘‘did not require sworn

testimony. The volunteer faculty members who pre-

sided over the hearing lacked the power to make any

binding judgment or enforce any disciplinary measures

. . . [a]nd of particular relevance to [the] case, no one

kept a transcript of what was said during the hearing,

so there is no record of exactly what [the defendant]

said when he allegedly defamed [the plaintiff].’’ Id.

Likewise, in Doe v. University of the Sciences, supra,

961 F.3d 203, the Third Circuit determined that, at pri-

vate universities, ‘‘basic principles of . . . fundamental

fairness [are] adhered to [when] the students [involved]

. . . [are] given notice of the charges and evidence

against them, [are] allowed to be present and to partici-

pate in the hearing assisted by faculty, to call their own

witnesses and to cross-examine the witnesses against

them, and [are] fully apprised of the findings of the

[h]earing [p]anel.’’ (Internal quotation marks omitted.)

Id., 214. The Third Circuit cautioned that fair process

at a private university’s sexual misconduct investigation

would require, at a minimum, ‘‘the modest procedural

protections of a live, meaningful, and adversarial hear-

ing and the chance to test witnesses’ credibility through

some method of cross-examination.’’ Id., 215.

Accordingly, because the UWC proceeding lacked the

basic procedural safeguards that this court and other

courts have deemed necessary to ensure the reliability

of the information presented, we decline to recognize

the UWC proceeding as quasi-judicial in nature for the

purpose of affording Doe absolute immunity for her

statements.34

IV

The Second Circuit next asks us, in light of our deter-

mination that the UWC proceeding was not quasi-judi-

cial, whether Connecticut law would afford Doe quali-

fied immunity or no immunity at all. Khan v. Yale

University, supra, 27 F.4th 834.35 We answer that public

policy supports a qualified privilege for participants in

certain sexual misconduct proceedings. Nevertheless,

because this matter is at the motion to dismiss stage

and Khan has sufficiently alleged malice, we are unable

to determine whether Doe is entitled to qualified immu-

nity as a matter of law. At a later stage in the case, a

court may reconsider the privilege as the factual record

is developed.

Our standard of review is clear: ‘‘A defendant may

shield himself from liability for defamation by asserting

the defense that the communication is protected by a

qualified privilege. . . . When considering whether a

qualified privilege protects a defendant in a defamation

case, the court must resolve two inquiries. . . . The

first is whether the privilege applies, which is a question

of law over which our review is plenary. . . . The sec-

ond is whether the applicable privilege nevertheless

has been defeated through its abuse, which is a question

of fact.’’ (Citations omitted.) Gambardella v. Apple

Health Care, Inc., 291 Conn. 620, 628, 969 A.2d 736

(2009).

A

We first consider whether a qualified privilege should

apply to statements made by alleged victims in a sexual

misconduct hearing at an institution of higher educa-

tion.

Unlike absolute immunity, which provides a blanket

protection for a speaker’s false statements, a qualified

privilege protects only those allegedly defamatory state-

ments that are not made maliciously. See Gallo v. Barile,

supra, 284 Conn. 463 n.6. A qualified privilege is appro-

priate when it ‘‘is based [on] a public policy that recog-

nizes that it is desirable that true information be given

whenever it is reasonably necessary for the protection

of the actor’s own interests, the interests of a third

person or certain interests of the public . . . .’’ (Inter-

nal quotation marks omitted.) Id., 468 n.12; see 3

Restatement (Second), Torts §§ 594 through 598, pp.

263–81 (1977). In other words, a qualified privilege is

appropriate when the legitimate public or private inter-

est underlying the publication of statements outweighs

the important reputational interests of the individual.

See 50 Am. Jur. 2d 624, Libel and Slander § 259 (2017);

see also Rioux v. Barry, 283 Conn. 338, 346, 927 A.2d 304

(2007) (‘‘whether and what form of immunity applies

in any given case is a matter of policy that requires a

balancing of interests’’). Importantly, a qualified privi-

lege for communications made to advance certain pub-

lic interests or to protect individuals is applicable only

when the communications are made to those who may

be expected to take official action of some kind for the

protection of those interests or individuals. See, e.g.,

Gallo v. Barile, supra, 468–69 n.12, citing W. Keeton et

al., supra, § 115, p. 830; Government Micro Resources,

Inc. v. Jackson, 271 Va. 29, 43, 624 S.E.2d 63 (2006)

(‘‘qualified privilege protects a communication from

allegations of defamation if made in good faith, to and

by persons who have corresponding duties or interests

in the subject of the communication’’); see also, e.g., 3

Restatement (Second), supra, § 598, p. 281.

For example, in Gallo v. Barile, supra, 284 Conn. 459,

this court engaged in a balancing test to determine

whether an absolute or a qualified privilege is appro-

priate for statements made to the police in connection

with a criminal investigation. See id., 468–72. This court

concluded that those statements were subject to a quali-

fied privilege, explaining that ‘‘a qualified privilege is

sufficiently protective of [those] wishing to report

events concerning [a] crime . . . [because] [t]here is

no benefit to society or the administration of justice

in protecting those who make intentionally false and

malicious defamatory statements to the police. The

countervailing harm caused by the malicious destruc-

tion of another’s reputation by false accusation can have

irreparable consequences. . . . [T]he law should pro-

vide a [judicial] remedy in [such] situations . . . .’’

(Internal quotation marks omitted.) Id., 471–72; see also

Petyan v. Ellis, supra, 200 Conn. 252 (recognizing quali-

fied immunity for complaining witness who initiates

prosecution).

Although the question of whether a qualified privilege

should be afforded to statements made at sexual mis-

conduct hearings at institutions of higher education is

one of first impression for this court, we find instructive

the decision of the United States District Court for the

District of Maryland in Doe v. Salisbury University, 123

F. Supp. 3d 748 (D. Md. 2015). In that case, the District

Court recognized that defamatory statements made

regarding an alleged sexual assault on a college campus

would enjoy a conditional, or qualified, privilege under

Maryland law. See id., 758–59. The court reasoned that

Maryland courts recognize a conditional privilege for

statements ‘‘made in furtherance of [the victims’] legiti-

mate interest in personal safety and the safety of those

closest to [them].’’ Id., 758; see also id., 759. Without

such privilege, ‘‘[v]ictims would have to weigh, on the

one hand, the value of reaching out for help in the

aftermath of a traumatic sexual assault, and on the

other hand the risk that they could be subject to civil

liability for defamation if the occurrence of sexual

assault is contested by the alleged perpetrator.’’ Id., 759.

Similarly, in Doe v. Roe, supra, 295 F. Supp. 3d 664,

the District Court for the Eastern District of Virginia

concluded that, when allegations of sexual assault are

made during a university Title IX investigation, ‘‘quali-

fied immunity, not absolute immunity, is the appro-

priate privilege to apply . . . .’’ Id., 676. The court

reached that conclusion after determining that the pro-

ceeding lacked basic due process protections to afford

proceeding participants absolute immunity. See id.,

674–75; see also part III C of this opinion.

Just as our case law provides a qualified privilege to

individuals reporting crimes to the police, the public

policy of this state supports providing a qualified privi-

lege for statements made by individuals alleging sexual

assault to proper authorities at institutions of higher

education. See General Statutes § 10a-55m. As the amici

explain, sexual assault remains a serious and vastly

underreported crime. The hesitation of victims to report

such crimes is, in no small part, due to a fear of retalia-

tion.36 The hesitation to report sexual misconduct may

be especially pronounced on college campuses, and fears

and concerns surrounding such reports would undoubt-

edly be compounded if victims had to worry that any

report they made could also be the subject of a defama-

tion suit. See, e.g., Sagaille v. Carrega, 194 App. Div.

3d 92, 94, 143 N.Y.S.3d 36 (‘‘defamation suits . . . con-

stitute [one] form of retaliation against those with the

courage to speak out’’), appeal denied, 37 N.Y.3d 909,

174 N.E.3d 710, 152 N.Y.S.3d 685 (2021).

Our legislature has responded aggressively to address

these concerns. As we discussed, § 10a-55m requires

institutions of higher education to establish disciplinary

committees and related reporting systems for crimes

of sexual violence. See part III A and footnote 26 of

this opinion. In 2012, the Connecticut legislature expanded

on the federal Jeanne Clery Disclosure of Campus Secu-

rity Policy and Campus Crime Statistics Act (Clery

Act)37 by enacting No. 12-78 of the 2012 Public Acts

(P.A. 12-78), titled ‘‘An Act Concerning Sexual Violence

on College Campuses.’’38 Public Act 12-78, § 1, requires

higher education institutions to run prevention and aware-

ness programs for all students that provide information

concerning the reporting of incidences of sexual assault

and violence. In addition, P.A. 12-78, § 1, as codified,

requires institutions to establish a campus resource team

dedicated to providing support and a victim centered

response to reported sexual assault victims and to pro-

vide free counseling and advocacy services. See General

Statutes (Rev. to 2013) § 10a-55m (b) (2) (now § 10a-

55m (b) (3)).

In 2014, our legislature passed a law to provide addi-

tional services for those victimized by sexual violence

on college campuses. Public Acts 2014, No. 14-11, § 2

(P.A. 14-11). Specifically, P.A. 14-11, § 2, as codified, per-

mits anonymous reporting to authorities at institutions

of higher education.39 General Statutes (Rev. to 2015)

§ 10a-55m (d). Public Act 14-11, § 2, as codified, also

mandates that institutions of higher education disclose

their disciplinary and reporting procedures to the joint

standing committee of the General Assembly having

cognizance of matters relating to higher education. See

General Statutes (Rev. to 2015) § 10a-55m (f).

The legislature took further action in 2016, enacting

No. 16-106 of the 2016 Public Acts, which required all

campus hearings regarding claims of sexual misconduct

to apply an affirmative consent40 standard. See Public

Acts 2016, No. 16-106, § 1. Each of these measures reflects

a strong public commitment to protecting alleged vic-

tims of sexual assault on college and university cam-

puses, encouraging them to report claims of sexual vio-

lence, and allowing them to obtain justice with dignity

and privacy.

Thus, given the legitimate public interests that our

legislature has articulated, we conclude that a qualified

privilege is appropriate to afford alleged victims of sex-

ual assault who report their abuse to proper authorities

at institutions of higher education. ‘‘On the one hand,

the privilege encourages victims of sexual assault to

speak candidly with university officials and to report

abuse by immunizing their good-faith reports. . . . At

the same time, the qualified nature of the privilege pro-

vides plaintiffs with an opportunity to overcome the

privilege in those rare instances [in which] a report is

made, not in good faith, but rather with malice.’’ Doe

v. Roe, supra, 295 F. Supp. 3d 677.

B

Because a qualified privilege is available to Doe, the

question becomes whether the privilege has been

defeated. See Bleich v. Ortiz, 196 Conn. 498, 504, 493

A.2d 236 (1985) (‘‘[e]ven [if the court determines that]

a legitimate interest is at stake, a claim of conditional

[or qualified] privilege is defeated if the defendant acts

with malice in making the defamatory communication

at issue’’).41

At the motion to dismiss stage, the court must accept

the factual allegations in the complaint as true and must

draw inferences in the plaintiff’s favor. See Fed. R. Civ.

P. 12 (b) (6). Consequently, if the plaintiff sufficiently

alleges with particular facts that the defendant acted

with malice when making the statement(s) at issue, at

the motion to dismiss stage, the court must take those

allegations as true, and, therefore, the privilege will be

defeated at this stage of the proceedings.42 See Doe v.

College of Wooster, Docket No. 5:16-cv-979, 2018 WL

838630, *9 (N.D. Ohio February 13, 2018) (denying

motion to dismiss sexual assault defamation claim

based on qualified privilege because pleadings demon-

strated actual malice sufficient to defeat qualified privi-

lege); Jackson v. Liberty University, Docket No. 6:17-

CV-00041, 2017 WL 3326972, *14 (W.D. Va. August 3,

2017) (at motion to dismiss stage, ‘‘there [were] suffi-

cient, [nonconclusory] facts showing the malice

required to overcome the qualified privilege [because

the plaintiff pleaded facts indicating that sexual assault

accusations were unjustifiably motivated]’’); Routh v.

University of Rochester, 981 F. Supp. 2d 184, 213

(W.D.N.Y. 2013) (‘‘consideration of facts outside of the

complaint [is] inappropriate . . . on a motion to dis-

miss’’ (internal quotation marks omitted)), appeal with-

drawn, United States Court of Appeals, Docket No. 13-

4623 (2d Cir. January 9, 2014).

In this case, Khan alleged in his complaint that Doe

made false accusations for the sake of trying to expel

Khan as part of a larger political movement and personal

vendetta. Khan asserts that Doe made romantic

advances toward him. He further alleges that, at first,

she told a campus health care worker that she had

engaged in consensual unprotected sex. Khan contends

that Doe reported rape to her friends and, ultimately,

to the Title IX coordinator only because she was ashamed

of her sexual advances and encouraged by the larger

political movement waged against Khan. Specifically,

Khan cites in his complaint how, despite a jury’s dis-

missing Doe’s allegation and finding Khan not guilty of

criminal sexual assault charges, more than 77,000 peo-

ple signed a petition protesting Khan’s readmission to

Yale. On the basis of these assertions, which must be

accepted as true for the purpose of reviewing Doe’s motion

to dismiss, a reasonable inference could be drawn that

Doe knowingly fabricated claims of sexual assault.

Therefore, we conclude that, although a qualified

privilege against claims of defamation is available to

participants in sexual misconduct proceedings at insti-

tutions of higher education, Khan has alleged sufficient

facts in his complaint to defeat Doe’s qualified privilege

at the motion to dismiss stage. A more complete factual

record, however, may warrant revisiting Doe’s qualified

privilege at the summary judgment stage or when sub-

mitting the matter to a jury. See Doe v. Roe, supra, 295

F. Supp. 3d 677–78 (concluding that defendant was not

entitled to qualified immunity at motion to dismiss stage

but not foreclosing that qualified immunity may be

established as matter of law during later stage of pro-

ceedings).

SUMMARY

The answer to the first certified question as modified

is: A quasi-judicial proceeding is an adjudicative one,

in which the proceeding is specifically authorized by

law, the entity conducting the proceeding applies the

law to the facts within a framework that contains proce-

dural safeguards, and there is a sound public policy

justification for affording proceeding participants abso-

lute immunity.

The answer to the second certified question as modi-

fied is: No, the UWC proceeding was not quasi-judicial

because it lacked important procedural safeguards.

Accordingly, we need not answer the third certified

question.

The answer to the fourth certified question as modi-

fied is: Yes, a qualified privilege is available to alleged

victims of sexual assault who report their abuse to

proper authorities at institutions of higher education,

but, at this stage of the proceedings, the allegations of

malice in Khan’s complaint are sufficient to defeat Doe’s

entitlement to qualified immunity as a matter of law.

No costs shall be taxed in this court to any party.

In this opinion the other justices concurred.

1

In accordance with our policy of protecting the privacy interests of the

victims of sexual assault, we decline to identify the victim or others through

whom the victim’s identity may be ascertained. See General Statutes § 54-86e.

2

As we discuss hereinafter, Khan was tried for and acquitted of criminal

sexual assault charges arising from Doe’s accusations. Khan v. Yale Univer-

sity, 27 F.4th 805, 811 (2d Cir. 2022). Khan has not raised any claims against

Doe for her statements to law enforcement or her testimony at his criminal

trial. See Khan v. Yale University, 511 F. Supp. 3d 213, 227 (D. Conn. 2021).

3

General Statutes § 51-199b (d) provides in relevant part: ‘‘The Supreme

Court may answer a question of law certified to it by a court of the United

States . . . if the answer may be determinative of an issue in pending

litigation in the certifying court and if there is no controlling appellate

decision, constitutional provision or statute of this state.’’

4

After accepting the certified questions of law, we granted permission to

Legal Momentum, Fierberg National Law Group and thirteen coamici to file

an amici curiae brief in support of Doe’s claim that statements made in the

course of Title IX processes should be afforded absolute immunity.

5

The court cited to M. Sable et al., ‘‘Barriers to Reporting Sexual Assault

for Women and Men: Perspectives of College Students,’’ 55 J. Am. Coll.

Health 157, 157–62 (2006).

6

Although § 10a-55m was the subject of certain amendments since the

events underlying this appeal; see, e.g., Public Acts 2021, No. 21-81, §§ 1

and 4; Public Acts 2019, No. 19-189, § 2; those amendments have no bearing

on the merits of this appeal. In the interest of simplicity, unless otherwise

indicated, we refer to the current revision of the statute.

7

Although we do not doubt that false accusations of this nature are uncom-

mon, they can be made, especially if certain fundamental procedural safeguards

are not securely in place. See National Sexual Violence Resource Center, False

Reporting: Overview (2012) pp. 2–3, available at https://www.nsvrc.org/sites/

default/files/Publications_NSVRC_Overview_False-Reporting.pdf (last vis-

ited June 21, 2023) (estimating that prevalence of false reporting of sexual

assaults is between 2 and 10 percent of total reports).

8

Khan also alleged violations of Title IX; see footnote 11 of this opinion;

breach of contract, breach of the implied warranty of fair dealing, negligent

infliction of emotional distress, intentional infliction of emotional distress,

and breach of privacy against Yale and various employees of Yale. See Khan

v. Yale University, 511 F. Supp. 3d 213, 216, 219 (D. Conn. 2021). Yale and

its employees also were named as defendants, but they are not parties to

this appeal. For the sake of simplicity, we refer to Doe by name throughout

this opinion and to the other defendants by name when necessary.

9

Section 51-199b (g) directs that, ‘‘[i]f the parties cannot agree upon a

statement of facts, then the certifying court shall determine the relevant

facts and shall state them as a part of its certification order.’’

However, given the procedural posture of this case, no facts have yet

been found because Khan appealed to the Second Circuit from the District

Court’s granting of Doe’s motion to dismiss pursuant to rule 12 (b) (6) of

the Federal Rules of Civil Procedure.

10

Yale College is the undergraduate branch of Yale University. We herein-

after refer to Yale College by its full name.

11

Title IX was enacted as part of the Education Amendments of 1972.

Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 235, 373–75

(codified as amended at 20 U.S.C. § 1681 et seq.). Title IX provides in relevant

part: ‘‘No person in the United States shall, on the basis of sex, be excluded

from participation in, be denied the benefits of, or be subjected to discrimina-

tion under any education program or activity receiving Federal financial

assistance . . . .’’ 20 U.S.C. § 1681 (a) (2018).

12

As we explain later, ‘‘[the UWC procedures] explicitly provide that ‘[t]he

minutes [of the UWC hearing] do not record statements, testimony, or

questions.’ ’’ Part III B 5 of this opinion.

13

In his complaint, Khan alleges that he was born in a refugee camp in

Pakistan after his family fled from the Taliban in Afghanistan and that he

and his family subsequently fled from a Pakistani terrorist group to the

United Arab Emirates.

14

Khan v. Yale University, supra, 27 F.4th 834 (‘‘the Connecticut Supreme

Court may modify or expand these certified questions or address any other

issues of Connecticut law pertinent to this appeal’’).

15

On September 7, 2022, after the parties filed briefs in this appeal, we

released our decision in Priore v. Haig, supra, 344 Conn. 636, which

addressed issues relating to quasi-judicial proceedings and absolute immu-

nity. Accordingly, prior to oral arguments before this court, we ordered

the parties to file supplemental briefs to address the applicability, if any,

of Priore.

16

See, e.g., Briscoe v. LaHue, 460 U.S. 325, 330–31, 103 S. Ct. 1108, 75 L.

Ed. 2d 96 (1983) (tracing judicial immunity to sixteenth century); Khan v.

Yale University, supra, 27 F.4th 818 (explaining origins of absolute immu-

nity); see also, e.g., Buckley v. Wood, 76 Eng. Rep. 888, 889 (K.B. 1591)

(holding that accused could not pursue defamation action because accuser’s

statements were made in ‘‘[the] course of justice’’).

17

Kelley further explained that ‘‘an absolute privilege also attaches to

relevant statements made during administrative proceedings [that] are

[quasi-judicial] in nature. . . . Once it is determined that a proceeding is

[quasi-judicial] in nature, the absolute privilege that is granted to statements

made in furtherance of it extends to every step of the proceeding until final

disposition.’’ (Citations omitted; internal quotation marks omitted.) Kelley

v. Bonney, supra, 221 Conn. 566.

18

Other courts have adhered to a similar requirement. See, e.g., Overall

v. University of Pennsylvania, 412 F.3d 492, 497 (3d Cir. 2005) (‘‘quasi-

judicial privilege consistently involve[s] proceedings before federal, state,

or local governmental bodies, or proceedings held pursuant to a statute or

administrative regulation’’ (emphasis added)); see also, e.g., Bose v. Bea,

947 F.3d 983, 995 (6th Cir. 2020) (‘‘[quasi-judicial proceedings must be] tied

to a statute or to powers [that] the [state] legislature had specifically granted

to the tribunal at issue’’ (emphasis added)), cert. denied, U.S. , 141

S. Ct. 1051, 208 L. Ed. 2d 521 (2021).

19

Although arbitration proceedings fall outside of the scope of traditional

governmental proceedings and administrative hearings, we nonetheless rec-

ognize that arbitrations are statutorily authorized, designed to be an alterna-

tive dispute resolution forum to official judicial proceedings, contain proce-

dural safeguards, and are subject to judicial review. Thus, we have concluded

that arbitrations may be quasi-judicial. See Larmel v. Metro North Commuter

Railroad Co., 341 Conn. 332, 341, 267 A.3d 162 (2021).

20

We note that, ‘‘[a]lthough Connecticut appellate courts have not

addressed [legislative immunity for witnesses], other jurisdictions have held

that witnesses in a legislative proceeding are entitled to absolute immunity.’’

Priore v. Haig, supra, 344 Conn. 670 (D’Auria, J., concurring in part and

concurring in the judgment); see, e.g., Beverly Enterprises, Inc. v. Trump,

1 F. Supp. 2d 489, 493 (W.D. Pa. 1998) (‘‘the definition of a legislative

proceeding is broad enough to encompass proceedings—including informal

fact-finding, information gathering, or investigative activities—that are con-

ducted by legislators with the objective purpose of aiding the legislators in

the drafting, debating, or adopting of proposed legislation’’), aff’d, 182 F.3d

183 (3d Cir. 1999), cert. denied, 528 U.S. 1078, 120 S. Ct. 795, 145 L. Ed. 2d

670 (2000); 3 Restatement (Second), Torts § 590A, p. 254 (1977) (‘‘[a] witness

is absolutely privileged to publish defamatory matter as part of a legislative

proceeding in which he is testifying or in communications preliminary to

the proceeding, if the matter has some relation to the proceeding’’). In this

matter, the doctrine of legislative immunity has no application.

21

The collective bargaining agreement in Craig was governed by the

Municipal Employee Relations Act. See Khan v. Yale University, supra, 27

F.4th 822 n.22.

22

Although we determined that the zoning commission applied law to

fact, we concluded that the proceeding was not quasi-judicial for the reasons

articulated in part II B of this opinion. See Priore v. Haig, supra, 344 Conn.

655, 661.

23

General Statutes § 53a-156 (a) provides that ‘‘[a] person is guilty of

perjury if, in any official proceeding, such person intentionally, under oath

or in an unsworn declaration under sections 1-65aa to 1-65hh, inclusive,

makes a false statement, swears, affirms or testifies falsely, to a material

statement which such person does not believe to be true.’’ (Emphasis added.)

General Statutes § 53a-146 (1) defines an ‘‘official proceeding’’ as ‘‘any

proceeding held or which may be held before any legislative, judicial, admin-

istrative or other agency or official authorized to take evidence under oath,

including any referee, hearing examiner, commissioner or notary or other

person taking evidence in connection with any proceeding.’’ (Emphasis

added.)

For purposes of this appeal, we need not decide whether it would ever

be appropriate to afford absolute immunity to participants in a proceeding

that did not qualify as official for purposes of §§ 53a-146 and 53a-156, or

that did not provide explicit and meaningful penalties for false testimony

made during the proceeding.

24

We note that ‘‘the first two factors largely mirror Petyan’s law to fact

requirement.’’ Priore v. Haig, supra, 344 Conn. 648.

25

We need not consider whether participants to a proceeding may receive

absolute immunity on some ground other than quasi-judicial immunity, as

‘‘the only question before [this] court is whether the UWC disciplinary

proceeding itself is quasi-judicial. Doe does not assert, and the [D]istrict

[C]ourt did not find, that, even if that proceeding was not quasi-judicial, there

was some other basis for extending absolute immunity to Doe’s statements

at the proceeding.’’ Khan v. Yale University, supra, 27 F.4th 830.

26

General Statutes § 10a-55m (b) provides in relevant part: ‘‘Each institu-

tion of higher education shall adopt and disclose in such institution’s annual

uniform campus crime report one or more policies regarding sexual assault

. . . . Such policy or policies shall include provisions for:

‘‘(1) Informing students and employees that . . . (A) affirmative consent

is the standard . . .

***

‘‘(6) Disclosing a summary of such institution’s student investigation and

disciplinary procedures, including clear statements advising that (A) a stu-

dent or employee who reports or discloses being a victim of sexual assault

. . . shall have the opportunity to request that an investigation begin

promptly, (B) the investigation and any disciplinary proceedings shall be

conducted by an official trained annually . . . (C) both the student or

employee who reports or discloses the alleged assault . . . and the student

responding to such report or disclosure (i) are entitled to be accompanied

to any meeting or proceeding relating to the allegation of such assault . . .

by an advisor or support person of their choice, provided the involvement

of such advisor or support person does not result in the postponement or

delay of such meeting as scheduled, and (ii) shall have the opportunity

to present evidence and witnesses on their behalf during any disciplinary

proceeding, (D) both the student or employee reporting or disclosing the

alleged assault . . . and such responding student are entitled to be informed

in writing of the results of any disciplinary proceeding not later than one

business day after the conclusion of such proceeding, (E) the institution of

higher education shall not disclose the identity of any party to an investiga-

tion or disciplinary proceeding, except as necessary to carry out the investi-

gation or disciplinary proceeding or as permitted under state or federal law,

(F) a standard of affirmative consent is used in determining whether consent

to engage in sexual activity was given by all persons who engaged in the

sexual activity, and . . .

***

‘‘(8) Disclosing the range of sanctions that may be imposed following

the implementation of such institution’s student and employee disciplinary

procedures in response to such assault . . . .’’

27

We need not address whether the UWC proceeding was specifically

authorized by federal law because it was specifically authorized by state

law. Nonetheless, we note that many of the Title IX disciplinary procedures

for sexual assault at the time of Khan’s hearing were guidance and not yet

codified at 34 C.F.R. § 106.45 (b) (6) (i) (2020).

28

The parties disagree as to whether the UWC hearing panel had the

power of discretion to apply law to fact. Doe argues that the UWC panel

applied both Title IX regulations and § 10a-55m, which mandated that the

panel determine whether she affirmatively consented to the parties’ sexual

encounter. Khan argues that Title IX simply requires the development and

application of a sexual misconduct policy, whereas § 10a-55m only mandated

the application of an affirmative consent standard. Therefore, he argues

that the only authority being applied is university policy, not the law. Beyond

the dispute about whether the UWC panel applied established law, we have

doubts regarding whether the panel functioned in an adjudicatory manner,

or had the power to apply law to fact, considering that the panel merely

penned a recommendation to the dean of Yale College, who ultimately

decided the fate of Khan without conducting a fact-finding inquiry. See UWC

Procedures § 7.5, p. 107 (October 26, 2015) (‘‘the [dean of Yale College] will

. . . accept the panel’s findings of fact, but may accept, reject, or modify the

panel’s conclusions or recommendations, in whole or in part’’). Nonetheless,

because we conclude that minimum procedural safeguards were lacking,

we need not resolve this dispute and determine whether the proceeding

satisfied the law to fact requirement.

29

Doe argues that the UWC procedures allowed Khan to submit questions

to the UWC panel, but neither the policies nor Doe specified the timing of

when those questions could be submitted. Khan argues that neither he nor

his counsel had any opportunity to ask Doe questions because the UWC

procedures permitted only the UWC panel to ask questions and provided

the panel with sole discretion to reject or not to ask any questions.

30

The importance of cross-examination is also reflected in the preamble

to the Title IX final rules. The United States Department of Education wrote

that it ‘‘believes that in the context of sexual harassment allegations under

Title IX, a rule of [nonreliance] on untested statements is more likely to

lead to reliable outcomes than a rule of reliance on untested statements. If

statements untested by cross-examination may still be considered and relied

on, the benefits of cross-examination as a truth-seeking device will largely

be lost in the Title IX grievance process.’’ Nondiscrimination on the Basis

of Sex in Education Programs or Activities Receiving Federal Financial

Assistance, 85 Fed. Reg. 30,026, 30,347 (May 19, 2020).

At the time this opinion was written, the Department of Education had

proposed amendments to Title IX regulations that would eliminate any cross-

examination requirement at postsecondary institutions. See Nondiscrimina-

tion on the Basis of Sex in Education Programs or Activities Receiving

Federal Financial Assistance, 87 Fed. Reg. 41,390, 41,502–41,503 (proposed

July 12, 2022). Regardless of how Title IX regulations may be amended,

we conclude that, for absolute immunity to apply under Connecticut law,

fundamental fairness requires meaningful cross-examination in proceedings

like the one at issue.

31

Specifically, the UWC procedures provide that, ‘‘[i]f a party believes the

panel should interview witnesses, the party must submit to the [s]ecretary

[of the UWC] the names of the witnesses and the subject of their testimony

at least four days before the hearing. . . . At its sole discretion, the panel

may request the testimony of additional witnesses.’’ There is no indication

in the record that the UWC panel called any witnesses other than Doe

and Khan.

32

We note that the record, which lacks a transcript of the hearing, does

not indicate whether Khan attempted, but was denied the opportunity, to

call witnesses.

33

If Khan wished to appeal the UWC hearing panel’s or Yale College

dean’s decision, according to the UWC procedures, he could appeal to Yale’s

provost, but only on two grounds: (1) procedural error preventing a fair

adjudication, or (2) new evidence not reasonably available at the time of

the hearing. The provost may, in his or her discretion, return the matter to

‘‘the hearing panel for reconsideration.’’

34

In light of this conclusion, it is unnecessary to address the other criteria

discussed in Priore and in part II of this opinion.

35

‘‘[A]bsolute privileges are properly . . . classified as immunities . . .

[because] they are based [on] the personal position or status of the actor.

. . . [However], over a period of some centuries, these particular immunities

always have been called privileges by the courts when they arise in connec-

tion with defamation . . . .’’ (Internal quotation marks omitted.) 2 F. Harper

et al., Harper, James and Gray on Torts (3d Ed. 2006) § 5.21, pp. 209–10;

see also, e.g., 3 Restatement (Second), Torts §§ 583 through 592A, pp. 240–57

(1977) (discussing absolute privileges). ‘‘Privileges of the second class . . .

are commonly called conditional or qualified privileges. . . . They are more

properly to be classified as privileges, [as] they arise out of the particular

occasion [on] which the defamation is published.’’ 2 F. Harper et al., supra,

§ 5.21, p. 210; see also 8 S. Speiser et al., The American Law of Torts (1991)

§ 29:87, p. 596 (‘‘this ‘privilege’ is more properly termed an ‘immunity’ ’’).

36

See, e.g., Conn. Joint Standing Committee Hearings, Higher Education

and Employment Advancement, Pt. 3, 2012 Sess., p. 862, testimony of Wom-

en’s Center of Greater Danbury (identifying fear of reprisal as dominant

reason for victims not to report sexual assault); see also, e.g., Bureau of

Justice Statistics, Office of Justice Programs, United States Department of

Justice, Female Victims of Sexual Violence, 1994–2010 (Rev. May 31, 2016) p.

7, available at https://www.bjs.gov/content/pub/pdf/fvsv9410.pdf (last visited

June 21, 2023).

37

The Clery Act, which is codified at 20 U.S.C. § 1092 (f), was enacted in

1990, after the 1986 rape and murder of Jeanne Clery, a nineteen year old

college student. T. Franklin, Note, ‘‘Brown v. Delta Tau Delta: In a Claim

of Premises Liability, How Far Should the Law Court Go To Assign a Duty

of Care,’’ 68 Me. L. Rev. 363, 369 (2016). The Clery Act requires colleges

and universities that participate in federal financial aid programs (known

as Title IX schools) to disclose information about crimes occurring on their

campuses, as well as to have specific campus safety and security related

policies and procedures in place. See id.

38

Representative Roberta B. Willis, the bill’s sponsor, stated that the act

‘‘asks our schools, both private and public, to play an active role in preventing

[sexual] assaults . . . . [P]reventing sexual assault on college campuses

takes a [community-wide] commitment to changing the culture and condi-

tions that allow violence to occur.’’ 55 H.R. Proc., Pt. 13, 2012 Sess., p. 4297.

39

Anonymous reporting may trigger further investigations and, if a subse-

quent hearing ensues, require that the victim’s identity be disclosed. See

General Statutes § 10a-55m (d).

40

The law defines ‘‘affirmative consent’’ as ‘‘an active, clear and voluntary

agreement by a person to engage in sexual activity with another person

. . . .’’ General Statutes § 10a-55m (a) (1). Connecticut does not require a

covered institution to adopt this statutory definition verbatim, as long as it

uses a definition with a substantially similar meaning. General Statutes § 10a-

55m (h).

41

‘‘[T]he malice required to overcome a qualified privilege in defamation

cases is malice in fact or actual malice.’’ Hopkins v. O’Connor, supra, 282

Conn. 845. ‘‘Actual malice requires that the statement, when made, be made

with actual knowledge that it was false or with reckless disregard of whether

it was false. . . . A negligent misstatement of fact will not suffice; the

evidence must demonstrate a purposeful avoidance of the truth. . . . Malice

in fact is sufficiently shown by proof that the [statement was] made with

improper and unjustifiable motives.’’ (Citation omitted; internal quotation

marks omitted.) Id., 846–47; see also Bleich v. Ortiz, supra, 196 Conn. 504

(‘‘[f]or purposes of our law of defamation, malice is not restricted to hatred,

spite or ill will against a plaintiff, but includes any improper or unjustifi-

able motive’’).

42

We note that ‘‘[c]onclusory allegations or legal conclusions masquerad-

ing as factual conclusions will not suffice to [defeat] a motion to dismiss.’’

(Internal quotation marks omitted.) Kirch v. Liberty Media Corp., 449 F.3d

388, 398 (2d Cir. 2006).