The Title IX Development You Weren't Expecting This October

• Published date: 18 December 2023
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Disclosure & Electronic Discovery & Privilege, Arbitration & Dispute Resolution, Libel & Defamation
• Law Firm: Cullen and Dykman
• Author: Mr Dina Vespia, Jennifer McLaughlin and Nicole A. Donatich

Title IX practitioners and activists continue to wait patiently (or not so patiently) for the release of the Biden-Harris Administration's Title IX Final Rule. In May 2023, the United States Department of Education (the "Department") announced that it received 240,000 public comments on the Proposed Rule, released in June 2022, and was delaying its anticipated release of the Title IX Final Rule until October 2023.¹ However, October came and went without release of the Title IX Final Rule or any update from the Department about when higher education institutions can expect its release.

While eyes were glued on news alerts related to the Title IX Final Rule this October, there was another major legal development that will have a significant impact on Title IX practice, particularly at institutions of higher education within the jurisdiction of the United States Court of Appeals, Second Circuit ("Second Circuit"), which includes New York.

On October 25, 2023, the Second Circuit, vacated the dismissal of former Yale student Saifullah Khan's ("Khan") defamation claim brought against Yale University ("Yale"), several of its named employees and former Yale student "Jane Doe" who accused Khan of sexual assault on Yale's campus in 2015.²

Following Doe's accusations in 2015, Yale initiated disciplinary proceedings against Khan, who was also charged criminally (although he was acquitted of criminal charges in March 2018). After Yale determined that Khan violated Yale's sexual misconduct policy, he was expelled in November 2018. Following his expulsion, Khan brought an action against Yale University, several of its named employees, and Jane Doe, alleging violations to Title IX and other tort claims, including defamation.

In January 2021, the District Court dismissed Khan's Connecticut state law claim for defamation, reasoning that Jane Doe enjoyed absolute immunity for statements made at the 2018 Yale disciplinary hearing that ultimately resulted in Khan's expulsion from Yale.³ Khan appealed and on preliminary review, the Second Circuit determined that it was unable to determine whether Connecticut state law would recognize the Yale disciplinary proceeding as a quasi-judicial proceeding, supporting the finding of absolute immunity by the District Court. After preliminary review, the Second Circuit certified questions of state law to the Supreme Court of Connecticut.

For those that were following the case, the Second Circuit's decision did not come as a surprise following the Supreme Court of Connecticut's June 2023 decision on the certified questions of Connecticut state law.⁴ One of the certified questions posed by the Second Circuit to Connecticut's highest court was whether Connecticut law would properly recognize Khan's 2018 student disciplinary hearing as a quasi-judicial proceeding.

The Supreme Court of Connecticut ruled that Yale's student disciplinary proceeding was not a quasi-judicial proceeding because it "lacked the adequate procedural safeguards necessary for absolute immunity to apply."⁵ Some of the procedural safeguards highlighted by the Connecticut Supreme Court as missing from the Yale disciplinary proceeding included:

1. An Oath Requirement;
2. Meaningful Cross-Examination;
3. Ability to Call Witnesses;
4. Assistance of Counsel; and
5. Adequate Record for Appeal.

Although the Connecticut Supreme Court determined that Jane Doe was not entitled to absolute immunity for her participation in Yale's student disciplinary process, the Court also addressed whether, in the alternative, Connecticut law would afford Doe qualified immunity.

As to this question, the Court ruled in...