Khan v. Yale Univ. ( 2022 )

21-95
Khan v. Yale Univ.
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2021
No. 21-95-cv
SAIFULLAH KHAN,
Plaintiff-Appellant,
v.
YALE UNIVERSITY, PETER SALOVEY, JONATHON HALLOWAY, MARVIN
CHUN, JOE GORDON, DAVID POST, MARK SOLOMON, ANN KUHLMAN,
LYNN COOLEY, PAUL GENECIN, STEPHANIE SPANGLER, SARAH DEMERS,
CAROLE GOLDBERG, UNKNOWN PERSONS,
Defendants,
&
JANE DOE,
Defendant-Appellee.
__________
On Appeal from the United States District Court
for the District of Connecticut
__________
ARGUED: OCTOBER 29, 2021
DECIDED: MARCH 4, 2022
__________
Before: LIVINGSTON, Chief Judge, KEARSE, and RAGGI, Circuit Judges.
________________
Plaintiff Saifullah Khan appeals from a February 9, 2021 partial
final judgment of the United States District Court for the District of
Connecticut (Dooley, J.), dismissing his claims for defamation and
tortious interference with contract against defendant “Jane Doe”
insofar as Doe’s assertions that Khan sexually assaulted her in 2015
while the two were students at Yale University resulted in Khan’s
expulsion from the school. The district court concluded that Khan
failed to state claims for which relief could be granted because Doe’s
initial 2015 assertions of sexual assault fell outside the applicable
statute of limitations and her 2018 reassertions of the sexual assault at
a Yale disciplinary hearing were shielded by quasi-judicial immunity,
precluding both defamation and tortious interference claims. See Fed.
R. Civ. P. 12(b)(6). Khan argues error in the application of quasi-
judicial immunity to a private university’s disciplinary proceedings
and, thus, maintains that he states a plausible claim for defamation
and for tortious interference. Because existing Connecticut law does
not permit us to predict whether the Supreme Court of that state
would extend quasi-judicial immunity to statements made at non-
government proceedings generally, or at Yale’s sexual misconduct
disciplinary hearings specifically, we certify those questions to the
Connecticut Supreme Court, deferring our resolution of this appeal
in the interim.
QUESTIONS CERTIFIED AND DECISION RESERVED.
CAMERON LEE ATKINSON (Norman A. Pattis,
on the brief), The Pattis Law Firm, LLC, New
Haven, CT, for Plaintiff-Appellant.
2
JAMES M. SCONZO (Brendan N. Gooley, on
the brief), Carlton Fields, P.A., Hartford, CT,
for Defendant-Appellee.
REENA RAGGI, Circuit Judge:
In 2015, while both were students at Yale University, defendant
“Jane Doe” accused plaintiff Saifullah Khan of sexual assault. 1 As a
consequence, Yale initiated university disciplinary proceedings
against Khan, and the State of Connecticut criminally charged him
with sexual assault. Khan and Doe each testified at both
proceedings—in each other’s presence, under oath, and subject to
cross examination at trial, but with none of those procedures at the
university hearing. Holding the prosecution to a proof-beyond-a-
reasonable-doubt standard at trial, a jury acquitted Khan of all
criminal charges. Applying a lesser, preponderance standard of proof
1 While Doe’s real name is known to the parties, Khan moved to pursue this civil
action against her pseudonymously to avoid violating the privacy requirement of
Yale’s Sexual Misconduct Policy. That policy does not bind the federal courts,
which generally require a complaint to “name all the parties.” Fed. R. Civ. P. 10(a);
see Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 189 (2d Cir. 2008) (observing
that public has “right to know who is using their courts” (internal quotation marks
omitted)). This court has, however, recognized judicial discretion to depart from
Rule 10(a) when a party’s interest in anonymity outweighs “both the public
interest in disclosure and any prejudice” to the adverse party. Id. at 189-90(identifying factors properly considered in balancing interests). Because no party
complains that the district court failed to balance these interests here or otherwise
abused its discretion, we do not pursue the matter further and simply refer to
defendant as “Jane Doe” in this opinion.
3
to its disciplinary proceeding, Yale found Khan to have violated its
Sexual Misconduct Policy and expelled him.
Khan seeks to litigate Doe’s sexual assault accusations for a
third time, suing Doe in the United States District Court for the
District of Connecticut (Kari A. Dooley, Judge) for defamation and
tortious interference with contract, claims on which he would bear a
preponderance burden at any trial. 2 Khan now appeals from a
February 9, 2021 partial final judgment of the district court dismissing
his complaint against Doe in its entirety on absolute quasi-judicial
immunity and statute of limitations grounds. See Khan v. Yale Univ.,
511 F. Supp. 3d 213 (D. Conn. 2021); Fed. R. Civ. P. 12(b)(6).
Specifically, Khan argues that the proceedings of non-government
entities cannot be quasi-judicial and, thus, Doe’s accusations of sexual
assault in a private university’s disciplinary hearing are not shielded
by absolute immunity. Neither the Connecticut Supreme Court nor
its intermediate Appellate Court has yet addressed whether quasi-
judicial immunity can extend to non-government proceedings.
Because we cannot predict whether Connecticut’s Supreme Court
would endorse such an extension, either generally or specifically as
to Yale’s disciplinary proceeding against Khan, we certify those and
related questions to the Connecticut Supreme Court, deferring our
resolution of this appeal in the interim.
2 In the same complaint, Khan also sued Yale and various of its employees for
violating Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 et seq.,
as well as for state law breaches of privacy, contract, and the implied warranty of
fair dealing, and for negligent and intentional infliction of emotional distress.
4
BACKGROUND
The following facts are drawn from Khan’s complaint,
documents incorporated therein, and facts of which we may take
judicial notice. For present purposes, “we evince no views concerning
whether the ‘facts’ we detail below are actually true. Our task is
limited to determining whether, if [Khan’s] allegations were true, they
would state a . . . claim.” Menaker v. Hofstra Univ., 935 F.3d 20, 26 n.1
(2d Cir. 2019) (emphasis in original). In applying this standard, we
are obliged to view the facts in the light most favorable to Khan. See
Littlejohn v. City of New York, 795 F.3d 297, 306-07 (2d Cir. 2015).
I. Doe’s 2015 Claim of Sexual Assault
Saifullah Khan, a citizen of Afghanistan, was born in a refugee
camp in Pakistan, to which country his family had fled after having
their lives threatened by the Taliban. When Khan was sixteen, his
family settled in the United Arab Emirates, and it was from there that
Khan applied for and received acceptance to Yale’s undergraduate
class of 2016. In addition to providing Khan with the financial
assistance necessary for him to attend Yale, the university helped
Khan receive admission to (and financial support for attendance at)
the Hotchkiss School, where he spent a preparatory year before
entering Yale in the fall of 2012.
On Halloween night in 2015, Khan and fellow Yale student Jane
Doe separately attended an off-campus party hosted by one of the
university’s “secret societies.” At some point, Khan and Doe left the
party together to attend an on-campus event. When Doe began to feel
unwell, she and Khan left the event and returned to Trumbull
College, the Yale dormitory where both resided. Khan asserts that
5
after he dropped Doe off at her room and started to return to his own,
Doe called him back and asked him to check on a friend. After Khan
did so, he returned to Doe’s room where the two had consensual sex
before falling asleep.
The next morning, Doe told friends that Khan had raped her.
That same day, however, when Doe sought contraceptive assistance
at the university’s health center, she reported having engaged in
consensual, unprotected sex. A few days later, when Doe publicly
repeated her rape claim, she was directed to the Yale Women’s
Center. There, a counselor (defendant David Post), assisted Doe in
preparing a formal university complaint against Khan. Upon receipt
of that complaint, a Yale deputy dean (defendant Joe Gordon)
suspended Khan, ordering him to vacate his dormitory room and to
leave campus. Soon thereafter, Yale began a disciplinary proceeding
against Khan under the university’s Sexual Misconduct Policy.
At and about the same time, the Yale Police Department
opened an investigation into Doe’s sexual assault claim. This
ultimately resulted in the State of Connecticut criminally charging
Khan with sexual assault in the first, second, third, and fourth
degrees. See Conn. Gen. Stat. §§ 53a-70, -71, -72a, -73a. At Khan’s
request, Yale agreed to stay its disciplinary proceedings pending the
conclusion of his criminal case. 3
3 As then in effect, Yale’s Sexual Misconduct Policy, which we discuss infra at 13-
16, stated that university disciplinary proceedings should not be deferred pending
criminal proceedings. See App’x at 79. But see Procedures of the University-Wide
Committee on Sexual Misconduct, Yale Univ. (eff. Sept. 10, 2021),
6
II. State Criminal Trial
The state’s criminal case against Khan would not be resolved
for approximately two and a half years. On March 7, 2018, after a
two-week trial, a Connecticut jury acquitted Khan of all charges after
less than a full day’s deliberations. Khan attributes this outcome to
his attorney’s ability to cross-examine Doe, highlighting various
memory lapses and inconsistences in her accounts of the alleged
sexual assault, and eliciting flirtatious communications that she had
sent Khan in the days before Halloween 2015. 4
Khan’s trial and its outcome were unfavorably reported on in
the Yale Daily News. Thereafter, over 77,000 persons signed a petition
urging Yale not to readmit Khan, notwithstanding his acquittal. Yale
nevertheless permitted Khan to resume full-time student status at the
start of the Fall 2018 term.
III. New Sexual Assault Allegations
On October 5, 2018, the Yale Daily News reported new sexual
assault accusations against Khan by a man—not a Yale student—who
https://uwc.yale.edu/sites/default/files/files/UWC%20Procedures.pdf (now listing
“concurrent criminal investigation” among “good causes” for extending
disciplinary proceeding timelines). Because no party to this appeal relies on this
provision in their arguments to this court, we do not consider it further.
4 Khan does not sue Doe for statements made at trial, conceding that such
testimony is shielded by absolute judicial immunity. See, e.g., Bruno v. Travelers
Cos., 172 Conn. App. 717, 727-29, 161 A.3d 630 (App. Ct. 2017) (affirming
application of absolute immunity to testimony of witness in Superior Court
hearing); Doe v. Roe, No. CV165037281, 2017 WL 3248167, at *1-2 (Conn. Super. Ct.
July 3, 2017) (dismissing complaint for lack of subject matter jurisdiction, based on
absolute immunity, where plaintiff claimed defamation in defendants’ testimony
in legal proceeding).
7
claimed Khan had assaulted him on a number of occasions at
locations outside Connecticut. 5 The day the article was published,
Yale police and administrators contacted Khan to see if he was unduly
distressed so as to require professional help. Khan assured them that
he was not distressed but agreed to a mental health consultation at
the Yale infirmary. Khan asserts that the consultation indicated no
cause for concern. Two days later, however, on Sunday morning,
October 7, 2018, Yale administrators requested a meeting with Khan.
When Khan refused, a letter from a Yale dean (defendant Marvin
Chun) was hand-delivered to Khan advising him that his immediate
suspension from the university and exclusion from campus were
“necessary for your physical and emotional safety and well-being
and/or the safety and well-being of the university community.”
Compl. ¶ 64.
Thereafter, Khan was not permitted to return to Yale’s campus
until November 2018, when Yale resumed its sexual misconduct
disciplinary proceeding against Khan based on Doe’s 2015 complaint.
IV. Yale Disciplinary Proceeding on Doe’s Sexual Assault Claim
Yale’s Sexual Misconduct Policy
Yale’s disciplinary proceeding against Khan was conducted
pursuant to the university’s formal Sexual Misconduct Policy,
adopted in or about 2011. Because Khan asserts that this policy was
prompted by communications that Yale received from the United
5 Khan asserts that these accusations did not prompt any criminal charges or
university disciplinary proceedings against him.
8
States Department of Education Office for Civil Rights (“DOE”), we
briefly summarize those communications at the outset.
1. DOE Communications
In a communication dated April 4, 2011, DOE advised colleges
and universities generally that their continued receipt of federal
funding under Title IX of the Education Amendments of 1972 (“Title
IX”), 20 U.S.C. §§ 1861 et seq., required them to take more rigorous
action against sexual misconduct on their campuses. This
communication, which came widely to be known as the “Dear
Colleague Letter,” told schools that to avoid themselves being
charged with sexual harassment in violation of Title IX, they were
obliged “to take immediate action” to address, prevent, and eliminate
peer sexual misconduct about which they “know[] or reasonably
should know.” App’x at 90. 6 Toward that end, the letter instructed
schools, inter alia, “to adopt and publish grievance procedures,” and
to provide employee training with respect to “report[ing]” and
“respond[ing] properly” to sexual misconduct. Id. In so instructing,
the letter emphasized that a school’s investigation of sexual
misconduct “is different from any law enforcement investigation.” Id.Thus, while stating that parties should be afforded “the opportunity
. . . to present witnesses and other evidence,” id. at 95, the letter made
6 The “Dear Colleague Letter” was not promulgated through the formal
rulemaking process. See 5 U.S.C. § 553; see also Olatunde C.A. Johnson, Overreach
and Innovation in Equality Regulation, 66 DUKE L.J. 1771, 1779-81 (2017) (noting
criticism of DOE’s avoidance of formal rulemaking in issuing “Dear Colleague
Letter”). Thus, the letter is properly understood simply to provide “guidance.”
See App’x at 87 (“This letter does not add requirements to applicable law, but
provides information and examples to inform recipients about how OCR evaluates
whether covered entities are complying with their legal obligations.”).
9
no mention of such presentation needing to be under oath, subject to
confrontation, or consistent with any particular evidentiary standards
of reliability. Indeed, the letter “strongly discourage[d] schools from
allowing the parties personally to question or cross-examine each
other during the hearing” and advised schools that they did not have
to permit parties to be represented by attorneys. Id. at 98. The letter
also instructed schools to use “a preponderance of the evidence
standard to evaluate [sexual misconduct] complaints,” rejecting the
higher “‘clear and convincing’ standard” then being “used by some
schools.” Id. at 96-97. 7
7 Several provisions in the “Dear Colleague Letter” prompted controversy, such
that the letter, issued during the Obama administration, was rescinded by the
Trump administration in 2017 (i.e., before Khan’s 2018 disciplinary hearing). See
Letter from Candice Jackson, Acting Assistant Sec’y for Civil Rights, Office for
Civil Rights, U.S. Dep’t of Educ., to Colleagues (Sept. 22, 2017),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-title-ix-201709.pdf.
In 2020 (i.e., after Khan’s disciplinary hearing and expulsion), DOE issued final
Title IX regulations for how public and private educational institutions receiving
federal funds should respond to sexual harassment. See 34 C.F.R. § 106.45(b)
(stating that “recipient’s grievance process must comply with the requirements of
this section”). Among other things, these regulations require colleges and
universities (1) to provide for a live hearing to resolve sexual misconduct
complaints, though parties may appear either in person or, at the institution’s
discretion, “virtually, with technology enabling participants simultaneously to see
and hear each other,” id. § 106.45(b)(6)(i); (2) at the request of either party, to locate
the parties “in separate rooms” during a hearing so long as technology permits
them “simultaneously [to] see and hear the party or witness answering questions,”
id.; (3) to afford respondents a presumption of innocence, see id. § 106.45(b)(1)(iv);
(4) to afford complainants and respondents the opportunity for direct cross-
examination of witnesses by party advisors (who can be attorneys), see id.
§ 106.45(b)(6)(i); (5) to provide advisors for parties who do not have one, id.; and
(6) to state in writing “[c]onclusions regarding the application of the [school’s]
code of conduct to the facts,” id. § 106.45(b)(7)(ii)(D). The Biden administration is
10
In another 2011 communication, this one prompted by a
student complaint, DOE advised Yale that it had been deficient in
responding to student reports of sexual misconduct. The Complaint
does not indicate whether DOE pursued the matter further after Yale
adopted its Sexual Misconduct Policy.
2. Connecticut Law
Although Khan does not plead Connecticut law’s effect on
Yale’s Sexual Misconduct Policy, we take judicial notice that in 2012—
i.e., within months of Yale adopting its policy, and almost six years
before the university’s 2018 hearing on Doe’s claims against Khan—
Connecticut enacted General Statute § 10a-55m. See Oneida Indian
Nation of N.Y. v. New York, 691 F.2d 1070, 1086 (2d Cir. 1982) (stating
that court may take judicial notice of law). That law requires all
institutions of higher education within the state—private as well as
public—to adopt programs for the awareness, prevention, and
investigation of sexual assaults. 8 Each covered institution must file
with a committee of the Connecticut General Assembly copies of its
policies regarding campus sexual misconduct and the materials used
presently reconsidering these rules. See Exec. Order No. 14021, 86 Fed. Reg. 13803(Mar. 8, 2021); Letter from Suzanne B. Goldberg, Acting Assistant Sec’y for Civil
Rights, Office for Civil Rights, Dep’t of Educ., to Students, Educators, and other
Stakeholders (Apr. 6, 2021), https://www2.ed.gov/about/offices/list/ocr/
correspondence/stakeholders/20210406-titleix-eo-14021.pdf.
We need not discuss these policy changes further. For our purposes, it is sufficient
to note this history and to credit Khan’s allegation that the “Dear Colleague Letter”
informed the formulation of Yale’s Sexual Misconduct Policy.
8 Connecticut’s definition of an “institution of higher education” encompasses
both public and private universities. See Conn. Gen. Stat. §§ 10a-55, 10a-173(3).
11
to implement them, and advise as to the number and outcome of any
sexual assault, stalking, or intimate partner violence reports made to
the institution. See Conn. Gen. Stat. § 10a-55m(f). 9
In addition to reporting requirements, Connecticut law
mandates, among other things, that covered institutions employ an
“affirmative consent” standard in reviewing sexual assault claims. Id.
§ 10a-55m(b)(1)(A). The law defines “affirmative consent” as “an
active, clear and voluntary agreement by a person to engage in sexual
activity with another,” id. § 10a-55m(a)(1); 10 and precludes finding
affirmative consent by a person who was intoxicated or otherwise
incapacitated at the time of a sexual encounter, see id. § 10a-
55m(b)(1)(D). 11 While the law affords parties the right to present
9 Some twenty years earlier, in 1990, Congress had enacted the Jeanne Clery
Disclosure of Campus Security Policy and Campus Crime Statistics Act, 20 U.S.C.
§ 1092, which requires federally funded colleges and universities publicly to report
campus crime and the policies promulgated to ensure safety. That law was
amended in 2013 by the Campus Sexual Violence Elimination Act, or Campus
SaVE Act (part of the Violence Against Women Reauthorization Act of 2013). See
Pub. L. 113-4 § 304, 127 Stat. 54, 89-92 (Mar. 7, 2013). As neither party cites this
legislation to this court, we do not here consider how, if at all, it may have
informed Yale’s 2011 promulgation of its Sexual Misconduct Policy or the 2018
disciplinary proceeding pursuant to that policy conducted against Khan. Instead,
we focus on Connecticut law because of further requirements that we now discuss
in text.
Connecticut does not require a covered institution to adopt this statutory
10
definition in haec verba as long as it uses a definition with a “substantially similar”
meaning. Id. § 10a-55m(h).
11 The provisions regarding affirmative consent were added to the law in 2016, see
An Act Concerning Affirmative Consent, 2016 Conn. Legis. Serv. 16-106 (West), i.e.,
after Doe’s 2015 sexual assault complaint but before Khan’s 2018 disciplinary
hearing. Because we have no record of the hearing before us, see infra n. 13, we do
12
witnesses and evidence at any disciplinary hearing and to be
accompanied by an advisor, see id. § 10a-55m(b)(6)(C)(i)-(ii), it says
nothing about whether the advisor may question witnesses or
otherwise speak at the proceedings. Nor does the law impose any
oath, confrontation, cross-examination, or other evidentiary-
reliability requirements for such hearings. Also, it does not prescribe
particular punishments for sexual misconduct established at
disciplinary hearings.
3. Yale’s Sexual Misconduct Policy
Yale’s Sexual Misconduct Policy proscribes its faculty,
employees, and students from engaging in sexual misconduct. The
policy defines sexual misconduct
[to] incorporate[] a range of behaviors including sexual
assault (which includes rape, groping and any other non-
consensual sexual contact), sexual harassment, intimate
partner violence, stalking, and any other conduct of a
sexual nature that is non-consensual, or has the purpose
or effect of threatening or intimidating a person or
persons.
App’x at 75. Otherwise, the policy focuses mainly on procedures for
reporting and investigating such misconduct.
The policy provides, among other things, for a University-Wide
Committee on Sexual Misconduct (“UWC”), consisting of
approximately thirty members appointed by Yale’s provost from
across the university’s faculty, student body, and managerial or
not know what role, if any, the affirmative consent standard (or, indeed, any
portion of Connecticut law) played in the hearing.
13
professional employees. 12 Upon the filing of a formal sexual
misconduct complaint, the policy calls for the tenured faculty
member chairing the UWC to appoint “an impartial fact-finder” to
investigate the allegations, as well as five UWC members to constitute
a hearing panel (the “UWC hearing panel”) to determine if university
policy was violated, and if so, to recommend appropriate discipline.
Id. at 79-80.
Yale’s policy empowers the appointed fact-finder to “gather
documents and conduct interviews as necessary to reach a thorough
understanding of the facts and circumstances surrounding the
allegations of the complaint,” which are then described in a “report”
that may also address the credibility of witnesses, but not reach
conclusions as to any violation of University policy. Id. at 80. While
there is no requirement that statements made or evidence submitted
to the fact-finder (or, later, to the UWC hearing panel) be sworn or
otherwise satisfy any rules of reliability, Yale policy does state that a
“[f]ailure to provide truthful information or any attempt to impede
the UWC process may result in a recommendation for a more severe
penalty or a referral for discipline.” Id. at 77.
12 All UWC members must participate in training pertaining to
University resources for redress of sexual misconduct; sexual
misconduct and equal employment, educational, and professional
opportunity; methods of informal resolution; the interaction
between University disciplinary processes and criminal processes;
responding to retaliation; and other topics suggested by experts
from within and outside the University.
App’x at 77.
14
The fact-finder’s report is transmitted to the UWC hearing
panel and to the complainant and respondent (“the parties”),
whereupon the panel conducts a hearing “intended primarily” to
allow its members “to interview the complainant and the respondent
with respect to the fact-finder’s report.” Id. at 80. The parties do “not
appear jointly before the panel” unless they expressly agree to do so.
Id. Rather, when one is being interviewed by the panel, the other
must remain in a separate room with only “audio access to the
proceedings.” Id. Preliminary to any panel interview, each party may
make a 10-minute preliminary statement, a written copy of which is
provided to the other party. The panel alone then poses questions to
the party. And while parties may propose questions to the panel, the
panel, “at its sole discretion,” decides what questions to ask. Id. The
policy appears to afford no opportunity for parties to offer closing
statements. Further, while the policy permits parties to be
accompanied by an advisor (who may be an attorney) at any step in
the disciplinary process, it specifically prohibits an advisor from
speaking for a party or offering evidence on his or her behalf.
Within 10 days of the final hearing session, the UWC hearing
panel must set out its findings of fact and its violation conclusion in a
written report to the relevant final Yale decisionmaker who, in the
case of an accused student, is “the dean of the respondent’s school.”
Id. at 81. Copies of this report are furnished to the parties, who have
three days to submit a written response. The decisionmaker then
determines whether any further hearings are necessary and, if not,
renders a written decision setting forth the decisionmaker’s
conclusions as to any violation of Yale’s Sexual Misconduct Policy
and any penalties to be imposed. Student parties can appeal a
15
decisionmaker’s determination to Yale’s provost, but only on two
grounds: (1) procedural error preventing a fair adjudication, and (2)
new evidence not reasonably available at the time of the hearing.
Yale’s UWC Proceeding Against Khan
In November 2018, a UWC hearing panel convened to consider
Doe’s complaint that Khan had sexually assaulted her on campus
three years earlier. 13 Both Doe and Khan appeared at the hearing:
Khan in person; Doe (who had by this time graduated from Yale) by
teleconference from a remote location. Despite the fact that Doe was
not physically present, neither Khan nor his attorney-advisor was
permitted to be in the hearing room when Doe made her preliminary
statement and answered panel questions. Rather, Khan and his
attorney were required to remain in another room, provided with
only an audio feed of Doe’s appearance. 14 Nor was Khan’s attorney
permitted to speak on his client’s behalf or to voice objections to panel
questions that Khan now asserts were compound or assumed facts
not in evidence.
The final UWC hearing panel report is not before this court.
Khan, however, asserts that the panel found him to have violated
13We rely on Khan’s complaint in describing the UWC hearing as no transcript of
that proceeding is before the court. While Yale policy calls for retention of the
“minutes from each UWC hearing session,” App’x at 83, Khan asserts that his
request for a transcript or recording at the conclusion of his hearing was denied.
14 Excluding Khan and his attorney from the hearing room during Doe’s
appearance is perplexing not only because Doe was not physically present but also
because the parties had already testified in each other’s presence at Khan’s
criminal trial.
16
Yale’s Sexual Misconduct Policy in his 2015 encounter with Jane Doe,
as a result of which Yale expelled him.
V. The Instant Action
On December 13, 2019, Khan brought this federal action against
Yale, various of its employees, and Doe. On January 7, 2021, the
district court granted Doe’s motion to dismiss all claims against her.
Insofar as Khan sued Doe for defamation based on her assertions of
sexual assault before the UWC panel, the district court concluded that
Doe enjoyed absolute immunity for her statements in this quasi-
judicial proceeding. See Khan v. Yale Univ., 511 F. Supp. 3d at 226.
While acknowledging that no binding Connecticut authority had
extended absolute immunity to statements made during the
proceedings of a non-government entity, the district court concluded
that extending such immunity to a complaining party in a Yale UWC
proceeding was warranted by the functional six-factor test employed
by Connecticut to identify quasi-judicial proceedings, see id. at 220-21,
and by public policy, see id. at 225-26. Insofar as Khan sued Doe for
tortious interference with contract based on her initial rape
accusations in 2015, the district court concluded that his claim was
barred by Connecticut’s three-year statute of limitations for tort
actions. See id. at 226-27. Moreover, because absolute immunity
shielded Doe’s 2018 statements to the UWC panel, the district court
ruled that Khan could not rely on these later statements to
demonstrate a continuing course of tortious interference falling
within the limitations period. See id. at 227-28.
The district court subsequently granted Khan’s motion to
reduce the ruling in favor of Doe to a partial final judgment, see Fed.
17
R. Civ. P. 54(b), from which judgment, entered on February 9, 2021,
Khan timely filed this appeal. 15
DISCUSSION
I. Standard of Review
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that
is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Fed.
R. Civ. P. 12(b)(6). Where a party invokes diversity or supplemental
jurisdiction to pursue state claims in federal court, a district court
properly looks to the law of the forum state to assess the plausibility
of the claims. See Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643, 650 (2d
Cir. 1994); Rogers v. Grimaldi, 875 F.2d 994, 1002 n.10 (2d Cir. 1989).
This court does the same in reviewing de novo the dismissal of those
claims under Rule 12(b)(6). See Kelleher v. Fred A. Cook, Inc., 939 F.3d
465, 467 (2d Cir. 2019).
To state a claim for defamation under Connecticut law, a party
must plead facts plausibly demonstrating that,
(1) the defendant published a defamatory statement;
(2) the defamatory statement identified the plaintiff to
a third person; (3) the defamatory statement was
published to a third person; and (4) the plaintiff’s
reputation suffered injury as a result of the statement.
Cweklinsky v. Mobil Chem. Co., 267 Conn. 210, 217, 837 A.2d 759 (2004).
15The district court appears to have held Khan’s remaining claims against Yale
and its employees in abeyance pending resolution of this appeal.
18
To state a claim for tortious interference with contract under
Connecticut law, a party must plead facts plausibly demonstrating,
(1) the existence of a contractual or beneficial
relationship; (2) the defendant’s knowledge of that
relationship; (3) the defendant’s intent to interfere
with the relationship; (4) that the interference was
tortious; and (5) a loss suffered by the plaintiff that
was caused by the defendant’s tortious conduct.
Rioux v. Barry, 283 Conn. 338, 351, 927 A.2d 304 (2007).
Essential to both Khan’s defamation and tortious interference
claims is his allegation that Doe falsely accused him of sexual assault
at the 2018 UWC hearing. While Khan also pleads that Doe falsely
accused him of the same sexual assault in 2015, her 2018 repetition of
the accusation is necessary for Khan’s claim of a continuous, timely
tortious interference with his contract with Yale. Thus, on this appeal,
we need only consider whether the district court correctly dismissed
all of Khan’s claims against Doe because her 2018 statements were
shielded by the absolute immunity that Connecticut extends to
statements made by witnesses or complainants during the course of
quasi-judicial proceedings.
In urging error, Khan does not dispute that Connecticut affords
absolute quasi-judicial immunity from damages actions sounding
both in defamation and tortious interference. See Rioux v. Barry, 283
Conn. at 311, 927 A.2d 304 (distinguishing such torts from action for
vexatious litigation for purposes of quasi-judicial immunity). Instead,
he argues that quasi-judicial immunity does not apply to proceedings
by non-government entities such as Yale.
19
In deciding de novo whether Connecticut extends quasi-judicial
immunity to Yale’s UWC proceeding, we give the “fullest weight to
pronouncements of the state’s highest court.” Schwab Short-Term Bond
Mkt. Fund v. Lloyds Banking Grp. PLC, 22 F.4th 103, 120 (2d Cir. 2021)
(internal quotation marks omitted). Because the Connecticut
Supreme Court has not addressed the application of quasi-judicial
immunity to participants in non-government proceedings, we must
endeavor, in the first instance, to “predict” how that court would
resolve these questions. DiBella v. Hopkins, 403 F.3d 102, 111 (2d Cir.
2005). Toward that end, we consider the highest court’s decisions in
related cases, as well as relevant decisions of the state’s lower courts
and of other jurisdictions. See Schwab Short-Term Bond Mkt. Fund v.
Lloyds Banking Grp. PLC, 22 F.4th at 120; Caronia v. Philip Morris USA,
Inc., 715 F.3d 417, 449 (2d Cir. 2013). Only if, after doing so, we
conclude that Connecticut law “is so uncertain that we can make no
reasonable prediction” as to how it would apply in this case will we
consider certifying determinative questions to the state Supreme
Court “for a definitive resolution.” DiBella v. Hopkins, 403 F.3d at 111;
see Conn. Gen. Stat. § 51-199b; 2d Cir. R. 27.2. This is such a case.
II. Quasi-Judicial Immunity
Common Law Origin
The doctrine of absolute judicial immunity is not unique to
Connecticut. Rather, this immunity, which shields judges, parties,
and witnesses from damages actions for statements made by them in
judicial and quasi-judicial proceedings, has its origins in English
common law. See Briscoe v. LaHue, 460 U.S. 325, 330-31 (1983) (tracing
judicial immunity to sixteenth century). With respect to witnesses,
20
the immunity is grounded in a public policy concern that the risk of
damages actions could discourage persons from providing evidence
or cause them to shade their testimony, thereby impeding the judicial
search for truth. Id. at 333. Absolute immunity removes this risk, with
the law relying instead on the adversarial process to identify truth
and expose falsehood. Id. at 333-34 (observing that, underlying
absolute immunity afforded witnesses is view that “truth-finding
process is better served if the witness’s testimony is submitted to ‘the
crucible of the judicial process so that the factfinder may consider it,
after cross-examination, together with the other evidence in the case
to determine where the truth lies’”). 16
Connecticut Supreme Court Precedents
Consistent with common law, “Connecticut courts have long
held that ‘[p]articipants in a judicial process must be able to
testify . . . without being hampered by fear of actions seeking
damages for statements made . . . in the course of the judicial
proceeding.’” Vidro v. United States, 720 F.3d 148, 151 (2d Cir. 2013)
(quoting Gallo v. Barile, 284 Conn. 459, 466, 935 A.2d 103 (2007)); see
Blakeslee & Sons v. Carroll, 64 Conn. 223, 232, 29 A. 473 (1894)
(recognizing privilege). But, as Connecticut courts themselves
acknowledge, they have not always been clear as to “the extent of the
16 The absolute immunity from damages afforded complainants or witnesses in
judicial or quasi-judicial proceedings is sometimes also referred to as a “litigation
privilege” or “testimonial privilege.” See, e.g., Cohen v. King, 189 Conn. App. 85,
206 A.3d 188 (App. Ct. 2019) (“litigation privilege”); Preston v. O’Rourke, No. CV
990071011S, 2000 WL 1281825 (Conn. Super. Ct. Aug. 28, 2000) (“testimonial
privilege”). We use the phrase “quasi-judicial immunity” because the matter here
at issue is whether a Yale UWC proceeding is “quasi-judicial.”
21
privilege, or . . . the occasions” to which it applies, particularly with
respect to quasi-judicial proceedings. Blakeslee & Sons v. Carroll, 64
Conn. at 233, 29 A. 473. The ambiguity persists to this day. See, e.g.,
Kenneson v. Eggert, 196 Conn. App. 773, 782, 230 A.3d 795 (App. Ct.
2020) (“The judicial proceeding to which absolute immunity attaches
has not been defined very exactly.” (internal alteration and quotation
marks omitted)).
At the end of the nineteenth century, the Connecticut Supreme
Court was cautious in recognizing quasi-judicial immunity,
explaining that because “[t]he doctrine of absolute privilege is so
inconsistent with the rule that a remedy should exist for every
wrong,” the class of proceedings to which it applied “is
comparatively a narrow one, . . . generally strictly confined to
legislative proceedings, judicial proceedings in the established courts
of justice, acts of State, and acts done in the exercise of military and
naval authority.” Blakeslee & Sons v. Carroll, 64 Conn. at 232, 235, 29
A. 473. Thus, in Blakeslee & Sons, the Connecticut Supreme Court
declined to recognize an investigative hearing by a committee of the
New Haven board of aldermen as a “judicial or quasi judicial”
proceeding, even though the committee had the power to issue
subpoenas and administer oaths according to the same rules as
Connecticut’s judicial courts. Id. at 234-35, 29 A. 473 (emphasis in
original). The court reasoned that the committee could in “no proper
sense . . . be called a judicial body or its proceedings judicial” because
its singular purpose and duty was to “investigate the truth of certain
statements made to the board of aldermen” in order to “report to the
board . . . which might altogether disregard what the committee had
done.” Id. at 234, 29 A. 473. It ruled that “[a] judicial proceeding
22
within the meaning of the rule as to absolute privilege must . . . be one
carried on in a court of justice established or recognized by law,
wherein the rights of the parties which are recognized and protected
by law are involved and may be determined.” Id.For almost a century, the Connecticut Supreme Court cited
Blakeslee & Sons as support for recognizing “an absolute privilege for
statements made in judicial proceedings.” Petyan v. Ellis, 200 Conn.
243, 245, 510 A.2d 1337 (1986). But in Petyan, a sharply divided
Supreme Court was more receptive than it had been in Blakeslee &
Sons to extending the privilege to quasi-judicial administrative
proceedings. The proceeding at issue in Petyan was a State Labor
Department unemployment eligibility hearing. In affording absolute
immunity to an employer who did not testify at the hearing but whose
statements on a department form were considered by the hearing
panel, the Connecticut Supreme Court observed that “the
proceedings of many administrative . . . boards and commissions” are
properly recognized as quasi-judicial and, thus, warrant absolute
immunity “so far as they have powers of discretion in applying the
law to the facts which are regarded as judicial or quasi-judicial, in
character.” Id. at 246, 510 A.2d 1337 (internal quotation marks
omitted). 17 The Court concluded that this power was evident in the
Labor Department proceeding because, “[i]n the processing of
unemployment compensation claims, the administrator, the referee
and the employment security board of review decide the facts and
17 See Chadha v. Charlotte Hungerford Hosp., 272 Conn. 776, 793 n.21, 865 A.2d 1163(2005) (identifying Petyan v. Ellis as “first case in which [the Connecticut Supreme
Court] expressly recognized that, at common law, persons who make statements
in connection with quasi-judicial proceedings are afforded absolute immunity”).
23
then apply the appropriate law.” Id. at 248, 510 A.2d 1337 (citing
applicable statutes). In short, unlike the committee in Blakeslee & Sons,
whose power was only investigative, the hearing panel in Petyan had
adjudicative power in the application of particular laws to facts.
At the same time that the Connecticut Supreme Court’s
decision in Petyan appears liberally to apply quasi-judicial immunity
to adjudicating administrative agencies, its focus on the application of
law to facts might be understood to state a limiting principle, one that
cabins absolute quasi-judicial immunity to proceedings before
government entities charged with applying particular laws. In short,
a host of private entities—employers, social organizations (even some
criminal enterprises)—may conduct factfinding proceedings to
adjudicate disputes, but insofar as they apply their own rules, rather
than the law, to disputed facts, their proceedings would arguably not
qualify as quasi-judicial under Petyan. 18
This, however, does not permit us to predict that the
Connecticut Supreme Court would never recognize a non-
government proceeding as quasi-judicial. What about circumstances
where a non-government entity conducts a hearing mandated by
certain laws? Or a hearing in conformity with certain laws? To date,
the Connecticut Supreme Court has not considered, much less
answered, any of these questions.
18 Petyan drew its language on this point from the leading torts treatise. See id. at
246, 510 A.2d 1337 (quoting W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser
& Keeton on Law of Torts § 114, at 818-19 (5th ed. 1984)). Nowhere does the
treatise suggest that such immunity would apply to non-government proceedings.
24
To be sure, that court has stated that it defines “‘judicial
proceeding’ . . . liberally to encompass much more than civil litigation
or criminal trials.” Hopkins v. O’Connor, 282 Conn. 821, 839, 925 A.2d
1030 (2007). 19 But its extensions of quasi-judicial immunity after
Petyan have all been in the context of administrative proceedings by
government entities. See, e.g., Kelley v. Bonney, 221 Conn. 549, 606 A.2d
693 (1992) (extending quasi-judicial immunity to State Board of
Education teaching certificate revocation proceeding); Craig v. Stafford
Const., Inc., 271 Conn. 78, 856 A.2d 372 (2004) (same re: Hartford
Police Department internal affairs investigation). 20 Indeed, in both
Kelley and Craig, the court reiterated Petyan’s pronouncement that the
proceedings of administrative entities can be quasi-judicial “so far as
they have powers of discretion in applying the law to the facts.” See
19 In Hopkins, the Connecticut Supreme Court ruled that an allegedly defamatory
statement in a police report that was a required first step to a court commitment
proceeding fell within the scope of a “judicial proceeding,” but that a statute
criminalizing malicious falsity in such reports signaled a legislative decision to
afford only qualified immunity to such statements. 282 Conn. at 841-48, 925 A.2d
1030.
20 The identified quasi-judicial proceeding in Rioux v. Barry, 283 Conn. 338, 927
A.2d 304, was also governmental: a police internal affairs investigation. But at
issue there was whether absolute immunity shielded against a vexatious litigation
action. The Connecticut Supreme Court ruled that only qualified immunity
applied to such an action because the elements of a vexatious litigation tort
provided a level of protection against chilling witness testimony lacking in the
elements of defamation and intentional interference with contracts. See id. at 347-
51, 927 A.2d 304. Similarly, the proceeding at issue in Chadha v. Charlotte
Hungerford Hosp., 272 Conn. 776, 865 A.2d 1163, was governmental—a medical
license suspension proceeding by the Connecticut Board of Health. But there the
Connecticut Supreme Court ruled that the state legislature had explicitly
abrogated absolute quasi-judicial immunity in favor of qualified immunity for
evidence given in such proceedings. Id. at 789-90, 865 A.2d 1163 (citing Conn. Gen.
Stat. §§ 19a-17b & 19a-20).
25
Kelley v. Bonney, 221 Conn. at 566, 606 A.2d 693; accord Craig v. Stafford
Const., Inc., 271 Conn. at 85, 856 A.2d 372.
In each case, the court then went on to identify factors that
could “assist in determining whether a proceeding is quasi-judicial,”
specifically,
whether the body has the power to: (1) exercise judgment
and discretion; (2) hear and determine or . . . ascertain
facts and decide; (3) make binding orders and
judgments; (4) affect the personal property rights of
private persons; (5) examine witnesses and hear the
litigation of the issues on a hearing; and (6) enforce
decisions or impose penalties.
Craig v. Stafford Const., Inc., 271 Conn. at 85, 856 A.2d 372 (quoting
Kelley v. Bonney, 221 Conn. at 567, 606 A.2d 693). 21 But these were “in
addition” to, not in lieu of, the foundational law-to-fact requirement.
Id. And, in each case, the court instructed “[f]urther” that it was
“important to consider whether there is a sound public policy reason
for permitting the complete freedom of expression that a grant of
absolute immunity provides.” Id. (quoting Kelley v. Bonney, 221 Conn.
at 567, 606 A.2d 693).
We understand these three principles to instruct as follows:
First, a quasi-judicial proceeding is one that applies law to facts.
Second, even some proceedings applying law to facts might not be
quasi-judicial where consideration of the additional six factors
21 While an administrative body need not possess all six powers to be identified
as quasi-judicial, “the more powers it possesses, the more likely the body is acting
in a quasi-judicial manner.” Craig v. Stafford Const., Inc., 271 Conn. at 95, 856 A.2d
372 (internal quotation marks omitted).
26
indicates that the entity at issue does not exercise powers akin to a
judicial entity. And third, a separate inquiry into public policy may
show that, even where proceedings satisfy the initial law-to-fact and
adjudicative powers requirements, the public interest sometimes may
support absolute immunity, but sometimes may not. For example, in
some circumstances, public policy may be adequately served by
qualified immunity, which shields all but malicious or knowing
falsehoods. See infra at 39-41 (discussing Cleavinger v. Saxner, 474 U.S.
193, 204-206 (1985) (affording federal officials presiding at prison
disciplinary proceeding only qualified immunity), and Rom v. Fairfield
Univ., No. CV020391512S, 2006 WL 390448 (Conn. Super. Ct. Jan. 30,
2006) (affording qualified rather than absolute immunity to witnesses
in private university disciplinary proceeding)); see also Doe v. Roe, 295
F. Supp. 3d 664, 676-77 (E.D. Va. 2018) (holding, under Virginia law,
that weak procedural safeguards and absence of government
involvement in private university misconduct hearing made qualified
rather than absolute immunity “appropriate privilege to apply”).
III. Inability to Predict Connecticut’s Application of Quasi-
Judicial Immunity to this Case
Connecticut Supreme Court Precedents Admit No
Prediction
Applying these precedents to this case, we cannot predict
whether Connecticut would recognize a Yale UWC hearing as quasi-
judicial so as to afford Doe absolute immunity.
1. The Law-to-Fact Requirement
In Kelley, the Connecticut Supreme Court found the initial law-
to-fact requirement satisfied because the Board of Education there
27
was required to apply particular laws and regulations to its findings
of fact in order to revoke a teaching certification. See Kelley v. Bonney,
221 Conn. at 567-68, 606 A.2d 693 (identifying relevant law and
regulation). In Craig, the court found the requirement satisfied by the
police department’s obligation to apply its “official code of conduct”
and “collective bargaining agreement” to facts found during an
internal affairs investigation. Craig v. Stafford Const., Inc., 271 Conn.
at 86, 856 A.2d 372. 22 By contrast, a UWC hearing panel is charged
with applying not a particular law but Yale’s own Sexual Misconduct
Policy in determining whether found facts demonstrate student
sexual misconduct warranting discipline. 23
But if this makes it difficult to predict that Connecticut would
recognize a UWC hearing as quasi-judicial, it does not necessarily
resolve the immunity question in Khan’s favor. As Khan asserts,
Yale’s Sexual Misconduct Policy was formulated to conform to the
requirements of Title IX—or, at least, DOE guidance as to the
requirements of that law. And, as we have judicially noticed, by the
time Khan’s UWC hearing was held in 2018, Yale was also subject to
Conn. Gen. Stat. § 10a-55m, which sets out certain requirements for
campus sexual misconduct proceedings. Thus, assuming that the
The collective bargaining agreement was statutorily governed by Connecticut’s
22
Municipal Employee Relations Act, Conn. Gen. Stat. §§ 7-467 et seq.
23 This comports with subsequent 2020 regulations pertaining to Title IX, which
required colleges and universities to issue written “[c]onclusions regarding the
application of the [school’s] code of conduct to the facts.” 34 C.F.R. § 106.45(7)(ii)(D)
(emphasis added). The parties point us to nothing in these regulations, or in laws
or guidance in effect at the time of the 2018 UWC hearing, that required colleges
and universities to apply law to facts in disciplining student sexual misconduct.
28
Connecticut Supreme Court does use a law-to-fact requirement at the
first step in identifying quasi-judicial proceedings, a question arises
as to how that court might view the mandates of these federal and
state laws in deciding whether Yale’s UWC proceedings satisfy that
requirement. We cannot tell.
2. Judicial-Like Procedures
Indeed, our ability to predict an answer to that question is
complicated by the fact that, in identifying certain government
administrative proceedings as quasi-judicial in Kelley and Craig, the
Connecticut Supreme Court not only reiterated Petyan’s law-to-fact
requirement, but also highlighted the employment of certain
procedures akin to those used in traditional judicial proceedings to
“ensure . . . reliability.” Kelley v. Bonney, 221 Conn. at 571, 606 A.2d
693. Specifically, in both the Board of Education and Police
Department proceedings at issue in those cases, (1) either witnesses
(in Craig) or the complainant (in Kelley) were required to be under
oath; and (2) parties were permitted (a) to “be present throughout the
hearing,” (b) to “be represented by counsel,” (c) “to call and cross-
examine witnesses,” and (d) “to present oral argument.” Id. at 569-
70, 606 A.2d 693; see Craig v. Stafford Const., Inc., 271 Conn. at 87-88,
856 A.2d 372. To be sure, in Petyan, the Connecticut Supreme Court
had held that the absence of an oath requirement was not fatal to
identifying a proceeding as quasi-judicial. See Petyan v. Ellis, 200
Conn. at 251-52, 510 A.2d 1337. 24 And in Kelley and Craig, the court
observed that non-public, even ex parte, proceedings can be “judicial.”
24 The employer in Petyan certified—but did not swear to—the truthfulness of his
form responses. See id. at 250, 510 A.2d 1337.
29
See Kelley v. Bonney, 221 Conn. at 566, 606 A.2d 693; accord Craig v.
Stafford Const., Inc., 271 Conn. at 84-85, 856 A.2d 372. 25 Nevertheless,
the emphasis that Kelley and Craig place on traditional reliability-
ensuring judicial procedures suggests that the more such procedures
are employed in an administrative proceeding, the more likely it is to
be identified as quasi-judicial. See also Hopkins v. O’Connor, 282 Conn.
at 831 & n.3, 925 A.2d 1030 (citing “significant procedural protections
afforded in [court] commitment proceedings”—including rights to be
present at hearing, to appointed counsel, and to cross-examination—
in identifying such proceedings as “judicial” for purposes of
immunity); Vidro v. United States, 720 F.3d at 152 (citing Craig in
stating that whether statement is “taken under oath is . . . relevant to
whether it deserves an absolute privilege”). Presumably, no lesser
standard would apply to non-government proceedings.
By that standard, it is difficult to identify Khan’s UWC hearing
as quasi-judicial. Nothing in the present record indicates that UWC
hearing witnesses testify under oath—only that there can be adverse
disciplinary consequences for failing to testify truthfully (though
what those might be for persons such as Doe, who have graduated
and left Yale, is not clear). See App’x at 77. What the record does
show is that a person under investigation is specifically not permitted
to be physically present throughout UWC hearings. Rather, when a
complainant is interviewed by the committee—even remotely by
teleconference, as in Doe’s case—the person under investigation is
25 The most obvious non-public, ex parte proceeding to which absolute judicial
immunity applies is a grand jury proceeding. See Vidro v. United States, 720 F.3d
at 152.
30
excluded from the hearing room and provided with only an audio
feed of the proceeding. See id. at 80. Moreover, cross-examination is
expressly denied, and there appears to be no opportunity for closing
argument. As for an attorney, a person may enlist counsel as his
hearing advisor, but the attorney may not speak on the party’s behalf,
question witnesses, raise objections, or actively participate in ways
generally associated with the idea of “representation” in judicial
proceedings. See id. at 78. Moreover, to the extent these departures
from traditional judicial proceedings were informed or sanctioned by
DOE’s 2011 “Dear Colleague Letter,” the result appears to have been
intentional. See id. at 90 (stating that “school’s Title IX investigation”
into sexual misconduct “is different from any law enforcement
investigation”).
Thus, even assuming the possibility of the Connecticut
Supreme Court recognizing a non-government proceeding as quasi-
judicial, at least when law is being applied to facts, it is difficult to
predict whether that court would recognize Yale’s UWC hearing as
quasi-judicial in the absence of so many of the judicial reliability
procedures emphasized in Kelley and Craig.
3. Additional Six Factors
The uncertainty identified at the law-to-fact step of analysis is
not removed by the additional six factors that Kelley and Craig list as
relevant to identifying quasi-judicial proceedings. The Connecticut
Supreme Court has plainly stated that “a quasi-judicial body need not
possess all six powers” referenced in these factors to be identified as
quasi-judicial. Craig v. Stafford Const., Inc., 271 Conn. at 94-95, 856
A.2d 372 (internal alteration and quotation marks omitted).
31
Nevertheless, because “the more [such] powers it possesses, the more
likely the body is acting in a quasi-judicial manner,” id. (internal
quotation marks omitted), it is important for us to understand just
how the Connecticut Supreme Court would apply those factors in the
circumstances of this case.
As earlier noted, we understand the six factors enumerated in
Kelley and Craig to apply in addition to an initial law-to-fact
requirement. Thus, we assume the factors are properly considered in
light of that requirement. In short, we understand the first two factors
to ask whether a hearing entity has the power (1) to “exercise
judgment and discretion” in applying law to fact, and (2) to “hear and
determine or to ascertain facts and decide” how the law applies to
those facts. Kelley v. Bonney, 221 Conn. at 567, 606 A.2d 693. If that
understanding is, indeed, correct, we cannot weigh these two factors
without first knowing whether the Connecticut Supreme Court
would consider Yale to be applying law to facts in conducting a UWC
hearing. If the court would so conclude, then these discretion and
decision factors would weigh in favor of finding a UWC hearing a
quasi-judicial proceeding. If the court would not so conclude, then
these factors would weigh against such a finding. For reasons already
stated, we cannot predict the Connecticut Supreme Court’s
conclusion on that preliminary question.
Similarly, as to the third, fourth, and sixth factors (whether the
body has the power to “make binding orders and judgments,” “affect
the personal or property rights of private persons,” and “enforce
decisions or impose penalties”), it may be important to know how, if
at all, the Connecticut Supreme Court understands Yale to be
32
applying law in a UWC proceeding. Compare Craig v. Stafford Const.,
Inc., 271 Conn. at 89, 856 A.2d 372 (identifying internal affairs inquiry
as quasi-judicial proceeding because, inter alia, police chief could
himself act on inquiry’s recommendations), with Preston v. O’Rourke,
74 Conn. App. 301, 314, 811 A.2d 753 (App. Ct. 2002) (equating
arbitration award to binding order and judgment because it could be
converted to a court judgment). Further, we cannot predict how the
Connecticut Supreme Court would weigh the fifth factor (whether the
body may “examine witnesses and hear the litigation of the issues on
a hearing”) without knowing whether, in light of Kelley and Craig, the
court contemplates that “witnesses” in judicial and quasi-judicial
proceedings will be under oath and/or subject to cross-examination,
and that the “litigation of the issues on a hearing” will occur with
persons under investigation being present throughout the hearing,
represented by counsel who can speak on their behalf, and afforded
some opportunity for a closing statement. See Kelley v. Bonney, 221
Conn. at 567, 606 A.2d 693.
4. Public Policy
Finally, as for public policy considerations, the Connecticut
Supreme Court in Kelley appears to have assumed that—and,
therefore, did not discuss why—the public interest in full and frank
Board of Education inquiries into a teacher’s misconduct toward
students warranted absolute immunity. See id. at 571, 606 A.2d 693.
In extending absolute immunity to police internal affairs
investigations in Craig, however, the Connecticut Supreme Court
offered a public policy rationale that seems to apply to both cases. The
court there first identified the public concern: because of “the costs
and inconvenience associated with defending a defamation suit,”
33
without absolute immunity, “good faith criticism of governmental
misconduct might be deterred by concerns about unwarranted
litigation.” Craig v. Stafford Const., Inc., 271 Conn. at 95, 856 A.2d 372(internal quotation marks omitted). It then reached its public policy
conclusion: “the policy of encouraging citizen complaints against
those people who wield extraordinary power within the community
outweighs the need to protect the reputation of the [person] against
whom the complaint is made.” Id. at 96, 856 A.2d 372.
This reasoning is not clearly analogous to this case. Craig’s
policy rationale for applying absolute quasi-judicial immunity
focuses on the public interest in the reporting of “governmental
misconduct” because of the “extraordinary power” government
officials frequently wield within a community. Id. at 95-96, 856 A.2d
372. By contrast, Khan’s alleged misconduct, as recounted by Doe at
the UWC hearing, while undoubtedly serious, is not “governmental”
misconduct. And, as an undergraduate, Khan hardly wielded
“extraordinary power” within the Yale community akin to that of a
government official. Thus, we cannot predict from the Connecticut
Supreme Court’s reasoning in Craig whether the court would think
public policy warranted the extension of absolute quasi-judicial
immunity to a non-government proceeding, such as Yale’s UWC
hearing.
At the same time, and for reasons already discussed, we
recognize that Yale’s UWC proceedings, at least in some respect, may
be required by federal and state law. Just as this raises questions
about whether the proceedings themselves might be deemed to apply
law to fact, it also presents a possible distinct public policy rationale
34
for affording immunity to participants in such proceedings. But that
hardly means the immunity would have to be absolute. Connecticut’s
public interest might be adequately served by affording qualified
immunity. In short, these questions “require[ ] value judgments and
important public policy choices” that the Connecticut Supreme Court
is better situated to make than this court. Penguin Grp. (USA) v. Am.
Buddha, 609 F.3d 30, 42 (2d Cir. 2010).
* * *
For all these reasons, our review of the Connecticut Supreme
Court’s quasi-judicial immunity precedents does not permit us to
predict whether that court would extend such absolute immunity to
non-government proceedings generally or to Yale’s UWC
disciplinary proceeding specifically.
Connecticut Lower Court Decisions Admit No
Prediction
Just as we are not able to resolve that question by reference to
Connecticut Supreme Court decisions, so also are we unable to do so
by looking to decisions of Connecticut’s lower courts. While the
decisions of such courts are “not controlling,” where, as here, “the
highest court of the State has not spoken on the point,” we may
nevertheless give them “some weight” in identifying state law.
Commissioner v. Bosch’s Est., 387 U.S. 456, 465 (1967).
1. Connecticut Appellate Court
Like the state Supreme Court, the Connecticut Appellate Court
has extended quasi-judicial immunity to a variety of administrative
proceedings. See, e.g., Priore v. Haig, 196 Conn. App. 675, 705, 230 A.3d
35714 (App. Ct.) (identifying planning and zoning commission hearing
as quasi-judicial), cert. granted 335 Conn. 955, 239 A.3d 317 (2020);
Cohen v. King, 189 Conn. App. 85, 91, 206 A.3d 188 (App. Ct. 2019)
(extending absolute quasi-judicial immunity to chief counsel in
disciplinary proceeding conducted pursuant to Connecticut Judicial
Branch Administrative Policy), cert. denied 336 Conn. 925, 246 A.3d
986 (2021); Mercer v. Blanchette, 133 Conn. App. 84, 93, 33 A.3d 889(App. Ct. 2012) (extending absolute immunity to statements made by
member of panel monitoring compliance with federal consent
judgment); Morgan v. Bubar, 115 Conn. App. 603, 617-21, 975 A.2d 59(App. Ct. 2009) (extending absolute immunity to witness in
Department of Correction internal investigation); Preston v. O’Rourke,
74 Conn. App. at 312, 811 A.2d 753 (identifying as quasi-judicial
arbitration proceeding conducted pursuant to state statute, which
upheld dismissal of state prosecutor). But the Appellate Court has
never extended such immunity to a purely private proceeding.
In urging this court to do so here, Doe argues that Preston
should be viewed as a run-of-the-mill employment arbitration, which
the Appellate Court itself described as a “hybrid” public-private
proceeding. Preston v. O’Rourke, 74 Conn. App. at 314, 811 A.2d 753.
The reason this does not persuade is that the Appellate Court so
described the case in rejecting a contention that the arbitration at issue
was a purely private proceeding. Indeed, the court emphasized both
the public roles of the opposing parties as well as the specific state
laws that governed their employment contract and that approved
arbitration for disputes arising thereunder. Id. at 313-15, 811 A.2d 753.
36
To be sure, in explaining its conclusion, the Connecticut
Appellate Court made a general observation: “If witnesses in
arbitration proceedings were not afforded the protection of absolute
immunity, as in more formal judicial proceedings, arbitration no
longer would be seen as a desirable alternative form of dispute
resolution.” Id. at 314, 811 A.2d 753. But even if this might lend some
support to an argument that a private proceeding can be deemed
“public” by virtue of playing a role in a larger statutory scheme, it is
not enough to let us predict that the Connecticut Supreme Court
would reach that conclusion with respect to a Yale UWC hearing
insofar as that proceeding and the policy underlying it is informed by
Title IX and Conn. Gen. Stat. § 10a-55m. Much less can we predict
that the Connecticut Supreme Court would identify the Yale
proceeding as quasi-judicial in the absence of many of the judicial-like
procedures highlighted in Kelley and Craig.
Indeed, that hesitancy is reinforced by the Connecticut
Appellate Court’s repeated use of language in Priore implying a
background assumption that quasi-judicial proceedings are
conducted by government entities. See Priore v. Haig, 196 Conn. App.
at 703, 230 A.3d 714 (identifying “public policy” as final consideration
identified in Kelley v. Bonney for determining “whether a government
body’s proceeding is quasi-judicial in nature” (emphasis added)); id.
at n.12 (observing that quasi-judicial nature of proceeding
determined “by assessing whether the government body conducting
the proceeding has powers that are characteristic of a body acting in
a quasi-judicial capacity” (emphasis added)); id. at 704, 230 A.3d 714(stating that rationale for absolute quasi-judicial immunity “rests in
the public policy that every citizen should have the unqualified right
37
to appeal to governmental agencies for redress without the fear of being
called to answer in damages” (emphasis added) (quoting 50 Am. Jur.
2d, Libel and Slander § 283 (2017))). 26
We recognize that such language is dicta in Priore and not found
in other Connecticut court decisions. Thus, we cannot predict
whether the Connecticut Supreme Court will adopt it, or assign it any
weight, in its pending review of Priore. See 335 Conn. 955, 239 A.3d
317 (granting writ of certiorari). Nor can we predict whether, and
how, the Connecticut Supreme Court might view Priore’s
observation—this one seemingly favorable to Doe—that the absence
of an oath requirement not only does not foreclose identifying a
proceeding as quasi-judicial, see supra at 29-30 & n.24 (discussing
Petyan), but also “does not weigh against” such a determination,
Priore v. Haig, 196 Conn. App. at 702, 230 A.3d 714, a conclusion
difficult to reconcile with Kelley and Craig. 27
In sum, because the quasi-judicial immunity decisions of the
Connecticut Appellate Court do not speak clearly and consistently on
26 Other statements in this treatise also discuss quasi-judicial immunity in the
context of government proceedings. See 50 Am. Jur. 2d, Libel and Slander § 283
(Jan. 2022 update) (“Moreover, a proceeding is quasi-judicial in nature . . . if it is
conducted by a governmental executive officer, board, or commission that has the
authority to hear and decide the matters coming before it or to redress the
grievances of which it takes cognizance.” (emphasis added)).
27 We also cannot predict how the Connecticut Supreme Court will view Priore’s
assertion that “statements . . . made during the proceeding [may] be entitled to
absolute immunity as a matter of public policy,” “regardless of whether [the]
proceeding is quasi-judicial in nature.” Id. at 703 n.12, 230 A.3d 714. The district
court did not reach such a conclusion in identifying Yale’s UWC proceeding as
quasi-judicial, nor does Doe urge affirmance on that ground.
38
issues pertinent to the question of whether absolute immunity might
extend to statements made at non-government proceedings generally
or to Yale’s UWC proceedings specifically, they do not allow us to
predict how the Connecticut Supreme Court would rule on that
matter.
2. Connecticut Superior Court
One Connecticut Superior Court decision bears mention, if only
because of its factual similarity to this case. In Rom v. Fairfield
University, 2006 WL 390448, a student suspended from the defendant
private university after a disciplinary hearing sued two hearing
witnesses for defamation. The Superior Court appears to have
identified the disciplinary proceeding as quasi-judicial. See id. at *5.
But there is reason to question whether that was, indeed, the court’s
ultimate conclusion because witnesses at a quasi-judicial proceeding
are entitled to absolute immunity but, in Rom, the court afforded them
only qualified immunity. See id. at *7.
The Superior Court quoted Kelley in observing that absolute
quasi-judicial immunity could extend to administrative proceedings,
“so far as [officers] have powers of discretion in applying the law to
the facts.” Id. at *2 (quoting Kelley v. Bonney, 221 Conn. at 566, 606
A.2d 693). But nowhere did the court in Rom identify what “law”
defendant’s disciplinary committee was applying in finding plaintiff
impermissibly to have been in a women’s restroom and to have torn
down posters in a campus residence hall. Nor did the court anywhere
discuss whether, and under what circumstances, a non-government
proceeding could properly be identified as quasi-judicial. Instead, the
Superior Court relied almost exclusively on Cleavinger v. Saxner, 474
39
U.S. 193, in extending only qualified immunity to the university
disciplinary proceeding.
But that reliance itself raises doubt. In Cleavinger, the United
States Supreme Court ruled that members of a federal prison
disciplinary committee were entitled only to qualified immunity,
rather than to absolute immunity, because, although the committee
performed “an adjudicatory function” of “some societal importance,”
its members and procedures “had no identification with the judicial
process of the kind and depth that has occasioned absolute [judicial]
immunity.” Id. at 203, 206. 28 In short, Cleavinger specifically did not
find the prison discipline proceeding there at issue to be quasi-
judicial, much less did it rule that quasi-judicial proceedings
sometimes warranted only qualified, rather than absolute, immunity
to witnesses or judges. Rather, Cleavinger signals that the absence of
processes such as representation, confrontation, cross-examination,
etc., cautions against recognizing even some adjudicatory functions
as quasi-judicial. See id. at 206. While the Supreme Court was not
applying Connecticut law in Cleavinger, its focus on process in
28 The Supreme Court observed that the prison committee heard testimony,
received documentary evidence, evaluated credibility and weighed evidence, and
rendered a decision on guilt or innocence. See id. at 203. But the committee’s
members were not independent or professional adjudicators; rather, they were
employees of the same institution that had brought the charges at issue.
Meanwhile, charged prisoners were not afforded lawyers or independent non-
staff representatives, had no right to compel or cross-examine witnesses, and no
right to discovery. The proceedings were conducted with no cognizable burden
of proof and no verbatim transcript, and hearsay and self-serving information
were received. In such circumstances, the Supreme Court declined to identify a
judicial or quasi-judicial proceeding warranting absolute immunity. Instead, it
ruled that the committee members were shielded by qualified immunity, a lesser
protection, but one “not of small consequence.” Id. at 206.
40
identifying quasi-judicial proceedings is somewhat analogous to the
concern with process expressed in the Connecticut Supreme Court’s
decisions in Kelley and Craig.
For all these reasons, we cannot predict from the single
Superior Court decision in Rom that the Connecticut Supreme Court
would extend absolute, or even qualified, immunity to non-
government proceedings generally or to Yale’s UWC disciplinary
proceedings specifically.
Precedent from Other Jurisdictions Admit No
Prediction
Insofar as the parties point us to cases from other jurisdictions,
these precedents are not binding. Nevertheless, we may consider
them too in endeavoring to predict how the Connecticut Supreme
Court would decide the immunity question presented by this appeal.
See Caronia v. Philip Morris USA, Inc., 715 F.3d at 449 (acknowledging
this court’s ability “to consider all of the resources to which the
highest court of the state could look, including decisions in other
jurisdictions on the same or analogous issues” (internal quotation
marks omitted)); see also Kelley v. Bonney, 221 Conn. at 567, 606 A.2d
693 (drawing six-factor test from Illinois law). In fact, precedents
from out of Connecticut do not speak with sufficient clarity or
consistency to permit us to make such a prediction.
1. Federal Cases
Beginning with our sister circuits, we note that more than a
half-century ago, the Fourth Circuit adopted a district court opinion
ruling that, under South Carolina law, a private arbitration qualified
as a quasi-judicial proceeding. Corbin v. Wash. Fire & Marine Ins. Co.,
41
398 F.2d 543, 544 (4th Cir. 1968). 29 The district court there reasoned
that “unqualified privilege does not depend on the rigid requirement
of a strictly legislative or judicial proceeding; its limits are fixed rather
by considerations of public policy,” which, in South Carolina,
accorded arbitration proceedings a “favored” status. Corbin v. Wash.
Fire & Marine Ins. Co., 278 F. Supp. 393, 396 (D.S.C. 1968).
We cannot predict whether Connecticut would adopt this
reasoning. As already discussed supra at 36-37, the Connecticut
Appellate Court has recognized an arbitration proceeding involving
a state prosecutor and his government employer as a quasi-judicial
proceeding but, in doing so, has emphasized the disputing parties’
government roles and the state laws that both informed their
contractual relationship and authorized arbitration of their dispute.
See Preston v. O’Rourke, 74 Conn. App. at 313-15, 811 A.2d 753.
Further, while the Connecticut Supreme Court has identified public
policy as an important factor in identifying a quasi-judicial
proceeding, we cannot predict that it would rely on that ground
alone, given its repeated reference to the application of law to facts
and the emphasis it has placed on procedural safeguards akin to those
afforded in traditional judicial proceedings. See supra at 28-31.
Certainly, these last two factors have informed other, more
recent decisions by Courts of Appeals declining to identify non-
government proceedings as quasi-judicial. In Overall v. University of
Pennsylvania, 412 F.3d 492 (3d Cir. 2005), the Third Circuit—in an
29 We necessarily proceed cautiously in reviewing federal court decisions
discussing quasi-judicial immunity, mindful that they apply state laws that may
not take identical views of the privilege.
42
opinion authored by then-Judge Alito—ruled that a private
university’s faculty grievance proceeding was not quasi-judicial. The
court observed that those grievance proceedings that Pennsylvania
had identified as quasi-judicial had all involved either “a government
entity or an ostensibly private entity operating pursuant to a state or
federal statute.” Id. at 497. Further, the court noted that “sound
reasons” supported a “public-private distinction,” in that public
proceedings “typically involve basic procedural safeguards that may
be lacking in private proceedings.” Id. at 498 (noting that University
of Pennsylvania grievance procedure at issue “did not require sworn
testimony”).
The Sixth Circuit recently echoed the first point in Bose v. Bea,
947 F.3d 983 (6th Cir. 2020). In declining to accord absolute immunity
to allegedly defamatory statements made during a private college
disciplinary proceeding, the court observed that, under Tennessee
law, the rationale for absolute quasi-judicial immunity was “a strong
benefit to the public, often tied to a statute or to powers which the
Tennessee legislature had specifically granted to the tribunal at
issue.” Id. at 995. 30
In Cuba v. Plyant, the Fifth Circuit, applying Texas law, was still
more emphatic in declining to extend absolute immunity to private
university disciplinary proceedings, observing that the school did
30 In an earlier, unpublished order, the Sixth Circuit observed that the plaintiff had
not disputed that, under Ohio law, absolute immunity shielded his accuser’s
statements during a private university disciplinary proceeding. See Doe v. Univ. of
Dayton, 766 F. App’x 275, 290 (6th Cir. 2019). For that proposition, the court cited
Savoy v. Univ. of Akron, 2014-Ohio-3043, 15 N.E.3d 430, at ¶ 20 n.3 (Ohio Ct. App.
2014), which involved a public university proceeding.
43
“not have any law enforcement or law interpreting authority.” 814
F.3d 701, 717 (5th Cir. 2016) (emphasis deleted).
Here, we do not know, and cannot predict, whether the
Connecticut Supreme Court would view Yale to have been “operating
pursuant to” Title IX or Conn. Gen. Stat. § 10a-55m in conducting the
UWC proceedings that resulted in Khan’s expulsion. See Overall v.
Univ. of Penn., 412 F.3d at 497. Nor do we know whether or to what
degree the Connecticut Supreme Court would view Yale’s UWC
proceeding obligations under those federal and state laws to involve
the enforcement, interpretation, or even application of those laws.
Much depends on how strictly the Connecticut Supreme Court might
require a non-government entity to be applying law to facts for its
proceedings to be deemed quasi-judicial. Much also depends on how
the Connecticut Supreme Court weighs the absence of judicial-like
procedures highlighted in Kelley and Craig from Yale’s UWC
proceedings. 31
2. State Cases
A few cases from other states have extended absolute immunity
to witnesses in private college disciplinary proceedings. While the
extension of immunity in such circumstances might well influence the
31 District court decisions cited by the parties similarly lack the clarity and
consistency necessary to permit us to predict how the Connecticut Supreme Court
would answer these questions. Compare, e.g., Fogel v. Univ. of the Arts, No. 18-cv-
5137, 2019 WL 1384577, at *10 (E.D. Pa. Mar. 27, 2019) (holding, with no mention
of Overall, that absolute judicial immunity shielded author of letter to private
university accusing professor of sexual harassment), with Doe v. Roe, 295 F. Supp.
3d at 676-77 (citing due process deficiencies in private university’s disciplinary
proceedings in denying accuser’s statements absolute immunity).
44
Connecticut Supreme Court, because the underlying facts and
reasons for decision do not yield easy analogies to this case, we cannot
predict that the ultimate conclusion would be to afford absolute
immunity here.
For example, in Constantine v. Teachers College, a New York trial
court ruled that a private college’s faculty advisory committee
proceedings were shielded by absolute immunity from an action for
defamation because, under New York law, that committee’s
disciplinary actions were ultimately judicially reviewable in an
Article 78 proceeding. 29 Misc. 3d 1214(A), at *8-9, 918 N.Y.S.2d 397(N.Y. Sup. Ct. 2010) aff’d 93 A.D.3d 493, 940 N.Y.S.2d 75 (1st Dep’t
2012). Because it is not evident—and the parties do not urge—that
Connecticut courts might play any similar review role with respect to
action taken at a Yale UWC proceeding, this New York case does not
permit us to predict that the Connecticut Supreme Court would
identify a comparable hybrid private/public process here.
No more helpful is Razavi v. School of the Art Institute of Chicago,
122 N.E.3d 361, 2018 (1st) 171409 (Ill. App. Ct. 2018), dismissed, 124
N.E.3d 475 (Ill. 2019). While the Illinois Appellate Court there ruled
that absolute immunity shielded student sexual assault complaints
against a faculty member in the course of the defendant private
school’s investigatory proceeding, its rationale was not that the
proceeding was quasi-judicial. Indeed, the court concluded that it
was not. See 122 N.E.3d at 373. 32 Rather, the court reasoned that the
32 The court found it “unnecessary to address” whether the subsequent
disciplinary proceeding, which appeared to be governed, at least indirectly, by
45
investigation was part of a “continuum” that started with a report of
alleged criminal conduct to campus security officers, and plaintiff
conceded that absolute immunity shielded reports of crime. See id.
By contrast, here, the only question before the court is whether the
UWC disciplinary proceeding itself is quasi-judicial. Doe does not
assert, and the district court did not find, that, even if that proceeding
was not quasi-judicial, there was some other basis for extending
absolute immunity to Doe’s statements at the proceeding.
Finally, in Hartman v. Keri, 883 N.E.2d 774 (Ind. 2008), the
Indiana Supreme Court extended absolute immunity to a public
university’s proceeding for investigating sexual harassment
complaints. In reaching that conclusion, the court noted that three
states—Maryland, California, and New York—had extended absolute
quasi-judicial immunity to participants in school disciplinary
proceedings. See id. at 777. But the cases cited all also involved public
entities. See id. Thus, Hartman does not permit us to predict that the
Connecticut Supreme Court would extend quasi-judicial immunity to
a private school.
Making that task still more difficult is the Hartman majority’s
dismissal of the lack of judicial-like procedures in the university
process—there, the absence not only of an oath requirement,
confrontation, or cross-examination, but also of any hearing. The
court concluded that these circumstances might support a
respondent’s complaint against the university, but not the denial of
absolute immunity to persons who made statements to the
federal law, was quasi-judicial. See id. at 375; see also id. at 369-71 (discussing
Campus SaVE Act).
46
investigating officer. See id. at 777-78 (observing that “ultimate issue
focuses less on the particular process and more on the recognition of
the institution’s interest in assuring a proper educational
environment”). 33 We cannot predict that the Connecticut Supreme
Court would adopt this reasoning given its own emphasis on—if not
requirement of—some judicial-like processes in various cases
identifying quasi-judicial proceedings. We also note that to the extent
the Indiana Supreme Court identified a particular need for protection
from suit in the educational setting because “the subject of the
complaint—the educator—is in a position of authority over the
student,” id. at 778, that reasoning does not translate to this case
where the complainant and respondent were both students.
* * *
In sum, after reviewing relevant decisions of Connecticut’s
Supreme Court and its lower courts, as well as decisions from other
jurisdictions, we cannot predict whether the Connecticut Supreme
Court would extend absolute quasi-judicial immunity either to non-
government proceedings generally or to Yale’s UWC proceedings as
applied specifically in this case.
33 But see id. at 780 (Rucker, J., concurring in result) (observing that proceeding
itself must be quasi-judicial for participants in it to be afforded immunity).
47
IV. Certification
Connecticut law, as well as this court’s local rules, permit us to
certify questions of Connecticut law to the state’s Supreme Court. See
Conn. Gen. Stat. § 51-199b(d); 34 2d Cir. R. 27.2. 35
As earlier noted, we do not certify questions lightly. “Because
it is our job to predict how the forum state’s highest court would
decide the issues before us, we will not certify questions of law where
sufficient precedents exist for us to make this determination.” DiBella
v. Hopkins, 403 F.3d at 111 (quoting Elliott Assocs., L.P. v. Banco de la
Nacion, 194 F.3d 363, 370 (2d Cir. 1999)). For the reasons detailed, we
cannot make that determination in this case. The Connecticut
Supreme Court has “not squarely addressed” the questions of (1)
whether a non-government proceeding can ever be quasi-judicial;
and (2) if so, whether a Yale UWC proceeding is quasi-judicial.
Moreover, decisions by that state’s lower courts, as well as decisions
of courts of other jurisdictions, also do not permit us to predict how
the Connecticut Supreme Court would answer them. See Penguin Grp.
(USA) Inc. v. Am. Buddha, 609 F.3d at 42 (identifying factors relevant
to decision to certify). Insofar as answers to these questions
“require[ ] value judgments and important public policy choices,” the
Connecticut Supreme Court “is better situated . . . to make” these than
34 “The Supreme Court may answer a question of law certified to it by a court of
the United States . . . if the answer may be determinative of an issue in pending
litigation in the certifying court and if there is no controlling appellate decision,
constitutional provision or statute of this state.” Id.35“If state law permits, the court may certify a question of state law to that state’s
highest court. When the court certifies a question, the court retains jurisdiction
pending the state court’s response to the certified question.” Id.48
this court. Id. Finally, the fact that answers to the identified questions
“will control the outcome of this case” further supports certification.
Id.Doe’s arguments to the contrary do not persuade. First, Doe
argues that there is no need for certification because when this court
certified a judicial immunity question to the Connecticut Supreme
Court in Gross v. Rell, 585 F.3d 72 (2d Cir. 2009), certified question
answered, 304 Conn. 234, 40 A.3d 240 (2012), the Connecticut Supreme
Court “could have easily held that quasi-judicial immunity does not
apply to private entities but it did not,” instead, analyzing whether
the private nursing home in that case “was performing a judicial
function.” Appellee Br. at 17. Doe urges us to infer from this action
the Connecticut Supreme Court’s implicit rejection of a public/private
distinction in the application of absolute quasi-judicial immunity. We
do not think such an inference is warranted. The question in Gross
was not whether some proceeding conducted by the nursing home
was properly recognized as quasi-judicial so as to afford witnesses at
the proceeding absolute immunity. Rather, it was whether the
absolute immunity of an undeniably judicial entity, the Probate
Court, extended to the private nursing home’s care of a resident
subject to a court-ordered conservancy. In concluding that it did not,
the Connecticut Supreme Court stated that the nursing home “was
neither executing the orders of the Probate Court nor performing a
function comparable to that of the Probate Court when it admitted
and cared for [the resident], but was merely following the instructions
of the conservator and performing its ordinary function as a nursing
home.” Gross v. Rell, 304 Conn. at 274, 40 A.3d 240. Nothing in this
49
response indicates the Connecticut Supreme Court’s views about the
questions raised on this appeal.
Second, Doe cites various cases emphasizing that “certification
is an exceptional procedure.” Ruzhinskaya v. HealthPort Techs., 942
F.3d 69, 73 (2d Cir. 2019) (internal quotation marks omitted). We have
explained at some length why this case is exceptional: “[In]sufficient
precedents exist for us to make” a prediction as to whether
Connecticut law would extend quasi-judicial immunity to non-
government proceedings generally, or to the Yale’s UWC proceedings
specifically; and answers to those questions require value judgments
and important public policy choices that the Connecticut Supreme
Court is better situated to make than this court. DiBella v. Hopkins, 403
F.3d at 111 (internal quotation marks omitted); see also Penguin Grp.
(USA) Inc. v. Am. Buddha, 609 F.3d at 42. As Doe acknowledges, the
decision to certify is “discretionary,” Alphonse Hotel Corp. v. Tran, 828
F.3d 146, 156 (2d Cir. 2016), and, in the circumstances of this case, we
think it appropriate to exercise that discretion in favor of certification.
Third, Doe argues that she has “a constitutionally-recognized
interest in not being put back in state court through the process of
certification, an interest which is entitled to significant weight in a
federal court’s decision whether to certify.” Appellee Br. at 29
(quoting Valls v. Allstate Ins. Co., 919 F.3d 739, 743 (2d Cir. 2019)). We
do accord proper weight to Doe’s interest, but find it outweighed by
another interest, also grounded in the constitutional principle of
federalism: a state’s interest in pronouncing its own law, particularly
in matters requiring value judgments and important public policy
choices.
50
Fourth, Doe argues that the added delay, cost, and stress of
further litigation in the Connecticut Supreme Court counsels against
certification. We do not ignore these concerns, which are present, to
some extent, in any certification. See Ferreira v. City of Binghamton, 975
F.3d 255, 291 (2d Cir. 2020). Nevertheless, we think those concerns
are outweighed here by the benefit of obtaining determinative
answers from Connecticut’s highest court on questions of state law
implicating serious policy concerns about how broadly the state
wishes to afford absolute quasi-judicial immunity.
CONCLUSION
A review of absolute quasi-judicial immunity cases from the
Supreme Court of Connecticut, the lower courts of that state, and
other jurisdictions does not permit this court to predict whether
Connecticut’s highest court would conclude, as the district court here
did, that such immunity shields defendant Doe from plaintiff Khan’s
claims for defamation and tortious interference with contract.
Accordingly, we CERTIFY the following questions to the Connecticut
Supreme Court:
1. Under Connecticut law, can a proceeding before a non-
government entity ever be deemed quasi-judicial for purposes
of affording absolute immunity to proceeding participants?
2. If the answer to the first question is “yes,” what requirements
must be satisfied for a non-government proceeding to be
recognized as quasi-judicial? Specifically,
a. Must an entity apply controlling law, and not simply its own
rules, to facts at issue in the proceeding? See Petyan v. Ellis,
51
200 Conn. at 246, 510 A.2d 1337; see also W. Keeton, D.
Dobbs, R. Keeton & D. Owen, Prosser & Keeton on Law of
Torts § 114, at 818-19 (5th ed. 1984).
b. How, if at all, do the “power” factors enumerated in Kelley
v. Bonney, 221 Conn. at 567, 606 A.2d 693, and Craig v.
Stafford Construction, Inc., 271 Conn. at 85, 856 A.2d 372,
apply to the identification of a non-government entity as
quasi-judicial; and, if they do apply, are these factors “in
addition” to, id., or independent of, a preliminary law-to-
fact requirement?
c. How, if at all, does public policy inform the identification of
a non-government entity as quasi-judicial and, if it does, is
this consideration in addition to, or independent of, a law-
to-fact requirement and the enumerated Kelley/Craig
factors?
d. How, if at all, do procedures usually associated with
traditional judicial proceedings—such as notice and the
opportunity to be heard; the ability to be physically present
throughout a proceeding; an oath requirement; the ability to
call, examine, confront, and cross-examine witnesses; the
ability to be represented by counsel—inform the
identification of a proceeding as quasi-judicial? See Craig v.
Stafford Const., Inc., 271 Conn. at 87-88, 856 A.2d 372; Kelley
v. Bonney, 221 Conn. at 568-70, 606 A.2d 693.
3. If it is possible under Connecticut law to identify a non-
government proceeding as quasi-judicial, then, in light of
responses to the above questions, was the 2018 Yale University
52
UWC proceeding at issue on this appeal properly recognized
as quasi-judicial?
4. If the answer to Question 3 is “yes,” would Connecticut extend
absolute quasi-judicial immunity to defendant Jane Doe for her
statements in that UWC proceeding?
5. If the answer to Question 3 is “no,” would Connecticut afford
defendant Jane Doe qualified immunity or no immunity at all?
The Connecticut Supreme Court may answer these questions in
whatever order it deems best to assist this court in understanding
how Connecticut law applies to this case. Similarly, and to the same
purpose, the Connecticut Supreme Court may modify or expand
these certified questions or address any other issues of Connecticut
law pertinent to this appeal.
This panel retains jurisdiction for the purpose of resolving this
appeal once the Connecticut Supreme Court has responded to our
certification.
It is, therefore, ORDERED that the Clerk of this Court transmit
to the Clerk of the Connecticut Supreme Court a certificate, as set
forth below, together with this opinion and a complete set of briefs,
appendices, and the record filed in this case by the parties.
CERTIFICATE
The foregoing is hereby certified to the Supreme Court of the
State of Connecticut pursuant to Second Circuit Rule 27 and Conn.
Gen. Stat. § 51-199b.
53