Colleges May Rethink ‘Kangaroo Court’ Proceedings in Sex-Assault Cases after Yale Legal Loss

By Ryan Mills

Wednesday, July 05, 2023

 

A Connecticut supreme court ruling last month that found that Yale University failed to provide “adequate safeguards” in a discipline hearing for a student accused of sexual assault could have implications for colleges and universities across the country whose own discipline proceedings don’t allow defendants to confront their accuser or to cross-examine witnesses.

 

In its unanimous June 27 ruling in the case Khan v. Yale, the court found that Yale’s discipline hearing failed to “ensure reliability” or to “promote fundamental fairness” to the defendant, Saifullah Khan, an undergraduate neuroscience student who was accused of sexually assaulting a classmate in her dormitory nearly eight years ago.

 

Khan’s case, which alleged Title IX violations by the university and also targeted his accuser, took a circuitous path through federal and state courts. The Connecticut Supreme Court ruling addressed Khan’s right to sue his accuser for defamation and “tortious interference with business relations” in connection with statements she made during a university hearing.

 

The court’s ruling that Khan’s accuser does not have absolute immunity from a lawsuit over the allegations she made during the hearing could lead other schools to reconsider how they handle similar hearings involving sexual-assault accusations and Title IX allegations.

 

“Because it’s Yale, and Yale always attracts attention, I think this case becomes standard-setting,” Khan’s lawyer, Norm Pattis, told National Review. “It’s an open question what universities will do with it. They’d be wise to heed it, though, because I think a lot of courts are growing suspicious of campus justice.”

 

National Review first wrote about Khan’s case last summer. A Yale spokeswoman did not respond to emails  requesting comment for this story.

 

The Connecticut ruling comes amid a national debate over how schools should handle allegations of sexual assault under Title IX, the federal civil-rights law that bars sex-based discrimination, and over the rights of the accused to defend themselves.

 

To encourage reporting of sexual assaults, Obama-era guidance directed schools to use a preponderance-of-evidence standard — the lowest standard of proof. The guidance also discouraged schools from allowing the parties to cross-examine one another during hearings on the assumption that it could be “traumatic and intimidating” for an alleged victim. Accused students had no right to a live hearing, or to even see the evidence against them.

 

During the Trump administration, former secretary of education Betsy DeVos pushed back, issuing more balanced regulations, including innocent-until-proven-guilty standards and basic due-process rights. The Biden administration has proposed rolling back those protections.

 

Khan’s case dates back to 2015, when he was accused of raping a drunk student in her dorm on Halloween night. Khan said the sex was consensual. He was arrested and Yale suspended him.

 

Khan was ostracized and became a campus pariah. One online petition collected the signatures from more than 70,000 people urging Yale not to readmit him. He said he faced regular threats and complaints from people who didn’t believe he should be allowed on campus.

 

Khan claimed that his accuser sought to wrap him up in the then-growing Me-Too movement.

 

“Jane Doe was ashamed at having a one-night stand, and so in order to assuage her feelings, her reputation, and so on, to reconcile that with her behavior, she instead put the onus on me,” Khan told National Review. “She essentially destroyed my career and everything I hold dear just to protect something small of her own.”

 

Attempts by National Review to reach Jane Doe’s lawyer were not successful.

 

Khan was eventually acquitted in court and he returned to Yale in 2018. But Yale suspended him again and held a disciplinary hearing after new allegations arose in the school newspaper.

 

During the hearing, Khan’s accuser, who had since graduated, provided a statement via a teleconference, but she did not testify under oath or provide a sworn statement, according to the court ruling. Neither Khan nor Pattis was allowed to question the accuser or any other witnesses, or raise objections. They were not allowed to introduce evidence — security-camera footage, messaging logs, DNA evidence — that Khan says would have exonerated him. The hearing panel refused to record the proceedings or to provide a transcript, limiting Khan’s ability to appeal its ruling, which lead to his expulsion.

 

As part of his lawsuit, filed in federal court, Khan claimed that his accuser had made false claims during the disciplinary hearing. Her lawyers argued that Yale’s hearing was quasi-judicial, and she was protected with absolute immunity as she would be in a real court hearing.

 

“And we say, ‘No, no, no, no, this wasn’t a court, it was a kangaroo court,” said Pattis, who also defended conspiracy theorist Alex Jones in his defamation trial last year. “There was no cross-examination, no right to counsel, no recording, no right to demand witnesses.”

 

A district court sided with Khan’s accuser. Khan and Pattis appealed. The Second Circuit Court of Appeals asked the Connecticut supreme court to weigh in on the state-based-immunity issues. The court ruled in Khan’s favor, writing that, “The collective absence of certain features during the proceeding led this court to conclude that the proceeding did not have adequate safeguards to ensure reliability and promote fundamental fairness.”

 

The justices wrote that they are mindful of concerns about sexual assault on campus, and “sensitive to the need to encourage alleged victims of sexual assault to report their abuse . . . free from fear of intimidation and retribution.” But they also recognize that, “Those accused of crimes, especially as serious a crime as sexual assault, are entitled to fundamental fairness before being labeled a sexual predator,” according to the ruling.

 

Opponents of the ruling called it “terrible” and said that it might lead college leaders to “panic.”

 

“The court, comprised of five men and just two women, will chill reporting of campus sexual assault in Connecticut and perhaps beyond,” Michele Dauber, a Stanford Law School professor told the legal news service Law360.

 

Anne M. Coughlin, a University of Virginia School of Law professor, called it “astonishing.”

 

“The very thing the court singles out as flaws . . . are the very reforms that people wanted to put in place in order to encourage women to report in the university setting” she told Law360.

 

Pattis said the unanimous ruling from the top court in a blue state was “pretty stinging,” and while other courts will not be bound by it, they will likely consider it in future cases.

 

“I think it’s persuasive authority for other courts contemplating how much process is due in campus sex-dispute cases,” he said. “Nobody is going to look at the Connecticut Supreme Court and say, ‘We have to do this because Connecticut did.’ But what they are going to see is, here’s a thoughtful court who wrote a long and thoughtful decision, and you know what, this makes sense.”

 

The Associated Press wrote that the ruling “could be a major precedent” cited by other accused students questioning the fairness of their schools’ disciplinary hearings.

 

“It was striking to me how detailed they were in criticizing the fairness of Yale’s procedures,” K. C. Johnson, a Brooklyn College history professor, told the AP. “There are passages from this opinion that I suspect will be quoted in basically every accused student’s brief moving forward.”

 

Courts have been divided over due-process rights in college disciplinary hearings involving sexual assault, including whether cross-examination is required. The Connecticut court’s ruling is in line with a 2018 Sixth Circuit ruling that said school officials have to give accused students the opportunity to cross-examine witnesses.

 

“I think there is a gathering consensus that the means by which campuses are resolving sex-dispute cases is infirm, and perhaps fatally so,” Pattis said.

 

Khan said Yale had no interest in finding the truth, but instead discarded him because he had become problematic to the school. He said he was branded with a “scarlet letter,” even though he claims he did nothing wrong. His business ventures crumbled, he said, and “I am one Google away from losing every new friend I make. People just don’t want to associate with me.”

 

He said that school leaders are learning that by not affording accused students due process in discipline hearings, anyone participating in the hearing is opened to legal risk. “It’s not just the complainants that are at risk,” Khan said, “everybody involved is.”

 

Colleges and universities are “scrambling to fix their processes because if a Saif Khan comes down upon them, they’re in for a lot of money,” he said, “and not every college can be like Yale to afford a ton of money being thrown out the window every year.”

 

Khan described himself as a “man with a big mission” to fix parts of the legal system he deems unfair. In addition to fighting for due-process rights, he said he also wants to challenge the ability of sexual-assault accusers to file complaints under pseudonyms.

 

“My name is out there. My name is fully out there,” he said. “I think we should get rid of this taboo related to sexual-assault allegations. Just sue under a real name, and sue the defendant under their real name.”

 

“I think the Band-Aid needs to be ripped off.”