Khan v. Yale University

Decision Date04 March 2022
Docket NumberAugust Term 2021,No. 21-95-cv,21-95-cv
Citation27 F.4th 805
Parties 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, and Jane Doe, Defendant-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Cameron Lee Atkinson (Norman A. Pattis, on the brief), The Pattis Law Firm, LLC, New Haven, CT, for Plaintiff-Appellant.

James M. Sconzo (Brendan N. Gooley, on the brief), Carlton Fields, P.A., Hartford, CT, for Defendant-Appellee.

Before: Livingston, Chief Judge, Kearse, and Raggi, Circuit Judges.

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 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.


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 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

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 inconsistencies 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 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
A. 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 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 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....

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