Challenging the Absolute Privilege of Accuser’s Allegations in High School Sex Misconduct Investigation

If Alice accuses Bob of some misconduct (sexual or otherwise) in a statement to a third party, Bob can sue Alice for defamation. He would have to show that the statement is false, and generally speaking that Alice was at least negligent in making that allegation. But if he does show this, he would generally be able to prevail.

If Alice makes the accusation in some context where she is protecting some legitimate interest of her own or of the third party—for instance, the third party is Alice and Bob’s employer—then she might be protected by a “qualified privilege.” To oversimplify slightly, this basically means that she won’t be liable unless she knows the statement is false (or at least likely to be false).

But if Alice makes the statement about Bob in court, then she as a witness is generally absolutely immune from defamation liability. She might still be prosecuted for perjury, if the prosecutor concludes that she deliberately lied. But she needn’t fear a lawsuit from Bob. And the same is true in other “quasi-judicial” proceedings.

What happens, though, with Title IX proceedings, whether in K-12 schools or in colleges? Should complainants and other witnesses be entitled to the absolute privilege, as they are in court? Or should they be entitled only to qualified privilege? (It’s generally accepted that at least a qualified privilege would apply.)

Gonzales v. Hushen, decided Sept. 28 by the Colorado Court of Appeals, in an opinion by Judge Katharine Lum, joined by Judges Jerry Jones and JoAnn Vogt, holds that this depends on whether the Title IX proceedings offer enough procedural protections of the sort available in trials. In this respect, it follows the Connecticut Supreme Court’s recent decision in Khan v. Yale Univ. (which was followed three weeks ago by the Second Circuit in that case, applying Connecticut law). An excerpt:

The court then discussed how the Title IX witnesses may still be protected by the qualified privilege:

Here’s an excerpt of the factual allegations, which the court held were sufficient to allow Gonzales’s defamation claim to go forward (note that the lawsuit is by Gonzales against two classmates and their mothers, based on allegations they made that Gonzales committed sexual harassment):

Carolyn Pelloux represents plaintiff.