Stephen L. Carter

Last month, a federal court reinstated a former Yale student’s defamation lawsuit against another student, whose accusation of rape led to his dismissal. The ruling has reverberated across academia — and is likely to have implications for other organizations, including private companies.

The case of Khan v. Yale University has traveled a winding road. (Full disclosure: Yale pays my salary.) Testimony given under oath in a courtroom is ordinarily privileged, meaning that the witness can’t be sued for defamation. The trial court dismissed Khan’s lawsuit on the ground that Yale’s tribunal should be treated like a court. On appeal, the Second Circuit asked the Connecticut Supreme Court whether testimony at a university disciplinary hearing was privileged. The justices said no. Thus the Second Circuit’s decision to reinstate the lawsuit could not have come as an entire surprise. What hardly anyone expected was that it would be so sweeping.

The judges quoted the Connecticut Supreme Court, which had concluded that Yale’s tribunal “is not a quasi-judicial proceeding because it lacked a significant number of procedural safeguards — e.g., an oath requirement, cross-examination, the ability to call witnesses, meaningful assistance of counsel, an adequate record for appeal — that in judicial proceedings ensure reliability and promote fundamental fairness.”

Moreover, the Connecticut court explained, part of what makes courts actually, well, courts is that when they decide whether to punish individuals, they’re adjudicating based on laws they themselves didn’t create. By contrast, the tribunal “creates and applies only” the “internal policies” of the university, and therefore “lacks the necessary components of public participation and approval to be considered quasi-judicial.”

In other words, if you want witnesses at disciplinary hearings to be protected from defamation suits, you’ll need to add layers of those “procedural safeguards” that judicial proceedings entail.

Let’s not pretend that this decision won’t affect companies, too. True, for-profit enterprises aren’t covered by the same rules as college campuses, but they might face similar risks. Suppose one employee complains about the conduct of another. The company conducts an internal investigation and winds up dismissing the accused. The Second Circuit’s opinion in Khan might easily be read to support a defamation suit, if the process did not include the sort of procedural safeguards that in the view of judges tend to produce more reliable testimony. (A human resources waiver signed during the onboarding process would provide little protection; college students, too, are in theory aware of the procedures that will govern complaints against them.)

Critics have warned that the prospect of facing defamation suits might silence victims who fear financial ruin. In October, California adopted AB 933, purportedly aimed at protecting those who have been assaulted or harassed from what advocates call “retaliatory” defamation lawsuits. The bill provides that reports of harassment and assault are “privileged,” meaning not subject to defamation claims — more or less the status rejected by the Second Circuit in Khan. But on closer scrutiny, the statute is laced with exceptions. It protects only those survivors who act “without malice” and who had “a reasonable basis to file a complaint” — leaving space to litigate both the basis of the complaint and the motives of the complainant. Its reach is also limited to those who communicate “factual information” — implying that a court of law might inquire into whether the complaint was factual or false.

Yet it would be strange not to include these exceptions. No matter how small the number of false accusations, it will never be zero. The trouble is that most of the tools we create to protect the innocent make it less likely those who’ve genuinely been harmed will come forward. In this sense, we face a balancing not of right versus wrong but of right versus right. The trade-offs will always be agonizing.

The human mind will never devise a perfect technology of justice. If we try to punish all the guilty, the cost will be punishing some innocents along the way. If we try to protect all the innocents, the cost will be allowing some of the guilty to escape. Ordinary due process values lean toward protecting the innocent; most campus hearing procedures lean toward catching the guilty.

Whichever approach you prefer, let’s at least agree that our imperfect technology can be improved. As the Second Circuit makes clear, the problem in the Khan case wasn’t that Yale didn’t adopt all of the procedural guarantees that help assure a fair outcome; it’s that Yale didn’t adopt any of them. Perhaps picking just part of the list would help. 

For advocates in the field, cross-examination of the accuser is a non-starter, but there’s no good reason to limit the role of counsel at hearings or to restrict the right of the accused to call witnesses. The accused should have access to every scintilla of evidence that will be being considered by the tribunal. The functions of prosecuting and judging should be rigorously separated, and those involved in making the final decision should be both trained in and experienced at the dispassionate sifting of facts.

Let’s be clear. The Second Circuit didn’t say the plaintiff is innocent, only that he should have his day in court. Meanwhile, I hope that adding a handful of procedural protections will satisfy the judges. On an issue of such importance, it would be progress to find, for once, a middle way.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”