Decoupling Due Process from Quasi‑Judicial Status: Colorado Supreme Court Confirms Absolute Privilege for Statements in Public School Title IX Investigations

Case: Hushen v. Gonzales, 570 P.3d 473, 2025 CO 37 (Colo. June 9, 2025)

Court: Colorado Supreme Court (en banc)

Author: Justice Hart

Introduction

In a significant clarification of Colorado law on quasi-judicial proceedings and evidentiary privilege, the Colorado Supreme Court held that statements made during a public school district’s formal Title IX investigation are absolutely privileged from civil tort liability because such investigations are quasi‑judicial. The Court decisively separated the threshold determination of whether a proceeding is “quasi‑judicial” from the distinct constitutional question of whether that proceeding affords adequate due process.

The case arises from accusations of sexual harassment made by high school students (petitioners Ashley Hushen and Alexandra Weary, joined by their mothers, Julie Hushen and Nicole Weary) and subsequent litigation brought by the accused student, Benjamin Gonzales (respondent), alleging defamation and intentional infliction of emotional distress. The petitioners invoked Colorado’s anti‑SLAPP statute, arguing their statements were absolutely privileged as made in a quasi‑judicial proceeding.

The core issues were:

What qualifies as a “quasi‑judicial” proceeding for purposes of absolute privilege in Colorado?
Whether the procedural adequacy (i.e., due process) of the Title IX process should factor into that quasi‑judicial determination.
Whether a public school district’s Title IX investigation confers absolute privilege on participant statements.

Summary of the Opinion

The Colorado Supreme Court reversed the court of appeals and held:

There is one uniform test for quasi‑judicial status in Colorado: a proceeding is quasi‑judicial if it (1) determines the interests, rights, or duties of specific individuals and (2) applies existing law or policy to past or present facts.
Whether a proceeding affords adequate due process is a separate constitutional question and does not figure into the quasi‑judicial analysis.
The Jefferson County School District’s Title IX investigation into the allegations against Gonzales was quasi‑judicial under this test.
Statements made during that Title IX investigation are protected by absolute privilege and cannot serve as the basis for civil tort claims such as defamation and intentional infliction of emotional distress.
The matter is remanded for further proceedings consistent with this ruling, including determining which communications fall “during” the quasi‑judicial proceeding.

Background and Procedural History

During their junior year at Evergreen High School, students Ashley Hushen and Alexandra Weary reported verbal and physical harassment by fellow student Benjamin Gonzales. Two others also reported misconduct. The Jefferson County School District initiated a Title IX investigation. After an initial phase, the District suspended Gonzales for three days and later found, by a preponderance of evidence, that he violated school policies. Subsequently, the District Attorney charged him in juvenile court with unlawful sexual contact; Gonzales was acquitted, and his records were expunged.

Rumors later circulated that Gonzales might return to Evergreen High School. Parents, including the petitioners’ mothers, emailed administrators with concerns. The District rescinded its prior Title IX finding and reopened the investigation, ultimately concluding there was insufficient evidence of policy violations. By the time the proceedings ended, the students had graduated.

Approximately a year later, Gonzales sued the students and their mothers for defamation and intentional infliction of emotional distress based on statements made during the Title IX process. Petitioners moved to dismiss under the anti‑SLAPP statute, arguing their statements were absolutely privileged because they were made in a quasi‑judicial proceeding. The trial court and the court of appeals disagreed, reasoning that the Title IX process lacked sufficient procedural safeguards to be deemed quasi‑judicial. The Supreme Court granted certiorari to decide whether absolute privilege applies to statements made in a public school’s formal Title IX investigation.

Analysis

Precedents Cited and Their Influence

Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo. 1988).

Cherry Hills provides the foundational definition of “quasi‑judicial” in Colorado: a proceeding is quasi‑judicial when a government body decides the rights/duties of specific individuals through application of existing legal standards or policy to past/present facts.
Cherry Hills stated that a statute or ordinance mandating notice and hearing is a “clear signal” of quasi‑judicial status, but not a prerequisite. The Supreme Court in Hushen leans heavily on this principle to reject the court of appeals’ grafting of additional procedural requirements into the threshold inquiry.

Widder v. Durango School District No. 9‑R, 85 P.3d 518 (Colo. 2004).

Widder confirmed that notice and hearing may indicate quasi‑judicial character but are not the “sine qua non.” The Court in Hushen relies on Widder to reinforce that the “process” aspect of the test refers to applying standards to facts, not to a set of procedural accoutrements akin to court trials.

Hoffler v. Colorado Department of Corrections, 27 P.3d 371 (Colo. 2001).

Hoffler recognized absolute privilege for statements in an employee disciplinary hearing that, by agency design, included robust procedural safeguards (representation, cross‑examination, etc.).
Hushen clarifies that Hoffler’s description of those safeguards was descriptive, not prescriptive. Such safeguards may be evidence of a quasi‑judicial process; they are not required to confer quasi‑judicial status.

Snyder v. City of Lakewood, 542 P.2d 371 (Colo. 1975).

Snyder had suggested a more formal legal mandate was needed for quasi‑judicial status. Cherry Hills explicitly moved away from that suggestion, and Hushen reiterates that course correction.

Churchill v. University of Colorado at Boulder, 2012 CO 54, 285 P.3d 986.

Churchill addressed absolute immunity under federal law (for a § 1983 claim) and did not apply Colorado’s Cherry Hills test. The court of appeals relied on Churchill to impose more stringent safeguards for absolute privilege. Hushen explains this was a mistake: the breadth of “quasi‑judicial” in federal absolute immunity doctrine is different, and Churchill does not narrow Cherry Hills for Colorado’s absolute privilege analysis.

Stepanek v. Delta County, 940 P.2d 364 (Colo. 1997).

Stepanek held that absolute immunity for quasi‑judicial participants does not shield them from discipline within the relevant system (e.g., professional rules). Hushen leverages this principle to emphasize that remedies for falsehoods exist within the proceeding’s own disciplinary or regulatory structures, not via tort suits against participants.

C.R.C.P. 106(a)(4).

Quasi‑judicial decisions are reviewable under Rule 106(a)(4). Hushen reinforces that the same uncomplicated Cherry Hills definition applies both to Rule 106 review and to absolute privilege determinations. Creating a stricter standard for privilege would “split” the definition improperly and lead to inconsistent, burdensome threshold litigation.

Legal Reasoning

The Court’s reasoning proceeds in three steps:

One uniform, narrow test for quasi‑judicial status. The Court reaffirms that the quasi‑judicial inquiry asks only whether (a) the proceeding determines the interests, rights, or duties of specific individuals and (b) the decision applies preexisting legal standards or policies to past or present facts. This is a “relatively easy threshold issue.”
Due process is a separate constitutional question. Adequacy of notice, hearing, cross‑examination, representation, oaths, and other safeguards pertains to due process, not to whether the proceeding is quasi‑judicial. These questions can be—and often are—litigated on their own (e.g., via Rule 106(a)(4) or § 1983), but they do not bear on whether absolute privilege attaches to participant statements.
Application to Title IX proceedings in public schools. The District’s Title IX investigation applied existing school policies to allegations against a named student, adjudicating individual rights and obligations. That suffices for quasi‑judicial status. Even deviations from the District’s own grievance procedures or the lack of court‑like features do not negate quasi‑judicial character; they raise potential due process issues instead. As a result, statements made by participants during the Title IX process are absolutely privileged in subsequent defamation or IIED actions.

The Court emphasizes the policy rationale: absolute privilege in quasi‑judicial settings safeguards candid participation in fact‑finding processes—such as Title IX investigations, attorney regulation, and employee discipline—without fear of retaliatory tort suits. Concerns about “malicious falsehoods,” while real, are addressed through internal disciplinary mechanisms and due process challenges to the proceedings themselves, not through redefining quasi‑judicial status or exposing participants to tort liability.

Impact and Future Implications

Hushen v. Gonzales will have broad practical and doctrinal effects across Colorado:

Title IX in public education (K‑12 and higher ed). Statements by complainants, respondents, and witnesses made during a public institution’s formal Title IX process are absolutely privileged for tort purposes. This reduces the chilling effect on reporting and participation and will likely lead to more early dismissals of defamation claims via anti‑SLAPP motions.
Other quasi‑judicial settings. The clarified test applies to administrative and institutional processes such as public employee discipline, licensing, and attorney regulation. Participants enjoy absolute privilege for statements made “during” those proceedings, even if the process is later alleged to have due process defects.
Litigation strategy shifts. Tort claims premised on statements made within quasi‑judicial processes will face dismissal. Respondents alleging unfairness should focus on due process claims, administrative appeals, and Rule 106(a)(4) review, rather than defamation or IIED.
Anti‑SLAPP integration. Defendants can pair absolute privilege with Colorado’s anti‑SLAPP statute to obtain early dismissal and fee shifting. Plaintiffs will need to segregate any allegedly tortious statements made outside the scope of the proceeding.
Internal accountability remains crucial. Institutions should maintain robust procedures and enforcement tools. The Court underscores that privilege does not shield dishonest participants from discipline under applicable codes (e.g., student conduct policies, professional rules).
Jurisdictional distinctiveness. The opinion declines the court of appeals’ move toward a more procedurally demanding definition of quasi‑judicial (influenced by cases like Khan v. Yale University in Connecticut). Colorado adheres to the Cherry Hills framework without importing heightened safeguards into the threshold test.

Open Questions and Practical Limits

Scope of “during the proceeding.” On remand, lower courts must determine which specific communications were made “during” the Title IX process. Emails or statements outside official channels may fall outside the privilege.
Public versus private institutions. This case concerns a public school district’s process. Whether similar privilege attaches in private institutional investigations may turn on whether the proceeding is an “official proceeding authorized by law” and whether it qualifies as quasi‑judicial under Colorado law; Hushen does not resolve that question.
Due process litigation continues. The Court notes that due process challenges remain available and, indeed, respondent Gonzales pursued federal claims against the District. Hushen does not insulate the process from constitutional review.

Complex Concepts Simplified

Quasi‑judicial proceeding. A government‑run process that decides the rights or duties of specific people by applying existing rules to facts (past or present). Think: a school’s formal Title IX decision about whether a specific student violated policy.
Absolute privilege (vs. absolute immunity). Absolute privilege protects participants from tort liability for their statements made during the proceeding (e.g., defamation). Absolute immunity is broader, protecting participants from suits based on a wider range of conduct. This case concerns absolute privilege for statements.
Due process. Constitutional fairness requirements in government proceedings (notice, opportunity to be heard, impartial decisionmaker, etc.). Whether a proceeding met due process is a separate issue from whether it is quasi‑judicial.
C.R.C.P. 106(a)(4). A Colorado rule allowing judicial review of certain quasi‑judicial decisions by government bodies. The same Cherry Hills definition of quasi‑judicial applies here and in privilege determinations.
Anti‑SLAPP. A statute designed to quickly dismiss lawsuits that chill participation in matters of public significance, including statements in official proceedings. If statements are absolutely privileged, anti‑SLAPP dismissal is typically appropriate.

Application to the Case

Applying its clarified framework, the Court held the District’s Title IX proceeding was quasi‑judicial: it ruled on the obligations of a specific student and applied pre‑existing school policies to a set of alleged facts. As a result, statements made by the petitioners during that investigation are covered by absolute privilege and cannot ground tort claims. The Court remanded for proceedings consistent with this holding, which will require the lower court to determine which communications were, in fact, made within the scope of the Title IX process.

Practice Pointers

For complainants, respondents, and witnesses: Keep communications within official channels of the proceeding. Absolute privilege protects statements made in the process; statements made outside it may not be protected. Be truthful—privilege does not immunize you from school or professional discipline for dishonesty.
For counsel defending defamation/IIED suits: Move early under anti‑SLAPP; show the proceeding is quasi‑judicial under Cherry Hills and that the statements were made during that proceeding. Cite Hushen to foreclose arguments that procedural defects negate quasi‑judicial status.
For counsel alleging unfairness in the proceeding: Focus on due process claims (Rule 106(a)(4), § 1983) rather than tort claims based on participants’ statements. Preserve and develop the record on procedural deficiencies, bias, or deviations from written policy.
For public institutions: Maintain and follow clear grievance procedures. While quasi‑judicial status does not require robust safeguards, due process challenges remain viable. Provide notice, opportunities to be heard, and rational, evidence‑based decisions to minimize constitutional exposure.

Conclusion

Hushen v. Gonzales establishes a clear and administrable rule: in Colorado, a proceeding is quasi‑judicial if it adjudicates the rights or duties of specific individuals by applying existing law or policy to past or present facts. Whether that proceeding satisfies due process is a separate question. By disentangling these inquiries, the Court preserves consistent use of the quasi‑judicial category across contexts and safeguards candid participation in critical institutional processes through absolute privilege, while leaving intact robust avenues to challenge procedurally deficient proceedings.

In practical terms, the decision protects participants in public school Title IX investigations from defamation and IIED liability for statements made during those proceedings, mitigating the chilling effect on reporting and cooperation. At the same time, it directs those who challenge the fairness of such processes toward constitutional and administrative remedies, rather than tort suits against individual participants. This careful balancing will likely shape the litigation landscape for educational, employment, and professional regulatory proceedings throughout Colorado for years to come.