Defining “Quasi‑Judicial” Without Due Process Minimums: Absolute Privilege Applies to Statements in Public School Title IX Proceedings (Hushen v. Gonzales, 2025 CO 37)

Defining “Quasi‑Judicial” Without Due Process Minimums: Absolute Privilege Applies to Statements in Public School Title IX Proceedings

Commentary on Hushen v. Gonzales, 2025 CO 37 (Colo. June 9, 2025)

Introduction

In a unanimous, en banc opinion authored by Justice Hart, the Colorado Supreme Court in Hushen v. Gonzales, 2025 CO 37, resolved an important and recurring question at the intersection of school Title IX processes, defamation torts, and privileges protecting participation in official proceedings. The Court held that a public school district’s formal Title IX investigation is a quasi-judicial proceeding for purposes of Colorado’s common-law absolute privilege. As a result, statements made during such a proceeding are absolutely privileged and cannot serve as the basis for civil tort liability, such as defamation or intentional infliction of emotional distress.

The Court used the case as an occasion to clarify a core doctrinal point: the inquiry into whether a proceeding is “quasi-judicial” is analytically distinct from, and substantially simpler than, the separate constitutional question whether the proceeding afforded adequate due process. The Court reaffirmed that 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. No additional procedural safeguards—such as hearings, oaths, cross-examination, or counsel—are prerequisites to quasi-judicial status. Whether those (or other) safeguards are constitutionally required is a different question for a different lawsuit.

This ruling reverses the Colorado Court of Appeals, which had imposed an elevated, procedure-rich standard to qualify for absolute privilege. It also harmonizes disparate lines of precedent and curtails a trend that threatened to chill reporting of sexual harassment in schools and other administrative processes designed to address misconduct.

Background and Procedural Posture

The case arises from allegations by students Ashley Hushen and Alexandra Weary (and two others) that their classmate, Benjamin Gonzales, sexually harassed them at Evergreen High School, part of the Jefferson County School District. The District commenced a Title IX investigation. In the first phase (Fall 2018), the District suspended Gonzales for three days and ultimately found a policy violation by a preponderance of the evidence. Prosecutors also filed juvenile charges for unlawful sexual contact; Gonzales was acquitted at a December 2019 trial, and his records were later expunged.

In 2020, after concerns circulated about Gonzales potentially returning to the school, the District rescinded its initial Title IX finding and reopened its investigation. The renewed process considered additional materials, including witness interviews and trial and forensic transcripts. On July 8, 2020, the District concluded that the evidence did not support a policy violation. By then, the students had graduated.

Approximately a year later, Gonzales sued Ashley, Alexandra, and their mothers (Julie Hushen and Nicole Weary), asserting defamation and intentional infliction of emotional distress based on statements made during the District’s Title IX process. The defendants moved to dismiss under Colorado’s anti-SLAPP statute, section 13-20-1101, arguing that their statements were absolutely privileged because the Title IX proceeding was quasi-judicial. The district court partially denied the motion, finding the Title IX process was not quasi-judicial due to procedural shortcomings; a division of the court of appeals affirmed, layering onto the quasi-judicial inquiry a set of procedural preconditions (e.g., hearings, cross-examination, oaths, robust participation by counsel).

The Supreme Court granted certiorari on one question: whether absolute privilege applies to statements made in connection with a public school district’s formal Title IX investigation. It reversed.

Summary of the Opinion

The Court held that the District’s Title IX proceeding was quasi-judicial because it determined the rights and obligations of specific individuals by applying preexisting policies to past and present facts. Under long-settled Colorado law, that is the “uncomplicated and well-defined” test. The Court rejected the appellate division’s effort to graft additional procedural requirements onto the definition of “quasi-judicial” for purposes of absolute privilege. Concerns about reliability, fairness, and the risk of malicious falsehoods are addressed through due process challenges or internal disciplinary regimes, not by redrawing the threshold definition of quasi-judicial proceedings. Accordingly, statements made during the Title IX proceeding are protected by absolute privilege and cannot be used to impose civil tort liability on the speakers. The case was remanded for further proceedings consistent with this holding.

Detailed Analysis

1) Precedents Cited and Their Role in the Decision

  • Cherry Hills Resort Dev. Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo. 1988): Cherry Hills is the keystone. It defines a quasi-judicial proceeding as one that determines the rights, duties, or obligations of specific individuals through application of preexisting legal standards or policy considerations to past or present facts. The Court emphasized that, while a statute or ordinance mandating certain procedural safeguards is a “clear signal” of quasi-judicial character, such safeguards are not required to confer that status. Hushen reaffirms Cherry Hills and its core two-part test.
  • Widder v. Durango School District No. 9-R, 85 P.3d 518 (Colo. 2004): Widder rejected the notion that a proceeding can be deemed quasi-judicial only if notice and a hearing are legally mandated. It clarified that references to “process” in Cherry Hills speak to the application of existing standards to facts—not to any checklist of procedural features. Hushen relies on Widder to reinforce that quasi-judicial classification does not hinge on the presence of particular procedural trappings.
  • Hoffler v. Colorado Department of Corrections, 27 P.3d 371 (Colo. 2001): In Hoffler, a DOC disciplinary process—replete with adversarial safeguards—was held quasi-judicial, and statements made there were privileged. The court of appeals in Hushen treated Hoffler’s procedural robustness as determinative. The Supreme Court corrects that reading: Hoffler’s safeguards were evidence of quasi-judicial character, not prerequisites. Hushen clarifies that Hoffler did not create an implied minimum-procedure rule.
  • Snyder v. City of Lakewood, 542 P.2d 371 (Colo. 1975): Snyder suggested that quasi-judicial status might depend on a statute or ordinance requiring a decision subject to specific procedures. Cherry Hills rejected that reading, and Hushen reiterates that the definition does not require such legal indicia.
  • Stepanek v. Delta County, 940 P.2d 364 (Colo. 1997): Stepanek illustrates a key policy of absolute privilege: protecting participants from tort suits while leaving intact other accountability mechanisms. There, an attorney’s absolute immunity in tort did not preclude professional discipline. Hushen analogizes: students who lie in a Title IX process remain subject to school discipline; the process itself remains subject to due process review.
  • Churchill v. University of Colorado at Boulder, 2012 CO 54, 285 P.3d 986: Churchill applied federal absolute immunity under 42 U.S.C. § 1983 and did not turn on Colorado’s Cherry Hills framework. The court of appeals’ reliance on Churchill to support a heightened quasi-judicial test was misplaced because Churchill is a federal immunity case with a different doctrinal backdrop. Hushen disentangles those lines of authority.

2) The Court’s Legal Reasoning

The opinion’s central move is to separate two questions that had become conflated in the lower courts: (a) whether a proceeding is quasi-judicial (a threshold, categorical classification) and (b) whether the proceeding, as designed or conducted, provided adequate due process (a merits-laden constitutional inquiry).

The Court reaffirms the Cherry Hills/Widder framework and articulates a succinct two-part test:

  • Does the proceeding determine the interests, rights, or duties of specific individuals?
  • Does it do so by applying existing law or policy to past or present facts?

If yes, the proceeding is quasi-judicial—full stop. Due process adequacy is a separate issue. The Court cautioned that importing procedural adequacy factors into the quasi-judicial definition would generate inconsistent, case-by-case thresholds (e.g., for Title IX, attorney discipline, or employee discipline), burdening courts with a “cumbersome, heavily litigated threshold question” and risking chilled participation in important remedial processes.

Applying the test, the Court found the District’s Title IX proceeding plainly concerned the rights and obligations of specific individuals (Gonzales and the complainant students) and applied preexisting District policies (adopted pursuant to Title IX obligations) to reported facts. It was therefore quasi-judicial. The fact that the District did not consistently follow its published procedures, or that its process lacked features typically associated with courts (formal hearing, live testimony, cross-examination), is irrelevant to the quasi-judicial classification. Those concerns go to due process, not quasi-judicial status.

Why preserve absolute privilege here? The Court underscored the policy that participants must be able to speak candidly in quasi-judicial processes without fear of retaliatory tort suits. That protection is structural: it shields the integrity of the process itself. Meanwhile, accountability for falsehoods is maintained through internal systems (e.g., school discipline, professional rules) and external constitutional review (e.g., due process/Title IX suits). Indeed, the opinion notes that Gonzales separately filed a federal lawsuit alleging due process and Title IX violations—precisely the forum for those complaints.

3) Impact and Implications

Hushen has significant doctrinal, practical, and policy effects across Colorado:

  • Clear, uniform test for quasi-judicial status: Courts will no longer demand case-specific procedural prerequisites to classify a proceeding as quasi-judicial. The two-part Cherry Hills/Widder test governs, promoting predictability and limiting collateral litigation over “threshold” labels.
  • Absolute privilege in public school Title IX processes: Statements made “during” a public school district’s formal Title IX investigation are absolutely privileged against tort claims such as defamation or IIED. This is likely to promote reporting and participation, mitigating chilling effects that arise from threatened retaliatory lawsuits.
  • Preservation of due process avenues: The decision does not insulate flawed processes from challenge. Parties alleging unfairness can pursue due process claims (e.g., under § 1983) and Title IX claims against institutions. The remedy for a broken process targets the process or the institution—not individual participants through tort suits.
  • Broader reach to analogous proceedings: The reasoning naturally applies to other governmental proceedings where specific individuals’ rights are adjudicated under existing standards: employee discipline in public agencies, attorney regulation, professional licensing, and similar administrative determinations. Statements made within those processes are similarly protected by absolute privilege in tort.
  • Anti-SLAPP practice: In anti-SLAPP motions, defendants can more readily establish that their statements were made in an “official proceeding authorized by law” and invoke absolute privilege when the two-part test is met. Trial courts must focus on whether the statements occurred “during” the quasi-judicial proceeding; communications outside that scope may remain actionable, subject to other defenses.
  • Boundary questions left for remand: The Supreme Court held that statements made during the District’s Title IX proceeding are privileged; the trial court on remand must determine which of Gonzales’s complained-of statements fall within the proceeding’s scope. Emails or statements to school officials may be covered if they were part of the formal process; statements to third parties or on social media likely are not.
  • No “split definition” of quasi-judicial: The Court rejected having one definition for C.R.C.P. 106(a)(4) reviewability and a narrower one for absolute privilege. Colorado maintains a single, consistent definition.

Complex Concepts Simplified

  • Quasi-judicial proceeding: A government body’s process that decides the rights or obligations of specific people by applying existing policies or laws to facts. It does not need to look like a courtroom trial or include hearings, oaths, or cross-examination to qualify.
  • Absolute privilege (in tort): A complete bar to civil liability for statements made by participants in a judicial or quasi-judicial proceeding. It protects the content of statements from serving as the basis for tort suits like defamation. It does not excuse lying to authorities under other rules or eliminate institutional discipline.
  • Absolute immunity (distinct from privilege): Broader protection from suit not only for statements but also for a range of conduct. Hushen focuses on absolute privilege for statements, not absolute immunity for actions.
  • Due process: Constitutional guarantees that government will not deprive a person of life, liberty, or property without adequate notice, an opportunity to be heard, and a fair procedure. Whether due process was provided is a separate legal question from whether a proceeding is quasi-judicial.
  • C.R.C.P. 106(a)(4): A rule allowing judicial review of certain governmental decisions that are quasi-judicial in nature. The same quasi-judicial test applied in Hushen is the test used for 106(a)(4) reviewability.
  • Anti-SLAPP statute (section 13-20-1101): A Colorado statute enabling early dismissal of suits aimed at chilling participation in matters of public significance or official proceedings authorized by law. Whether absolute privilege applies can be dispositive at the anti-SLAPP stage.
  • Title IX school investigations: Processes conducted by schools receiving federal funds to address sex-based discrimination, including sexual harassment. Public school districts’ Title IX grievance procedures are “official proceedings authorized by law” and, under Hushen, are quasi-judicial for privilege purposes.

Key Points of Clarification and Guidance

  • No procedural minimums for quasi-judicial status: Courts should resist importing criteria like formal hearings, oaths, cross-examination, or counsel rights into the quasi-judicial definition. Those may be relevant to due process adequacy, but not to the threshold classification.
  • Scope matters: Absolute privilege protects statements “made during” the proceeding. Parties should be attentive to whether communications are part of the official investigative/grievance process (e.g., statements to Title IX coordinators, investigators, decision panels) versus separate, informal, or public statements.
  • Remedies for dishonesty remain: Participants who lie in quasi-judicial proceedings may face institutional discipline, professional sanctions, or criminal penalties where applicable. The privilege forecloses tort claims premised on the content of the statements, not accountability within the system.
  • Due process claims are preserved: Individuals who believe the proceeding was unfair can sue the governmental entity (e.g., under § 1983 or Title IX) challenging the process itself, as Gonzales did separately. Absolute privilege does not shield the government from constitutional scrutiny.

Conclusion

Hushen v. Gonzales restores doctrinal clarity to Colorado’s law on quasi-judicial proceedings and privileges. Reaffirming Cherry Hills and Widder, the Court decouples the threshold question of quasi-judicial status from the complex, context-specific inquiry into due process adequacy. In doing so, it rejects an escalating procedural bar that threatened to chill participation in vital administrative processes, notably public school Title IX investigations. The opinion ensures that students and other participants may report and testify within those proceedings without fear of retaliatory tort suits, while preserving robust avenues to challenge flawed procedures and to sanction dishonesty within the system.

The takeaway is both simple and significant: if a governmental proceeding determines the rights or duties of specific individuals by applying existing policies or laws to facts, it is quasi-judicial. Statements made within that proceeding are absolutely privileged in tort. Questions about whether the proceeding was fair belong in due process litigation—not in redefining “quasi-judicial” or in tort suits against participants. This will reverberate well beyond schools, fortifying the integrity and accessibility of administrative adjudication across Colorado.

Case Information

Case: Hushen v. Gonzales, 2025 CO 37, No. 23SC818 (Colo. Jun. 9, 2025) — Colorado Supreme Court (en banc), Justice Hart delivering the opinion; Chief Justice Márquez and Justices Boatright, Hood, Gabriel, Samour, and Berkenkotter joining.

Case Details

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