By Susan D. Friedfel, Monica H. Khetarpal, Joshua D. Whitlock, Carol R. Ashley, Crystal L. Tyler and Laura A. Ahrens, of Jackson Lewis P.C.
The U.S. Department of Education’s Office for Civil Rights has announced that it will immediately cease enforcement of the Title IX regulatory provision prohibiting decision-makers’ reliance on statements not subject to cross-examination at a live hearing.
The announcement was made in a Letter to Students, Educators, and other Stakeholders re Victim Rights Law Center et al. v. Cardona, released on August 24, 2021.
The letter comes after a federal district court in Massachusetts issued an opinion in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104 (D. Mass. July 28, 2021), that found 34 C.F.R. § 106.45(b)(6)(i) (live hearing requirement for the Title IX grievance process at postsecondary institutions only) to be arbitrary and capricious in violation of Section 706(2)(A) of the Administrative Procedure Act. The Court vacated and remanded the case to the Department of Education for further consideration and explanation of that provision. The provision states, “[I]f a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility.”
In response to the district court opinion, the Department stated that it would “immediately cease enforcement of … the prohibition against statements not subject to cross-examination” and that higher education institutions “are no longer subject to” that provision.
The Department further clarified:
In practical terms, a decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.
The Department’s letter does not expressly require institutions to revise their Title IX Sexual Harassment grievance procedures in line with this development. However, the Department’s statement about the practical impact of its position suggests that institutions should remove or replace any portion of their procedures that prohibits reliance on statements not subject to cross-examination. Such statements remain subject to the relevance rules, but now decision-makers have discretion to consider all statements made by parties and witnesses during the investigation, including those found in emails, text messages, police reports, SANE documents, and medical documents.
The Department instructed that any statements in an Office for Civil Rights document, including its Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) and Appendix with sample policies, which include the vacated portion of 34 C.F.R. § 106.45(b)(6)(i), should not be relied upon and will be updated in the coming weeks to reflect the guidance in the August 24 letter.
Meanwhile, the Office for Civil Rights is continuing its comprehensive review of the Department’s current Title IX regulations, orders, guidance, policies, and similar agency actions as outlined in President Joe Biden’s “Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”
