New Guidance Impacting Cross-Examination in Title IX Hearings

On August 24, 2021, the Department of Education issued new Title IX guidance that addressed a lingering issue created by the Department’s 2020 Title IX regulations. Specifically, confusion arose from that portion of the regulations prohibiting Title IX decisionmakers from relying upon any “statement” made by parties who were not subjected to cross-examination during the disciplinary hearing.  That regulation, in relevant part, states: “If 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[.]” 34 C.F.R. § 106.45(b)(6)(i).

Because the 2020 regulations make clear that parties and witnesses cannot be compelled to participate in any such hearing, this provision potentially allowed a party who during the investigation process made admissions of potential culpability, or the potential absence of responsibility, to block consideration of those admissions by choosing not to submit to cross-examination. Since text exchanges, e-mails, statements provided to campus safety officials or healthcare providers, and similar pre-hearing statements are often key pieces of evidence, this provision clearly impacted the manner in which the hearings proceeded.

In a July 28 decision, Judge William G. Young of the District of Massachusetts declared this prohibition arbitrary and capricious, and remanded the matter to the Department for further consideration. See Victim Rights Law Center v. Cardona, Civil Action No. 20-cv-11104 (D. Mass. July 28, 2021).

The Department has, in response, issued new guidance, as of August 24, 2021. In that guidance the Department announced it will immediately cease enforcing the prohibition on considering statements made by witnesses or parties who do not subject themselves to cross-examination.  

Key takeaways include:

  1. Institutions may (but are not required to) modify policies in light of the new guidance.
  2. Public institutions in particular, however, are cautioned that they may expect continued due process challenges in the event they roll back perceived due process protections, such as the opportunity for cross-examination.
  3. Institutions electing to permit decisionmakers to consider statements not subject to cross-examination should consider the following:
    1. What weight should be given to such statements? Institutions are well advised to answer this question sooner rather than later, instruct their decisionmakers accordingly, and ensure that, through policy revisions and otherwise, parties are informed how the decisionmakers may weigh and consider such statements.
    2. As the Department noted, Judge Young otherwise left intact the balance of 34 C.F.R. § 106.45(b)(6)(i), including the prohibition against decisionmakers “draw[ing] an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.” 34 C.F.R. § 106.45(b)(6)(i).
    3. In instances where parties decline to submit to cross-examination but their statements are nonetheless considered, decisionmakers must take care that their written decisions make clear that no such adverse inference from the party’s failure to testify has been drawn. In this regard, the Department’s July 20, 2021 Questions and Answers, found here, provide helpful guidance. In particular, consider Answer 51 at page 26, which states that decisionmakers “may not draw any inference from a decision of a party or witness not to participate at the hearing, including not to submit to cross-examination. This means, for example, that the decision-maker may not make any decisions about a party’s credibility based on their decision not to participate in a hearing or submit to cross-examination.”
  4. Another practical effect of the new guidance may be to significantly reduce the prevalence of cross-examination in Title IX proceedings going forward, because the provision that arguably served to compel parties to subject themselves to cross-examination, lest any of their favorable statements be disregarded by the decisionmaker, will no longer be in play should institutions amend their policies. Parties may now perceive little or no downside to declining to submit to cross-examination, at least at those institutions which decide to modify their policies in response to the Department’s August 24 guidance.
  5. Finally, and in the long term perhaps most significantly, the Department reiterated that it is in the process of undertaking a comprehensive review of the 2020 Title IX regulations, and anticipates publishing a notice of proposed rulemaking to amend those regulations. There is little doubt that the Biden administration is likely to take a different tack from the Trump administration in the Title IX area—but the course that tack follows is yet to be determined.

The full text of the Department’s August 24, 2021 guidance is available here. Ward Greenberg continues to monitor the ever-changing Title IX landscape for its higher education clients.

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If you have questions concerning this topic or would like to discuss in further detail, please contact the authors Joshua Agins or Thomas D'Antonio.

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