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:
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.