New Title IX Guidance: Postsecondary Institutions CAN Rely On Statements Not Subject to Cross-examination

The Office for Civil Rights (OCR) of the U.S. Department of Education (the “Department”) issued new guidance this week clarifying that it will immediately cease enforcement of the part of 34 C.F.R. § 106.45(b)(6)(i) that prohibits decision-makers from considering statements not subject to cross-examination in the Title IX grievance process.¹ Postsecondary institutions are no longer subject to this portion of the provision.

OCR’s guidance comes on the heels of a July 28, 2021 decision from the U.S. District Court for the District of Massachusetts which held the provision to be arbitrary and capricious, and remanded to the Department for further consideration.² Following its ruling, at the request of the parties, the court issued a second order clarifying that it had vacated and remanded the provision and that its ruling applied nationwide.³ The OCR guidance gives additional certainty to postsecondary institutions that they are no longer subject to the prohibition on considering statements not subject to cross-examination.

The cross-examination provision at issue was part of the new Title IX regulations issued in May 2020, and effective August 14, 2020. (See “U.S. Department of Education Issues Final Title IX Regulations Reflecting Major Changes for Handling Campus Sexual Misconduct” and “No Reprieve: New Title IX Regulations Take Effect as Scheduled.”) One of the biggest changes to the regulations was the requirement that postsecondary institutions include a live hearing with cross-examination as part of the Title IX grievance process. That same provision also prohibited decision-makers from relying on any statement from any party or witness who does not submit to cross-examination at the live hearing in reaching a determination regarding responsibility. 34 C.F.R. § 106.45(b)(6)(i).

The purpose of the cross-examination rule was to ensure that only statements tested for credibility, and which benefited from the “truth-seeking function of cross-examination,” would be considered by the decision-maker in reaching a determination regarding responsibility. “Statements” was interpreted broadly and included not only statements made during a Title IX hearing, but also any statement of the party or witness who does not submit to cross-examination. This included statements made within police reports, Sexual Assault Nurse Examiner (SANE) reports, medical reports, and other documents and records.

Soon after the Title IX regulations were enacted in May 2020, they faced a barrage of legal challenges in different jurisdictions by various stakeholders seeking to enjoin the regulations. Only one of the five legal challenges, Victim Rights Law Center et al. v. Cardona, has achieved any measure of success.⁴ In Victim Rights Law Center, advocacy groups challenged 13 provisions of the Title IX regulations. On July 28, 2021, the court largely ruled in favor of the Department, although it struck down one provision of the regulations – § 106.45(b)(6)(i).⁵

Agreeing with critics who argued that the provision allowed a respondent to “further a disruptive agenda,” the court bluntly described the rule as rendering “the most vital and ultimate hallmark of the investigation — the hearing — a remarkably hollow gesture.”⁶ In the court’s view, under a plain reading of the rule: a respondent could work with his or her school to schedule the live hearing at an inopportune time for third-party witnesses to attend; could elect not to attend the hearing; and could even persuade a witness not to attend the hearing — all while resting easy knowing that the school could not subpoena witnesses to appear.⁷ The hearing would then be reduced to “a hollow exercise” with only testimony by the complainant, who could still be subject to cross-examination by an absent respondent’s advisor, available for consideration. Given the Department’s buildup of the hearing as “the hallmark of the Title IX process, essential to the goals of fact finding, weighing credibility, and a fair grievance process leading to reliable outcomes,” its failure to adequately consider the effect of its prohibition on statements not subject to cross-examination rendered that provision arbitrary and capricious.⁸

According to OCR’s guidance, decision-makers at postsecondary institutions may now consider statements made by the parties and witnesses during the investigation, emails or text exchanges between the parties leading up to the alleged sexual harassment, and statements about the alleged sexual harassment regardless of whether the parties or witnesses submit to cross-examination at the live hearing. A decision-maker at a postsecondary institution may also consider police reports, SANE documents, medical reports and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing.

1. Letter to Students, Educators and Other Stakeholders re Victim Rights Law Center et al. v. Cardona (Aug. 24, 2021).
2. Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021).
3. Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3516475 (D. Mass. Aug. 10, 2021).
4. The other four lawsuits include: Know Your IX et al. v. DeVos et al., 1:20-cv-01224 (D. Md. Oct. 10, 2020) (dismissed Oct. 22, 2020 for lack of standing); Commonwealth of Pennsylvania et al. v. Devos et al., 1:20-cv-01468 (D.D.C. Aug. 12, 2020) (motion for preliminary injunction denied Aug. 12, 2020); State of N.Y. v. U.S. Dep’t of Educ. et al., 1:20-cv-04260 (S.D.N.Y. June 4, 2020) (voluntarily dismissed Nov. 3, 2020); The Women’s Student Union v. U.S. Dep’t of Educ., 3:21-cv-01626 (N.D. Cal. Aug. 5, 2021) (dismissed Aug. 5, 2021, for lack of standing).
5. Victim Rights Law Center v. Cardona, No. CV 20-11104-WGY, 2021 WL 3185743, at *1 (D. Mass. July 28, 2021).
6. Id. at *15.
7. Id.
8. Id. at *16.