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Postsecondary Title IX Decision-Makers No Longer Prohibited From Considering Statements By Parties Or Witnesses Not Subject To Cross-Examination

Aug 25, 2021

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The Department of Education, Office for Civil Rights (the “Department”), in an August 24, 2021 letter, stated that a Title IX Decision-Maker (Hearing Office) may now consider statements made by a party or witness even if that party or witness did not participate in cross-examination during the live hearing. The Department further stated that it will immediately cease enforcement of the provision in the 2020 Title IX amendments, 34 C.F.R. section 106.45(b)(6)(i), that prohibited considerations of any such statements by the Decision-Maker in making a determination of responsibility.

The provision at issue states, in relevant part, “If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statements of that party or witness in reaching a determination regarding responsibility…”. The Department’s change relies on a July 28, 2021, decision by a Massachusetts federal district court judge upholding from challenge most of the 2020 Title IX amendments but vacating the amendment prohibiting Decision-Maker from considering relevant statements of an individual solely because that individual did not participate in cross-examination as arbitrary and capricious.  Victims Rights Law Center et al. v. Cardona (July 28, 2021). The judge remanded this amendment back to the Department for further consideration. On August 10, 2021, the judge clarified that the decision is to be applied nationally.

As an example of the impact of this decision, the Department’s letter states, “[A] decision-maker at a postsecondary institution 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 statement about the alleged sexual harassment that satisfy the regulation’s relevance rules, regardless of whether the parties or witnesses submit to cross-examination at the live hearing.”

Postsecondary institutions may need to revise their Title IX procedures based upon the court’s decision and the Department’s position. We will continue to monitor the Victims Rights Law Center case and any additional Department of Education guidance.

Please contact your Robbins Schwartz attorney with any questions.