Implementing the Cardona Decision for Fall 2021 – What Should Colleges Do Now That the Title IX Suppression Rule is Dead?

An ATIXA Tip of the Week by Brett A. Sokolow, Esq., Chair, TNG Consulting, LLC

Many in the Title IX field watched last week as two different federal courts denied challenges to the validity of the 2020 Title IX regulations under the Administrative Procedure Act (APA). The regulations survived these challenges, having previously fended off three other such lawsuits. Controlling precedent requires courts to be deferential to agency rulemaking, so these results are not unexpected.

Yet, in VRLC et al v. Cardona, one federal judge in Massachusetts decided that OCR failed to justify one section of one rule within the regulations and declared it unlawful, while upholding all other provisions. The invalid rule was remanded to OCR for response. This week, the order issued by the court made it clear that the provision is vacated (an order of vacatur), meaning that OCR cannot enforce the provision and it is therefore effectively struck from the regulations.

Most observers expect OCR to announce that it will not defend or enforce the provision in the near future. That leaves colleges and universities free to remove the provision from their policies and procedures, after consultation with legal counsel, if they so choose. The provision is not operative on K-12 schools and districts; thus, this ruling only affects post-secondary education. The effect is nationwide, not just in Massachusetts.

The vacated provision is located in §106.45(b)(6)(i) of the regulations. The court only vacated a portion of the section. The relevant provision 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.

This sentence is the so-called “suppression provision,” which created a dynamic for almost a year (beginning Aug. 14, 2020) that required a witness or party to be willing to submit to cross-examination — meaning being willing to answer all relevant questions posed to them by an advisor — at the Title IX hearing in order for any statement of that witness or party to be relied upon by the decision-maker in reaching a final determination. If the party or witness refused to testify on cross-examination, none of their previous statements to investigators, or to third-parties, or any other statements they made at the hearing could be relied upon. Hence, their testimony was suppressed, and no inference could be drawn solely from that failure to testify. This provision does not apply to direct examination, as in questions posed by the panel or decision-maker, or by an advisor to their own advisee.

According to OCR, it was an all-or-nothing rule, which made it susceptible to being vacated. There is no parallel for this approach in either civil or criminal proceedings. The rule was draconian, and near-universally despised by college and university administrators for its cynical effect. If a respondent answered 50 questions during an investigation, and 50 more at the hearing, but then refused to answer question 51 during cross-examination, the rule required all 100 previous answers to be struck and not relied upon. Perhaps a rule that struck only the statement about which the witness or party refused to testify would have been narrowly tailored enough to pass muster with Judge Young, but a rule this broad was not adequately justified by the explanations provided by OCR in the preamble to the regulations.

Now the provision is vacated, and while OCR could still try to justify it, it will remain vacated until Judge Young lifts the order, or there is a successful appeal. We don’t sense this is a rule that the current OCR is eager to preserve. While the law of vacatur can be a bit murky, the general consensus is that the vacated provision doesn’t mean institutions can’t use the provision, but that OCR can’t enforce it if institutions choose not to do so. The judge ruled that OCR unlawfully promulgated the rule, not that it is unlawful for colleges to use the rule. There is no automatic effect of this vacatur on college codes or procedures unless college officials elect to make a change. There was no need for the court to impose a nationwide injunction because OCR is the only entity that can enforce the provision, and vacatur means there is no provision left to enforce.

While we know that most institutions will await further OCR guidance before acting, ATIXA sincerely hopes institutions will immediately choose not to use this provision and will rewrite their Title IX procedures term to remove the suppression requirement contained in the quoted provision above in time for the start of the fall 2021 term. We have already advised clients that even for complaints now underway, we recommend eliminating the provision, because it is manifestly unfair.

If a respondent admitted during an investigation interview to raping a complainant, they could simply suppress that confession by refusing later to submit to cross-examination at the hearing. It isn’t fair to allow that to happen, and it is not reasonable to require a decision-maker to ignore the confession once it is in the record. Similarly, if a complainant admitted to investigators that they had made up the complaint, that testimony could be suppressed simply by the complainant refusing to testify at the hearing. That’s not fair either. Worse, the rule created an incentive for a party to a complaint to try to intimidate the other party from attending the hearing, knowing that the outcome would be suppression of all the non-attending party’s prior statements. It also created an incentive for a party’s advisor to try to intimidate a party or witness into silence through badgering cross-examination during the hearing.

The rule was so draconian that even the investigator could not testify to what the party told them at the hearing, because the investigator was not the source of the statement. And, even if the confession described in the example above was made in front of a third-party at the time of the incident, that third-party’s testimony was not enough for the statement to come into evidence, if the party who made the statement caused its suppression by refusing to be subject to cross-examination at the hearing. A confession like that would be admissible in most courtrooms in America, but not under the Title IX regulations.

Statements made by a police detective and included in the police report could not be relied upon in the Title IX hearing unless the police detective attended the hearing and submitted to cross-examination, which is a rare occurrence. Statements made to the police detective by the parties could not be testified to by the police detective at the hearing unless the parties attended the hearing and were willing to submit to cross-examination, themselves.

If a Sexual Assault Nurse Examiner (SANE) made observations about an alleged victim of sexual assault at the hospital, those observations would not be admissible unless the SANE attended the hearing and answered every question asked during cross-examination. A therapist could not testify to what their client told them in a clinical counseling session, with permission of the client, if the client did not submit to cross-examination at the hearing, even if the therapist did. For any respondent whose complainant dropped out of college, became hospitalized with mental health issues, or committed suicide, the respondent was virtually guaranteed to be found “not responsible” as a result of a hearing where there was no testimony from the alleged victim. That OCR could ever have enacted such a rule speaks volumes about why we need Congress to protect Title IX from the vicissitudes of politics and the ping-pong effect of new regulations every time there is a national election.

I could go on about the manifest absurdity of this rule, but instead I will just celebrate its demise as we all work to create fairer Title IX policies and procedures for all. If you shift your procedures in advance of the fall semester, decision-makers need to be re-trained and updated. They need to understand that suppression is no longer appropriate, but they also need to understand that if someone does not show up at the hearing or attends but refuses to answer some or all questions, their credibility may be in question, and the value of their evidence may be diminished as a result.

As a result of the vacatur, the evidence in the investigation report will always be admissible if relevant, regardless of who does or does not attend the hearing. How much weight that evidence is given can be impacted by testimony at the hearing, or the lack thereof. No one has to participate in a hearing, and parties and witnesses can choose not to attend, or not to answer (some or all) questions. In hearings where the parties or witnesses let their statements to the investigators stand on their own, and they give no testimony at the hearing, the decision-makers will weigh whatever evidence is provided.

Advisors to parties must be scrambling to consider the effect of this change, but I frequently serve as an advisor and as a decision-maker. If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.

It is unclear whether this vacatur of the provision could have retroactive effect, but that question may also be litigated in the future.

Contact us at inquiry@tngconsulting.com to learn more about how ATIXA and TNG can support you.