Under the new Biden administration, the future feasibility of OCR’s all-or-nothing stance on cross-examination will be examined – if not by OCR itself, then likely by the federal courts. And it’s important for practitioners to understand the difference between what the Title IX Regulations say, and what the Department of Education and OCR say they say.
As mentioned above, OCR clarified its all-or-nothing stance on cross-examination to many of us on August 13, the day before the 2020 Title IX Regs went into effect. It had perplexed many of us to read OCR’s position that a party’s or witness’s refusal to answer a single relevant cross-examination question is met with the eradication of all of their previous statements and testimony.
The Regulations do not speak to this specific issue with detailed clarity; they simply state that, “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…” See §106.45(b)(6)(i).
It was an OPEN Center email answer sent to the Association of Title IX Administrators (ATIXA) that provided clarity on OCR’s position on this matter. It read, in relevant part:
A party or witness must answer all relevant cross-examination questions in order for the party’s or witness’s statements to be relied upon by the decision-maker; thus, refusal by a party or witness to answer one relevant cross-examination will trigger the Rule’s prohibition against the decision-maker relying on that party’s or witness’s statements in reaching a determination regarding responsibility. See Preamble to the Rule at p. 1183 (“For similar reasons, the Department declines to allow a party or witness to ‘waive’ a question because such a rule would circumvent the benefits and purposes of cross-examination as a truth-seeking tool for postsecondary institutions’ Title IX adjudications.) See ATIXA’s OCR OPEN Center Response Repository.
As an Affiliated Consultant with TNG, I spent much of that day discussing with my colleagues our questions and concerns regarding OCR’s strict interpretation of its own Department of Education’s regulations. While the Title IX Regulations themselves have the force and effect of law, their own interpretation of their often unclear Regulations do not. And while OCR cites the aforementioned waiver language in the Preamble, disallowing a party or witness to “waive a question” is not synonymous with rejecting every single statement that party or witness has ever said.
I’m not so sure the courts, or judges, or even the new Biden administration’s OCR will continue to interpret this cross-examination requirement in the Regs to require this strict interpretation of what constitutes a refusal to submit to such.
As I have often said, courts and judges will continue to evaluate the fairness of these Title IX proceedings using the same evaluators as they do in presiding over their own courtrooms and legal processes. It’s one of the main reasons why I believe that, irrespective of the Title IX Regs, cross-examination will continue to be considered by courts across the country as being fundamental for due process.
But this all-or-nothing cross-examination mandate? I’m not so sure how well such an oddity will be respected in the courts.
Imagine a criminal defendant uttering the motive for their alleged crime to witnesses at the scene, then providing statements to police officers who arrested them, and then making additional statements to detectives during their investigation. Then, at trial, the defendant testifies and answers questions during direct examination, and then answers another few dozen questions under cross-examination. However, at the end of all of this, the defendant ultimately refuses to answer one relevant cross-examination question. Can you imagine a procedural rule that would then force the judge to have every single aforementioned statement made by this defendant now disregarded?
The same would be true for exonerating or exculpatory statements made by a defendant or respondent, as well as impeaching statements that could show ulterior motives of a complainant or witness. With OCR’s approach, we would need to reject this crucial evidence, perhaps allowing a party (or their advisor) to game the system by intentionally having their prior statements disregarded.
A judge would likely find such a procedural rule in the criminal or civil court system unreasonable. And one cannot help but wonder whether a judge will find this similar OCR rule (or “interpretation” of their rule) just the same.
We saw in October what one New York federal judge thought about OCR’s directive issued through a blog post on the issue of retroactivity of the Regs. (See “Judge Halts RPI Sexual Misconduct Hearing”)
Granted that there were other issues at play in that case, but that judge didn’t seem to care what OCR had blogged about. The Regs, as they are written (and often blurry), are the only law that judges must follow. When there is a lack of clarity in the Regs, our judges and courts are likely going to apply their own interpretations of what they believe constitutes due process and fundamental fairness.
And this strict all-or-nothing stance of the previous administration’s OCR is a good candidate to become the first victim of common sense.
In fact, even before the courts and judges get a chance to lend us their interpretation of OCR’s interpretation on this issue, we actually could see the new OCR regime publish guidance that effectively retracts or clarifies the previous OCR’s interpretations of its Department of Education’s own Regs.
In less than a month, the signs are already there that this Biden administration does consider the Title IX situation to be a priority that needs to be addressed.
And with critics on both sides of the Complainant/Respondent aisle claiming the pendulum has swung too far in favor of the other side (to the Complainant side under Obama, and to the Respondent side under Trump), we may just see a more neutral foundation established by this Biden administration. While walking along this middle ground has traditionally been a politically unpopular path, it certainly does allow one a less obstructed view of the intended destination.
Related blog posts for further learning on the topic: