Filed Under: Cross Examination
An update on the court ruling about the Department of Education’s Title IX Regulations: The Ruling Vacated a Provision Restricting Post Secondary Schools’ Use of Statements by Parties and Witnesses.
As our nation’s schools welcome back students for the new school year and finalize their nondiscrimination policies and procedures, I write to provide you with an important update regarding the Department of Education’s regulations implementing Title IX of the Education Amendments of 1972, as amended in 2020.
Recently, a federal district court in Massachusetts issued a decision in a case challenging several provisions of the 2020 amendments to the Title IX regulations. While upholding most of the provisions, the court vacated the part of 34 C.F.R. § 106.45(b)(6)(i) that prohibits decision-makers in Title IX proceedings at postsecondary institutions from considering any “statement” from a person who did not submit to cross-examination at the live hearing. The court held that the provision was arbitrary and capricious. In a subsequent order issued on August 10, 2021, the court clarified that its decision applied nationwide.
Specifically, the invalidated part says: “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 provision at 34 C.F.R. § 106.45(b)(6)(i) applies only to postsecondary institutions and does not apply to elementary or secondary schools.
All other provisions in the 2020 amendments, including all other parts of 34 C.F.R. § 106.45(b)(6)(i), which sets out requirements for the live hearing process at postsecondary institutions, remain in effect.
As explained in an August 24, 2021, letter to students, educators, and other stakeholders, the Department will no longer enforce the part of § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination. Postsecondary institutions are no longer subject to this part of the provision.
A decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.
For example, 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 statements 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. A decision-maker at a postsecondary institution may also consider police reports, Sexual Assault Nurse Examiner 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.
The Office for Civil Rights is in the process of identifying all documents on our website that discuss this vacated provision and will make updates to those documents as appropriate in the coming weeks. For example, OCR recently issued a question-and-answer resource to clarify how OCR interprets schools’ obligations under the 2020 amendments and a related appendix, which provides examples of Title IX procedures that schools may find helpful in implementing the 2020 amendments. The resource will be updated to reflect the court’s decision in VRLC v. Cardona, and we hope it will continue to be a valuable tool to assist schools in carrying out their obligations under Title IX. Any statements in an OCR document about the prohibition of statements not subject to cross-examination in § 106.45(b)(6)(i) should not be relied upon.
As announced in an April 6, 2021, letter to students, educators, and other stakeholders, OCR is undertaking a comprehensive review of the Department’s actions under Title IX, consistent with President Biden’s Executive Order, dated March 8, 2021, on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. This process is ongoing, and OCR anticipates publishing a notice of proposed rulemaking to amend the Department’s Title IX regulations. This will provide the public with an opportunity to comment on the proposed amendments.
Thank you again for your efforts to prevent sexual harassment, including sexual violence, and to support equal educational opportunities for all of our nation’s students. Best wishes for the start of the new school year.
Suzanne B. Goldberg
Acting Assistant Secretary for Civil Rights
Deputy Assistant Secretary for Strategic Operations and Outreach
Office for Civil Rights
U.S. Department of Education