Questions about Questioning (Response 8/13/2020)

Filed Under: Questioning
Question:

ED promised technical assistance. Compliance is ten days out. Policies are being written now, and have to address these questions. How can recipients train hearing decision-makers when the rules are opaque? We have dozens of pending questions with you, but none more pressing than these. We have schools with hearings planned for two weeks from now, and we have no idea how to address the issues of questioning created by the regulations. Without your guidance on these, how can schools possibly offer due process when you have been entirely unclear on how to do so? Please timely respond to these questions. We are trying to get it right, but the conflicting and confusing explanations of the preamble do not offer clarity on the following ten questions. Please respond with meaningful, timely guidance…

  • Does the witness/party have to be asked one question or all relevant questions about all statements made?
  • Who has to ask?
  • If the witness/party answers no questions from advisors, what is the effect?
  • If the witness/party answers no questions from the decision-maker, what is the effect?
  • If the witness/party answers only one question from the advisor, but not all, what is the effect?
  • If the witness/party answers all questions of the advisor but one, what is the effect?
  • If the witness/party answers only one question of the decision-maker, but not all, what is the effect?
  • If the witness/party refuses to answer some/all questions of the advisors, but answers the same questions from the decision-maker, what is the effect?
  • If the witness/party refuses to answer all questions of the advisor, and then refuses to answer all the same questions when posed by the decision-maker, what is the effect?
  • Does it matter what order the witness/party is asked, the advisor first or the decision-maker first?

Answer:

The new Title IX Rule requires postsecondary institutions to hold a live hearing and at the live hearing the decision-maker must “permit” each party’s advisor to conduct cross-examination. Thus, the Rule does not require a party’s advisor to ask cross-examination questions, but rather each party’s advisor must be permitted to ask all relevant cross-examination questions including follow-up questions. A witness has “submitted to cross-examination” by answering all relevant cross-examination questions posed to the witness by a party’s advisor.

Under the new Title IX Rule, at any live hearing held by a postsecondary institution only a party’s advisor may ask cross-examination questions. Parties may never personally ask cross-examination of other parties and witnesses. Questions posed to a party or witness by a decision-maker are not “cross-examination” as described in § 106.45(b)(6)(i). See also Preamble to the Rule at pp. 1181-82 (acknowledging that a decision-maker may pose questions to a party or witness but distinguishing questions asked by a decision-maker from cross-examination questions asked by a party’s advisor).

The provision of the new Title IX Rule that answers the above seven questions is § 106.45(b)(6)(i), which requires postsecondary institution recipients to hold a live hearing and states in relevant part:

At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice and never by a party personally . . . . Only relevant cross-examination and other questions may be asked of a party or witness. . . . 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; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions.

If a party or witness “answers no questions from advisors” (as stated in your question) because no relevant cross-examination questions were asked by a party’s advisor, then the “answering” party or witness has not refused to submit to cross-examination and the Rule does not prohibit the decision-maker from relying on that “answering” party’s or witness’s statements. If a party or witness “answers no questions from advisors” (as stated in your question) because a party’s advisor asked relevant cross-examination questions but the “answering” party or witness refused to answer, then the Rule prohibits the decision-maker from relying on that “answering” party’s or witness’s statements in reaching a determination regarding responsibility. 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.). This result is the same even if (as stated in your question) “the same questions” are asked of the party or witness by the decision-maker, because in such a scenario the party or witness did not “submit to cross-examination” by answering all relevant cross-examination questions.

If a party or witness “answers no questions from the decision-maker” (as stated in your question) either because the decision-maker did not ask any questions of the party or witness, or because the party or witness refused to answer, the decision-maker must consider all relevant evidence, including that party’s or witness’s statements (if relevant), because the party or witness did not refuse to submit to cross-examination. This result is the same whether the party or witness refused to answer just one question posed by the decision-maker, or all questions posed by the decision-maker.

The decision-maker cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s refusal to answer “cross-examination or other questions,” meaning that this prohibition against drawing inferences applies when a party or witness refuses to answer cross-examination questions posed by a party advisor, or refuses to answer questions posed by a decision-maker. See Preamble to the Rule at p. 1182, fn. 1341.

The new Title IX Rule does not prescribe the sequence in which a party’s advisor is permitted to conduct cross-examination, and a decision-maker asks questions, of a party or witness.

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