The U.S. Department of Education announced that it has ceased enforcement of one of the more controversial components of revised Title IX regulations implemented in August 2020. Specifically, the Department will not enforce a provision contained in the regulations that prevented Title IX hearing officers from relying upon statements that are not subject to cross-examination. (See 34 C.F.R. § 106.45(b)(6)(i)).
The action by the Department comes in response to the recent decision in Victim Rights Law Center v. Cardona. In that decision, a Federal District Court judge reasoned that the referenced portion of the regulations were “arbitrary and capricious,” and could lead to inequitable outcomes when applied in a formal hearing process. The court voiced concern that the provision related to absent witnesses offers parties a potentially unjust shield that could be used to prevent relevant and necessary evidence from being made available within the context of a hearing.
In its August 24 announcement from Suzanne Goldberg, Acting Assistant Secretary for Civil Rights, the Department noted that its action clears the way for a hearing officer to “consider statements made by the parties and witnesses during the investigation, 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….”
This action helps to overcome the concern advanced by many higher education administrators that the restrictions related to absent witnesses could lead hearing officers to arrive at inequitable decisions due to their lack of access to critical evidentiary materials. This decision muddies the waters for hearing officers and institutional leaders, who will need to wrestle with new and complex issues surrounding the admissibility and relevance of specific evidentiary materials. For institutions, greater emphasis may need to be placed upon the training of hearing officers and procedures governing the consideration and admissibility of evidence.
If your institution is revising its Title IX best practices in light of ongoing guidance from the Department of Education, contact the Steptoe & Johnson Higher Education Team for support.