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VACATED: DOE Pulls Title IX Provision Requiring In-Person Testimony For Statement Consideration In Live Hearings

August 27, 2021


On August 24, 2021, the United States Department of Education (DOE) issued a guidance letter on the implementation of Title IX Regulations nationwide. The guidance letter follows the  Massachusetts federal district court decision of Victim Rights Law Center et al. v. Cardona, in which a controversial component of the presently promulgated Trump-era regulations requiring live, in-person testimony from a party or witness in order to have any statement from that person considered in adjudication was struck down.

In August of 2020, the Trump Administration issued sweeping regulation changes which included the following specific provision at issue in Cardona:

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.

34 C.F.R § 106.45(b)(6)(i). The provision had a monumental impact on the ability of schools to ensure evidence collected during a Title IX investigation was heard and considered in a live adjudicatory hearing. The provision required a witness or party to be subject to cross examination at the hearing in order for any statement to be relied-upon by the decision maker.

The provision was widely considered to be both impractical in application and antithetical to the legislative intent of Title IX. For example, if a respondent admitted to sexually assaulting a complainant to an investigator, but failed to appear for and testify in the subsequent live adjudicatory hearing, the prior admission of responsibility could not be considered. So too, if a sexual assault nurse examiner collected relevant evidence or made pertinent observations during an exam, that nurse’s ensuing report or statements to the investigator could not be considered absent live testimony subject to cross-examination.

So, on July 28, 2021, the Cardona court vacated the specific part of 34 C.F.R. § 106.45(b)(6)(i) prohibiting a decision maker from relying on statements that are not subject to cross-examination during a life hearing. Following the district court’s order, DOE announced it will immediately cease enforcement of that particular provision of 34 C.F.R. § 106.45(b)(6)(i).  All other provisions of the Title IX Regulations, including all other parts of 34 C.F.R. § 106.45(b)(6)(i), remain in effect.

The DOE guidance letter made clear that “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.”

What does this mean for postsecondary institutions? Regardless of whether a party or witness submits to cross-examination at a live hearing, the decision-maker may now consider statements made during the investigation process.  Additionally, the decision-maker may also consider a plethora of documents, such as medical reports, police reports, and Sexual Assault Nurse Examiner documents, even if those documents contain statements of a party or witness who is not cross-examined at the live hearing. These statements must still pass an initial determination of relevancy, but what a decision-maker can consider in reaching a determination is now greatly expanded.

Most importantly, colleges and universities should revisit their Title IX policies to ensure this DOE guidance is reflected in its processes. Title IX policies are living, breathing documents requiring constant care to ensure both regulatory compliance and reflection of the institutional values of its authoring institution.

The Office for Civil Rights is currently in the process of identifying DOE documents that discuss the vacated provision and updates will be made to those documents in the coming weeks. The DOE advises that any statements in an OCR document about the vacated part of § 106.45(b)(6)(i) should not be relied upon.

If you have any questions regarding this ongoing process, your Title IX requirements and obligations, or your policies and procedures, Ashley R. Lynam or Kacie E. Kergides of Montgomery McCracken’s Institutional Response and Sexual Misconduct Liability groups are available for assistance.