Possible clarification on the use of certain statements in Title IX hearings
Since the initial public release of the 2020 Title IX regulations on May 6, 2020, many colleges and universities have wrestled with the Department of Education’s requirement that parties and witnesses submit to cross-examination at the live hearing in order for the decision-maker to rely on any statement of that party or witness in reaching a determination regarding responsibility. 34 CFR §106.45(b)(6)(i). A federal court in Massachusetts recently reviewed this provision of the Title IX regulations and issued two rulings that may affect the way your institution addresses this particular issue.
Several weeks ago, the United States District Court of Massachusetts considered Section 106.45(b)(6)(i)’s prohibition on reliance of all statements not subject to cross-examination. In a decision issued on July 28, 2021,1 the court found this provision of the new Title IX regulations to be “arbitrary and capricious,” based on the court’s conclusion that the Department of Education did not consider the necessary and likely consequences of its prohibition. In reaching this conclusion, the court considered a potential scenario in which a Title IX respondent might work to schedule the live hearing at an inopportune time for third-party witnesses and then personally decline to attend the hearing to avoid self-incrimination, all the while speaking “freely to his or her peers about the investigation to collect evidence or even to persuade other witnesses not to attend the hearing.”2 The court went on to discuss the possible result of this scenario, whereby a complainant submits to cross-examination, but no other evidence may be considered by the decision-maker because witnesses could not attend the hearing due to scheduling or being dissuaded by the respondent.3 The result? According to the court:
While the complainant must attend the hearing for his or her evidence to be admitted, he or she can be cross-examined and discredited by the absent respondent’s attorney, with little to no hope of evidentiary rehabilitation. When the foregoing occurs and the school has elected to apply the clear and convincing evidence standard given the “high stakes and potentially life-altering consequences for both parties,” [internal citations omitted], this Court is hard pressed to imagine how a complainant reasonably could overcome the presumption of non-responsibility to attain anything beyond the supportive measures that he or she is offered when they first file the formal complaint.
This is not some extreme outlier or fanciful scenario. No attorney worth her salt recognizing that – were her client simply not to show up for the hearing – an ironclad bar would descend, suppressing any inculpatory statements her client might have made to the police or third parties, would hesitate to so advise.4
The court explained that while it is not empowered to strike down administrative provisions merely because it finds them to be unreasonable, it is required to ensure that agencies consider the necessary and likely consequences of their regulations and provide a reasoned explanation for the action taken. With respect to this particular section of the new Title IX regulations,5 the court found that there was nothing in the administrative record that demonstrated the Department of Education “was aware of this result, considered its possibility, or intended this effect.”6
Initially, the reaction of the Title IX community to the court’s July 28, 2021, decision was relatively muted because the impact of the decision remained unclear. The court remanded the provision to the Department of Education “for further consideration and explanation,” but stopped short of explicitly “vacating” the provision. This means that the court’s July 28, 2021, ruling did not explicitly direct the Department of Education to set the provision aside and stop enforcing it.
However, the court took that additional step last week in response to a request for clarification from the parties in the case. On August 10, 2021, the court issued an order7 that clarified the effect of its prior ruling by stating, “[S]ection 106.45(b)(6)(i)’s prohibition was vacated as well as remanded on July 28, as is the usual course in successful [Administrative Procedure Act] challenges.”8 In support of this clarification, the court cited to several other cases in which a particular administrative action was “set aside” because a court found it to be arbitrary and capricious.
So, what does the court’s decision to “set aside” this provision mean for your institution? Should your Title IX policy continue to prohibit decision-makers from relying on statements of parties and witnesses who have not submitted to cross-examination?
Simply put, the answers to these questions are unclear. Institutions should work closely with legal counsel to assess the risks presented by all of the possible responses to these rulings. The cases cited in the court’s August 10, 2021, order9 suggest that the court’s ruling applies directly to the validity of the provision itself, and is not limited to the parties before the court. However, the issue of whether a federal court may invalidate an administrative rule on a nationwide basis has never been addressed by the United States Supreme Court. It is also possible that the current existence of this prohibition in your policy creates a contractual obligation on the part of your institution. This means that there is risk in both updating your Title IX policy to remove the prohibition, and in keeping the provision in your policy now that the underlying regulation has been deemed arbitrary and capricious. This institution-specific risk assessment must also consider the current status of any pending Title IX cases on your campus, whether your institution is subject to separate legal authority regarding cross-examination (e.g., the Doe v. Baum decision in the Sixth Circuit10), and, as always, your institutional ethic of care. It is also possible that the Department of Education may issue additional guidance on this issue, although it is unclear when and if such guidance will arrive. In the meantime, please discuss this issue with your legal counsel to determine the best course of action for your institution.
1 Victim Rights Law Center, et al. v. Cardona, 20-11104-WGY, 2021 WL 3185743, at *15 (D. Mass. July 28, 2021).
2 Id.
3 Id. at *15-16
4 Id.
5 The Plaintiffs in this case challenged 12 other provisions of the 2020 Final Title IX regulations on the grounds that they were also arbitrary and capricious. The Court ruled against Plaintiffs on each other these issues, finding that those provisions of the regulations were not arbitrary and capricious.
6 Id. at *16.
7 Victim Rights Law Center, et al. v. Cardona, 20-11104-WGY, 2021 WL 3516475, at *1 (D. Mass. Aug. 10, 2021).
8 Id.
9 National Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998); Historic Bridge Found. V. Chao, 19-cv-408-LEW, 2021 WL 3749644, at *8 (D. Me. Feb. 3, 2021); Lovely v. F.E.C., 307 F. Supp. 2d 294, 301 (D. Mass. 2004); Harrington v. Chao, 280 F.3d 50, 60 (1st Cir. 2002); New York v. U.S. Dep’t of Com., 351 F. Supp. 3d 502, 672 (S.D.N.Y.), cert. granted before judgment sub. nom; Dep’t of Com. v. New York, 139 S. Ct. 953 (2019), aff’d in part, rev’d in part, and remanded sub nom; Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019), appeal dismissed, Docket No. 19-212, 2019 WL 7668098 (2d Cir. Aug. 7, 2019).
10 Doe v. Baum, 903 F.3d 575 (6th Cir. 2018).
