MORE Title IX Changes for Higher Education? New Guidance Regarding Use of “Statements” Not Subject to Cross-Examination in Hearing Determination

Sep 3, 2021

by Veronica Potter and Kate Nash

Since the August 14, 2020 implementation date for the new Title IX regulations (the “Regulations”), institutions of higher education have worked to provide fair process to students while complying with some of the more difficult and onerous regulatory provisions. One of those provisions, found in 34 CFR 106.45(b)(6)(i), prohibits determinations that rely on “statements” not subjected to cross-examination during a live hearing. A recent court decision found this particular provision invalid. The Department of Education then issued guidance about how it will implement this court ruling. Institutions may now consider whether they wish to revise their policies to align with this more recent guidance. This Insight provides background and context to this issue as institutions consider revisions to their Title IX policies.

The provision at issue

This provision prohibiting decision-makers from relying on statements not subject to cross-examination was immediately controversial. There was confusion among institutions of higher education about what would be considered a “statement,” and what, exactly, this provision excluded. Courts of law generally exclude statements that were not made by the person testifying to the statement as “hearsay,” but rules of evidence in court also contain exceptions to the prohibition on hearsay. However, 106.45(b)(6)(i), on its face, does not contain any exceptions.

Shortly after the release of the Regulations, the Department of Education released a blog post clarifying that when there is an allegation of verbal harassment, the underlying statements alleged to constitute the harassment were not, in fact, “statements” for the purposes of the prohibition in 106.45(b)(6)(i). The post provides an example of a complainant who alleges that the respondent made a statement about providing a higher grade in exchange for a date. If the complainant discussed this statement at the hearing, but the respondent chose not to attend the hearing, the hearing decision maker could still rely on the complainant’s description of the statement.

This clarification did not allay the many remaining concerns about the application of 106.45(b)(6)(i)’s prohibition on statements that were not subject to cross-examination. For example, some noted that this prohibition could expose institutions to Title IX liability. Such a situation could arise where a respondent admitted engaging in the alleged conduct to the investigator, but then the respondent chose not to attend the hearing (and therefore was not subject to cross-examination). In that case, the regulations arguably limited the decision maker’s ability to consider the respondent’s admission to the investigator. Without other available information, this could hinder the hearing decision maker’s ability to find the respondent responsible for a policy violation, even though the respondent had admitted to violating the policy.

While creating numerous frustrations for others involved in the process (including the complainant), this limitation on the ability to address sexual harassment could also create legal liability if a court determined that the institution had actual knowledge of sexual harassment, and that the institution’s failure to sanction a student for conduct that was admitted (at least during the investigation phase) constituted deliberate indifference.

What changed?

There have been numerous court challenges to the Regulations. In one of these lawsuits, four organizations that advocate for victim rights and three individual plaintiffs challenged the Regulations in federal court. In Victim Rights Law Center et al. v. Cardona et al., the district court in Massachusetts largely upheld the Regulations. However, the court decided that the provision excluding statements that were not subject to cross-examination is arbitrary and capricious under the Administrative Procedures Act. Essentially, the court found that the Department of Education failed to consider the consequences of the provision in 106.45(b)(6)(i). The court examined the effects this provision would have if the respondent simply decided not to attend the hearing, similar to the example provided above. The court stated this could create a situation where it would be nearly impossible for the complainant to overcome the presumption of non-responsibility. The court also explained that this result would not be an outlier, but that any attorney would likely advise their respondent client not to attend the hearing, knowing that any potentially incriminating statements would be excluded. In this case, the court states the hearing becomes a “hollow exercise.” The court remanded the provision in 106.45(b)(6)(i) to the Department of Education for further consideration.

This decision received more national attention after the district court issued a clarifying order on August 10, 2021. The court clarified that its previous order vacated, or set aside, the provision excluding statements not subject to cross examination and remanded the provision. As there was no limitation on the order vacating the provision, it appears that is has been vacated generally, meaning this decision applies nationwide.

On August 24, 2021, the Department of Education issued a letter stating that it will immediately cease enforcement of 106.45(b)(6)(i)’s prohibition against statements that were not subject to cross examination. The letter states that a decision maker “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,” and “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.”

How does this impact your institution?

Institutions now have the opportunity to revisit this provision in their Title IX policies and consider whether this requirement serves their institution’s needs, or whether they would prefer to remove this prohibition. If the provision is removed, institutions should consider adding additional guidance to their policies and procedures on what statements and evidence the hearing decision maker may consider and how to weigh that evidence.

However, in making any revision to their Title IX policies, institutions should speak with legal counsel as federal courts in different areas of the country have established different standards related to cross-examination. For example, the Sixth Circuit (which includes Michigan, Ohio, Kentucky, and Tennessee) required institutions to include cross-examination in their Title IX processes even before the Regulations were implemented. Meanwhile courts in the Eighth Circuit, where Missouri is located, and the Seventh Circuit, where Illinois is located, have not issued similar rulings, giving institutions more flexibility around addressing these issues.

It should also be noted that neither this recent court ruling, nor the Department of Education’s letter apply to any provisions other than 106.45(b)(6)(i)’s exclusion of statements that have not been subject to cross examination. Other provisions of the Regulations, such as those requiring a live hearing with cross-examination for institutions of higher education, remain in effect. Though the Biden administration has announced its intention to engage in the rulemaking process, and has issued a Q&A document on the Regulations, no other provisions have been repealed at this point.

If you have questions about how these changes might impact your institution, please contact your Tueth Keeney higher education attorney.

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Higher Education – Tueth Keeney maintains one of the largest and most successful higher education law groups in the Midwest. Our higher education practice includes representation of numerous colleges and universities throughout Missouri and Illinois. In addition, the Firm is one of approximately twenty law firms in the nation that have been appointed to act as Select Counsel to represent higher education institutions insured by United Educators Insurance Risk Retention Group, Inc., the nation’s largest insurer of colleges and universities. The attorneys in the Firm’s higher education group provide a full range of services to colleges and universities, ranging from day-to-day counseling on legal issues, to representation in complex litigation.

Veronica E. Potter practices primarily in the areas of higher education, litigation, and labor and employment law. Veronica represents colleges, universities, and private employers in education and employment litigation matters. Veronica started her legal career as a prosecutor, where she gained experience in all stages of litigation, including case investigation, discovery, arguing pre-trial motions, and presenting cases to both judges and juries. Prior to joining the firm, Veronica also practiced civil litigation at a large defense firm in St. Louis.

Kate L. Nash is a shareholder of the firm and practices primarily in the areas of higher education, litigation, and labor and employment law.   Kate acts as outside general counsel to numerous institutions of higher education, advising those organizations on a wide range of legal issues.  In addition, Kate is frequently asked to conduct internal investigations regarding complex and sensitive matters in workplaces and at educational institutions.   Kate also has extensive litigation experience litigation experience in federal and state courts and before federal and state administrative agencies.   Kate is a frequent lecturer and author on employment and higher education issues and is active in the National Association of College and University Attorneys. She was an adjunct professor at Saint Louis University School of Law for numerous years, where she taught a course on non-profit organizations.   Kate earned her B.A. from Cornell University and received her law degree at Washington University.   Kate is a member of the Firm’s Management Committee.