On August 24, 2021, the U.S. Department of Education Office for Civil Rights (OCR) announced that it will no longer enforce the Title IX provision that prohibits statements not subject to cross-examination.
The announcement was made in a Letter to Students, Educators, and other Stakeholders re Victim Rights Law Center el al. v. Cardona. The letter follows a district court ruling in Massachusetts in Victim Rights Law Center el al. v. Cardona that found 34 CFR § 106.45(b)(6)(i) (live hearing requirement for the Title IX grievance process at postsecondary institutions only) to be arbitrary and capricious, a violation of the Administrative Procedure Act. The court vacated the part of 34 CFR § 106.45(b)(6)(i) that prohibits the decision-maker from relying on statements that are not subject to cross-examination during the hearing. The provision states, “[I]f 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.”
In response to the district court ruling, the Department stated it will “immediately cease enforcement of the… prohibition against statements not subject to cross-examination” and that postsecondary schools are no longer subject to that provision.
The Department further stated that “[i]n practical terms, 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 the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.”
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If your school, college, or university needs assistance understanding and implementing the changing Title IX law and regulations, learn more about LCW’s new Title IX compliance training program and other resources by visiting this page.