By Dr. Adam J. Wolkoff, Assistant Director, Student Conduct Institute and Special Assistant Counsel, SUNY Office of General Counsel
A federal district court in Massachusetts has struck down one of the most controversial requirements of the 2020 Title IX Final Rules prohibiting decision-makers from considering statements not subject to cross-examination in their determinations.
Under that regulation, all Title IX complaints filed at colleges and universities have to be adjudicated through a live hearing with cross-examination by advisors for the reporting party and accused person. Any party or witness who has testimony to share must appear at the hearing and answer any relevant cross-examination questions. If they don’t appear, or refuse to answer a relevant question on cross-examination, then the decision-maker cannot consider their statements at all in their determination.
This rule was among thirteen provisions of the Final Rule challenged by a collection of advocacy organizations and students through a federal lawsuit filed against the Department of Education in the U.S. District Court for the District of Massachusetts. This lawsuit was one of at least four seeking to block the Title IX Final Rules. On July 28, 2021, Judge William Young ruled largely in favor of the Department, holding that they did not violate the federal Administrative Procedures Act in most respects and did not violate the plaintiffs’ Fifth Amendment Equal Protection rights. Victims Rights Law Center v. Cardona, No. CV 20-11104-WGY, 2021 WL 3185743, at *1 (D. Mass. July 28, 2021).
Yet the court did find that the Department acted arbitrarily and capriciously by requiring that hearing decision-makers disregard statements made outside the hearing by parties or witnesses who do not appear for cross-examination. Taking the Department’s arguments about the value of a live hearing at face value, Judge Young found no adequate explanation for why the Department would hollow out this process by incentivizing a respondent to stay home. “This is not some extreme outlier or fanciful scenario.” Id., at *16. From police reports and SANE examinations, to eyewitness testimony, to the respondent’s own confession, critical evidence might be completely unavailable to a decision-maker, putting a full and fair hearing on the facts out of reach.
We still have more questions than answers about how this ruling will impact Title IX nationally. At least in Massachusetts, schools likely can amend their Title IX grievance process to allow decision-makers to consider statements not subject to cross-examination in their determination, factoring in any other procedural requirements imposed by state law or judicial precedent. OCR would not have the power to enforce that provision of the Final Rule against Massachusetts schools without violating this decision. Judge Young did not, however, issue a national injunction, and schools outside of Massachusetts will have to consider the legal risks of applying this decision to their processes both from OCR investigations and student due process and Title IX lawsuits.
We may see the Department of Education continue to defend this policy and appeal the case, or it may become dead-letter (or the subject of a Dear Colleague Letter?), with institutions gradually shrugging off the requirement as unenforceable and impractical.
After the Department of Education issued the Title IX Final Rules in May 2020, advocacy organizations and state attorneys general filed lawsuits challenging the rules and their implementation. This case was filed against former Secretary of Education DeVos by several advocacy groups, a current college student, a former college student, and a current K-12 student, which the court collectively referred to as the “Advocates.” Dozens of interested groups also filed briefs supporting and opposing the Final Rules.
The Advocates filed for a preliminary injunction to block thirteen provisions of the Final Rule as violating the Administrative Procedures Act. They also claimed it violated their Fifth Amendment Equal Protection rights under the U.S. Constitution. Rather than issue a preliminary injunction, the court exercised its discretion to combine that petition for an injunction with a hearing on the merits.
In the decision, the judge outlined testimony from the students and former student about the impact of the Final Rules on their ability to obtain redress for sexual harassment and violence. The judge then focused on language within the Title IX Final Rule and its Preamble that explained the Department of Education’s reasoning in issuing those Rules.
Of the three student and former student plaintiffs, the judge decided that only one of them had “standing,” meaning that she had suffered a “particularized injury” that this litigation could resolve. “Mary Doe” is a current student at a college in North Carolina who reported a sexual assault in the fall of 2020 and is still awaiting resolution of her Title IX formal complaint. She claimed injury from several aspects of the Final Rules, including:
The other student plaintiffs, however, lacked standing because the Title IX Final Rules would not foreseeably apply to their reported sexual harassment under the non-retroactivity rule. A second plaintiff, Nancy Doe, failed to establish standing because her alleged Title IX incidents occurred before the issuance of the Final Rule. Significantly, the court found a lack of injury because of guidance, including the Office for Civil Rights’ August 26, 2020 Letter, stating that the Final Rule will not be applied retroactively to conduct occurring before August 20, 2020. (This guidance has been restated in OCR’s July 2021 Title IX Q&A as well). Likewise, the third student plaintiff lacked standing because no Title IX formal complaint had yet been filed in her case and, if it had, the incidents allegedly occurred before the Final Rule’s effective date.
This aspect of the decision, then, further supports the non-retroactivity of the Final Rules, a point that has raised concern since the October 2020 decision in Doe v. Rensselaer Polytechnic Institute, No. 1:20-CV-1185, 2020 WL 6118492, at *7 (N.D.N.Y. Oct. 16, 2020) (Institution's decision not to apply the Title IX Final Rule procedures to a hearing on misconduct that allegedly occurred prior to August 14, 2020, was among the factors showing procedural irregularity suggestive of Title IX gender bias).
Finally, among the advocacy-group plaintiffs, only the Victims Rights Law Center maintained standing, on the theory that the Final Rule’s cross-examination requirements made victims less willing to participate in the Title IX process, which reduced requests for victim advocacy services. This reduction in demand injured the Victims Rights’ organization and was a drain on its resources.
The Advocates argued that thirteen provisions of the Title IX Final Rules had to be set aside under the federal Administrative Procedures Act, or APA, because these regulations were arbitrary, capricious, an abuse of discretion or in excess of the agency’s jurisdiction under Title IX. See, 5 U.S.C. §§ 706(2)(A), (C).
In nearly all aspects, the court rejected the Advocates’ claims. From the broadest view, the court determined that the Department acted within its authority when it narrowed the scope of claims that could fall within a school’s Title IX jurisdiction from earlier guidance and the types of conduct that could constitute sex discrimination. Later in the opinion, the court also confirmed that the Final Rule was a “logical outgrowth” of the 2018 Notice of Proposed Rulemaking. Id., at *17.
The court further determined that the Department had not acted arbitrarily and capriciously in issuing the Final Rule, even as several of its provisions reversed long-standing guidance. The court viewed the advocates’ objection to these provisions, including the narrowed jurisdiction and sexual harassment definition, the grievance procedures, the presumption of innocence, and the heightened notice requirements, as policy decisions, and it declined to revisit “the best way to protect victims, the balance between vindicating victim rights and protecting respondent rights, and what the scope of Title IX ought be.” Id., at *14. In the court’s view, the Department set forth its reasons for these choices and it was not empowered to overturn them based on policy preference.
Yet the court found that, in one critical area, the Department did not explain its reasons: the rule that a decision-maker could not rely on statements made by a person who was not subject to cross-examination. The Department had not “considered or adequately explained why it intended for section 106.45(6)(i) to compound with a respondent's procedural safeguards quickly to render the most vital and ultimate hallmark of the investigation -- the hearing -- a remarkably hollow gesture.” Id., at *15.
Under the Title IX Final Rule’s cross-examination procedures, decision-makers cannot use statements made out-of-the hearing in reaching a determination regarding responsibility, and no hearsay exceptions apply. The court recognized that this rule created several opportunities for a respondent to “further a disruptive agenda” which could include not attending the hearing to avoid self-incrimination and encouraging other witnesses not to appear for questioning. Id., at *15.
With remarkable candor, the court channeled frustrations shared by many practitioners attempting to implement the Rule: “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 so to advise.” Id., at *16. The court found no basis in the record to justify this rule, particularly as it would undermine the Department’s stated goal of creating a fair and rigorous hearing.
Finally, the court found no basis for the Advocates’ claim that the Final Rules violated their right to equal protection under the Fifth Amendment to the U.S. Constitution, because they had not shown they suffered disparate treatment from others similarly situated as them. The advocates argued that the Final Rules treat “allegations of sexual harassment differently, and less favorably, than allegations of harassment based on race, color, national origin, and disability, based on the discriminatory and baseless gender stereotype that women and girls lack credibility when reporting sexual harassment.” Id., at *18. But, in the court’s reading, nothing in the Final Rule would suggest that that female complainants or respondents are treated differently from male complainants or respondents. Further, the court found no legal support for the idea that a regulation could be discriminatory under the Fifth Amendment because, in addressing sex discrimination, it was “stricter and less deferential” than regulations issued by different agencies handling different forms of discrimination. Id., at *19. And it found nothing in the Final Rule to suggest that the Department had engaged in “archaic” stereotyping of women as lacking credibility when reporting sexual harassment. Id.
Though the court found most of the Final Rule did not violate the APA, it remanded the case back to the Department of Education “for further consideration and explanation” of the prohibition against statements not subject to cross-examination.
The immediate impact of the court’s finding is unclear. At least within the District of Massachusetts, this specific provision of the Title IX Final Rules appears to be sidelined. OCR would not have the authority to enforce this aspect of the Final Rules against a Massachusetts school. A hearing decision-maker could now consider statements made outside the hearing even if the person making the statement did not appear for questioning. Any school considering such a change will have to clearly outline that procedural rule in its Title IX grievance policy and make sure that their new rule complies with state law and judicial precedent.
Notably, the court did not issue a “nationwide” injunction of the rule, so it remains uncertain whether OCR can (or will) still enforce this rule outside Massachusetts. We also do not know if the Department of Education intends to appeal this ruling. SCI will continue to monitor this case and OCR’s response going forward, and will update its model policies once we have greater clarity on this issue.
The Department has announced that it is undergoing a process of review of the regulations that will result in a new notice of proposed rulemaking, perhaps as early as May of 2022, and has issued announcements and guidance documents to that end.