By Dr. Adam J. Wolkoff, Assistant Director, SCI, and Special Assistant Counsel, SUNY Office of General Counsel, and Joseph Storch, Associate General Counsel in the Office of General Counsel and Principal Investigator of the SCI.
As we have reported in detail, on July 28, a federal district court in Massachusetts held that the requirement in the 2020 Title IX Final Rules prohibiting decision-makers from considering statements not subject to cross-examination in their determinations was arbitrary and capricious.
Since then, the parties to the case filed a joint motion for clarification to Judge Young on whether he was directing that this provision be vacated. Through an order issued on August 10, the judge confirmed that the provision was vacated and the matter remanded to the Department of Education “as is the usual course in successful [Administrative Procedures Act] challenges.”
Because the provision on statements not subject to cross-examination was vacated, it is no longer legally enforceable by the Department of Education. And, since the court generally vacated the provision, rather than issue an injunction upon the specific parties, it appears that this order has no geographic limitation.
We anticipate, but we have no firm information on, nor a date for, a statement from the Department of Education or guidance on this issue, as colleges inside and outside the Commonwealth are currently investigating and adjudicating cases where a determination may hinge, in part, on whether uncrossed statements can be considered.
While we know this will generate confusion for institutions conducting their Title IX grievance procedures, SCI members who have adopted our Title IX Model Grievance Policy should refer to the section on “Revocation by Operation of Law.” That section states that if any portion of the Title IX Final Rule is “stayed or held invalid by a court of law” then the invalidated elements of the policy “will be deemed revoked as of the publication date of the opinion or order.” In this case, the revocation date would be July 28, 2021, when Judge Young issued the opinion in this case.
Institutions who are considering applying the revocation clause should consult with campus or outside counsel before taking any action. Given the broad applicability of this vacatur, institutions may decide to return to their previous rules (or create interim procedures) about what to do where witnesses or parties are not available for cross-examination at the hearing.
Remember that Judge Young’s order does not vacate the hearing requirement, but it does appear to recreate flexibility for institutions to consider uncrossed testimony where it is otherwise permitted under state or federal case law, statute, and regulations. Again, we strongly encourage institutions to consult with counsel before making a change.