Department of Education Will Not Enforce Ban on Uncrossed Statements in Title IX Hearings

By Dr. Adam J. Wolkoff, Assistant Director, SCI, and Special Assistant Counsel, SUNY Office of General Counsel

Since the end of July, we’ve been watching how the decision in Victim Rights Law Center v. Cardona will impact Title IX hearings. On August 24, the Department of Education issued a Letter to Students, Educators, and Other Stakeholders Victim Rights Law Center et al. v. Cardona stating:

“In accordance with the court’s order, the Department will immediately cease enforcement of the part of § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination. Postsecondary institutions are no longer subject to this portion of the provision.”

According to this Letter, if a party or witness provides statements that are otherwise permitted under the Title IX Final Rules, then the decision-maker may consider those statements even if the party or witness does not appear at the hearing.

Such out-of-hearing statements may include:

• Statements made by parties or witnesses during the investigation.
• Emails or text exchanges between the parties leading up to the alleged sexual harassment.
• Statements about the alleged sexual harassment that are otherwise “relevant” under the Title IX regulations.
• Statements contained in police reports.
• Statements contained in Sexual Assault Nurse Examiner (SANE) reports.
• Statements contained in medical reports

The Department has indicated that it will be updating all documents on its website that contain this vacated provision in the coming weeks. It will also be modifying the Q&A document it issued in July to reflect these changes.

In terms of implementing these changes, 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.

As we have previously advised, these changes do not vacate the hearing requirement, but recreate flexibility for institutions to consider uncrossed testimony where it is otherwise permitted under state or federal case law, statute, and regulations. 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.