On Aug. 24, 2021, the U.S. Department of Education’s Office of Civil Rights issued guidance announcing that it will not enforce a key portion of the regulations concerning Title IX of the Education Amendments of 1972 that went into effect on Aug.14, 2020.

This guidance follows a recently issued decision by a federal district court in Massachusetts in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021) which found it to be arbitrary and capricious, and in violation of the Administrative Procedure Act, to limit the testimony of witnesses in a Title IX hearing on the basis that they have not subjected themselves to cross-examination in a live hearing. Section 106.45(b)(6)(i) of the amended Title IX regulations issued last year, and recently vacated and remanded by the court, required post-secondary institutions that receive federal student aid to incorporate cross-examinations of testifying parties and witnesses in a live hearing as part of the adjudication of Title IX sexual harassment claims that fall within the institution’s jurisdiction. The district court entered an order vacating nationwide the portion of the rule that the court found to be unlawful. Prior to the court’s action, decision-makers were prohibited under the regulations from considering any information or statements provided by individuals who did not subject themselves to cross-examination during the live hearing.

In response to the vacated provision, the Department of Education has announced that it will not enforce the contested provision of Section 106.45(b)(6)(i), thereby clearing the way for decision-makers to consider information provided by absent or non-cross-examined parties or witnesses. This new U.S. Department of Education Guidance is effective immediately and only applies to postsecondary schools.

What impact will this have on live hearings?

The Department of Education is clear that all other provisions of Section 106.45(b)(i) remain in effect. This means that the Title IX grievance process must provide for a live hearing, the decision-maker(s) must permit each party’s advisor to ask other parties and witnesses all relevant questions, and the rules about relevancy still apply. The only provision of this section that the Department of Education will no longer enforce is the statement that reads, “If 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.”

Going forward, decision-maker(s) may now consider relevant information provided by absent or non-cross-examined parties or witnesses, such as:

• statements made during the investigation;
• emails or text exchanges between the parties leading up to the alleged act;
• statements about the alleged act that satisfy the relevance rules; and
• police reports, Sexual Assault Nurse Examiner documents, medical reports and other documents.

Institutions of higher education are encouraged to review their Title IX policies and procedures to ensure they are aligned with the new guidance.

Further guidance regarding the Title IX regulations can also be expected in the near future. The Office of Civil Rights announced in April 2021 that it is undertaking a comprehensive review of the U.S. Department of Education’s existing Title IX regulations, orders, guidance, policies and other similar agency actions to fulfill the policy set out in President Biden’s Executive Order, dated March 8, 2021, on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity. Following this announcement, the Department issued a notice of interpretation to confirm Title IX protects students from discrimination based on sexual orientation and gender identity. A notice of proposed rulemaking to amend the Department’s Title IX regulations is expected.

Armstrong Teasdale’s Higher Education industry team is actively monitoring and providing updates regarding new guidance from the U.S. Department of Education and Office of Civil Rights on Title IX. If you have any questions, please contact your regular Armstrong Teasdale lawyer or one of the authors listed below.

Michelle Lewis also contributed to this advisory.