By: Christopher D. Carusone, Ashling A. Erhhardt, and Sydney M. Smith
When the Department of Education (ED) issued the final rule in May 2020 mandating compliance by Aug. 14, 2020, one of the most hotly contested issues was cross-examination and the effects of not participating in it. Pursuant to the new regulations, parties and witnesses had to appear at live hearings and answer every question on cross-examination. If not, the consequences were dire: the decision-maker could not rely on any statement that party or witness had ever made. However, this all changed recently with a ruling by the U.S. District Court for the District of Massachusetts, a clarification from the court, and a letter issued by the ED in response, which stops enforcement of the requirement that prohibits statements not subject to cross-examination. The practical effect is that universities may now consider statements from those who are not subject to cross-examination when making determinations in a Title IX proceeding.
The District Court of Massachusetts’ Decision
In Victim Rights Law Center v. Cardona, the court faced 13 challenges to the final rule. After a bench trial, the district court upheld 12 of the challenges raised but found one specific subsection to be arbitrary and capricious, thereby violating the Administrative Procedure Act (APA). No. 1:20-cv-11104, (D. Mass. July 28, 2021). The subsection at issue provides: “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…” 34 C.F.R. Section 106.45(b)(6)(i).
The court contemplated whether a complainant who faces a hearing where the respondent or witnesses do not appear could ever overcome the clear and convincing evidence standard. In this situation, the court did not foresee a complainant attaining anything “beyond the supportive measures that he or she is offered when they first file the formal complaint.”
Notably, the court did not strike down the subsection on its own lack of merits but because the court has a responsibility under Section 706(2)(A) of the APA to ensure that the ED considered the consequences of this provision and provided a reasoned explanation why this result was intended. The court found the administrative record was quite robust for most of the final rule. However, the record did not demonstrate that the ED considered the possible ramifications of the cross-examination rule.
As a result, the court vacated the subsection and remanded it to the ED. When it did so, however, the Title IX world was left questioning the effect of this district court’s decision and whether it applied nationally. Due to these questions, the court issued an additional order on Aug. 10, 2021, that clarified its original decision, explaining that by finding an agency action to be arbitrary and capricious, the action is then set aside—meaning that the cross-examination provision loses its effect nationwide.
The Department of Education Quickly Weighed In
Following the court’s actions, the ED released a letter on Aug. 24, 2021, stating the department will “immediately cease enforcement of Section 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination.” The letter also clarified that postsecondary institutions are no longer subject to that Title IX provision.
The Implications of This Change
The effect of this ruling is to be narrowly construed. Hearings and cross-examination are still required for higher education. The change is only with respect to the outcome of not answering questions on cross-examination. Parties and witnesses may choose to opt-out of participating in cross-examination. Sexual assault victims will be able to put more space between themselves and the respondent and can avoid the additional trauma that may come with submitting to cross-examination at a live hearing. Respondents can adequately utilize their Fifth Amendment rights against self-incrimination by similarly declining to answer cross-examination questions.
Decision-makers will have to carefully weigh the additional evidence before them. They can only rely on whatever relevant evidence is available through the investigation and hearing in making the ultimate determination of responsibility. They may not draw any inference solely from a party’s or witness’s absence from the hearing or refusal to submit to cross-examination or answer other questions. It is an open question as to whether decision-makers would afford less weight to a statement or a written report for which there is no opportunity for cross-examination.
This change allows those reviewing the matter to consider a much larger pool of information. Any evidence submitted that includes statements such as text messages, emails or social media messages may be considered, even if the party or witness refuses to submit to cross-examination at the live hearing. This change will also affect the inclusion of statements made by third-party experts, police reports, medical records, and other documents.
The ability to submit evidence without the need to make police officers, doctors, and other professionals available to the decision-maker will make the process easier for those presenting their case. However, this also means that those third-party witnesses and experts will likely be unavailable to answer questions and offer clarifications to both the decision-maker and the other side. This could be especially difficult when parsing through complex medical records or an unclear police report. Institutions will have to re-train their decision-makers to ensure compliance with this new change.
There may be issues with understanding less complex documentary evidence as well. It is easy to imagine a decision-maker reading vague text message threads offered as evidence and only discerning one viewpoint from the exchange. If the other party to the conversation is not available for questioning, the only interpretation available might be the party attempting to show themselves favorably, whether that is the respondent or the complainant.
Title IX investigators should expect to see a larger quantity of documentary evidence, including conversational threads like text messages, in future cases. Previously, a party may not have been able to convince friends or other acquaintances to take the time to participate in a hearing, but now they may ask that person to simply text them their memories of an event. Those texts could be submitted no differently than a witness statement, though now without the benefit of cross-examination to build out the details.
While cross-examination is still here for now, it is likely that many universities will dispose of the requirement. The court’s decision remanded the cross-examination provision to the ED to reconsider its intended and unintended results. The ED may choose to implement a similar policy after properly considering these consequences and weighing the entirety of its choices. It is unclear whether that will happen under this administration but the option remains open. No doubt there will be due process challenges that surface because of a failure to afford cross-examination. In the meantime, institutions should review their policies to determine what changes they would like made, if any. Advisers should consider additional options for how best to ask questions if a witness or party will not respond to cross-examination. All of us need to remember the most important aspect, regardless of any new change: effective, fair, and efficient investigations for all parties.
Christopher D. Carusone chairs the government law and regulatory affairs group and is a member of the white collar defense and internal investigations group at Cohen Seglias Pallas Greenhall & Furman. He advises clients on internal investigations involving Title IX and student conduct and also allegations of waste, fraud and misconduct. Contact him at email@example.com and 717-480-5306.
Ashling A. Ehrhardt is an ATIXA-certified level one civil rights investigator who conducts investigations into allegations of sexual misconduct, discrimination, and harassment at institutions of higher education. Ehrhardt can be reached at firstname.lastname@example.org and 267-238-4761.
Sydney M. Smith helps individuals and companies navigate complex investigations and prosecutions for federal and local criminal violations brought by state attorneys general and other federal and state agencies. Smith can be reached at email@example.com and 202-587-4747.