The Department of Education Says Goodbye to the 2020 Title IX Regulations' Exclusionary Rule

5 min

Recently, the Biden administration's Department of Education (the Department) announced that it will "immediately cease enforcement" of the 2020 Title IX Regulations' exclusionary rule. Generally, the exclusionary rule prevents a decision-maker at an institution for higher education (IHE) from considering statements made by parties or witnesses who did not participate in cross-examinations at the live hearing when reaching a determination. The Department's Letter to Students, Educators and Other Stakeholders (Letter), and its guidance therein, was in response to a federal district court decision that held the exclusionary rule provision to be "arbitrary and capricious," in violation of the Administrative Procedures Act (APA). Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021) (Cardona decision). The Department's most recent Letter is the first action taken vacating the enforcement of a specific provision from the 2020 Title IX Regulations, put in place by the prior administration. The previously reported Notice of Interpretation and Questions and Answers, published by the Department, will also be amended to reflect this recent decision.

History of the Exclusionary Provision and Its Application

The exclusionary rule provision in the 2020 Title IX Regulations provides that "[i]f a party or witness does not submit to cross-examination at [a] 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. § 106.45(b)(6)(i). This cross-examination provision was a part of the new 2020 Title IX Regulations that required IHEs to include a live hearing as part of their Title IX grievance process. The provision's purpose was to ensure that only statements tested for credibility by cross-examination would be considered by the decision-maker in reaching a determination of responsibility. The term "statement" was construed broadly to include not just statements made during a Title IX grievance hearing, but also any statement made by the parties or witnesses in police reports, medical reports, Sexual Assault Nurse Examiner reports, and other documents and records collected during the course of the investigation. The 2020 Title IX Regulations, and in particular this exclusionary rule provision, faced significant backlash and numerous legal challenges across various jurisdictions. Accordingly, the Department under the Trump administration doubled down on the exclusionary rule and suggested that a party's or witness's refusal to answer even one relevant question on cross-examination could result in the exclusion of any statements the party or witness might have made previously.

According to the court in the Cardona decision, however, the exclusionary rule improperly gives respondents the ability to schedule a hearing at an inconvenient time for a third-party witness, rendering them unable to testify or be cross-examined, leading to the exclusion of their statements. The court also noted that respondents have an unfair advantage of discussing freely the details of the investigation with their peers to collect additional information or persuade third-party witnesses not to appear at the Title IX grievance hearing. Complainants are further disadvantaged because third-party witnesses cannot be subpoenaed to testify. The respondent can therefore rest easy when a third-party witness does not appear at a live hearing, because third-party witnesses cannot be subpoenaed, their testimony will not exist, and their previous statements cannot be relied upon by the decision-maker.

The Court's Decision and Its Effect

The court in the Cardona decision held the exclusionary rule to be arbitrary and capricious because the Department did not adequately demonstrate that it had accounted for the aforementioned illogical results when adopting this rule. The court described this rule as rendering "the most vital and ultimate hallmark of the investigation – the hearing – a remarkably hollow gesture." At the request of the parties, the court issued a clarifying order that it had vacated and remanded the provision and, significantly, that its ruling applied nationwide, and not just in the District of Massachusetts. The Department could have responded to the court's decision and defended the exclusionary rule; however, it chose not to do so. While the exclusionary rule challenge was a success, the court rejected the remaining challenges brought by the plaintiff advocacy group, thus leaving future changes and amendments to the 2020 Title IX Regulations up to the Department.

What Does This Mean for IHEs?

A decision-maker at an IHE, because of the court's decision, "may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process." Specifically, decision-makers "may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing." IHEs are now able to include language in their Title IX policies to this effect. To be clear, IHEs are not required to consider this evidence. However, IHEs do have the discretion to consider such evidence and weigh the evidence as they deem necessary when rendering a decision.

IHEs are encouraged to review in full the Department's recent guidance, the Cardona decision, and the Questions and Answers that will be republished by the Department. Should IHEs have any additional questions regarding how this guidance affects their Title IX policies and procedures, please feel free to contact the authors of this article or any other member of Venable's Higher Education or Labor and Employment Group.