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Dept. of Education Will Not Enforce Title IX Bar on Certain Statements

Under Title IX, “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…” On July 28, 2021, a federal district court in Massachusetts struck down this provision. Advocates for sexual assault survivors had argued that the provision would prevent written and oral statements from police officers, nurses, or other witnesses if the individual was unable to attend the hearing. They also argued that an accused student’s own statements admitting culpability would not be considered if the student decided not to testify at a hearing. In its decision, the court noted:

“The respondent may elect not to attend the hearing to avoid the possibility of self-incrimination, and, so long as he or she does not do so in a tortious or retaliatory manner, the respondent may speak freely to his or her peers about the investigation to collect evidence or even to persuade other witnesses not to attend the hearing.”

The judge determined the Department of Education failed to carefully consider those outcomes, making the provision unlawful as it is arbitrary and capricious.

On August 24, 2021, the Office of Civil Rights issued a letter. In the letter, the office states it will “immediately cease” enforcing this part of Title IX regarding the prohibition against statements not subject to cross-examination. The letter further provides examples of material that may be considered by a decisionmaker going forward. The examples include emails or text exchanges between the parties leading up to the alleged sexual harassment, irrespective of whether the parties or witnesses appear for cross-examination. Institutions may also now consider police reports, Sexual Assault Nurse Examiner documents, and medical reports during hearings as well even if the individual creating the report is not able to be cross-examined. The admissibility of these types of statements remains subject to the rules of relevance imposed on Title IX hearings.