Late yesterday afternoon the U.S. Department of Education released a statement in response to the partial vacatur of the Title IX regulations issued by United State District Court Judge Young’s July 28, 2021 decision in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass.). Specifically, Judge Young struck down as arbitrary and capricious the provision of the regulations that prohibits reliance on the statements of parties and witnesses who do not submit to cross-examination as part of live hearings required by the regulations, and remanded that provision to the DOE for further review. By order dated August 10, 2021, Judge Young made clear that his vacatur was effective nationwide.
In its response below, the DOE makes clear that it will no longer enforce the rule that all prior statements are suppressed when a party or witness does not submit to cross-examination:
In practical terms, a decision-maker at a postsecondary institution 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.
This is a significant change on a topic that was widely discussed and expressly included in most higher education institutions’ policies because of its complexity and impact. Colleges and universities should remove references to the now-stricken rule as they update their Title IX policies for this academic year. Institutions should also evaluate this change in connection with pending matters.
As always, we are here to help you update your policy and other materials, to evaluate the rule’s application to ongoing matters, and to plan how to discuss this update with parties and advisors in current processes. Please contact any member of our Higher Education practice group at (585) 232‐6500.