By Erin Clark, JHBL Staffer
Title IX of the Education Act of 1972 states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”[1] In recent years the pursuit of this goal has been fraught with striking a balance between due process rights and the trauma-informed investigation of sexual harassment in a school setting. There is one particular provision of the Department of Education’s new 2020 Title IX Regulations that has complicated this balance.
The “Suppression Provision”
On May 6, 2020 the Department of Education released the long-awaited new Title IX Regulations.[2] These regulations detailed minimum requirements and related procedure for schools to follow in response to sexual harassment, including sexual assault, dating violence, and stalking. [3] The procedures followed three approximate phases – an investigation with interviews of the parties, witnesses, and the collection of evidence; issuance of a report of the findings to the parties; and a hearing with direct and cross-examination of parties and witnesses by the parties’ advisors before a final determination is made. [4]
One of the more controversial provisions of the new regulations was the requirements of cross-examination, including §106.45(b)(6)(i), which said:
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.[5]
This became known as the “suppression provision”.[6] Even if a party fully participated in the investigation that informed the report, if the party refused to or was unavailable to submit to cross-examination, prior statements could not be relied on (and decision-makers would be asked to ostensibly ignore) for the final determination.
In practice, therefore, this meant that the observations of a sexual assault nurse examiner who conducted a SANE kit, or the statements of a law enforcement officer in a police report, could not be relied on if those witnesses did not submit to cross examination at the hearing.[7] This applied to other witnesses as well. For example, if a student’s roommate provided an alibi to investigators but was unable to be present for cross-examination, that alibi could not be relied on. Finally, the parties themselves could share full information with investigators which would be included in the report, but that information could only be considered in the final determination by decision-makers if the parties submitted to cross-examination on the topic and repeated their experience to a second audience.
Experts also illuminated various absurdities that could result from this requirement, saying it provided incentives to intimidate another party from participating in a hearing, create scheduling barriers, or badger a witness so that they refused to answer a question, in an attempt to throw out earlier statements.[8] Theoretically, a respondent could fully admit to a sexual assault, or complainant declare they had not made a complaint in good faith, then simply refuse to submit to cross-examination and none of the earlier statements could be considered in the final determination.[9]
Finally, advocates argued “the rule ensures that many student survivors will be retraumatized or deterred from coming forward at all, and that many witnesses will refuse to participate in investigatory processes” and that “student survivors who have been subjected to live cross-examination by their rapist’s advisor have reported tremendous stress and trauma as a result”.[10] These messages were echoed by student activists ahead of the release of the new regulations.[11]
VRLC et al. v. Cardona and OCR’s Response
On July 28, 2021 a decision by Justice Young in Victim Rights Law Center et al. v. Cardona considered a case filed by four advocacy organizations challenging 13 provisions of the new Title IX Regulations.[12] The Massachusetts federal court found one provision, the “suppression provision” in §106.45(b)(6)(i), to be “arbitrary and capricious” in violation of the Administrative Procedures Act, saying “the Department of Education did not consider the necessary and likely consequences of its prohibition”.[13] The Court remanded the decision to the Office for Civil Rights for response.[14]
The Office for Civil Rights issued a letter on August 24, 2021 in response to the finding that, “[i]n accordance with the court’s order, the Department will immediately cease enforcement of the part of 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination.”[15] Evidence may now be considered by the decision-makers without the support of cross-examination, including statement related to SANE exams and police reports, and statements to investigators by witnesses, the complainant or respondent.[16]
Practically, this meant that while schools would still be expected to hold hearings with the opportunity for cross-examination, there was no requirement of parties or witnesses to participate for their investigatory statements or evidence to be relied on in the final determination – and that decision-makers weren’t unreasonably asked to ignore information made available to them in the report.
An Opportunity
Sexual harassment – including sexual assault, dating abuse, and stalking – remains dangerously prevalent at colleges and universities, and a small number of students who are impacted choose to file formal complaints for investigation.[17] Impacted students report a lack of trust in the process, even as understanding of policies has improved.[18]
Student activists and critics of the proposed regulations, prior to May of 2020, loudly shared concerns about retraumatizing survivors through cross-examination. Their activism is displayed in the many thoughtful comments provided on the proposed regulations themselves, and the organizing of groups like Know your IX[19]. However, now that schools have updated their policies to be compliant with the new final regulations, schools may be struggling to build any trust in the process by potential complainants and to clearly communicate what the changes mean for their campus.[20]
In the midst of this, the elimination of the suppression provision presents an opportunity for clarification and updates that is well-timed with the start of the year and indirectly responds to the concerns voiced about the new regulations. Schools should take advantage of this moment to clarify processes broadly, update communities on theses hearing procedures, and take steps towards rebuilding trust in complaint processes through thoughtful student engagement.
Erin Clark is a third-year evening student a Suffolk University Law School with a background in gender equity in education. Erin previously earned an MPH and MBA from Johns Hopkins Bloomberg School of Public Health and is interested in education law.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHBL, the writer’s employer, or Suffolk University Law School.
Sources
[1] Education Amendments Act of 1972, 20 U.S.C. §1681
[2] R. Shep Melnick, Analyzing the Department of Education’s Final Title IX Rules on Sexual Misconduct, Brookings Institute (June 11, 2020), https://www.brookings.edu/research/analyzing-the-department-of-educations-final-title-ix-rules-on-sexual-misconduct/ (last visited Sept, 2021).
[3] 34 C.F.R. § 106 (2020)
[4] Id.
[5] 34 C.F.R. § 106.45(b)(6)(i) (2020)
[6] Brett A. Sokolow, Implementing the Cardona Decision for Fall 2021 – What Should Colleges Do Now That the Title IX Suppression Rule is Dead? ATIXA Blog (August 13, 2021), https://www.atixa.org/blog/implementing-the-cardona-decision-for-fall-2021-what-should-colleges-do-now-that-the-title-ix-suppression-rule-is-dead/ (last visited Sept, 2021).
[7] Jessica L. Galanos, OCR Provides Further Guidance on Massachusetts Court Decision (VRLC), Bricker & Eckler Title IX Resource Center (August 25, 2021), https://www.bricker.com/resource-center/title-ix/publications/ocr-provides-further-guidance-on-massachusetts-court-decision-vrlc (last visited Sept, 2021).
[8] Jessica L. Galanos, Possible Clarification on the Use of Certain Statements in Title IX Hearings, Bricker & Eckler Title IX Resource Center (August 16, 2021), https://www.bricker.com/industries-practices/colleges-universities/insights-resources/publications/possible-clarification-on-the-use-of-certain-statements-in-title-ix-hearings (last visited Sept, 2021).
[9] Brett A. Sokolow, Implementing the Cardona Decision for Fall 2021 – What Should Colleges Do Now That the Title IX Suppression Rule is Dead? ATIXA Blog (August 13, 2021), https://www.atixa.org/blog/implementing-the-cardona-decision-for-fall-2021-what-should-colleges-do-now-that-the-title-ix-suppression-rule-is-dead/ (last visited Sept, 2021).
[10] National Women’s Law Center, DeVos’s New Title IX Sexual Harassment Rule, Explained (May 2020), https://nwlc.org/wp-content/uploads/2020/05/Title-IX-Final-Rule-Factsheet-5.28.20-v3.pdf (last visited Sept, 2021).
[11] Know Your IX, The State of Title IX, https://www.knowyourix.org/college-resources/hands-off-ix/ (last visited Sept, 2021).
[12] Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021); Elizabeth Redden, Judge Strikes Down Provision of Title IX Rule, Inside Higher Ed #Quick Takes (July 30, 2021) https://www.insidehighered.com/quicktakes/2021/07/30/judge-strikes-down-provision-title-ix-rule (last visited Sept, 2021).
[13] Jessica L. Galanos, Possible Clarification on the Use of Certain Statements in Title IX Hearings, Bricker & Eckler Title IX Resource Center (August 16, 2021), https://www.bricker.com/industries-practices/colleges-universities/insights-resources/publications/possible-clarification-on-the-use-of-certain-statements-in-title-ix-hearings (last visited Sept, 2021).
[14] Jessica L. Galanos, Possible Clarification on the Use of Certain Statements in Title IX Hearings, Bricker & Eckler Title IX Resource Center (August 16, 2021), https://www.bricker.com/industries-practices/colleges-universities/insights-resources/publications/possible-clarification-on-the-use-of-certain-statements-in-title-ix-hearings (last visited Sept, 2021).
[15] Office for Civil Rights, U.S. Department of Education, Update on Court Ruling About the Department of Education’s Title IX Regulations: The Ruling Vacated a Provision Restricting Postsecondary Schools’ Use of Statements by Parties and Witnesses, Office for Civil Rights Blog – 20210824 (August 24, 2021) https://www2.ed.gov/about/offices/list/ocr/blog/20210824.html?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term= (last visited Sept, 2021).
[16] Id.
[17] Association of American Universities, AAU Campus Climate Survey (2019): Report Executive Summary (October 15, 2019) https://www.aau.edu/key-issues/campus-climate-and-safety/aau-campus-climate-survey-2019 (last visited Sept, 2021).
[18] Id.
[19] Know Your IX, The State of Title IX, https://www.knowyourix.org/college-resources/hands-off-ix/ (last visited Sept, 2021).
[20] Beth Tyner Jones, et al. Be Nimble: Considerations for Implementing the Cardona Decision at Your Institution, Womble, Bond & Dickinson Insights (Sept 1, 2021), https://www.womblebonddickinson.com/us/insights/alerts/be-nimble-considerations-implementing-cardona-decision-your-institution (last visited Sept, 2021).