Biden Administration Issues Q and A and Responds to Court Decision on Title IX Regulations that May Predict New Regulations

Tim Burke, Fraternal Law Partners, tburke@manleyburke.com

Clearly, addressing the issue of sexual assault on campus remains a priority of the Biden administration. 

CNN reported that on Thursday, July 28, President Biden spoke to a “Summit” sponsored by Its On Us, an organization that the Obama/Biden administration helped launch when he was Vice-President.  CNN quoted the President as saying “I know how excited college students are to return to campus, getting back to spending time with friends and participating in activities, especially after the challenges of the past year.  But as you do, please remember, you have a responsibility to be sure that everyone has a safe return to campus.  Safe, not just from the virus, which you can protect yourself from by getting vaccinated – hope you all have – but safe from the threat of abuse and assault as well.”

The Biden Department of Education has already made it clear that it intends to amend the Title IX regulations published in the closing months of the Trump administration.  That will take some time to go through the administrative rulemaking process.   

But new guidance has already arrived.  On July 20, 2021, the United States Department of Education, Office of Civil Rights, published a 56-page document entitled “Questions and Answers on the Title IX Regulations on Sexual Harassment”.  Of the 67 Questions and Answers, it is worth taking a particularly close look at those that relate to university disciplinary hearings.  Over the long term, those may provide guidance on how all university disciplinary hearings will be handled that may lead to substantial penalties against an alleged wrong-doer including those involving chapters of fraternities and sororities will be handled.  Some notes from those:

Question 38:  Live hearings may be conducted virtually.

Question 39:  Cross-Examination – while the current rules do not provide for a party to conduct a cross-examination, a party’s “advisor” may ask questions on behalf of the accused.

Question 42 and 51:  While parties and witnesses are not required to submit to cross-examination, the failure of a party or witness to submit to cross-examination means that any statements they have provided “cannot be relied on by the decision-maker in determining whether their respondent engaged in the alleged sexual harassment”.

Question 43:  A school may implement rules regarding how a live hearing is conducted as long as those rules apply equally to both parties.  Such rules may dictate whether or not there are opening or closing statements and can place reasonable time limits on a hearing.

Questions 46 and 47:  Recognize that limits may be placed on cross-examination.  Questions that are irrelevant or duplicative, repetitive, or abusive may be prohibited.  And questions regarding a complainant’s prior sexual behavior, can and should be, severely limited.

Question 53:  Makes clear that there are certain circumstances in which statements by a party can be used even when the party does not attend the hearing or submit to cross-examination.  For example, when the statement itself is the harassment.  The example used was an email which a faculty member says “I will give you a higher grade in my class if you go on a date with me”. 

            While it does appear that the Questions and Answers seek to somewhat limit the ability to utilize cross-examination, it stops far away from any attempt to prevent it.  The latest action by the current administration came in the form of  an August 24, 2021 letter addressed to “Students, Educators and Stakeholders” from the Acting Assistant Secretary for Civil Rights of the US Department of Education which  announced that the Department would no longer enforce a provision in the Trump Devos Title IX regulations that mandated “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…”. 

            This announcement grew out of a Federal court case, Victim Rights Law Center et. al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021).  In that case the court upheld all of the prior administrations Title IX regulations but ordered the Department of Education to reconsider the exclusionary provision of the rules which prohibited consideration of all statements not subject to cross-examination. 

Neither the court decision nor the Department of Education’s letter eliminated the need for a live hearing or that there be some form of cross-examination available of witnesses that testify at such a hearing.  The Court’s ruling is clearly limited to the “prohibition on all statements not subject to cross-examination”.  Otherwise, the Final Rule adopted in 2020 is upheld and only that prohibition is “REMANDED to the agency for further consideration and explanation…”.

Even prior to the Trump/DeVos Title IX Regulations, a significant number of Federal Courts, both trial courts and courts of appeal required various forms of cross-examination in Title IX cases, finding that some form of cross-examination was constitutionally mandated when serious disciplinary consequences were at stake.  Those court decisions were made by judges appointed by Presidents from both sides of the political aisle.  Thus, it is highly unlikely that the new Biden administration Title IX Regulations would eliminate all cross-examination.  They can’t. The Constitution won’t allow it.