(L-R) Christopher Carusone, Ashling Erhhardt and Sydney Smith of Cohen Seglias Pallas Greenhall & Furman. Courtesy photos The Changing Landscape of Cross-Examination at Title IX Hearings
When the Department of Education (ED) issued the final rule in May 2020 mandating compliance by Aug. 14, 2020, one of the most hotly contested issues was cross-examination and the effects of not participating in it. Pursuant to the new regulations, parties and witnesses had to appear at live hearings and answer every question on cross-examination.
September 27, 2021 at 11:46 AM
7 minute read
When the Department of Education (ED) issued the final rule in May 2020 mandating compliance by Aug. 14, 2020, one of the most hotly contested issues was cross-examination and the effects of not participating in it. Pursuant to the new regulations, parties and witnesses had to appear at live hearings and answer every question on cross-examination. If not, the consequences were dire: the decision-maker could not rely on any statement that party or witness had ever made. However, this all changed recently with a ruling by the U.S. District Court for the District of Massachusetts, a clarification from the court, and a letter issued by the ED in response, which stops enforcement of the requirement that prohibits statements not subject to cross-examination. The practical effect is that universities may now consider statements from those who are not subject to cross-examination when making determinations in a Title IX proceeding.
The District Court of Massachusetts' Decision
In Victim Rights Law Center v. Cardona, the court faced 13 challenges to the final rule. After a bench trial, the district court upheld 12 of the challenges raised but found one specific subsection to be arbitrary and capricious, thereby violating the Administrative Procedure Act (APA). No. 1:20-cv-11104, (D. Mass. July 28, 2021). The subsection at issue provides: "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…" 34 C.F.R. Section 106.45(b)(6)(i).
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