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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