OCR Update: Cross-examination No Longer Required For Title IX Hearings

August 30, 2021
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Last month, the United States District Court for the District of Massachusetts recently reviewed provision 34 CFR §106.45(b)(6)(i) in the 2020 Title IX regulations, which requires that parties and witnesses submit to cross-examination at the live hearing in order for the decision-maker to rely on that party or witness’ statements. Victim Rights Law Center, et al. v. Cardona, 20-11104-WGY, 2021 WL 3185743, at *15 (D. Mass. July 28, 2021). The court held that decision-makers may now consider all statements made by all parties and witnesses, even if they do not submit to cross-examination at a live hearing.  Many wondered how the ruling would be received by the United States Department of Education’s Office for Civil Rights (“OCR”).

The Elimination of Cross-Examination Requirement for Title IX Investigations and Hearings

OCR has now responded to the district court’s decision.  In an August 24, 2021 letter, OCR explained that, in accordance with the court’s decision, OCR will cease enforcement of the prohibition against decision-makers relying upon statements not subject to cross-examination.  Furthermore, OCR stated that it will revise the recently issued July 2021 question and answers guidance resource, as well as other documents discussing the vacated provision. You can read our recap of these new Title IX questions and answers here.

The elimination of the cross-examination requirement for statements to be considered by decision-makers at hearings changes the landscape of Title IX hearings and ultimately jeopardizes the ability of an accused student to impeach witnesses or complainants making false statements. Cross-examination in university hearings has provided accused students with an opportunity to ask questions seeking clarification on key issues and to impeach the credibility of parties making false or inaccurate statements. The removal of the requirement that statements and information contained in written documents/reports be subject to cross-examination will decrease the ability of students and their advisors to questions the substance and conclusions of the information contained in the statements and documents, as well as to explore inaccuracies and credibility issues.

OCR’s decision to do away with enforcement of 34 CFR §106.45(b)(6)(i) does not mean that students will be prohibited from conducting cross-examination all-together. It just means that decision-makers can now consider evidence outside of the testimony presented in a hearing.  For example, decision-makers will be able to consider medical reports without hearing from the persons who drafted the reports.

While colleges and universities wait for additional guidance from OCR, it is important for students accused of sexual misconduct to keep a close eye on all school Title IX policy updates and to work with an experienced Title IX advisor.

If you are a student facing accusations of sexual misconduct, or if you have questions about the recent changes to the 2020 Title IX regulations, KJK’s Student Athlete and Defense Attorneys can help you. Please do not hesitate to contact our Title IX Attorneys with any questions or concerns.