A little over a month ago, the U.S. Department of Education’s Office for Civil Rights (OCR) said it would no longer enforce a controversial portion of the 2020 Title IX rules. The “suppression clause” is a ban on reliance on statements by a party or witness who does not submit to cross-examination in higher education Title IX sexual harassment hearings. The 2020 Title IX regulations require that higher education decision-makers ignore all statements by any party or witness who refuses to answer even one relevant question during the required hearing for Title IX sexual harassment complaints. The rules leave room for K-12 decision-makers to decide whether to reject all statements by a party or witness who refuses to answer written cross-examination questions used in elementary and secondary school Title IX processes. After a Massachusetts Federal trial court struck down the suppression clause, citing the perverse incentives it creates, OCR announced that it would no longer enforce the provision. OCR’s statement immediately impacted colleges, universities, and K-12 schools, which must decide how to handle statements by witnesses who refuse to submit to questions during the Title IX process.  

To complicate things, male students impacted by the court’s decision have now asked the trial court to let them appeal the court’s decision to the First Circuit Court of Appeals, the highest federal court with jurisdiction over Massachusetts other than the U.S. Supreme Court. Texas, my new home state, also asked to intervene because the Biden Administration will not appeal to defend the Trump rule. Most institutions were already struggling with how to react to Cardona, and now many are even more confused. What does Cardona mean, how does the looming appeal affect the decisions schools, colleges, and universities must make, and how do you go about making them? Read more for answers to these and many other questions.  

What’s Cardona Anyway?  

Section 106.45(b)(6)(i) of the 2020 Title IX rules states that if a party or witness does not submit to cross-examination at a higher education Title IX sexual harassment hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility. For purposes of the rule, ‘‘submit to cross-examination’’ means answering those cross-examination questions that the decision-maker deems relevant and appropriate at the hearing. The rules are silent as to what, if any, effect a decision-maker in the K-12 context can impose if a party or witness fails to submit to questions during the written cross-examination process the rules require for elementary and secondary schools. The rules only require that any conditions imposed apply equally to both parties. No higher education decision-maker (and, logically, no other type of decision-maker, including one in K-12) can draw any inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the hearing or refusal to answer cross-examination or other questions. 

In late July 2021, a Federal District Court in Massachusetts held that § 106.45(b)(6)(i) is arbitrary and capricious. In Victim Rights Law Center v. Cardona, the court expressed concern that the prohibition incentivizes respondents’ bad behavior; specifically, the rule would encourage respondents to refuse to appear at hearings and discourage witnesses from doing so. The court recognized that even if it found the prohibition manifestly unreasonable, it would be powerless to strike it down if only the Department considered all of the necessary and likely consequences of the provision before implementing it. However, the court found that the Department failed to consider those consequences and vacated the provision, meaning OCR could no longer enforce it. 

What Should Educational Institutions Do? 

Even before OCR issued its statement, the Massachusetts decision gave colleges, universities, and community colleges the right to remove the rule from their policies and procedures. Once OCR issued its statement saying it will no longer enforce the provision, higher education institutions were certainly clear to do so. As OCR explained, this means: 

[A] decision-maker at a postsecondary institution may now consider statements made by the parties and witnesses during the investigation, emails or text exchanges between the parties leading up to the alleged sexual harassment, and statements about the alleged sexual harassment that satisfy the regulation’s relevance rules, regardless of whether the parties or witnesses submit to cross-examination at the live hearing.  A decision-maker at a postsecondary institution may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing. 

Note OCR’s use of “may.” Postsecondary institutions have now joined K-12 institutions in having the right to decide how to handle situations when a party or witnesses refuses to answer questions, whether during live cross-examination at a higher education hearing or during written cross-examination in a primary or secondary school.  

Does this mean that educational institutions must assign significant weight to such statements in all cases from now on? Absolutely not. As K-12 institutions have done since August 14, 2020, postsecondary schools should work closely with legal counsel to decide whether to use a “suppression” or “exclusionary” rule. There may be good reasons to do so, considering the court’s glaring criticism of the rule’s impacts on the Title IX process in Cardona. All schools—including K-12 schools—will want to review the decision carefully to decide whether it is a good idea to continue excluding hearsay statements by non-appearing witnesses in all cases. For this reason, it’s untrue that Cardona has no impact on K-12 schools. Any that have chosen to apply an exclusionary rule before may want to reconsider it in light of Cardona. 

If you want to know more about why you might change the rule or not, as well as more about the perverse incentives the court focused on in the case, check out the recent webinar from Dan Schorr LLP. Sean Flammer of the University of Texas’s Office of General Counsel and I were lucky enough to be guests on the webinar. You can find the slide deck online here. 

If a schoool Schools also must strategize with their legal teams on how decision-makers should analyze hearsay from non-appearing witnesses in the future. For example, there is nothing to prevent a decision-maker from giving less weight to this particular type of hearsay evidence just as it does other types of hearsay evidence in a Title IX process, whether or not a party participates in the decision-making process.  

However, educational institutions would be well advised to avoid altogether banning prior statements by a party or witness simply because they did not show or respond to cross-questions. The analysis from the court in Cardona calls into question the reasonableness of these types of exclusionary clauses. At the very least, schools should thoroughly consider the adverse impact of such a rule and document it well. And, of course, always continue to treat parties and their witnesses evenhandedly in all parts of the Title IX process other than supportive measures. 

Do We Make This Change Now, or Later? 

Many schools are struggling with when to make a change if they plan to remove an exclusionary rule from their policies. If the rule is in your policy, you must remove it before you can stop using it. Even if not required by the rules, your policy’s commitment to use an exclusionary rule is a little promise to the parties that you will do so. To protect the rights of the accused and provide the most clarity to all parties in your process, make sure your policy matches your practice. Unless your policies do not allow a mid-year change, nothing stops you from making the change now.  

What, But What’s This About an Appeal? 

On September 27, 2021, three students at post-secondary institutions who have been accused of sexual misconduct joined the Lonestar State in challenging the court’s decision in Cardona. They asked the First Circuit to let them intervene in an appeal of the decision because the Biden administration will not appeal to defend the Trump-era rule.  

Until the First Circuit rules otherwise, the Massachusetts decision stands. There will be much time and many obstacles before the vacatur is reversed. OCR has also said it will not enforce the rule. On those grounds, educational institutions should feel as confident as you can in the realm of Title IX about making a change to their rules on this issue now.   

Decision-makers will need to be trained on these and other changes that an institution may make. Thompson & Horton has all-new, flat-fee training sessions for the 2021-2022 school year that allow you to effectively, efficiently, and economically train your entire Title IX team, including coordinators, investigators, decision-makers, informal resolution facilitators, and advisors. We have trained thousands of school administrators and attorneys across the country at postsecondary and secondary levels. Contact us for more information on the Cardona decision and your training needs.