Hunton Employment & Labor Perspectives

In a development that will impact postsecondary institutions of higher education throughout the country, yesterday the United States Department of Education’s Office of Civil Rights (“OCR”) issued a guidance letter explaining that the Department will no longer enforce a controversial Trump-era amendment to Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (“Title IX”), shortly after the provision was vacated by a Massachusetts federal district court and remanded to the Department for further consideration and explanation.

As previously reported, last month United States District Judge William G. Young in Victim Rights Law Center et al. v. Miguel Cardona et al. largely upheld the 2020 amendments to Title IX promulgated by the Trump Administration’s Department of Education, but found fault in Section 106.45(b)(6)(i), which prohibited decision-makers at postsecondary institutions from considering any “statement” whose declarant did not appear live at a Title IX hearing and subject himself or herself to cross-examination. The Court ruled that this provision was “arbitrary and capricious” under the Administrative Procedure Act, vacated the provision nationwide, and remanded it to the Department for further consideration and explanation.

The Department responded yesterday. In a letter issued to students, educators, and other stakeholders, Suzanne B. Goldberg, OCR’s Acting Assistant Secretary for Civil Rights, announced that, “[i]n accordance with the court’s order, the Department will immediately cease enforcement of the part of § 106.45(b)(6)(i) regarding the prohibition against statements not subject to cross-examination. Postsecondary institutions are no longer subject to this portion of the provision.”

“In practical terms,” OCR explained, “a decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.”

Decision-makers may now consider statements made by the parties and witnesses during the Title IX investigations, emails and text messages exchanged between the parties, and other statements concerning the alleged sexual harassment regardless of whether the declarants submit to cross-examination at the live hearing. Moreover, decision-makers may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if they contain statements of a person who is not cross-examined. Schools should take care, however, not to change their practices before amending their published Title IX policies.

OCR’s guidance is in line with President Biden’s goal of overturning the Trump Administration’s changes to the Title IX regulations. In March 2021, President Biden issued Executive Order 14,021, which directed the Secretary of Education to review the 2020 amendments to the Title IX regulations and consider whether they should be suspended, revised, or rescinded. In April 2021, OCR announced a comprehensive review of the Department’s existing Title IX regulations, orders, guidance, policies, and other similar agency actions in furtherance of this Executive Order. The review is “ongoing,” and OCR “anticipates publishing a notice of proposed rulemaking to amend the Department’s Title IX regulations.”

The District of Massachusetts’ decision is Victim Rights Law Center et al. v. Miguel Cardona et al., Civil Action No. 20-11104-WGY, 2021 WL 3185743 (D. Mass. July 28, 2021).