As attorneys who represent students in Title IX disciplinary proceedings, Rosenberg & Ball closely follows five lawsuits that seek to undo the due process protections in the Department of Education’s 2020 regulations.  To date, all five courts rejected these challenges.  However, the recent Victim Rights Law Center decision echoed concerns raised in testimony Eric Rosenberg provided this spring during a hearing addressing the Department’s intended changes to the 2020 regulations.

Victim Rights Law Center directed the Department to revisit the 2020 regulation requiring universities ignore pre-hearing statements by individuals that refuse to subject themselves to cross-examination.  Victim Rights Law Center v. Cardona, 2021 WL 3185743, *15-16. (D.Mass. July 28, 2021).   The court did so because this regulation allows individuals who do “not to show up for the hearing” to avoid the negative impact of their contradictory pre-hearing statements. Id., *16. 

This concern also drove Mr. Rosenberg’s testimony.  Specifically, Mr. Rosenberg asked the Department to bring the regulation into conformity with court decisions criticizing universities that prohibited accused students from utilizing exculpatory pre-hearing statements made by complainants and witnesses who declined to testify at hearings.   To remedy this defect, Mr. Rosenberg suggested the Department add the following sentence to the regulation in question: “A party’s refusal to submit to cross-examination at a hearing does not preclude the decision-maker(s) from relying on a prior statement by that party against his or her own interest.”   

When the Department will complete its re-write of the 2020 regulations is anyone’s guess. Nonetheless, its July 2021 Questions and Answers on the Title IX Regulations on Sexual Harassment provided guidance on this issue by stating: “if a party or witness in a text message, email, or video does not submit to cross-examination, the decision-maker may still rely on the statements by other people in that text message, email, or video who do submit to cross examination.”  See, Question 54, Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021). 

This is great news for accused students who would otherwise be prohibited from proving their innocence through pre-hearing statements by complainants or witnesses who refuse to subject themselves to cross-examination.   On the other hand, the Department’s July 2021 “Questions and Answers” guidance allows universities to limit the scope of cross-examination.   These are therefore complicated waters which Rosenberg & Ball can help navigate, since our attorneys have represented hundreds of accused students across the country in Title IX disciplinary proceedings. 

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