January 25, 2022

Volume XII, Number 25

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January 24, 2022

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Education Department Ceases Enforcement of Title IX Regulatory Provision Barring Reliance on Certain Statements

The U.S. Department of Education’s Office for Civil Rights has announced that it will immediately cease enforcement of the Title IX regulatory provision prohibiting decision-makers’ reliance on statements not subject to cross-examination at a live hearing.

The announcement was made in a Letter to Students, Educators, and other Stakeholders re Victim Rights Law Center et al. v. Cardona, released on August 24, 2021.

The letter comes after a federal district court in Massachusetts issued an opinion in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104 (D. Mass. July 28, 2021), that found 34 C.F.R. § 106.45(b)(6)(i) (live hearing requirement for the Title IX grievance process at postsecondary institutions only) to be arbitrary and capricious in violation of Section 706(2)(A) of the Administrative Procedure Act. The Court vacated and remanded the case to the Department of Education for further consideration and explanation of that provision. The provision states, “[I]f 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.”

In response to the district court opinion, the Department stated that it would “immediately cease enforcement of … the prohibition against statements not subject to cross-examination” and that higher education institutions “are no longer subject to” that provision.

The Department further clarified:

In practical terms, 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.

The Department’s letter does not expressly require institutions to revise their Title IX Sexual Harassment grievance procedures in line with this development. However, the Department’s statement about the practical impact of its position suggests that institutions should remove or replace any portion of their procedures that prohibits reliance on statements not subject to cross-examination. Such statements remain subject to the relevant rules, but now decision-makers have the discretion to consider all statements made by parties and witnesses during the investigation, including those found in emails, text messages, police reports, SANE documents, and medical documents.

The Department instructed that any statements in an Office for Civil Rights document, including its Questions and Answers on the Title IX Regulations on Sexual Harassment (July 2021) and Appendix with sample policies, which include the vacated portion of 34 C.F.R. § 106.45(b)(6)(i), should not be relied upon and will be updated in the coming weeks to reflect the guidance in the August 24 letter.

Meanwhile, the Office for Civil Rights is continuing its comprehensive review of the Department’s current Title IX regulations, orders, guidance, policies, and similar agency actions as outlined in President Joe Biden’s “Executive Order on Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.”

Jackson Lewis P.C. © 2022National Law Review, Volume XI, Number 237
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Susan D. Friedfel Employment law attorney for educational instituions in White Plains, NY of Jackson Lewis law firm
Principal

Susan D. Friedfel is a Principal in the White Plains and New York, New York, offices of Jackson Lewis P.C.

Ms. Friedfel collaborates with clients to find practical solutions for a variety of issues that arise in the workplace. She counsels clients in various industries, including law firms, financial institutions, educational institutions, and not-for-profit organizations, on a wide array of issues.

Susan D. Friedfel  provides advice and counsel on matters such as:

  • employee recruiting and hiring practices
  • family and medical leave
  • reasonable...
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Monica H. Khetarpal, Litigation Experience, Discrimination, Wage and Hour Violations, Jackson Lewis Law Firm
Principal

Monica H. Khetarpal is a Principal in the Chicago, Illinois, office of Jackson Lewis P.C. Her litigation experience includes cases involving claims for discrimination, harassment, wage and hour violations, FMLA violations, disability discrimination and requests for accommodation in both single plaintiff and class action matters. She regularly handles matters at all levels, from administrative agencies to appeals in both state and federal courts.

Ms. Khetarpal focuses a significant portion of her practice on representing higher education clients and serves as co...

312-803-2529
Joshua D. Whitlock Higher Education Litigation Civil Rights Attorney Jackson Lewis Law Firm North Carolina
Principal

Joshua D. Whitlock is a principal in the Charlotte, North Carolina, office of Jackson Lewis P.C. He focuses his practice on meeting the legal needs of higher education institutions.  

Josh believes deeply in higher education’s mission and impact and considers it a great privilege to work closely with institutions of all types—from community colleges, to small private schools, to large public research universities—to find thoughtful and effective answers to the unique issues that they face. Josh has extensive experience...

980-465-7242
Carol R. Ashley Labor & Employment Attorney Jackson Lewis Washington, D.C.
Of Counsel

Carol R. Ashley is of counsel in the Washington, D.C. Region office of Jackson Lewis P.C. Her practice focuses on representing employers in workplace law matters, including preventive advice and counseling.

703-483-8300
Of Counsel

Crystal L. Tyler is Of Counsel in the Richmond, Virginia, office of Jackson Lewis P.C. She practices in the areas of employment and higher education, specifically, Title IX.

In her employment practice, Ms. Tyler represents employers in litigation, mediation, and arbitration involving a full range of employment-related claims involving arising under Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Fair Labor Standards Act, and various other federal and state laws. Ms. Tyler also provides counsel and...

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