On August 24, the Office for Civil Rights released guidance addressing the Department of Education’s enforcement of the section of the regulations (34 C.F.R. 106.45(b)(6)(i)) regarding the prohibition against statements not subject to cross-examination. Specifically, OCR states, “in accordance with the court’s order, the Department will immediately cease enforcement” of that provision of the regulations.
The court decision, and the guidance, comes right as the Fall semester begins. Your campus worked hard to have updated policies ready to start the Fall semester, is managing the expectations with surging COVID numbers, and is likely overwhelmed with having students return back to campus, and now, you have to navigate guidance and a court ruling that have an IMMEDIATE impact on the Title IX space.
We know this is yet another hurdle and adjustment to make, but it will make your life (and the lives of your decision-makers) easier in the long run. Here are three quick and manageable action items in response to OCR’s new guidance to assist with your campus compliance efforts.
1. Read OCR’s Guidance, Letter to Students, Educators, and other Stakeholders re Victims Rights Law Center et al. v Cardona. It explains the decision, and also the position of the DOE. In short, the exceptionally confusing portion of the 2020 Regulations that prohibited decision-makers from considering statements made by parties or witnesses who did not participate in cross-examination is no longer going to be enforced. Thus, statements made by parties and witnesses, regardless of whether they were submitted to cross-examination, may now be considered by decision-makers.
2. Remove the section, and any others that reference this provision of the regulations, from your policy. It’s that simple. Just take it out. Nothing else has changed.
3. Explain the change to your decision-makers, appellate decision-makers, and advisors for a few reasons. First and foremost, their roles are directly impacted by this change. Second, your decision-makers should already be trained on the regulations and that training would have covered this provision that was extremely difficult to implement in practice. Most likely, your decision-makers will be relieved by this new development. Finally, expect that there will be challenges by parties or their advisors who are familiar with the regulations where this new development is not favorable for them in a case. We anticipate that, in those situations, the issue will be raised and your decision-makers need to be informed not only of this change, but also the basis behind the change.
We understand that this seems super simple. Bottom line, for you, at this moment, it is! The path to get to this place was messy, the litigation was confusing, and even the guidance is a bit wordy, but right now, it’s just these three simple steps.
We see you Title IX Professionals. We know you are putting in the work. Keep it up!
Count on ICS to keep you in the know about all the latest in Title IX. ICS provides a wide range of Title IX services, including its Community Access program (Higher Ed / K-12) and its live interactive trainings (Higher Ed / K-12). Contact us for more information.