Title IX: Back to the Future - Use of Statements of Individuals Who Do Not Testify at Title IX Formal Hearings.

On July 28, 2021, The Honorable William G. Young, a Senior U.S. District Judge for the District of Massachusetts, issued a ruling in Victims Rights Law Center v. Cardona, a case brought by a collection of individuals and advocacy groups challenging thirteen provisions of the Title IX Final Rules, issued in 2020 under the first Trump administration's Department of Education. While Judge Young upheld twelve of the challenged Final Rules, he found that one rule, the cross-examination rule, was arbitrary and capricious. The Rule required a hearing decision-maker to disregard statements made outside of the hearing by parties or witnesses who did not appear and subject themselves to cross-examination at the hearing. Judge Young blocked enforcement of that rule in Massachusetts and remanded the rule to the Department of Education for further consideration and explanation. On August 10, 2021, Judge Young applied his decision nationwide.

In explaining why he struck the rule, Judge Young gave as an example the case of a respondent who had made pre-hearing admissions and statements of his guilt, but who chose not to testify at the hearing in order to keep those statements from being admitted into evidence. Judge Young noted that by doing so, such a respondent would be putting a full and fair hearing on the facts out of reach of a complainant.

Subsequently, on August 24, 2021, the U.S. Department of Education issued a "Dear Colleague" letter that essentially codified the court's order in Victims Rights Law Center v. Cardona.  The letter states that "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."  It further clarified that a decision-maker at an institution of higher education “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.” 

Before the cross-examination rule was implemented in 2020, courts routinely found respondents had been denied basic due process rights in Title IX hearings. Proponents of cross-examination said that the cross-examination requirement corrected a significant deficiency and imposed a degree of due process into the Title IX hearing process. However, several notable women’s rights advocates and interest groups viewed cross-examination as a disincentive to victims’ participation and a re-victimization of those who have suffered trauma.   It is important to note that on February 4, 2025, the U.S. Department of Education sent a “Dear Colleague” letter to kindergarten through 12^th grade schools and institutions of higher education advising educators and administrators that the department’s Office for Civil Rights will once again enforce the 2020 Title IX Regulations, but this letter did not rescind the August 24, 2021 guidance allowing consideration of statements by parties or witnesses who do not participate in cross-examination.  

BartlettJames fields some of the most experienced Title IX decision-makers in the country. Our team of retired judges understand that they may now consider statements made by parties and witnesses prior to a hearing, including texts or emails between the parties, statements found in police and medical reports, and other statements in documents, videos, and recordings. These satisfy the loosely defined “relevance” rules, regardless of whether a party or witness submits to cross-examination at the hearing.

Our team at BartlettJames is sensitive to the issues involved and will help ensure that your institution conducts legally defensible and appropriate hearings under the Title IX regulations and the Department of Education interpretations.