JD Supra: What Should Colleges Do Now That the Title IX Suppression Rule is Dead?

August 17. 2021

The national Association of Title IX Administrators (ATIXA) wrote an analysis of the ruling in our Title IX lawsuit against the U.S. Dept. of Education and former Education Secretary Betsy DeVos. The court’s July 28 ruling struck down one of the Trump Administration’s anti-survivor Title IX changes, which required schools to ignore crucial evidence in sexual assault/harassment cases if the relevant party or witness could not submit to cross-examination questioning at the live Title IX hearing.

On August 10, the court further clarified its ruling, confirming that it has vacated and nullified the “evidence-suppression provision” in question, and that it should no longer be enforced nationwide.  Read more about the decision here.

Highlights from ATIXA’s analysis piece about why the now vacated rule was so harmful:

• “The rule was draconian, and near-universally despised by college and university administrators for its cynical effect. If a respondent answered 50 questions during an investigation, and 50 more at the hearing, but then refused to answer question 51 during cross-examination, the rule required all 100 previous answers to be struck and not relied upon.”
• “If a respondent admitted during an investigation interview to raping a complainant, they could simply suppress that confession by refusing later to submit to cross-examination at the hearing.  It isn’t fair to allow that to happen, and it is not reasonable to require a decision-maker to ignore the confession once it is in the record.”
• “For any respondent whose complainant [survivor] dropped out of college, became hospitalized with mental health issues, or committed suicide, the respondent was virtually guaranteed to be found ‘not responsible’ as a result of a hearing where there was no testimony from the alleged victim.”
• “Statements made by a police detective and included in the police report could not be relied upon in the Title IX hearing unless the police detective attended the hearing and submitted to cross-examination, which is a rare occurrence. Statements made to the police detective by the parties could not be testified to by the police detective at the hearing unless the parties attended the hearing and were willing to submit to cross-examination, themselves.”
• “Worse, the rule created an incentive for a party to a complaint to try to intimidate the other party from attending the hearing, knowing that the outcome would be suppression of all the non-attending party’s prior statements. It also created an incentive for a party’s advisor to try to intimidate a party or witness into silence through badgering cross-examination during the hearing.”
• “While we know that most institutions will await further OCR guidance before acting, ATIXA sincerely hopes institutions will immediately choose not to use this provision and will rewrite their Title IX procedures term to remove both the suppression and no-inference requirements contained in the quoted provision above in time for the start of the fall 2021 term.  We have already advised clients that even for complaints now underway, we recommend eliminating the provision, because it is manifestly unfair.”
• “I could go on about the manifest absurdity of this rule, but instead I will just celebrate its demise as we all work to create fairer Title IX policies and procedures for all.”