Judge Strikes Down Provision of Title IX Rule | Inside Higher Ed

A federal judge largely upheld a controversial 2020 final rule on Title IX promulgated by former secretary of education Betsy DeVos, but he struck down a key provision that prohibits colleges adjudicating sexual misconduct allegations from considering statements not subject to cross-examination.

Advocates for sexual assault survivors have argued that the provision prevents previous written or oral statements from police officers, nurses or other witnesses from being considered by an institution in the event that individual is unable to attend a hearing, and also means an accused student’s own statements admitting guilt could not be used if the student chose not to testify at the hearing.

Judge William G. Young of the U.S. District Court of Massachusetts ruled that the department had failed to adequately consider such outcomes, and the provision was therefore put forward unlawfully, in an arbitrary and capricious manner.

“Under a plain reading of the Final Rule’s hearing provisions, a respondent may work with the school to schedule the live hearing, and nothing in the Final Rule or administrative record prevents him or her from doing so to further a disruptive agenda — e.g., at an inopportune time for third-party witnesses,” Young wrote. “The respondent may elect not to attend the hearing to avoid the possibility of self-incrimination, and, so long as he or she does not do so in a tortious or retaliatory manner, the respondent may speak freely to his or her peers about the investigation to collect evidence or even to persuade other witnesses not to attend the hearing.”

“This is not some extreme outlier or fanciful scenario,” Young wrote. “No attorney worth her salt, recognizing that — were her client simply not to show up for the hearing — an ironclad bar would descend, suppressing any inculpatory statements her client might have made to the police or third parties, would hesitate so to advise.”

The ruling — which sends the provision back to the Department of Education for further consideration — came in a lawsuit filed by four organizations that advocate on behalf of victims of sexual violence as well as three individual students. Young upheld the other 12 of the 13 provisions of the final rule that the plaintiffs challenged.

Shiwali Patel, director of Justice for Student Survivors at the National Women’s Law Center, which initially filed the lawsuit, said many colleges have complained that the provision prevented them from completing full investigations of student allegations.

“The department was concerned about — or so they said — with ensuring that schools were conducting reliable and thorough investigations, and yet the rule also required them to not consider this evidence,” she said. “It really makes no sense and shows that these changes to the Title IX rules are not really about getting to the truth of what happened, despite what DeVos has said and others who support the rule have said. Really, what it’s about is to weaken protections against sexual harassment in schools, to require schools to have uniquely burdensome procedures only for sexual harassment complaints.”

Now, under the Biden administration, the Department of Education has said it will issue a new rule next May to replace the 2020 regulations.

“We are reviewing the decision, but the department has already taken several steps to examine the prior administration’s Title IX regulations, responding to an executive order from President Biden,” a department spokesperson said Thursday. “Some of those steps include holding a virtual public hearing in June and issuing a Q&A to provide clarity about the obligations under the 2020 regulations.”