Be Nimble: Considerations for Implementing the Cardona Decision at Your Institution

This is the first article in a series exploring what our Title IX team has learned in the year following the implementation of the 2020 Title IX regulations.

Since the effective date of the new Title IX regulations last August, we’ve been helping colleges and universities prepare for and navigate the complex and challenging grievance process mandated by the Department of Education for alleged Title IX misconduct. One of the most confounding and controversial provisions of the regulations, often referred to as the “suppression provision,” prohibited the decision-maker at any hearing from relying on any statement of a party or witness who does not subject themselves to cross-examination at the live hearing. Specifically, the suppression provision, found at §106.45(b)(6)(i) of the regulations, states in relevant part: 

If 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 our roles as counsel and when serving as hearing officers, we have observed the issues this provision created for institutions and their grievance processes. But last month, a decision out of the U.S. District Court for the District of Massachusetts, VRLC et al v. Cardona, vacated the provision, determining that it was arbitrary and capricious. 

In doing so, the court emphasized the myriad ways in which parties could use this all-or-nothing rule to attempt to manipulate the outcome of a hearing, resulting in decisions made without the benefit of a full consideration of all relevant factual information available. The court explained:

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. 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 persuade other witnesses not to attend the hearing. . . This is not some extreme outlier or fanciful scenario. 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 to so advise.

Following the court’s ruling, on August 24, 2021, ED’s Office for Civil Rights affirmed that “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…” 

Although this change was welcomed by many schools that had been frustrated by the complexity of implementing the provision and fearful of absurd outcomes, it has left many asking what they should do next with respect to their processes, policies, and procedures.

Determining the right path forward from here, at this time, may be complex especially since further changes to Title IX are on the horizon, leaving institutions to grapple with the impact of this change in policy. Here are some areas worthy of consideration:

• Consider policy revision. The Cardona decision does not mandate that institutions change their Title IX policies to remove the suppression clause, although many that can are choosing to do so to help ensure outcomes based on a full consideration of all information collected. Choosing to make changes or to not do so has potential ramifications legally and within your community. Check with your counsel to determine whether this is the right decision for your institution. And be mindful of considerations such as whether your institution requires board approval for policy changes, whether your state or judicial circuit imposes any requirements for live hearings, and (for private schools) whether your policies are deemed contractual. 
• Consult OCR’s Q&A. If you decide to preserve the suppression clause in your policy, consult OCR’s July 2021 Q&A. This document, published just prior to the Cardona decision, provides the most recent guidance regarding OCR’s interpretation of the suppression provision prior to its announcement that it would not enforce the clause in the wake of the decision.
• Prepare for more Title IX complaints. Without mandated cross examination, complainants making allegations of conduct that fits the definition of Title IX sexual harassment may be more willing to pursue the formal Title IX process.
• Retrain decision-makers and advisors. Decision makers who have been previously trained to enforce the suppression provision will need to be updated to account for new changes in the law and your institutions’ policies and procedures. And without compulsory cross-examination, hearing advisors may need to be prepared for more parties to decline to participate in all or part of the hearing process. We have upcoming trainings for these roles to assist you.
• Inform your campus community. The cross examination requirement and related suppression provision were the subject of much campus and media discussion and scrutiny following the release of the regulations. Consider the benefits of notifying key stakeholders on your institution’s plan for implementing these key changes. 

Is there a thorny Title IX issue you’d like to see us discuss in this series? Reach out to a member of our Title IX team.