NAICU Washington Update

Court Finds Part of Title IX Regulations Unlawful

July 30, 2021

In a ruling that largely upheld the Trump Administration’s Title IX regulations on sexual harassment, a federal judge singled out one provision as unlawful. 

The provision in question prohibits colleges and universities from relying on the statements of any witnesses who do not submit to cross-examination at the live hearing required by the regulations. The court noted that the procedural safeguards afforded to the accused student – the ability to influence when the hearing is scheduled, the right to avoid self-incrimination by refusing to testify, and the right to speak freely about the investigation to others – combined with an institution’s lack of authority to subpoena witnesses means that a college or university could be precluded from holding a hearing that was fair to the victim.

According to the court, if certain circumstances align, “the hearing officer is prohibited from hearing any evidence other than the testimony of the complainant, and the hearing officer cannot draw a negative inference from the absence of the respondent – no police reports, no medical history, no admissions by the respondent, no statements by anyone who witnessed the incident and either could not attend or was dissuaded from attending by the respondent.” 

As a result, the court found the prohibition to be arbitrary and capricious in violation of the Administrative Procedure Act (APA) and ordered the Department of Education to respond with its position on and an explanation of its reasoning regarding the requirement.  

Meanwhile, the court ruled that the other claims made in the lawsuit did not violate the APA or the equal protection clause of the Constitution. The suit, which was filed by the National Women’s Law Center, is one of several legal challenges that have been brought against the 2020 regulations, but these lawsuits have generally been unsuccessful. 

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