Live hearings—the hallmark procedure and one of the most substantial changes under the 2020 Title IX regulations for higher education institutions—may be a thing of the past. This a possible result of the end of the “Suppression Rule” brought about by the recent court decision in Victim Rights Law Center v. Cardona and the announcement from the U.S. Department of Education Office for Civil Rights (OCR) confirming OCR will not enforce the Suppression Rule. The Suppression Rule prohibited decisionmakers at higher education institutions from considering any statements of parties or witnesses that were not subject to cross examination and therefore not tested for credibility, with potentially draconian results.
One of many problems with the Suppression Rule is that it prohibits consideration of statements from anyone unable to attend a Title IX hearing; most significantly, statements from otherwise creditable witnesses such as doctors, nurses, and/or police officers. Taken in combination with the lack of subpoena power to force witnesses to attend Title IX hearings, the Suppression Rule creates situations where a savvy respondent could avoid a finding of responsibility through reliance on logistical barriers to witness testimony to knock out adverse evidence. Failing to take these outcomes into account is cited in Cardona as one reason the Department of Education should reconsider the Suppression Rule.
Only one year after Higher Education institutions scrambled to meet the deadline for Title IX policy revisions required by the 2020 regulations, Higher Education institutions are left pondering whether policies must be updated in light of the Cardona decision and Department’s announcement and how. While the recent pronouncements do not render policies that adopt the Suppression Rule unlawful, institutions do have an opportunity to modify policy provisions to avoid the known pitfalls. Without policy updates, the Suppression Rule will remain enforceable as a university or college policy.
What will be left of live hearings without the cross-examination requirement? Potentially, a stack of paper. Given the option to decline cross examination, parties and witnesses may decide to stand on their statements during the investigation. This raises the issue of whether to adopt court-like evidentiary standards to give different weight to evidence that is not subject to cross examination. Institutions can now decide as a policy matter how to consider un-crossed statements.