[author: Ryan Thompson]

An Answer Is an Answer, Except When It’s Not

On the evening of January 19, the last full day of Donald Trump’s term as president, the staffers and attorneys at the Office for Civil Rights (OCR) seemingly spent the night responding to old emails that have been sitting in their inboxes since the summer.

At 8:26 p.m. that evening, I too received an email from OCR answering a question that I had posed to them on August 14, 2020, which was the day the new and controversial 2020 Title IX Regulations had gone into effect.

I had asked my question in response to OCR’s peculiar all-or-nothing stance on cross-examination in school Title IX proceedings. OCR had clarified earlier in August that any refusal by any party or witness to answer any relevant cross-examination question had the inflexible effect of invalidating any and all testimony and statements that person had previously made.

So, if that party or witness made verbal declarations at the scene of the incident, then subsequently had submitted to an hour of direct questioning by the hearing panel at the school’s Title IX proceeding, and then answered another hour of cross-examination questions from the parties’ advisors, the refusal to answer one relevant cross-examination question invalidated all of this. Every single one of this person’s statements could no longer be considered.

Logically, this caused many of us Title IX practitioners to not only question the rationale behind this odd procedural mandate but to also wonder what was now the most curious question: What constitutes an answer?

Will “I don’t know” or “I forget” suffice? Will answers that don’t fully answer the question be considered a refusal? Do unresponsive answers that don’t even make any sense satisfy OCR’s requirement that the party or witness simply must not “refuse” to answer? And if so, where is that line of satisfaction, and who determines when that line has been crossed?

Based on OCR’s unwavering and prescriptive approach to Title IX, many observers concluded that the quality of the answer could not matter nor be evaluated. An answer is an answer, regardless of what the answer was. Thus, any answer at all was therefore not a refusal.

This supposition, if true, seemed problematical to me for a variety of reasons. Thus, accepting the Department of Education’s much-publicized invitation to seek help directly from its OPEN Center, I posed this question to OCR on August 14:

Dear OPEN Center,

If during cross-examination, a party or witness provides the advisor with answers that do not substantially relate to the question, shall that still constitute answering the cross-examination questions, sufficient to allow that party’s/witness’s statement to be considered?

For example:
Q: Did you call a taxi to pick you and the other party up from the bar that night?
A: I drive a Ford F-150 pick-up truck.

Is that a sufficient answer, or is that refusing to answer the cross-examination question?

A mere 158 days later – with U.S. Education Secretary Betsy DeVos already gone and President Trump packing for Mar-a-Lago – I received my response. And OCR’s answer initially appeared to be a rather reasonable, measured, and realistic response to my somewhat silly, but necessary, question:

34 C.F.R. §106.45(b)(6)(i) of the Title IX Regulations provides: At the live hearing, the decision-maker(s) must permit each party’s advisor to ask the other party and any witnesses all relevant questions and follow-up questions, including those challenging credibility. (emphasis added).

If a party’s advisor of choice asks a relevant question of another party or a witness, and that party or witness declines to respond to the question, then the decision-maker is precluded from relying on any statement made by that party or witness. Answering a question with irrelevant information initially does not necessarily mean that a witness has failed to subject themselves to cross-examination. However, follow-up clarifying questions may be asked, and if the witness continues to answer with irrelevant information that is unresponsive to the question, they have effectively declined to submit to cross-examination.

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; provided, however, that the decision-maker(s) cannot draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions. (Emphasis added.)

This answer initially made some sense to me – at least as far as my specific question was concerned.

It’s a lot like what we would expect from our courts and our judges, who generally attempt to preside with some combination of strict procedural oversight and sensible flexibility. If a witness provides an unresponsive answer, the judge will address the issue, oftentimes prompted by an attorney’s objection.

While OCR didn’t specifically state such in its answer to me, when OCR writes that “if the witness continues to answer with irrelevant information that is unresponsive to the question, they have effectively declined to submit to cross-examination,” I think that it can be assumed that the hearing officer or hearing chair (the Title IX proceeding’s version of a judge) will need to be the individual to make the ruling on when this declination occurs.

And then every single one of that person’s statements – made prior to the report, made during the investigation, and made during testimony at the Title IX hearing – will need to be disregarded, according to OCR.

The significance of this consequence cannot be overlooked, and upon further thought and examination, herein lies the problem with OCR’s email to me:

Unlike in a civil or criminal courtroom, where a witness or party could be held in contempt and/or jailed for being unresponsive, here in a Title IX proceeding, the actual outcome of the case can be directly and substantially affected by this procedural action. The ruling by the Title IX decision-maker to declare a witness or party as non-responsive has the extreme effect of eradicating everything that witness or party has ever said.

This is especially concerning if this is a key witness, and this erasure occurs with no action or input by the parties themselves. And it’s even more concerning if the question that was refused was indeed “relevant” but was not all that critical to the case.

Perhaps the witness is an athlete who was asked about their drug use on the night in question. Perhaps the witness was at the scene with someone whom they would rather not have their spouse find out about. And so the witness refuses to answer one single “relevant” but insignificant cross-examination question, and the decision-maker must therefore disregard every statement and everything that the “non-responsive” witness has ever stated or testified to. To wipe this evidence from existence seems illogical and contrary to the truth-seeking functions of these adjudications.

Furthermore, establishing where exactly the line exists between “responsive” and “non-responsive” won’t always be so easy. And OCR gives no guidance in its email to me as to how or where we draw this line.

Is the following witness non-responsive?

Q: How much alcohol did you consume on Friday night?
A: I was the designated driver.
Q: Did you drink any alcohol?
A. That would be illegal.
Q: Yes or no, did you drink alcohol on Friday night?
A. Yes. But it was Saturday morning.
Q: How much did you drink?
A: Don’t know. Like I said, I was the designated driver.

Is this witness being non-responsive, or are these answers substantial enough to not be considered a refusal? Would a decision-maker be inclined to declare this witness non-responsive if these questions-and-answers continue, thereby eradicating every statement this witness has made, no matter how crucial this witness’ prior statements were to the outcome of the case?

And do we examine each of the above questions in isolation for potential non-responsiveness? Or is there just one question and the rest of the questions are “follow-up clarifying questions,” as OCR references in its email to me?

What if the advisor who is cross-examining the witness is satisfied with the answers, but the decision-maker is not? Does the decision-maker need to interject to induce the witness to become responsive? Should the decision-maker allow questioning to continue, in case their decision on non-responsiveness was in error and could later be appealed? Does the determination that the witness is non-responsive need to be made immediately, or can it later be determined by the decision-maker upon examination of the record?

You can play with these hypotheticals endlessly, and I’m not sure where exactly the line between responsive and non-responsive is, but I’m fairly certain it is a gray line that exists somewhere on a gradient where reasonable decision-makers’ minds may differ.

And for the rule-writers of the overly prescriptive, procedurally narrow 2020 Title IX Regulations, this is an intriguing power and responsibility to bestow upon the decision-maker or hearing officer – potentially allowing an entire case to swing on one decision that a party or witness is being non-responsive, potentially to just one single cross-examination question.

This all continues to speak (or shout, rather) to the fact that OCR’s all-or-nothing stance on cross-examination is not functional in practicality. And I’m not convinced anyone (including the new administration’s OCR) should be accepting this interpretational stance to be too persuasive.