Maddie Xilas

Associate Editor

Loyola University Chicago School of Law, JD 2023

On August 24, 2021, the U.S. Department of Education’s Office for Civil Rights (OCR), released guidance clarifying that, effective immediately, it will stop the enforcement of 34 C.F.R. § 106.45(b)(6)(i). With this new guidance, a decision-maker at a post-secondary school may now consider outside information submitted by a survivor-complainant during the Title IX grievance process, even if the survivor-complainant does not partake in cross-examination.

Cross-Examination under Title IX: what happened in 2020?

It is not a secret that the Trump administration was vehemently and aggressively anti-woman. As is discussed at length in the linked articles, Trump’s anti-woman tirade manifested in countless aspects of his social and economic policies, including, and arguably especially, in his administration’s approach to amending Title IX regulations in 2020. Given the administrations propensity for anti-woman policies, it should come to no surprise that the first draft of the 2020 Title IX regulations required, with no named exceptions, that all people who attended a post-secondary school and made a complaint under Title IX, subject themselves to live cross-examination. The administration opened its discussion on this proposed requirement by emphasizing that cross examination is the, “greatest legal engine ever invented for the discovery of truth”. Unsurprisingly, this sentiment, which was pulled from a 1970 Supreme Court Case involving a procedural evidence-based inquiry related to the furnishing of marijuana to a minor, and notably not from any case or study even tangentially related to Title IX or sexual misconduct, proved to be an unconvicting rationale to advocates and survivors alike. Many of these advocates and survivors expressed their concerns that this requirement would, among other things, require the re-traumatization of survivors perusing a Title IX case.

Interestingly, the forced cross-examination provision in the first draft of the Title IX regulations proved to be so controversial that the Trump administration decided to make any cross-examination “voluntary”. Unfortunately, the shift from “required” to “voluntary” was in name only. While it was true that the finalized 2020 Title IX regulations left advocates unable to state that cross examination was per se required, the effect of the finalized requirements was essentially the same. As is mentioned above, the finalized regulations barred decision-makers from considering any outside information submitted by a survivor-complainants, such as medical reports, Sexual Assault Nurse Examiner (SART) reports, statements made within police reports, and other documents and records, unless the survivor-complainant “agreed” to subject themselves to cross-examination.

What is happening now?

Almost exactly one year after these new Title IX regulations took effect, in the wake of Victim Rights Law Center et al. v. Cardona, a July federal district court decision which found the live hearing/cross examination requirement under Title IX to be arbitrary and capricious, OCR has announced that they are rolling back the cross-examination requirement. Under this new guidance, decision-makers are now able to consider outside information submitted by a survivor-complainant during the Title IX grievance process, even if the survivor-complainant is not cross-examined. While this is no doubt a win for women, survivors, advocates, and feminist legal scholars alike, OCR’s guidance did not dwell on why. The rest of this analysis will.

Why is the elimination of a cross-examination requirement in the context of Title IX the right choice?

• Re-Traumatizing Survivor-Complainants

It doesn’t require a background in feminist legal theory, social work, or domestic violence advocacy to understand why forcing a survivor-complaint to subject themselves to cross-examination is problematic. Countless studies have shown that survivors of assault, especially student survivors, frequently find police investigations, criminal trials, and cross examinations to be invasive and traumatizing. Restorative Justice advocates have, for years, been making the intuitive argument that a legal system which responds to violence with further dehumanization will be unable to break cycles of pain, dehumanization, and embarrassment. In sum, cross examination carries with it a high likelihood that a survivor-complaint will experience further pain, going through a process which, theoretically, should carry with it the goal of causing the least harm possible to the survivor-complainant, even when punishment of the respondent may not be possible for whatever reason.

• Arguments that Due-Process Requires Cross-Examination are Weak

Further, due process arguments in the context of conversations related to cross-examinations in Title IX proceedings are objectively flawed. Due process is, at its core, about ensuring that no person is unfairly deprived of their right to property or liberty. This means that due process, at its best, requires a system which encourages all evidence that is relevant to come to a head. Thus, the suppression of certain objective evidence, like police reports or medical records, simply because a party cannot fathom opening themselves up to further trauma in the form of cross-examination, is oppositional to the core of due process rights. Additionally, studies have shown that the aggressive and adversarial nature of a cross examination is an ineffective tactic for evaluating the truth in cases having to do with sexual violence. Meaning that, in many situations, the probative, and by extension due process value, of cross-examinations in the context of Title IX cases is low.

Concluding Thoughts

Ultimately, I am celebrating this change in Title IX not only because it is a win for women and survivors, but also because it supports the objectively correct way in which evidentiary based fact-finding systems should be structured. It is wholly intuitive that any objective system of accountability should not be arbitrarily barring evidence in any context, let alone in the context of a notoriously anti-woman presidential administration. Thus, both from an analytical and moral perspective, OCR’s choice to eliminate the cross-examination requirement, under the Biden administration, was the correct one, and we should all note it as such.