{"id":4103,"date":"2021-10-08T09:00:43","date_gmt":"2021-10-08T14:00:43","guid":{"rendered":"https:\/\/blogs.luc.edu\/compliance\/?p=4103"},"modified":"2021-10-08T09:00:43","modified_gmt":"2021-10-08T14:00:43","slug":"administration-matters-the-evolution-of-cross-examination-requirements-under-title-ix","status":"publish","type":"post","link":"https:\/\/blogs.luc.edu\/compliance\/?p=4103","title":{"rendered":"Administration Matters: The Evolution of Cross-Examination Requirements under Title IX"},"content":{"rendered":"

Maddie Xilas<\/em><\/p>\n

Associate Editor <\/em><\/p>\n

Loyola University Chicago School of Law, JD 2023<\/em><\/p>\n

On August 24, 2021, the U.S. Department of Education\u2019s Office for Civil Rights (OCR), released guidance<\/a> clarifying that, effective immediately, it will stop the enforcement of 34 C.F.R. \u00a7 106.45(b)(6)(i)<\/a>. 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.<\/p>\n

<\/p>\n

Cross-Examination under Title IX: what happened in 2020? <\/strong><\/p>\n

It is not a secret that the Trump administration was vehemently<\/a> and aggressively<\/a> anti-woman. As is discussed at length in the linked articles, Trump\u2019s anti-woman tirade manifested in countless aspects of his social and economic policies, including, and arguably especially, in his administration\u2019s 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<\/a> 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<\/a> on this proposed requirement by emphasizing that cross examination is the, \u201cgreatest legal engine ever invented for the discovery of truth\u201d. Unsurprisingly, this sentiment, which was pulled from a 1970 Supreme Court Case<\/a> 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<\/a> perusing a Title IX case.<\/p>\n

Interestingly, the forced cross-examination provision in the first draft of the Title IX regulations proved to be so controversial<\/a> that the Trump administration decided to make any cross-examination \u201cvoluntary\u201d. Unfortunately, the shift from \u201crequired\u201d to \u201cvoluntary\u201d was in name only. While it was true that the finalized 2020 Title IX regulations<\/a> 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 \u201cagreed\u201d to subject themselves to cross-examination.<\/p>\n

What is happening now? <\/strong><\/p>\n

Almost exactly one year after these new Title IX regulations took effect, in the wake of Victim Rights Law Center et al. v. Cardona<\/em><\/a>, 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\u2019s guidance did not dwell on why. The rest of this analysis will.<\/p>\n

Why is the elimination of a cross-examination requirement in the context of Title IX the right choice? <\/strong><\/p>\n