On Tuesday June 28, 2022, the U.S. Department of Education’s Office for Civil Rights (OCR) updated the Questions and Answers on the Title IX Regulations on Sexual Harassment, which was originally issued in July 2021. The update reflects the court ruling in Victim Rights Law Center et al. v. Cardona, which invalidated the part of the Title IX regulations regarding the prohibition against statements not subject to cross-examination.

As we shared last September, OCR said in a letter dated August 2021 that it would not enforce that section of the 2020 Title IX regulations in light of the federal district court ruling. With this new update, OCR is clear that institutions of higher education may not choose to maintain the prohibition on considering statements made by a party or witness who does not submit to cross-examination at a live hearing as part of its Title IX grievance process.

Be Sure to Review Your Policy and Procedures
Institutions of higher education that did not update their procedures post-Cardona will want to review these updated Questions and Answers. As OCR writes: “To the extent that statements made by a party or witness who does not submit to cross-examination at a live hearing satisfy the regulation’s relevance rules, they must be considered in any postsecondary school’s Title IX grievance process that is initiated after July 28, 2021.” The bottom line is that the exclusionary rule is not an option. Our experienced Title IX team is here to assist your institution in adapting to this ever-changing regulatory landscape. Contact us here.

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