In the summer of 2021, a ruling was announced stating that college survivors of sexual assault or harassment and their witnesses would no longer have to submit to live cross-examination in school disciplinary hearings regarding unwanted sexual encounters. This is a significant win for student survivors who take part in these types of lawsuits.
In an official letter, the Department of Education stated that the change was based upon the Massachusetts federal district court decision Victim Rights Law Center et al. v. Cardona. That case was based on a lawsuit brought on by the groups Equal Rights Advocates, Chicago Alliance Against Sexual Exploitation, Legal Voice, and the Victim Rights Law Center. The groups claimed that at the time of their filing, the then Department of Education Secretary, Betsy DeVos, overhauled Title IX to the point that it discouraged students from reporting if a sexual violence incident occurred.
Changes Made by Secretary DeVos
Those changes that Secretary DeVos made included:
- Colleges only being obligated to respond to sexual harassment reports off-campus if that location is used by the school for an organization such as athletic, fraternity, or sorority housing;
- Cases of domestic violence, stalking, or other violence related to dating are now be considered examples of sexual harassment falling under Title IX;
- Sexual harassment having a more narrow definition to only include, “any unwelcome conduct that a reasonable person would find so severe, pervasive and objectively offensive that it denies a person equal educational access.” Domestic violence, stalking, and other violence related to dating do not need to meet the threshold of “severe, pervasive, and objectively offensive;”
- Colleges can not just have one official investigate and issue disciplinary sanctions to those found guilty of violating these rules. Instead, schools are required to have three officials go through the Title IX complaint process — the Title IX coordinator, an investigator, and a decision-maker;
- Title IX hearings could be conducted virtually and that the hearings would be recorded so they could be maintained for college records for at least seven years;
- Any evidence related to the case must be given to both parties and their advisers at least ten days before needing a response;
- Parties may discuss allegations with one another, therefore, ending “gag orders,”;
- Colleges do not have a specific time frame that they have to respond to the report but are expected to be “reasonably prompt;” and,
- The rule that colleges would be required to allow both parties to cross-examine the complainant and responding parties, witnesses, and anyone else called to testify in a Title IX hearing;
While some of the changes were praised by others, the groups named above found it concerning to have student survivors be crossed-examined during a hearing.
In Victim Rights Law Center et al. v. Cardona, the plaintiffs argued that the changes made by Devos violated the federal law because they undermined the purpose of Title IX. The court agreed with the plaintiffs that it would make it difficult for student survivors to successfully argue their cases and struck down that provision laid about by DeVos.
As it stands now, in any Title IX hearing the decision-maker in those cases could consider statements from witnesses or parties involved even if they don’t participate in the live hearing. The court did keep all of Devos’ other provisions in place regarding Title IX; however, the Biden administration has made claims that it intends to repeal those other provisions.
What if You Have a Title IX Case
Facing a Title IX case on your own could be stressful and confusing — that’s why the team at The Law Offices of Jed Silverman is here for you. Especially with Title IX rules potentially changing with the Biden administration, you want to make sure you have a legal team who knows what the latest rules are and will ensure they are being enforced properly. Don’t feel like you need to be on your own — reach out to the attorneys at The Law Offices of Jed Silverman today. (713) 597-2221