Education Department Ceases Enforcement of "Arbitrary and Capricious" Exclusionary Rule

By a bulletin and letter issued on Aug. 24, 2021, the Biden Administration's U.S. Department of Education announced that it was ceasing enforcement of a highly controversial exclusion of evidence rule that was included in the May 2020 Title IX regulations. That exclusionary rule provided that "[i]f a party or witness does not submit to cross-examination at [a] live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility…." 34 C.F.R. § 106.45(b)(6)(i). The department also reminded the public of its April 6, 2021, announcement that it intended to conduct a "comprehensive review" of the updated "Title IX regulations, orders, guidance, policies, and other similar agency actions" taken by the prior administration. 

History of Exclusionary Rule

The Trump Administration's Education Department defended the exclusionary rule as consistent with the department's focus on the importance of cross-examination and as being simple to apply. Critics of the rule noted when it was issued in Summer 2020 that it would have many unfortunate consequences, including, for example, that it would prohibit a decision-maker from considering a respondent's written admission of responsibility if the respondent chose not to submit to cross-examination at a live hearing. In technical guidance and blog posts, the Trump Administration's Education Department doubled down on the rule as written and suggested that a party's or witness's refusal to answer even one relevant question posed by a party's advisor could result in the exclusion of any statements the party or witness might have made previously (e.g., to law enforcement, to a Sexual Assault Nurse Examiner (SANE) nurse, etc.). Colleges and universities were therefore required to include language consistent with the exclusionary rule in their Title IX policies by Aug. 14, 2020, and to apply the rule in cases involving Title IX sexual harassment that allegedly occurred on or after that date.

Effect of VRLC v. Cardona Decision

The Education Department's Aug. 24 bulletin and letter indicate that it will cease enforcement of the exclusionary rule because of a July 28, 2021, decision by a federal district court in Victim Rights Law Center et al. v. Cardona, No. 1:20-cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021) (VRLC Decision). The VRLC Decision largely rejected the plaintiff advocacy groups' challenges to the validity of the May 2020 regulations, with one exception. Specifically, the court analyzed various illogical results that the exclusion rule was likely to have in practice, found that the Education Department had not adequately demonstrated that it had accounted for such results when adopting the rule and held that the rule was arbitrary and capricious in violation of the Administrative Procedures Act (APA). The court remanded the exclusionary rule portion of the regulation to the Education Department for further consideration. The parties sought a clarification and, in a follow-up order of Aug. 10, 2021, the court clarified that its decision to remand implicitly also vacated the provision.

While the department theoretically could have responded to the court's decision by defending the exclusionary rule further, it chose, as announced on Aug. 24, not to do so. The net effect of these developments is that the Massachusetts federal court's decision vacating of the exclusionary rule will continue to have national effect. The Education Department is not challenging that decision and the department will not enforce the rule administratively at this time.

What This Means for Colleges and Universities

Because the exclusionary rule is no longer effective, colleges and universities are free to strike from their Title IX policies the language required by that rule and to consider, if they wish, statements made by parties and witnesses even if they do not submit to some or all cross-examination questions posed by an advisor. The Education Department's bulletin and letter emphasize, for example, that a decision-maker "may now consider statements made by the parties and witnesses during the investigation, emails or text exchanges between the parties leading up to the alleged sexual harassment, and statements about the alleged sexual harassment that satisfy the regulation's relevance rules, regardless of whether the parties or witnesses submit to cross-examination at the live hearing," and "may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents even if those documents contain statements of a party or witness who is not cross-examined at the live hearing."

To be clear, this change does not mean that colleges and universities are required to consider such evidence; rather, it means that they may exercise appropriate discretion to do so. Schools that decide to strike exclusionary rule language from their Title IX policies could provide instead, for example, that formal rules of evidence do not apply in the school's hearings and that the decision-maker has the discretion to give such weight to statements made either inside or outside of the hearing as the decision-maker determines is appropriate.

Overall, this is a welcome development for colleges and universities seeking to conduct fair and equitable proceedings and remain in compliance with applicable Title IX regulations. For any questions regarding specific policy revisions or other questions regarding the implementation of this change on your campus, contact the authors or a member of Holland & Knight's Education Team.

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