Biden admin ditches major due process protection in campus sexual assault hearings
Angela Morabito, Campus Reform
The Department of Education has announced that it is no longer enforcing a piece of the Trump-era Title IX rule that helped protect due process rights for students.
The specific provision blocked Title IX officials from deciding the outcome of a hearing based on statements made by people who were not willing to be cross-examined. For instance, officials could not rely on the contents of a text message to decide the outcome of a hearing unless the person who wrote that message was willing to answer questions about it. The same is true for other written statements, including police reports.
The 2020 Title IX rule, created by former Education Secretary Betsy DeVos, required colleges to identify a decision-maker for each Title IX hearing. The decision-maker must be a university employee, and he or she is tasked with deciding the outcome of a Title IX hearing. These outcomes can include suspending or expelling a student from the college.
Until now, a party or witness could only have his or her statement – including text messages, written notes, and police reports – considered by the decision-maker if he or she was willing to be cross-examined about the statement. Effective Aug. 24, colleges may now allow Title IX hearings to be decided based on statements made by someone who was unwilling to answer questions about what they said.
Because witnesses cannot be compelled to testify in a Title IX hearing, they could remove their statements from consideration simply by declining to participate in the hearing.
Colleges now have the option, but are not required, to change their Title IX policies to allow decision-makers to rely on such statements in determining the outcome of a hearing.
In an open letter dated Aug. 24, Acting Assistant Secretary for Civil Rights Suzann Goldberg explained the policy change:
“In practical terms, a decision-maker at a postsecondary institution may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility in a Title IX grievance process.”
The Department’s decision follows a ruling from federal Judge William G. Young, who decided a case brought by advocacy groups seeking to overturn 13 provisions of the Title IX rule. Young upheld a dozen of them, but remanded this provision, sending it back to the Department for further consideration by policymakers.
This change precedes the Biden administration’s other planned changes to the existing Title IX rule. In the letter, the Biden administration reminds the public of its plan to overhaul the rule, with a first draft of the new policy slated for publication in May 2022.
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