Update: Federal Judge Clarifies that Harmful Title IX Provision is Unlawful & Should No Longer Be Enforced
August 12. 2021
For Immediate Release
Aug 12, 2021
Jess Eagle, Communications Manager
Equal Rights Advocates
- Update: On August 24, the U.S. Department of Education released an official statement confirming it will no longer enforce the anti-survivor provision struck down by the court in this ruling, meaning college survivors of sexual violence, and their witnesses, no longer have to submit to live cross-examination at Title IX sexual assault/harassment hearings.
On August 10, a federal court clarified its ruling in our lawsuit against the U.S. Department of Education and former Secretary Betsy DeVos, confirming that it has deemed unlawful a Trump-era Title IX provision that is harmful to student survivors of sexual violence, and that provision should no longer be enforced under Title IX.
The clarification confirms that the court’s July 28 decision vacated and nullified DeVos’s Title IX “exclusionary rule,” which had required postsecondary schools to exclude all evidence and statements made by any party or witness who did not submit to cross-examination at a live hearing.
Under the now nullified provision, survivors had been required to be cross-examined at a live hearing by their harmer or an advisor of the harmer’s choice in order for the survivor’s previous written and oral statements to be considered as evidence in their case. It also meant that the harmer’s previous statements — including confessions or apologies — could be excluded from evidence if the harmer simply refused to be cross-examined.
Confirmed by the court’s clarification, its ruling means colleges and universities can now consider crucial evidence — such as police reports, rape kits, and statements from witnesses — that they were previously required to ignore if the relevant witnesses were unable or unwilling to be present and cross-examined at the Title IX hearing. This harmful Trump-era provision took effect nearly one year ago, on August 14, 2020.
In addition to finding the provision unlawful, the court called it “arbitrary and capricious,” saying it rendered Title IX hearings into “a remarkably hollow gesture.” Thus, the court said, it is clear that “the Department failed, even implicitly, to consider the consequences” of the provision.
Read more about the court’s July 28 decision here.
The lawsuit was brought by Equal Rights Advocates, Victim Rights Law Center, Chicago Alliance Against Sexual Exploitation, Legal Voice, and several survivors, including ERA clients. We were represented by Morrison & Foerster, National Women’s Law Center, and Diane Rosenfeld.