August 2021 Update –
Schools now permitted to rely on relevant evidence:
The 2020 Final Title IX Regulations created by the Trump Administration shifted Title IX’s focus away from survivor-centered campus processes and created more barriers for survivors. The Biden Administration is signaling changes but must follow lengthy procedures before fully replacing the current law.
However, small changes can come from a variety of sources – including court orders. The Victim Rights Law Center sued the Department of Education, and the Court ordered the Department to remove one of the 2020 Rule’s most harmful sections.
Before the Court Order, campuses were not allowed to consider evidence (including text message confessions, apologies, or other admissions; statements made to law enforcement or campus investigators; or other critical information) if a Respondent or Witness simply refused cross-examination.
This created a gaping loophole – if a Respondent knew they admitted the sexual violence in a text message or email, or they told an investigator something that conveyed responsibility, they could wipe that evidence from consideration simply by refusing to attend the full hearing or just the cross-examination section.
To comply with the court order, the U.S. Department of Education eliminated this part of the rule. Schools are now permitted to rely on relevant evidence provided by a party or witness even if that person declines cross-examination.
OAESV expresses our sincere gratitude to the Plaintiffs in Victim Rights Law Center v. Cardona for their work in creating this critical change.
