Prohibition of Absentee Statements in Title IX Hearings Found to Be Arbitrary and Capricious

On May 19, 2020, the Department of Education (“DOE”) published a Final Rule significantly amending the regulations that implement Title IX. The Final Rule changed the requirements for how schools handle Title IX complaints and investigations.  Four victims’ advocacy groups and three individual plaintiffs filed suit in a federal court in Massachusetts to challenge the Final Rule. The plaintiffs argued in part that portions of the Final Rule were arbitrary and capricious.

In some circumstances, an agency is required to give a detailed explanation when it has a change in policy. An agency must provide a detailed justification for a change in policy that is based on factual findings that contradict the factual findings upon which the previous policy was based.  Additionally, the agency must give a detailed justification if there were “serious reliance interests” on the prior policy. The agency then must weigh those reliance interests against the policy concerns.

The court noted that most of the plaintiffs’ arguments that the Final Rule was arbitrary and capricious were really policy arguments.  The DOE had explained why the provisions supported its goal, why it wrote them the way it did, and why it rejected a number of alternatives.  It also addressed commenters’ concerns.

The court did agree with the plaintiffs regarding one provision of the Final Rule, however.  34 C.F.R. § 106.45 details the grievance process for sexual harassment complaints.  34 C.F.R. § 106.45(b)(6)(i) provides that the hearing decision-maker may not rely on any statement made by a party or a witness who does not submit to cross-examination at the hearing in making the responsibility determination.  The decision-maker may not, however, draw an inference about responsibility based solely on a person’s absence or refusal to submit to cross-examination.

The court found that the DOE had not properly considered the consequences of prohibiting the use of statements by absent witnesses in light of the other provisions.  The court noted that the Final Rule does not prevent a respondent from attempting to schedule the hearing at a time when witnesses would not be available. The court also pointed out that a respondent is free to speak to others about the investigation to collect evidence or convince them not to attend the hearing. Additionally, a respondent is not required to attend the hearing and the decision-maker cannot hold that absence against them. The court noted that counsel would likely often advise respondents not to attend the hearing to avoid self-incrimination, resulting in the prohibition of any statements made by the respondent.

The court found that prohibiting statements by those not present could limit the hearing officer to only hearing the complainant’s testimony. The complainant would have to attend the hearing, and be subject to cross-examination, for their evidence to be admitted. The court found it would be unlikely for a complainant to meet a “clear and convincing” standard under circumstances where the respondent did not appear if statements made by the respondent or absent witnesses could not be considered.

The court found nothing in the administrative record showing the DOE had considered this issue or intended the result. The court stated that the DOE’s thoroughness in addressing the process up to the hearing only to “render the hearing a hollow exercise” by prohibiting absentee statements suggests the DOE failed to consider the consequences of the prohibition. The court therefore found the prohibition on absentee statements was arbitrary and capricious.

The court remanded the absentee statement prohibition in 34 C.F.R. § 106.45(b)(6)(i) to the DOE for additional consideration and explanation.

The procedural requirements for Title IX investigations and discipline are likely to keep changing.  If you are facing a Title IX sexual harassment allegation, you need an experienced Washington Title IX defense attorney on your side throughout the process.  Schedule a consultation with Blair & Kim, PLLC, by calling (206) 622-6562.


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