Hunton Employment & Labor Perspectives

The United States District Court for the District of Massachusetts ruled this week that a controversial Title IX amendment by the Trump-era Department of Education was “arbitrary and capricious” under the Administrative Procedure Act and ordered that the rule be vacated and remanded to the Department for further consideration and explanation.

In May of 2020, the Department published a Final Rule (“Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance”) that amended the regulations implementing Title IX of the Education Amendments of 1972 by setting new standards for actionable sexual harassment, new procedures for investigations, and procedural safeguards for those individuals accused of sexual harassment.  Among these changes was a new rule that prohibited decision-makers from considering any “statement” whose declarant did not appear live at a Title IX hearing and subject himself or herself to cross-examination.

Plaintiffs – a collection of individuals and advocacy organizations – filed suit in the District of Massachusetts challenging 13 provisions of the Final Rule as violative of the Equal Protection Clause of the Fifth Amendment and the Administrative Procedure Act (the “APA”), which provides for judicial review of federal agency actions.  United States District Judge William G. Young collapsed the plaintiffs’ motion for a preliminary injunction with a bench trial on the merits, which took place in November of 2020.  In the Court’s Findings of Facts, Rulings of Law, and Order for Judgment, Judge Young largely upheld the Final Rule, finding that most of the challenges “boil down to policy debates”.

The Court found fault, however, in Section 106.45(b)(6)(i), which prohibits a decision-maker from considering any “statement” made by a party or witness who does not appear at the live hearing and subject himself or herself to cross-examination.  The Department, Judge Young found, “failed to consider the consequences of section 106.45(6)(i)’s prohibition on statements not subject to cross-examination in conjunction with the other challenged provisions”.  Judge Young recognized that a respondent could “further a disruptive agenda” by scheduling the live hearing at an inopportune time for third-party witnesses, persuade witnesses not to attend the hearing, or elect not to attend the hearing themselves in order to avoid the possibility of self-incrimination, and “rest easy knowing that the school could not subpoena other witnesses to appear”.  In such a case, “the hearing officer is prohibited from hearing any evidence other than the testimony of the complainant”, with “no police reports, no medical history, no admissions by the respondent, no statements by anyone who witnessed the incident and either could not attend or was dissuaded from attending by the respondent.”

“This is not some extreme outlier or fanciful scenario,” the Court cautioned.  “No attorney worth her salt, recognizing that -- were her client simply not to show up for the hearing -- an ironclad bar would descend, suppressing any inculpatory statements her client might have made to the police or third parties, would hesitate so to advise.”

Nothing in the administrative record, Judge Young found, “demonstrates that the Department was aware of this result, considered its possibility, or intended this effect.”  “[I]n the absence of evidence that the Department adequately considered section 106.45(b)(6)(i)’s prohibition on statements not subject to cross-examination,” the Court ruled that this prohibition is arbitrary and capricious under the APA.

As subsequently clarified at the request of the parties, the Court both vacated the prohibition in Section 106.45(b)(6)(i) and remanded it to the Department for further consideration and explanation of its decision making.

It is not clear at this time how the Department will ultimately respond to Judge Young’s ruling.  President Biden, however, campaigned on overturning these Trump-era regulations and the Biden administration has since ordered the Department to undergo a comprehensive review of Title IX regulations that will result in new notice of proposed rulemaking.

The decision is Victim Rights Law Center et al. v. Cardona et al., Civil Action No. 20-11104-WGY, 2021 WL 3185743 (D. Mass. July 28, 2021).