For those following the various legal challenges brought against the Trump-era Title Regulations issued by DeVos to take effect in August 2020, it is worth reviewing the recent decision in Victim Rights Law Center, et al., v. Cardona, et al., Case No. 1:20-cv-11104 (D. Mass. July 28, 2021). While the court rejected various challenges to several provisions of the 2020 regulations, it found 34 C.F.R. 106.45(b)(1) to be “arbitrary and capricious,” thus finding that the U.S. Department of Education may have violated the Administrative Procedures Act (APA). I say “may” because the court did not strike down this provision, but rather remanded the regulatory provision to the Department for ‘further consideration and explanation of the reasons” for this provision.

What is objectionable within 34 C.F.R. 106.45(b)(1)? The court took issue with a provision within this regulation that prohibited schools from considering statements by parties who do not subject themselves to cross-examination because it creates a strategy for respondents to avoid responsibility when they may have given damaging statements but wish to prevent a school from considering that statement by simply declining to attend the hearing and subject themselves to cross examination.  The court found this approach “unreasonable,” as is appropriate given that it defeats the ability of schools to potential hold respondents that have admitted to sexual misconduct from being held accountable under Title IX through due to a poorly thought out provision.

While the court’s ruling on this provision is not as strong as advocates had hoped, it opens the door for the Biden-Harris administration to agree that the provision is not supported as part of efforts to reform Title IX regulatory scheme, which many, including this author, have decried as unreasonably favoring respondents above and beyond the balancing act of due process required in such administrative proceedings.  The articulated purpose of the Title IX regulations is to “eliminate” sexual misconduct occurring on campuses, not to create loopholes that prevent accountability.

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