Portion of Title IX Regulations Deemed “Arbitrary and Capricious”
Submitted by Lee Winocur Field, Public Policy Chair
September 10, 2021
Recently, a federal court ruled that one part of the Department of Education’s 2020 federal Title IX regulations was “arbitrary and capricious” and set it aside. The Department of Education then issued a letter stating that the Department would immediately stop enforcing that part of the 2020 Title IX regulations. Before it was deemed unlawful, this provision—sometimes called the “suppression provision”—prevented a decision-making officer from considering as evidence any statements a party or witness made outside of the hearing unless that party or witness testified and answered all questions asked of them during a hearing. Going forward, the suppression provision will no longer be enforced. A hearing officer may now consider statements a party or witness made outside of the hearing—such as to an investigator or in a text message—so long as those statements are considered relevant, admissible evidence even if/when that party or witness does not testify.