Important Update to Grievance Procedures
On July 28, 2021, a federal district court in Massachusetts issued a decision in Victim Rights Law Center et al. v. Cardona, No. 1:20cv-11104, 2021 WL 3185743 (D. Mass. July 28, 2021) vacating the part of 34 mC.F.R. Section 106.45(b)(6)(i) that prohibits a decision-maker from relying on statements that are not subject to cross-examination during the hearing. In a subsequent order issued on August 10, 2021, the court clarified that its decision applied nationwide.
The federal district court's decision to vacate this portion of 34 C.F.R. Section 106.45(b)(6)(i) means that Section C(d)(iv) of UM's Discrimination Grievance Procedures no longer applies in Title IX grievance proceedings. That section of UM's procedures--which is based on the vacated portion of the Title IX regulations-- states: "If a party or witness does not submit to cross-examination at the Hearing, the Hearing Panel will not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the Hearing panel will not draw an inference about the determination regarding responsibility based solely on a party’s or witness’s absence from the live hearing or refusal to answer cross-examination or other questions."
This means that during UM's Title IX grievance proceedings, a decision-maker may now consider statements made by parties or witnesses that are otherwise permitted under the regulations, even if those parties or witnesses do not participate in cross-examination at the live hearing, in reaching a determination regarding responsibility. More information, including examples of what may now be considered by the decision-maker, can be found in an August 24, 2021 U.S. Department of Education letter.
UM's Procedure continues to prohibit any individual from providing testimony at the hearing if that individual did not participate in the EO/TIX investigatory process.