PR: TNG Commentary Illogically Dismisses Cross-Examination, Placing Universities at Liability Risk

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Rebecca Stewart: 513-479-3335

TNG Commentary Illogically Dismisses Cross-Examination, Placing Universities at Liability Risk

WASHINGTON / August 24, 2021 – A recent commentary by the TNG Consulting group over-reaches in its analysis of the recent Victim Rights Law Center v. Cardona decision, dismisses the key role of cross-examination, and invites a new wave of litigation against schools that have faced a tide of Title IX lawsuits in recent years.

In the original lawsuit, the Victim Rights Law Center (VRLC) challenged the Title IX regulation’s various cross-examination provisions (1). The provisions, found at 106.45(b)(6)(i), state in part, “Such cross-examination at the live hearing must be conducted directly, orally, and in real time by the party’s advisor of choice…”

In his July 28 opinion (2), District Court Judge William Young approvingly noted that the Department of Education:

“detailed its reason for adopting the live hearing procedures, including the cross-examination requirement” (Page 16)
“explained its balance between cross-examination as a ‘necessary part of a fair, truth-seeking grievance process’ with safeguards to minimize the potential for ‘traumatic effects on the complainants’” (Page 16); and
“stressed the importance of cross-examination to determine the credibility of evidence.” (Page 17)

Judge Young was concerned, however, by this sentence:

“If a party or witness does not submit to cross-examination at the live hearing, the decision-maker(s) must not rely on any statement of that party or witness in reaching a determination regarding responsibility; provided, however, that the decision-maker(s) cannot 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.”

In his decision, Judge Young vacated the above-quoted sentence, and affirmed the remainder of the cross-examination provisions, concluding that “The Advocates’ argument contesting 106.45(b)(6)(i) also fails.” (Page 54)

Hence, the decision did not invalidate the general cross-examination mandates in the 2020 regulations. Rather, it spoke to the narrow issue of how universities can handle pre-hearing statements by individuals that do not subject themselves to cross-examination.

Unfortunately, the August 16 TNG commentary omits key parts of Judge Young’s analysis. Instead, TNG recommends:

“If I were advising a party, I think I’d probably tell them to attend the hearing, answer all questions from the panel/decision-maker (and all questions from their own advisor), and then just refuse to answer all cross-examination questions. I think this vacatur strikes not just one provision, but potentially subverts the entire regulatory scheme to impose cross-examination on post-secondary hearings.” (3) [emphasis added]

Relying on the same reasoning, a recent article from the National Women’s Law Center advises, “Effectively, what this means is that parties and witnesses in postsecondary schools should now no longer need to answer cross-examination questions from the opposing party’s advisor in order for the school to consider their other statements in its investigation.” (4) [emphasis added]

NWLC’s Shiwali Patel likewise tweeted on August 23, “THIS IS BIG. Effectively, this means that complainants shouldn’t have to participate in direct, live, cross-examination by the respondent’s advisor – at least under Title IX.” (5)

To date, nine appellate court decisions and 22 trial courts have upheld the role of cross-examination (6). In Doe v. Westmont College, the appellate judge ruled, “[W]here a college’s decision hinges on witness credibility, the accused must be permitted to pose questions to the alleged victim and other witnesses, even if indirectly.” (7)

The TNG commentary incorrectly suggests that the VRLC decision contemplates universities allowing parties in Title IX disciplinary proceedings to “refuse to answer all cross-examination questions” posed by opposing parties. As a result, universities may find themselves subject to lawsuits if they follow the TNG advice.

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