Shelbi Shultz, Associate Member, University of Cincinnati Law Review
On July 28, 2021, the U.S. Federal District Court for the District of Massachusetts decided Victim Rights Law Center v. Cardona, which vacated a Title IX provision enacted in 2020 under the Trump administration. The law in question, 34 C.F.R. §106.45(b)(6)(i), prohibited statements that are not subject to cross-examination in Title IX grievance proceedings, and the court concluded the law was “arbitrary and capricious.” In response to Cardona, colleges and universities nationwide questioned whether they were bound by the Massachusetts decision and needed to update their own Title IX policies. As this uncertainty continued into the new school year, the Department of Education (“DOE”) released a statement clarifying the concern by officially abandoning §106.45(b)(6)(i).
First, this article will briefly summarize the history and current state of Title IX before detailing the Cardona decision and its implications for colleges and universities. Ultimately, this article suggests that when a federal district court vacates Title IX provisions as being unlawful, schools should update their policies to reflect that decision without needing DOE clarification.
In recent years, sweeping changes and revisions have affected Title IX, and it currently rests in a state of further uncertainty, specifically regarding the grievance process for sexual misconduct on college campuses. Title IX of the Education Amendments of 1972 (“Title IX”) states that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any education program receiving federal financial assistance.” Title IX was enacted “‘to avoid the use of federal resources to support discriminatory practices’ and ‘to provide individual citizens effective protection against those practices.’” Although the legislation also concerns fairness in athletics, admissions, and hiring practices at universities, in recent years Title IX has largely been utilized to address the problem of sexual assault on college campuses.
The Obama administration released its “Dear Colleague” letter in 2011 addressing the pervasiveness of sexual violence on college campuses. The letter directed schools to acknowledge the seriousness of sexual assault and respond accordingly with adequate measures or risk losing funding. Some argued that this financial pressure prompted overcompliance, “creat[ing] campus kangaroo courts.” Thus, a concern developed for the Fifth Amendment Due Process rights of the accused. Concerned with these Due Process rights, the Trump administration overhauled Title IX investigations and grievance procedures with the goal of increasing procedural safeguards to avoid wrongful determinations of guilt. Some of these reforms were met with significant criticism because advocates believed that they loosened a school’s obligation to adequately address Title IX claims and would discourage reporting.
Just as the Trump administration changed many of the Obama administration’s Title IX policies, President Biden has already asserted that the DOE will overhaul many of the Trump administration’s Title IX provisions. Led by Secretary of Education Miguel Cardona, the DOE is currently conducting a “comprehensive review” of Title IX regulations and gathering public comments in response to President Biden’s Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity, signed on March 8, 2021. Since the public comment and drafting period takes significant time, the DOE is not likely to have the new provisions ready soon.
About a year after the Trump administration’s Title IX provisions were enacted, three separate parties who were assaulted at school brought an action in Massachusetts Federal District Court to challenge the legality of the new rules. Cardona ultimately vacated one of the Trump administration’s provisions as violating the Administrative Procedure Act (“APA”).
The specific provision at issue in the case was 34 C.F.R. §106.45(b)(6)(i), which prohibits the use of any statements or documents in Title IX grievance proceedings that were not subject to a voluntary, live cross-examination hearing. The law states that, “[i]f 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.” In a Title IX grievance procedure, the decision-maker determines the accused party’s guilt or innocence, “effectively serving as the judge of Title IX cases:…presid[ing] over hearings and issu[ing] the verdict.”
The court in Cardona found significant deficiencies with §106.45(b)(6)(i), contending that the provision unfairly allows respondents to avoid self-incrimination by electing to not attend the voluntary cross-examination hearing. Further, respondents may persuade third-party witnesses to skip the live hearing in order to further obstruct evidence from coming to light. In sum, the court noted that §106.45(b)(6)(i) can prevent medical history, police reports, and potential respondent or third party witness testimony from being utilized by the decision-maker. Equipped with only the information elicited at a live cross-examination hearing, the decision-maker may lack vital information necessary to make a fair and accurate ruling.
Because universities are not courts and thus lack subpoena power, there exists no recourse for complainants to fairly be heard if dealing with an uncooperative opposing party. The court acknowledges that a respondent hindering a case without any repercussions does not represent an “extreme outlier or fanciful scenario,” but is the unfortunate reality for many undergoing the Title IX grievance process. The court compares §106.45(b)(6)(i) to an “ironclad bar” that allows a respondent to suppress any self-incriminating evidence by simply skipping the hearing.
Due to these concerns, the court determined that §106.45(b)(6)(i)’s prohibition on statements not made at a cross-examination hearing was “arbitrary and capricious.” The court make this determination in compliance with APA §706(2)(a), which advises reviewing courts to “hold unlawful and set aside agency action, findings, and conclusions found to be—arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The court labelled §106.45(b)(6)(i) as “arbitrary and capricious” because the DOE did not provide adequate reasoning for including the provision and did not consider its potential effect on proceedings. Thus, the provision was vacated and remanded, but what this explicitly meant for universities was unclear.
The Cardona decision sent ripples throughout higher education and had effects far outside Massachusetts. The main concern was whether the court’s decision to vacate §106.45(b)(6)(i) applied to all federally funded schools nationwide. With only a few weeks left until the new school year, university Title IX departments struggled to determine if they needed to update their grievance procedures. When the Massachusetts Federal District Court vacated §106.45(b)(6)(i), the decision should have immediately applied to all U.S. federally funded colleges and universities.
Due to the confusion surrounding Cardona, the deciding court released a second decision on August 10, 2021, clarifying its initial order. In the short opinion, the court reiterated its decision to vacate §106.45(b)(6)(i) and stated, “We have made clear that when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” This means that the law is abandoned entirely, not just for those who are party to the case. In response to Cardona, universities could have ignored the decision in order to keep practicing §106.45(b)(6)(i), or they could have trusted that the court’s action in setting aside the provision had nationwide effects. The latter choice serves as the most legally sound possibility.
The practice of a federal court setting aside an agency procedure, effectively blocking everyone from following that procedure, has been coined “universal vacatur.” Despite the long practice of vacating unlawful rules in federal agencies, there has been a recent and unfounded attempt to quell this power. In 2018, the Department of Justice (DOJ) distributed new guidelines to its civil litigators advising them not to use the universal vacatur, arguing that, “the APA’s text does not permit, let alone require, such a broad remedy,” although the act has been widely practiced. Despite the relevance of this topic, the United States Supreme Court has yet to officially weigh in. Federal district courts are left to determine the appropriateness of vacating laws, but the Cardona decision proved that the universal vacatur remains legally valid.
Universal vacatur is an undeniably powerful judicial tool and can be critical in certain situations. Some may argue that the practice promotes judicial activism or “legislating from the bench,” but universal vacatur ultimately ensures that laws are created fairly with just outcomes. The court in Cardona acknowledges that most “arbitrary and capricious” claims fail, and the standard is difficult to meet. For example, in Cardona, the plaintiffs asserted that many of the new Title IX provisions were “arbitrary and capricious,” yet the court found that §106.45(b)(6)(i) was the only argument with merit. As the practice is used only sparingly and requires such a high standard to be successfully met, universal vacatur carries significant weight and should be adhered to nationwide when appropriately utilized by the judicial system.
As the new school year quickly approached, the question of abandoning §106.45(b)(6)(i) became increasingly dire for university Title IX departments. In a typical school year, the period of time from when Freshman arrive on campus to Thanksgiving break is called the “red zone,” as 50% of all sexual assaults throughout the year generally occur during that short time. More alarmingly, this year colleges are anticipating a “double red zone,” since the fall semester will be the first time many Sophomores are on campus due to remote learning in 2020. This anticipated unprecedented strain on Title IX solidified the need for universities to have their procedures securely in place at the start of the school year to remain a steadfast resource for students, faculty, and staff who experience sexual misconduct.
Luckily, universities did not have to question whether to follow Cardona for long. On August 24, 2021, the DOE “immediately cease[d] enforcement of §106.45(b)(6)(i),” stating that, “Postsecondary institutions are not subject to this portion of the provision.” The DOE added that the decision-maker in grievance proceedings may also consider police reports, Sexual Assault Nurse Examiner documents, medical reports, and other documents without the party or witness needing to be cross-examined at the live hearing. Colleges and universities can likely rest-assured that updating their Title IX policies to remove §106.45(b)(6)(i) will be a lasting change, due to the Biden administration’s promise to overhaul the Trump administration’s provisions.
Realistically, the universal vacatur question could arise again in the Title IX context. As the DOE potentially spends years determining the best Title IX practices to keep, discard, and add, more issues involving the Trump administration provisions could come up before legislation is enacted. Unless the SCOTUS formally decides on the validity of universal vacatur, there will likely be continued confusion regarding the effect of vacated laws. Until then, if more Trump administration Title IX provisions are vacated by federal district courts, colleges and universities can trust that these decisions have nationwide effect.
The Cardona decision and affirmation by the DOE mark only the beginning of changes that are slated to affect Title IX investigations and grievance procedures during the Biden presidency. Colleges and universities will have to continuously adapt to Title IX provisions in order to remain compliant and best serve their students—especially during a year when maintaining solid Title IX policies at colleges and universities will be more important than ever.
 Victim Rights Law Ctr. v. Cardona, No. 20-11104-WGY, 2021 U.S. Dist. LEXIS 140982 (D. Mass. July 28, 2021).
 Id. at 53.
 Suzanne B. Goldberg, Letter to Students, Educators, and other Stakeholders re Victim Rights Law Center et al. v. Cardona, U.S. Dep’t of Educ. Off. for C.R. (Aug. 24, 2021), https://www2.ed.gov/about/offices/list/ocr/docs/202108-titleix-VRLC.pdf.
 20 U.S.C.S. § 1681.
 Cardona, 2021 U.S. Dist. LEXIS 140982 at 9 (citing Canon v. Univ. of Chi., 441 U.S. 677, 704 (1979)).
 Russlynn Ali, Dear Colleague Letter, U.S. Dep’t of Educ. Off. for C.R. (Apr. 4, 2011), https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.html.
 Spencer Bokat-Lindell, Will the Trump Administration’s New Sexual Assault Rules Hurt Survivors?, N. Y. Times (May 12, 2020), https://www.nytimes.com/2020/05/12/opinion/sexual-assault-college.html?searchResultPosition=6.
 Cardona, 2021 U.S. Dist. LEXIS 140982 at 7.
 Louise Melling, ACLU Comment on Department of Education’s Final Title IX Rule on Sexual Harassment, ACLU (May 6, 2021), https://www.aclu.org/press-releases/aclu-comment-department-educations-final-title-ix-rule-sexual-harassment.
 Press Office, Department of Education’s Office for Civil Rights Launches Comprehensive Review of Title IX Regulations to Fulfill President Biden’s Executive Order Guaranteeing an Educational Environment Free from Sex Discrimination, U.S. Dep’t of Educ. (Apr. 6, 2021), https://www.ed.gov/news/press-releases/department-educations-office-civil-rights-launches-comprehensive-review-title-ix-regulations-fulfill-president-bidens-executive-order-guaranteeing-educational-environment-free-sex-discrimination.
 Jeannie Suk Gersen, How Concerning are the Trump Administration’s New Title IX Regulations, The New Yorker (May 16, 2020), https://www.newyorker.com/news/our-columnists/how-concerning-are-the-trump-administrations-new-title-ix-regulations, (Under the Trump administration, Secretary of Education Betsy DeVos began her push to overhaul Title IX policies in 2017 before finishing in May 2020—a three year process in total.).
 Cardona, 2021 U.S. Dist. LEXIS 140982 at 7.
 Id. at 52.
 Id. at 48.
 34 C.F.R. § 106.45(b)(6)(i).
 Mid-Atlantic Equity Consortium (MAEC), Title IX Decision-Maker Roles and Responsibilities, MAEC, Inc. (2020), https://maec.org/resource/decision-maker-roles-and-responsibilities/.
 Cardona, 2021 U.S. Dist. LEXIS 140982 at 51.
 Id. at 49-50 (“The respondent could then rest easy knowing that the school could not subpoena other witnesses to appear, despite the school bearing the ‘responsibil[ity] for reaching an accurate determination regarding responsibility while maintaining impartial[ity].’”)
 Id. at 51.
 Id. at 52 (See Union of Concerned Scientists v. Wheeler, 954 F.3d 11, 19 (1st Cir. 2020): “A decision is arbitrary and capricious ‘if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for the decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.’”).
 5 U.S.C.S. § 706(2)(A).
Cardona, 2021 U.S. Dist. LEXIS 140982 at 52.
 Victim Rights Law Ctr. v. Cardona, No. 20-11104-WGY, 2021 U.S. Dist. LEXIS 150076, (D. Mass. Aug. 10, 2021).
 Id. at 7.
 Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1123 (2020).
 Id. at 1122.
 Id. at 1123.
 Id. at 1122.
 Cardona, 2021 U.S. Dist. LEXIS 140982 at 48 (clarification of “arbitrary and capricious standard: “Arbitrary and capricious review is a procedural review—a ‘hard look’ at whether the agency weighed a decision’s necessary corollaries—not whether this Court normatively agrees with the corollaries ascribed weight.”).
 Id. at 47.
 Alexis Gravely, Advocacy Groups Push for Title IX Changes Ahead of Double Red Zone, Inside Higher Ed (Aug. 19, 2021), https://www.insidehighered.com/print/news/2021/08/19/advocacy-groups-push-title-ix-changes-ahead-double-red-zone.
 Goldberg, Letter to Students, Educators, and other Stakeholders at 1.