VRLC Statement – Decision Issued in Title IX Lawsuit
August 25, 2021
VRLC Statement – Decision Issued in Title IX Lawsuit
On July 28, 2021, a Massachusetts federal judge issued a decision in VRLC et al. v. Cardona following a November 2020 trial. Judge Young’s decision vacated one of the most harmful and inequitable parts of the 2020 Title IX Rule commonly referred to as the “exclusionary rule.”
The “exclusionary rule” prohibited from consideration any statements made by parties or witnesses if the individual who made the statement did not submit to cross-examination at a live hearing. The provision yielded deleterious and unreliable results. If at the hearing, a victim answered dozens of questions from the decision-making body, any questions from their own advisor, and answered all but a single question posed by the accused student’s advisor, none of their statements could be relied on by the decision-maker. This meant that any statements a victim made to investigators, law enforcement, nurses, or friends following an assault would be excluded from consideration by decision-makers. While the “exclusionary rule” had a potentially devastating impact on victims, it offered significant advantages to an accused student. If an accused student made an admission of culpability to the victim or even to law enforcement, the accused student could avoid having that admission considered by the decision-maker by simply refusing to submit to cross-examination. Judge Young noted that the provision rendered “the most vital and ultimate hallmark of the investigation — the hearing — a remarkably hollow gesture.”
While Judge Young upheld the remainder of the Title IX rule, the decision is impactful. We now begin the work of advocating for this provision to be removed from college and university policies immediately.
The lawsuit was filed in June 2020 by the National Women’s Law Center, along with our co-counsel Morrison & Foerster LLP and Diane Rosenfeld of Harvard Law School in her individual capacity. VRLC was joined by co-plaintiffs Equal Rights Advocates, Legal Voice, and Chicago Alliance Against Sexual Exploitation.