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. UW will similarly stop enforcing that arbitrary and capricious provision.
Before it was deemed unlawful, this provision—sometimes called the “suppression provision”—prevented a decision maker (at UW, the hearing 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.
UW included this provision in the Student Conduct Code (WAC 478-121-675(1)) and Executive Order No. 70, the code and policy that were implemented at UW to comply with the 2020 federal Title IX regulations. However, this code and policy apply only when the regulations are deemed enforceable by law and/or by United States courts.
Going forward, the suppression provision will no longer be enforced. A UW 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. If a current investigation includes allegations of conduct prohibited by the federal Title IX regulations, parties will be notified immediately of this change.