Some folks have been asking questions about the #TitleIX regulation that prohibits the use of a statement by a party or witness that does not submit to cross-exam at a hearing: "Can we have someone else testify about what they said?"
Let me point you to some commentary that the U.S. Department of Education offered on this point along with the final regs. Citations are to the unofficial version posted on ED's website: www2.ed.gov/about/offices/…
Page 1169: "– “If a party or witness makes a statement in the video [and then doesn’t appear for cross-examination], then the decision-maker may not rely on the statement of that party or witness in reaching a determination regarding responsibility.”
Page 1172: “Even if the family member or friend did appear and submit to cross-examination, where the family member’s or friend’s testimony consists of recounting the statement of the party, and where the party does not submit to cross-examination...
...it would be unfair and potentially lead to an erroneous outcome to rely on statements untested via cross-examination.”
Page 1181: "The prohibition on reliance on ‘statements’ applies not only to statements made during the hearing, but also to any statement of the party or witness who does not submit to cross-examination. ….
… . ‘Statements’ has its ordinary meaning, but would not include evidence (such as videos) that do not constitute a person’s intent to make factual assertions, or to the extent that such evidence does not contain a person’s statements. ...
… Thus, police reports, SANE reports, medical reports, and other documents and records may not be relied on to the extent that they contain the statements of a party or witness who has not submitted to cross-examination. ...
… While documentary evidence such as police reports or hospital records may have been gathered during investigation and, if directly related to the allegations inspected and reviewed by the parties, and to the extent they are relevant, summarized in the investigative report,...
...the hearing is the parties’ first opportunity to argue to the decision-maker about the credibility and implications of such evidence. ...
… Probing the credibility and reliability of statements asserted by witnesses contained in such evidence requires the parties to have the opportunity to cross-examine the witnesses making the statements.”
Page 1182: “This provision does apply to the situation where evidence involves intertwined statements of both parties (e.g., a text message exchange or e-mail thread) and one party refuses to submit to cross-examination and the other does submit, ...
… so that the statements of one party cannot be relied on but statements of the other party may be relied on. ...
… . If parties do not testify about their own statement and submit to cross-examination, the decision-maker will not have the appropriate context for the statement, which is why the decision-maker cannot consider that party’s statements.”
The regulatory language is found in 106.45(b)(6)(i). When you're reading a reg and you want more info, go to the section of commentary that deals with that reg. In this case, unofficial doc pages 1162-1184 is most on point.
All of this is offered without personal commentary. It says what it says, but read ED's entire commentary on the issue for full context.
