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February 10, 2025 · Benjamin J. Treger
Live hearings and cross-examination are mandatory again. Is your process ready?
For institutions that spent 2024 rewriting their Title IX procedures, the whiplash is real. Last month, a federal district court vacated the 2024 Title IX regulations nationwide in Tennessee v. Cardona, and the Department of Education has instructed institutions to comply with the 2020 regulations. The single-investigator models and flexible hearing formats that the 2024 rules permitted are gone. The 2020 framework, with its live hearings, advisor-conducted cross-examination, and strict separation of roles, governs again.
The reversion takes effect mid-academic-year, with complaints already in the pipeline and hearings already on the calendar. Procedures, training, and staffing that were rebuilt for the 2024 rules now have to be rebuilt again, and quickly. This post covers what the return to the 2020 framework requires and where the practical gaps are likely to appear.
The short version: the 2024 regulations broadened the definition of harassment, extended protections on the basis of gender identity, and relaxed several procedural requirements, including the postsecondary live hearing mandate. In Tennessee v. Cardona, the court held the 2024 rule unlawful and vacated it in its entirety, for every institution, not just those in the plaintiff states. That left the 2020 regulations as the operative federal framework for handling formal complaints of sexual harassment.
The practical consequence is that compliance is now measured against the 2020 rulebook, and so is litigation risk. Respondents challenging discipline, and complainants challenging institutional responses, will both point to the 2020 procedures. A process that quietly kept its 2024-era shortcuts is exposed on both flanks.
For postsecondary institutions, formal complaints that reach adjudication require a live hearing. Each party's advisor, not the party personally, conducts cross-examination of the other party and witnesses, in real time. The decision-maker must rule on the relevance of each question before it is answered and explain any exclusion. Hearings may be conducted with the parties in separate rooms connected by technology, but the confrontation itself cannot be replaced with written questions at the postsecondary level.
The 2020 regulations are emphatic that the decision-maker cannot be the same person as the investigator or the Title IX coordinator, and that the appeals decision-maker must be independent of all three. The single-investigator model, in which one person investigates, decides, and effectively reviews their own work, is prohibited. For smaller institutions, this is the requirement that most often forces the question of external neutrals: fielding an investigator, a hearing officer, and an appeals officer who are all qualified, trained, and conflict-free is hard to do from one office.
The determination of responsibility must identify the allegations, describe the procedural steps taken, set out findings of fact and conclusions applying the institution's policy, state the rationale for the result on each allegation, and describe sanctions and remedies. It must also state the standard of proof applied, and the institution must apply the same standard to students and employees alike. These are not formalities; a determination missing any of these elements is an appeal ground waiting to be filed.
Both parties must be offered an appeal on at least three grounds: procedural irregularity that affected the outcome, new evidence not reasonably available at the time of the determination, and conflict of interest or bias on the part of the coordinator, investigator, or decision-maker. Institutions may offer additional grounds, but they cannot offer fewer, and they cannot offer them to one party only.
California postsecondary institutions do not get to think only about federal law. SB 493 imposes state-law requirements on how covered institutions handle sexual harassment complaints, including trauma-informed training for those involved in the process and constraints on how credibility may be assessed. State-law claims travel with federal ones in nearly every lawsuit arising from a campus process, so procedures need to satisfy both frameworks at once. Where the two point in different directions, the analysis is matter-specific, and it is exactly the kind of question to resolve before a hearing rather than during one.
Five things worth checking this quarter. First, your written procedures: were they reverted after the vacatur, or is 2024 language still live on your website? Second, your standard of proof: is it stated, and is it the same for students and employees? Third, your roles: for a matter filed tomorrow, can you name a trained investigator, hearing officer, and appeals officer with no overlap and no conflicts? Fourth, your training records: are the people in those roles trained on the 2020 requirements, and could you produce the materials if asked? Fifth, your advisor plan: if a party arrives without an advisor for cross-examination, the institution must provide one, so know in advance who that will be.
The 2020 framework makes the hearing the most demanding moment of the process, and the hearing officer's real-time judgment its most exposed point. Relevance rulings on rape-shield questions, management of aggressive advisors, credibility findings that must be reasoned rather than felt: these are adversarial skills, and they atrophy when exercised once a year. An external hearing officer or appeals officer brings that skill set without adding headcount, solves the role-separation problem, and adds a layer of demonstrable independence that internal adjudicators cannot supply in high-profile matters.
If you are evaluating candidates, our guide on choosing an external Title IX investigator or hearing officer covers the credentials, questions, and red flags in detail. And for how I approach this work myself, as an investigator, hearing officer, and appeals officer for institutions including multiple University of California campuses, see the Title IX services page.
Regulatory whiplash is not an excuse a court will accept. The 2020 framework is back, its requirements are specific, and the institutions that fare best under it are the ones that treat process as something to invest in before a complaint arrives, not after. Check the procedures, check the people, and fill the gaps while the calendar is still quiet.
This post is for informational purposes only and does not constitute legal advice. Regulations and case law in this area change quickly; consult with a qualified attorney about the current requirements and your specific situation.