Holy Cross’ mission statement asserts its desire to “build a community marked by freedom, mutual respect, and civility.” Freedom, an indispensable part of higher education, can only operate in a system that respects each individual’s right to defend him or herself from unjust accusations. When defense of one’s character is out of reach, the social environment is left on unstable ground. Mutual respect demands the same – respect for each other in our capacities to uphold our dignity in the face of criticism. Civility cannot exist when the threat of false incrimination without due recourse hangs over every individual.
The College’s recent amendment to its Title IX policy simply does not comport with its stated commitment to such admirable qualities as “freedom, mutual respect, and civility.” The change being considered here may seem small, but a few words can be immensely powerful. In August 2020, the Department of Education under Secretary Betsy DeVos issued new Title IX guidelines that (among many other changes) required schools to only accept witness evidence in a sexual misconduct case if said witness submits to cross-examination. Given the stakes in such a case – which can range from a mere warning, to suspension, to expulsion (and an irrevocable stain, justly or unjustly, on one’s character) – requiring cross-examinations should be uncontroversial.
The alterations to the College’s Sexual Misconduct Policy occured on August 20, 2021, and impacted Section 5, Subsection I, Hearing Process: Examination Requirement. Since August 14, 2020, the policy had stated that “if a Party or witness does not submit to cross-examination at the live hearing, the Determination Panel may not rely on any statement of that Party or witness in reaching a determination regarding responsibility.” The revised policy reverses this:
The Determination Panel has the discretion to decide how much weight to give to statements or information provided by any Party or witness who did not submit to cross-examination at the hearing. The Determination Panel can consider the reliability of the statements or information, the reason the individual did not participate in cross-examination, and any other factors the Determination Panel considers relevant.
This alteration means that the College may take into consideration claims by witnesses without subjecting those claims to cross-examination. The significance of this is glossed over by giving the Determination Panel “discretion to decide how much weight” the witness’ comments should be given, but that does little to resolve the problem. Witness testimony can be entered into the record with no opportunity for the defendant to examine the accuser. Such a significant decision is left to the three-member Panel. One must wonder how the Panel can arrive at a reasonable conclusion as to the evidence’s validity without allowing cross-examination. While the parties in the case can submit questions for witnesses to the investigator(s) preparing the investigative report, the “[i]nvestigator(s) will exercise discretion [regarding] what questions to consider”, meaning some questions may never be raised. The parties are permitted to review the report and submit comments, but there is no guarantee that follow-up questions will be addressed by the investigator(s).
The Title IX Office stated that the College was able to make the change due to a recent ruling by the District Court of Massachusetts that struck down the part of the Department of Education’s Title IX regulations that required cross-examination for witness testimony to be accepted. This ruling did not mean that colleges had to eliminate the cross-examination requirement – a point the Office admitted. It is, however, highly unlikely that many individuals will submit to it now that they have the choice. Why sit through a rigorous questioning if it is not mandatory?
The Title IX Office went on to say that “[o]ur approach allows for a greater amount of evidence to be considered by the Determination Panel, with the goal of reaching a just outcome.” It is true that a greater amount of evidence can be considered when there is no requirement to submit to cross-examination, but the quantity of evidence is of far less importance than the quality. If a school wants to adjudicate cases of sexual misconduct, particularly when the stakes for individuals’ (both the accused and accuser) reputations are so high, it should abide by the general procedures of a court of law. Anyone with even the slightest knowledge of the law knows that witnesses are subject to cross-examination. According to Article VI of the Massachusetts Guide to Evidence (as released by the Massachusetts state government), witnesses are subject to cross-examination “on any matter relevant to any issue in the case, including credibility and matters not elicited during direct examination.” There is no way to reach a “just outcome” if the evidence under consideration is not subject to rigorous scrutiny.
It must be recognized that the cases that are being brought before the Determination Panel regarding sexual misconduct are very difficult for all parties involved. Cross-examinations can be psychologically problematic; there is no denying that. In a free society, however, the interest of justice and truth must take precedence. False accusations do occur, and the impact can be devastating.
It is also no secret that if the College was legally free to create its own policy, it would abandon the 2020 regulations altogether. In its 2019 letter to Secretary DeVos, the College’s Title IX Office joined with 50 other Massachusetts institutions of higher education to decry the cross-examination and live hearing requirements. Their stated concern is that these requirements would “discourage community members who have experienced misconduct from coming forward or deter them from participating in the process.” That may or may not be true, but to simply allow accusations to be made without any need to submit to criticism from the defendant denies him or her justice. The same letter asserts that the College is “committed to fairness and impartiality in all disciplinary matters”, but it is difficult to see how that fits with their distaste for common legal practice. Further, the Title IX Office states:
[O]ur community is unique. We are a small, mission-driven, purely undergraduate, diverse, and tight-knit community. We believe that the proposed prescriptive process not only removes our discretion to conduct our processes in a way that we believe is appropriate for our community, but also may compromise our ability to conduct a fair process.
Complaints like this defy reason: because the College is “small, mission-driven, purely undergraduate, diverse, and tight-knit”, it should not have to abide by basic standards of legal fairness? No matter how unique the community, these standards exist because they ensure equity.
Going forward, all else remaining the same, it is unlikely that Holy Cross will revert to a Title IX policy that is in line with justice. Simply lamenting the change is not enough to force a rethinking. The only way that the Holy Cross community can hope to return the institution to one truly based in “freedom, mutual respect, and civility” is to bring its concerns to the administration. This article attempts to do just that. However, the burden is also on students, parents, and donors to compel the College to defend its decisions – not just in regard to its Title IX policy, but in any controversial policy shift. The community must remain hopeful, but it also must take an active role in defending what is right.