On July 28, U.S. District Judge William G. Young ruled against mandatory cross-examination by colleges investigating sexual assault cases on grounds that it is capricious. Pursuant to that ruling, the acting assistant secretary for civil rights in the U.S. Department of Education, Suzanne B. Goldberg, declared on Aug. 24 that the Office for Civil Rights will no longer enforce mandatory cross-examination rules in postsecondary sexual assault cases.
Is that position fair to either accuser or accused?
One reasonable question is, did the judge have a political disposition or philosophy?
We know that judges can be political: Many of us describe the Supreme Court as having six “conservative” and three “progressive” justices. Other scholars make the same claim of bias.
Roy Cohn once said, “Don’t tell me what the law says; tell me who the judge is.” Jeffrey Toobin, legal analyst for CNN and author of the book “The Nine,” similarly observed about the Supreme Court, “What matters is not the quality of the arguments but the identity of the justices.” What governs decisions is judicial philosophy — ideology. Similarly, Richard A. Posner, the great conservative judge and law professor, wrote that constitutional cases “can be decided only on a basis of political judgment.”
Does Judge Young have a “judicial philosophy”? Most if not all judges do. Surely Young does not come to the bench with a blank mind. How does his philosophy relate to this case?
A second question is, can judgment of innocence or guilt be fairly determined without cross-examination? Its purpose is to test the credibility of statements made during direct examination. Cross-examination probes the reliability of witnesses and uncovers additional information about the case at hand. Won’t some truth be lost if we don’t have such an examination?
Goldberg’s declarative letter contains this key section:
“...[A] federal district court in Massachusetts ... found one part of [the law regarding the live-hearing requirement for the Title IX grievance process at postsecondary institutions only] to be arbitrary and capricious, vacated that part of the provision, and remanded it to the Department for further consideration. In a subsequent order issued on Aug. 10, 2021, the court clarified that its decision applied nationwide. The court vacated the part of 34 C.F.R ... that prohibits a decision-maker from relying on statements that are not subject to cross-examination during the hearing: ‘If a party or witness does not submit to cross-examination at the live hearing, the decision-maker must not rely on any statement of that party or witness in reaching a determination regarding responsibility….’”
In other words, mandatory cross-examination is out — immediately.
She concluded: “Thank you for your efforts to ensure equal educational opportunities for all of our nation’s students.” Can you “ensure equal educational opportunities” without cross-examination that seeks the truth on both sides?
Surely this case will be appealed. But of course, politics looms everywhere.
A final observation: I worked for or with Chief Justice Warren Burger for over nine years. We became close friends, and he trusted me implicitly. Sometimes we’d sit for two hours just talking. He shared intimate views on judicial matters that I never betrayed, though after his death I wrote a book on him. I knew he had predispositions on certain issues — that is, he had a judicial philosophy.
Judge Young surely has a judicial philosophy — but an appellate court might have a different one. I hope so because that might enable a greater search for truth.
Ronald L. Trowbridge, Ph.D., is a policy fellow at the Independent Institute in Oakland, Calif. He was appointed by President Reagan to the United States Information Agency and later served as chief of staff for U.S. Chief Justice Warren Burger.