Massachusetts: where the cross-examination carve-out was decided.
Massachusetts matters have two distinguishing features: the litigation that reshaped the federal rule was decided here, and the overwhelming majority of the state’s selective institutions are private.
The decision that came from this district.
Victim Rights Law Center v. Cardona vacated the provision of the 2020 rule barring a decision-maker from relying on statements of a party or witness who did not submit to cross-examination. The Department subsequently stopped enforcing it nationwide. For respondents everywhere, and particularly for those advised by anyone working from pre-2021 material, the practical consequence is that a complainant’s non-appearance no longer produces automatic exclusion.
Private institutions, and the theory that applies.
Harvard, MIT, Boston University, Boston College, Northeastern, Tufts and the rest are not state actors. Constitutional due process claims are generally unavailable against them. What binds them is their own publication - the handbook and grievance procedure form the agreement, and Massachusetts courts have entertained claims that an institution must adhere to the process it promised and must act with basic fairness in serious disciplinary matters.
Building the case accordingly.
The first document obtained is the handbook version in force on the date of the alleged conduct, preserved before the institution updates it. Then every departure from it is logged with dates. Where credibility is central - as it is in most of these matters - that fact is stated expressly on the record, because it is what engages the fairness argument. And because the exclusion provision is gone, the reliability of untested statements is argued as a matter of weight, explicitly and in writing, rather than assumed.
Why you should call us.
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