White House Task Force Attacks Cross-Examination & Due Process Rights on Campus by Hans Bader

Supreme Court Justice Louis Brandeis once noted that “The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding.

”However well-meaning it may be, the Obama administration’s “guidance” this week on campus rape and sexual harassment contains insidious attacks on cross-examination and due-process rights (as KC Johnson discussed atMinding the Campus.) As the White House Task Force Report notes (pg. 19), “this new guidance clarifies that: . . . the parties should not be allowed to personally cross-examine each other.” Similarly, the Education Department’s accompanying guidance says (pg. 31): “OCR strongly discourages a school from allowing the parties to personally question or cross-examine each other during a hearing on alleged sexual violence.” These attacks by the administration ignore the fact that the Supreme Court has lauded cross-examination as the “greatest legal engine ever invented for the discovery of truth.” (See Lilly v. Virginia, 527 U.S. 116, 124 (1999).) The new guidance will create serious legal problems for both public and private colleges, as I will explain in future commentaries (colleges that do not follow the administration’s “guidance” risk having their federal funds cut off, and financial aid to their students terminated).

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