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Obama Administration Attacks Cross-Examination and Due Process Rights in Campus Guidance

April 30, 2014

Posted by Hans Bader at Minding the Campus

Justice Brandeis once observed that "The greatest dangers to liberty lurk in the insidious encroachment by men of zeal, well meaning but without understanding."

However well-meaning they may be, the Obama administration's guidance and task force recommendations yesterday on campus sexual harassment and rape contain an insidious attack on cross-examination (as KC Johnson discussed at Minding the Campus.) As the 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 guidance itself 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...

Cases: National: White House Task Force on Campus Sexual Assault Jeopardizes Student Due Process