The following is an excerpt from an article originally posted on The Chronicle for Higher Education.

Requiring cross-­examination in campus sexual-­misconduct proceedings is among the key features of the Department of Education’s proposed Title IX reforms currently open for public comment. The department, relying on an oft-cited 1904 legal treatise, calls cross-­examination “the greatest legal engine ever invented for the discovery of truth.” Although this new mandate might seem at first like a good idea, a closer look shows otherwise.

The usual image of cross-examination includes trained lawyers asking precise, rigorous questions of individuals on the other side of a case and a judge ruling on well-crafted objections to improper questions. But campuses are not courtrooms, and the reality at most colleges and universities would look quite different if the proposed regulations take hold.

Traditionally, students involved in college-misconduct processes have been permitted to choose an adviser to provide them with support and information. In many instances, peer advisers, faculty members, and even parents have ably filled that role. Likewise, at most colleges, neutral faculty members or administrators are assigned responsibility for asking questions and otherwise investigating to determine whether wrongdoing occurred.

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Thomas Sullivan

Reporter (from 2021), Principles of the Law, Student Sexual Misconduct: Procedural Frameworks for Colleges and Universities

Thomas Sullivan is president emeritus and professor of political science at the University of Vermont. He is a nationally recognized authority on antitrust law, complex litigation, constitutional law, and federal court matters.

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