Changes at Federal level may delay BW’s Title IX plans

Harkness has ‘great concern’ about aspects of changes by Department of Education

Baldwin Wallace will soon be rolling out expansive changes to its discrimination policies and procedures. However, BW officials said changes at the federal level have prompted a delay in the implementation.

These changes are in response to student concerns raised in early January about campus safety issues, particularly those related to sexual misconduct. Those concerns prompted a semester-long examination of BW’s discrimination policies and procedures.

Charles “CJ” Harkness, chief diversity officer and Title IX coordinator, said that the latest draft of the policy has been reviewed by the President’s cabinet and is currently being reviewed by the school’s legal counsel. He said they are unsure when they are going to release the new policy due to activity in the federal government that could affect aspects of it.

Though the Department of Education has yet to release an official draft of their new Title IX guidelines, news reports have suggested and speculated about what might be included. Harkness said he is “a little bit surprised at” and “fundamentally against” some of the measures the federal government is considering.

One particular measure that gives him “great concern” is the possibility that the federal government would mandate that all schools allow cross-examination between victim-survivors and the accused.

Due to a court decision by the Sixth Circuit of the United States Court of Appeals, public institutions in Ohio are already required to allow such cross-examinations. The September 2017 decision of Doe v. University of Cincinnati determined that not allowing the accused to cross-examine his accuser or her witnesses was a violation of his due process rights. Harkness said that it seems like the federal government supports that decision.

“All the signals from the federal government are that they see themselves lining up in concert with that decision, which, quite frankly, would fundamentally change how cases are handled in, I would say, the vast majority of higher education institutions,” he said. “That allowance in and of itself changes the game and is likely to have a chilling effect on people going through with formal resolution processes or full-blown investigations, if you will. And that’s why I’m fundamentally against it.”

Another item of concern to Harkness that may be included in the federal Title IX guidance is language that might restrict a university’s ability to respond to acts of sexual misconduct that were not committed on the university’s campus.

“Generally speaking, I’m concerned in many ways about the direction of the Department of Ed.,” said Harkness.

The draft guidance from the Department of Education is expected sometime this month, and after the document enters a comment period, the final version will be published. Harkness said that as an institution, BW may choose to participate in the public comment period, and if it contains measures the school is concerned about, they will express their dissent.

While the decision on when to release BW’s new policy will wait until Harkness has a clearer understanding of what the new federal guidelines and regulations will be, Harkness said there are a number of changes to the new policy that will most likely be unaffected by the Department of Education’s decision.


What will change in BW’s policy

Harkness said that the new policy will be “a much larger, longer document” than BW’s current policy.

In addition to clearly stating that sexual misconduct is considered to be a form of discrimination, the new document will include expanded definitions of terms using “more clear language” and examples.

“In our definitions section, there are some examples given which we hope to, number one, bring us closer in line with some best practice in terms of policies, and also bring more clarity to sort of policy-ese,” Harkness said. “A takeaway from some of the conversations across last semester would be that the language of the policy isn’t always easy to translate into everyday behaviors, in what fits and what doesn’t fit.”

Rather than “hard-and-fast definitions,” Harkness said the examples would describe types of behaviors that would violate policy.

The policy will also be longer because it will include a clear articulation of student’s rights, including articulated rights of both the reporting party and the responding party, Harkness said. Much of the document’s length will also come from the “much more detailed, step-by-step” language that will be included to describe the Title IX process.


What won’t change from BW’s policy

The new policy will retain several features of the current policy.

One thing that will not change is the evidentiary standard, Harkness said. BW currently uses a standard of preponderance to determine responsibility in sexual misconduct cases, which means that it is more likely than not that the accused is at fault, Harkness said. This is a lower standard of evidence than “clear and convincing” and therefore less difficult to prove.

Harkness said he finds it unlikely that the federal government will require BW to change their evidentiary standard.

“[I am] 80% confident that there will be nothing that would force us to change our minds on the preponderance standard versus a higher standard which would be more difficult to prove a case of sexual misconduct,” he said.

Another element of BW’s current policy that the new policy retains is appeal rights for both parties, Harkness said, despite the fact that the federal government has made it optional for institutions to offer appeals of Title IX decisions.

Students and employees will also retain the right to have an advocate with them throughout the proceedings.

“One of the rights that will not change is the right for a student or employee to have an advocate with them of their choosing to participate [in the proceedings],” Harkness said. “We also will continue to make reference to the Cleveland Rape Crisis Center as an avenue for not only counseling and external resources, but also for those student who might elect to have them participate as their advocate.”


Procedural changes to expect

In the new policy, there are additional steps to making a determination of responsibility in investigations.

In BW’s current policy, the two investigators assigned to the case make the determination of responsibility themselves, Harkness said. In the new policy, the two investigators assigned to the case would create a report to be presented to a panel of three other investigators, who would then render the decision.

Harkness said this “key change in the process” will hopefully act as a safeguard against potential bias. He said it would give both parties the opportunity to present directly to the panel any information that they felt was missed or misinterpreted by the initial investigators, and he thinks that it could help to clarify and streamline the formal resolution process.

“It’s a case where we believe an extra layer could actually expedite and consolidate the process just because of the way that things would happen,” said Harkness.

If federal guidelines do mandate schools to allow cross-examinations, BW would not allow them to be direct: Harkness said the school would put measures in place to lessen the discomfort and the potential “triggering nature” of a cross-examination of a victim-survivor.

“We would say that if you are challenging some of the information, you would have to direct the question through the panel, and the panel could decide whether or not the question was relevant and/or appropriate, and then, if so, pose the question to the party,” Harkness said.

Harkness said he expects to determine a release date for the new policy after it is more clear what the new federal guidelines might contain. The Department of Education is expected to release a draft of the guidelines this month.