Despite federal uncertainty, BW releases new policy

Policy covers all types of discrimination, including sexual misconduct, harassment

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A year after students raised concerns about safety and sexual assault on campus, Baldwin Wallace has released its new discrimination policy. The 35-page document, entitled the Baldwin Wallace University Equal Opportunity, Harassment and Nondiscrimination Policy, combines all forms of discrimination — including sexual harassment and misconduct — under one policy. Although the policy was completed last semester, the release was delayed because of action in the federal Department of Education, said Charles “CJ” Harkness, chief diversity officer and Title IX coordinator. The DeVos administration is working on new Title IX regulations that could force BW to change their policy. Initially planned for late summer, the federal Department of Education did not release their draft regulations until late November. The document has now entered a public comment period that was set to close on Jan. 28, but the department has now indicated that the period may be extended. In short, no one knows when the new regulations will officially come into effect. “I literally don’t have a prediction for how long this process is going to take,” said Harkness. “I won’t be at all surprised if the final regulations are done this spring or a year from today.” Despite the uncertainty at the federal level, Harkness said he felt that BW’s policy could not wait any longer, and so it was released at the beginning of this semester. BW’s new policy is considerably longer than its predecessor, largely because this policy covers all forms of discrimination rather than having a separate policy for sexual misconduct. Included early in the document is information about where to report violations and make inquiries about the policy. The policy also includes “a significantly more robust description of our response protocols” as well as an articulation of students’ rights, said Harkness. Several of the definitions in the policy are accompanied by examples to help clarify the technical wording, said Harkness. These examples describe types of behavior that would be a violation of policy. The policy is largely modeled from a template provided by the Association of Title IX Administrators (ATIXA). Harkness said BW selected a newer template that “met some of the questions and requests and suggestions” from last Spring’s Campus Safety Task Force. Harkness wrote the policy along with Dr. Nancy Gussett, the equity resolution coordinator. Some of the investigators also provided feedback, and the policy was reviewed by the President’s Cabinet before it went into effect. So far, Harkness said he has not received much feedback on the new policy, positive or negative, from the general BW community. All students received an email at the beginning of the semester from Harkness with a link to the policy on MyBW; Harkness said that MyBW will always have the most updated version of the policy. Although it is uncertain when the federal Title IX guidelines will become official, these rules would replace the Obama-era guidance — one that encouraged universities to address a broad definition of sexual harassment — with an approach that undermines protections for victims of sexual assault in favor of safeguarding the fifth-amendment due process rights of the accused. For Harkness, the most concerning element of the draft regulations is that they would guarantee the right of the accused to directly cross-examine his accuser. Harkness said he is opposed to such measures because it is likely to re-traumatize the victim and discourage victims from even reporting their assaults. “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,” Harkness told The Exponent in September. Harkness said he fears this element could “get concretized” in such a way that would “force the hand” even of private institutions. Not only are mandated cross examinations proposed in the Title IX regulations, but courts as well have sided with the accused. Public institutions in Ohio are already required to allow such cross examinations due to a court decision by the Sixth Circuit of the United States Court of Appeals. The September 2017 decision of Doe v. University of Cincinnati determined that the due process rights of the accused were violated when he was denied the option to cross-examine his accuser. For his part, Harkness said there are other ways that allow the accused a “fair defense” that are more appropriate for campus proceedings. “My opinion on it hasn’t changed,” said Harkness. “My hope is that when the dust settles, some reasonable conclusion will be reached on how to balance the due process rights of the accused without having a process that is very likely to re-traumatize the person who has brought forward the report in the first place.” Harkness also said that the “weight” of campus proceedings aren’t the same as that of the court of law. “I always remind people that we don’t have any jails to put anybody in at Baldwin Wallace, and the most extreme action we can ever take is to say they cannot be a member of this learning community,” said Harkness. “And so I would disagree with some of the court findings which have essentially said that being charged with this and kicked out carries such a weight that you ought to have the sort of same due process rights that you might have in a court setting.” The draft regulations also would narrow what constitutes sexual harassment that an institution would be required to act upon. They would also allow institutions to use a higher standard of evidence in sexual misconduct cases. Harkness said BW’s responses to these changes will depend on the final wording of the regulations: if they are not required to narrow their definition of sexual harassment or to use a higher standard of evidence, they will not change their policy. “We might have to make a decision as an institution as to whether we interpret the regulations as a ceiling or a floor,” said Harkness. “If it’s a floor, then we continue with our same definition.” The draft regulations were released in late November for a public comment period initially set to close on Jan. 28, but the Department of Education has indicated that the period will be extended. Though BW as an independent institution has not commented, organizations the school is a member of, such as ATIXA, have voiced their concerns. It is difficult to say what the Department of Education’s response to the public comments will be or how long it will take for the regulations to become official, said Harkness. The newly Democratic-majority House may try to “slow the wheels” on the regulations, which would be difficult to undermine once set. “Once regulations go in, it’s not as simple as a new president coming in,” Harkness said. “You’d have to go through this process all over again to undermine these regulations once they go into effect. And it can be challenging.”

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