Universities confront Title IX policy changes after proposed regulations, federal court rulings


Title IX illustration

Laina Yost

Under proposed Title IX regulations intended to protect against discrimination on the basis of sex in certain educational contexts, those accused of misconduct and their victims would face each other in cross examinations and universities would be less responsible to maintain a safe environment.

The federal law, passed in 1972, was principally designed “to avoid the use of federal money to support sex discrimination in education programs and to provide individual citizens effective protection against those practices,” according to the U.S. Department of Justice website. The statute includes protections against sexual harassment, sexual assault and rape, but different White House administrations have interpreted it differently.

The guidelines currently being considered by Betsy DeVos, the secretary of education, would be a change from President Barack Obama’s interpretation of the law. DeVos announced her department would roll back the Obama administration’s Title IX guidelines in September 2017.


The Obama administration’s Title IX guidance encouraged universities to be more aggressive in enforcement, education and prevention. The Obama administration discouraged cross-examination in Title IX cases. That administration also defined harassment as “unwelcome conduct of a sexual nature.” The Trump administration’s definition of harassment is “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it effectively denies a person equal access to the recipient’s education program or activity.” The Obama administration adopted a preponderance standard of evidence, which is the lowest standard of evidence.

The most widely debated change would be the required use of cross-examination in cases. Previously, universities widely used either a single investigator model or a hearing panel.

Kent State’s current procedures in formal investigations follow the single investigator model, but in cases where a student is accused, the case may be brought before student conduct court, which is in front of a panel.

The new potential regulations would also change the standard of evidence in Title IX cases. Under the Obama administration’s regulations, universities used preponderant evidence, the lowest standard of evidence, which means the decision would be made based on the more convincing evidence, rather than on the amount of evidence. In the new guidelines, universities would have the choice to use a higher standard of proof, called “clear and convincing.”

Another proposed change would give universities the option to not investigate sexual assault cases that occur off campus, including on study abroad trips. It’s not clear yet if universities would be responsible for cases that occur in off-campus housing.

Changes would also come to mandated reporting requirements. Universities would only be obligated to handle cases reported by an official who can remedy the situation. This excludes professors, resident advisers and student leaders, who are all mandated reporters.

The proposed Title IX changes caused debate among university administrators, lawyers and victim’s rights advocates.

Vanessa Sampsel, manager of campus services at the Cleveland Rape Crisis Center, said the proposed regulations discourage students from coming forward, particularly as universities begin to consider making changes to Title IX policies. That could delay active cases going through universities.

“We have a lot of reluctance to come forward,” she said. “We have a lot of questions being asked of us. And then of course we have to fact find and try to get answers for them. And then just in general, a lot of questions, a lot of confusion on what was wrong before.”

But the proposed Title IX regulations reflect what has already happened in federal courts across the country.

In California, a state appellate court required that accused students be given a right to a hearing and to cross-examine accusers. It applies to all public and private schools in the state, who now must look at changing their current procedures.

And in September 2018, the U.S. Court of Appeals for the Sixth Circuit, which includes Ohio, Kentucky, Tennessee and Michigan, ruled for required cross-examination.

Doe v. Baum et al. ruled in favor of a University of Michigan student, who claimed the school violated his due process rights by failing to provide him with a hearing and opportunity for cross-examination.

Michigan universities immediately began looking at making changes to their Title IX policies. Michigan State University and the University of Michigan allowed for cross examination, changing from their previous models.

Cleveland State University was among the first schools in Ohio to add the court’s changes to its policies. Rachel Lutner, the Title IX coordinator at Cleveland State, said the addendum took effect in October 2018.

“We read that decision as requiring the opportunity for cross exam when the case comes down to a credibility determination,” she said. “And so, we wrote up a cross-examination process that was consistent with that decision because we didn’t have that type of face-to-face part of our process before then.”

Credibility typically comes into question when neither party can agree on a set of facts or statements. Lutner said that many cases don’t ultimately come down to credibility. Sometimes students can agree on a set of exchanges that did take place or sometimes a student was unaware of what consent was at the time of the incident.

The single investigator model and panel hearing process are largely administrative processes, which universities typically use for all student conduct hearings. But the Sixth Circuit ruling changes sexual discrimination hearings into criminal proceedings, which are common to courtrooms across the country.

“I think this whole idea of, it’s fundamental fairness and this whole discussion about needing to confront the person who is making accusations against you, that’s all a criminal law concept,” Lutner said. “…I don’t think universities should be holding criminal trials. But they’ve taken this concept from criminal law and they’re trying to align these campus proceedings with that. And I don’t agree with the premise. ”

Eric Rosenberg, a lawyer with Rosenberg & Ball Co. who often represents accused college students, said the new procedures make Title IX hearings more fair and transparent.

In America, due process is important, and we need to be able to ask each other questions in a proceeding that could terminate somebody’s professional academic career,” Rosenberg said. “Being accused of sexual assault is one of the worst crimes you could be accused of and it warrants that parties just ask each other questions.”

Miami University rolled out its changes in early October, in compliance with the ruling in the Sixth Circuit. Similar to Cleveland State, students will now be given an opportunity for cross examination when credibility is questioned.

Of the 10 Ohio public universities KentWired reached out to for this story, only Cleveland State’s Lutner consented to an interview. Representatives from nine Ohio universities did not respond to requests for interviews.

While addressing Graduate Student Senate on Friday, Mar. 1, Kent State President Beverly Warren told the senators that Willis Walker, the general counsel for the university, is reviewing federal Title IX guidelines to ensure compliance. Warren did not mention the Sixth Circuit ruling.

Eric Mansfield, the executive director of media relations, said Kent State is still reviewing the “potential impact of this new guidance, so it would be premature to speculate.”

A comment period on the proposed regulations opened between Nov. 29 and Jan. 29, and was reopened for one day on Feb. 15. The Education Department will now sort through more than 100,000 submitted comments.

Laina Yost is a senior reporter. Contact her at [email protected].