As a college student in Montana or elsewhere, being accused of sexual misconduct can jeopardize both your academic and professional future. Disciplinary actions may result in loss of reputation, possible expulsion, and disrupted career goals. Colleges and universities rely on federal funding to operate, and they are required to pursue all allegations of sexual harassment and sexual assault or risk losing their funding. To make matters more confusing, the U.S. Department of Education has sent many schools scrambling to revise their disciplinary policies in the wake of new rules effective for the new school year.
None of this bodes well for the accused, who runs a higher risk of being unfairly disciplined or denied due process. Hiring an attorney-advisor in such a case can greatly increase the accused's chances of a fair and positive outcome. Here's what you need to know to improve your chances if you're facing school disciplinary hearings.
New Rules for Investigating Sexual Misconduct Claims
Title IX affords protections for students from any form of discrimination on the basis of sex. But in May 2020, the Department of Education (DOE) rolled out some sweeping rule changes that may radically alter how schools will process allegations of sexual misconduct under Title IX. These changes became effective for the 2020-21 school year. The most significant changes are as follows:
- Schools must now implement a single investigative process for misconduct allegations for faculty, staff, and students. The process is to include live hearings and cross-examination of witnesses, not unlike what takes place in a courtroom. Witnesses must be willing to participate in the hearing (including cross-examination); otherwise their testimony will not be included in the investigation.
- New off-campus jurisdiction parameters. Under the new rules, colleges and universities are only responsible for investigating alleged incidents of sexual misconduct that occur at locations and events under the school's “substantial control.” This includes certain off-campus events as well as off-campus fraternity and sorority housing, but it does NOT cover incidents occurring in other types of off-campus housing. Additionally, it does not cover incidents happening with students studying abroad.
- “Actual knowledge” of alleged incidents. Schools are now only responsible for investigating sexual misconduct allegations about which they have “actual knowledge.” Before now, schools were also responsible under Title IX for alleged incidents about which they should have “reasonably known.”
“Sexual Misconduct” Redefined
One of the most noteworthy changes is that the DOE has significantly narrowed the scope of what is considered “sexual misconduct” under Title IX. Before the rule changes, sexual misconduct generally encompassed any unwelcome conduct of a sexual nature. Effective for 2020-21, however, Title IX only recognizes sexual misconduct as it falls into one of these three categories:
- Dating violence, domestic violence, sexual assault, or stalking;
- Quid pro quo harassment (e.g., school faculty attempts to bait students with favors in exchange for sexual acts); or
- “Unwelcome conduct so severe, pervasive, and objectively offensive that it denies someone equal access to education.”
This last point has sparked considerable contention in part because of the possible ambiguity surrounding the phrases “objectively offensive” and “equal access.” It could be argued that if a certain act of harassment or assault did not deny a student “equal access to education,” it doesn't qualify for Title IX protection.
What It Means for the Accused
On the surface, these rule changes would appear to provide better protections for the accused, hopefully preventing more cases of false accusation. However, the resulting confusion over the rule changes may actually work against the accused, rather than for them. Two key reasons for this:
First—many schools are rewriting their own policies to broaden the scope of sexual misconduct. While the new Title IX rules apply to schools nationwide, including in Montana, they do not limit any individual school from creating their own disciplinary policies separate from Title IX. As a result, some accused students could still face unfair disciplinary actions under new school conduct policies. In some cases, they may even face parallel investigations for the same alleged incident.
Second--the future of the rule changes themselves is uncertain. Attorneys General for 18 states have submitted legal challenges to the new DOE rules, and if the next presidential administration is Democrat, it is widely assumed the new rules will be revisited and probably rescinded, thereby removing any protections for the accused that were recently put in place.
Why You Should Hire an Attorney-Advisor
With all the uncertainty surrounding the implementation of new DOE rules, the risk of an unfair outcome is quite high for students accused of sexual misconduct. Fortunately, colleges and universities allow accused students to have an attorney-advisor to help them during misconduct investigations. An experienced advisor will be current on the latest DOE interpretations of Title IX as well as the most recent updates to school policies and procedures, so you can move forward in such a way that ensures your rights are protected. A skilled attorney-advisor will also help you gather evidence and witnesses for your defense, both at the hearing and during any appeals. And having an attorney involved, even in an advisory capacity, helps keep the school accountable to their own policies so your due process rights are protected. All told, having an attorney-advisor greatly increases your chances of beating false allegations, restoring your good name, and protecting your future.
Montana College Sexual Misconduct Advisor
If you're a college or university student in Montana currently facing sexual misconduct allegations, the sooner you hire an attorney-advisor, the better your odds for a fair process and a favorable outcome. The Lento Law Firm has successfully helped a countless students navigate complicated disciplinary proceedings nationwide. Joseph D. Lento is a pre-eminent authority in Title IX and college sexual misconduct cases and student discipline cases, and he will use his expertise to help you regain control of your future. Give the Lento Law Firm a call at 888-535-3686 to learn more.
Montana colleges and universities where Joseph D. Lento can help as your or your student's college sexual misconduct advisor during investigations, hearings, and appeals include, but are not limited to, the following schools:
- Blackfeet Community College
- Carroll College
- Chief Dull Knife College
- Dawson Community College
- Flathead Valley Community College
- Fort Belknap College
- Fort Peck Community College
- Little Big Horn College
- Miles Community College
- Montana State University
- Montana State University Billings
- Montana State University Great Falls College of Technology
- Montana State University Northern
- Montana Tech of the University of Montana
- Montana Tech College of Technology
- Rocky Mountain College
- Salish Kootenai College
- Stone Child College
- The University of Montana
- The University of Montana Western
- University of Great Falls
- University of Montana Helena College of Technology
It is critical to make certain the college sexual misconduct investigation at your Montana school is handled properly and that the accused student's interests are protected from as early as possible during the sexual misconduct investigative process. One major reason is because even at colleges and universities where a finding of responsibility for sexual misconduct charges is made at a hearing, the investigation will set the stage for what the hearing panel is provided prior to a hearing (and what the hearing panel will in large part rely on at a hearing), and at schools where the finding of responsibility is made solely through the investigative process, what takes place during the investigation itself will determine whether the accused is found responsible or not responsible for college sexual misconduct charges.
Unfortunately, some students, families, and college employees make the mistake of not taking the necessary precautions as soon as possible when accused of sexual misconduct at college. Some people will mistakenly believe that if they "just explain what happened," their college or university will be fair and impartial and will arrive at the truth. In a perfect world this may be the case, but in a perfect world, sexual misconduct cases would not exist.
Fighting passionately for the future of his clients at universities and colleges throughout the nation for many years, Joseph D. Lento knows how important it is to mount the strongest defense because he understands that an accused's academic and professional future is on the line. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. Joseph Lento is a licensed attorney in New Jersey and New York, is admitted as an attorney pro hac vice in state and federal court if needed when representing clients nationwide, and serves as a college sexual misconduct advisor to students and others in academia facing sexual misconduct investigations and Title IX disciplinary cases in Montana and throughout the nation. Make certain your or your student's interests are protected - Contact National College Sexual Misconduct Attorney Joseph D. Lento today at 888-535-3686 or by completing our online form.
