For a student at college or university in Rhode Island, any allegation of sexual misconduct has the potential to derail their career plans. Schools are under intense pressure to make sure all allegations of sexual harassment and sexual assault are investigated according to federal law. Failure to do so can result in a loss of federal funding. To cloud matters further, many schools are now scrambling to adapt their policies to comply with new rules set in place by the U.S. Department of Education, often while rewriting their policies in the process.
Between this inherent pressure on the schools and the confusion over rule changes, a student accused of sexual misconduct faces a higher risk of not getting a fair shake during disciplinary hearings—including denial of due process and unfair punishment. Hiring a sexual misconduct attorney-advisor to help in such matters could make a huge difference in the outcome. If you're a college student in Rhode Island who has been accused of sexual assault or harassment, here's what you need to know to protect your rights.
Changes in Handling of Misconduct Allegations
Most allegations of sexual misconduct in colleges and universities have historically been processed according to the provisions of Title IX, the law protecting students from discrimination on the basis of sex. While these protections are still in place, in May 2020, the Department of Education rolled out new rules, effective for the 2020-21 school year, that could have a significant impact on how schools investigate sexual misconduct allegations. Let's look at the most notable changes:
- Schools must implement a single investigative process for misconduct allegations for faculty, staff, and students. This process is to include live hearings with cross-examination of witnesses, similar to a courtroom setting. Any witness who is unwilling to partake in these live hearings and be questioned cannot have their testimony included in the investigation.
- Changes in off-campus jurisdictions. Colleges and universities are responsible for investigating any alleged sexual misconduct that occurs at locations and events under “substantial control” of the school, both on- and off-campus. Off-campus fraternity and sorority houses are included in this description, but other types of off-campus housing are not. Schools are also not responsible for alleged misconduct that occurs against students studying overseas.
- “Actual knowledge” of allegations. Under the new rules, schools are no longer responsible for investigating sexual misconduct claims about which they should have “reasonably known.” They are only responsible for alleged events of which the school has “actual knowledge.”
Narrowed Definition of Sexual Misconduct
Previously, Title IX protocols applied to allegations of any unwelcome content of a sexual nature. However, the new DOE rules have significantly narrowed the scope of what schools consider “sexual misconduct.” Now, sexual harassment must fall within at least one of these three categories:
- Instances of dating violence, domestic violence, sexual assault, or stalking;
- Quid pro quo harassment (faculty or staff attempting to leverage favors for sexual acts); and
- “Unwelcome conduct so severe, pervasive, and objectively offensive that it denies someone equal access to education.”
Critics have expressed particular concern over this third category and the possible confusion it may cause. They claim that schools may have different standards regarding what actions are “objectively” offensive and may dismiss some allegations because the sexual misconduct did not deny anyone “equal access to education.” Even what is considered "severe" and "pervasive" will be likely to be fiercely contested through a school's Title IX disciplinary process.
Why the New Rules May Cause Higher Risks for the Accused
These rule changes made by the DOE are designed to provide more due process for students accused of sexual misconduct and to reduce the number of false accusations under Title IX. However, implementing these rule changes may actually increase the risks of unfair treatment for the accused. There are two possible reasons for this:
Schools are rewriting their own conduct policies to “close the gap.” While these new rules may affect how schools process sexual misconduct allegations under Title IX, they don't prohibit individual schools from creating and enforcing their own sexual misconduct policies. Many schools have already begun rolling out new policies and procedures to cover misconduct situations no longer falling within the scope of Title IX. As a result of this confusion, an accused student may still face disciplinary action under a separate policy—and in some cases may even face discipline under both Title IX and school policies.
The rule changes themselves may soon be rescinded. Attorneys General for 18 states, including Rhode Island, have filed a legal challenge to the new DOE rules claiming they roll back too many protections for victims of sexual harassment and assault. If the courts uphold this claim, or if a Democratic administration is voted into office during the 2020 election, there's a high likelihood that the new DOE rules will be overturned.
The result: Students accused of sexual misconduct may face more ambiguous, confusing, or conflicting school disciplinary policies, which significantly increases the chance that they will not be given due process or fair treatment when investigating the allegations.
Why Hire an Attorney-Advisor
If a college or university rules against you regarding sexual misconduct allegations, your professional reputation and future career could be at risk. Hiring an attorney-advisor can give you an significant advantage in such situations. An experienced advisor will be up-to-date on the latest DOE rules and current school policies, and can therefore help you ensure your rights are not violated. The advisor can also help you prepare your defense by procuring witnesses and gathering evidence to support your innocence. Finally, the presence of an attorney—even in an advisory role—provides a layer of accountability to the school, so they are more likely to abide by their own policies. As a result, you'll have a better shot at saving your good name and protecting your professional future.
Experienced Rhode Island College Sexual Misconduct Advisor
If you're a college/university student in Rhode Island who has recently been accused of sexual misconduct, the sooner you reach out to an experienced attorney advisor, the better your chances for a positive outcome. The Lento Law Firm has successfully defended many students in college disciplinary proceedings across the country. Joseph D. Lento is one of the pre-eminent experts in Title IX and sexual misconduct cases and current school disciplinary issues, and he can provide the advice and support you need to defend your good name. Give the Lento Law Firm a call at 888-535-3686 to learn more.