Being accused of sexual misconduct is never a trivial matter. Still, when you are a college student accused of such, the resulting discipline can jeopardize both your academic and professional future—not to mention a loss of reputation, possible suspension or expulsion, and disrupted career goals. Colleges and universities nationwide, including in South Dakota, rely on federal funding to operate. They aggressively pursue all allegations of sexual harassment and sexual assault in part out of concern that they will risk losing their funding. Convoluting the issue even further, the U.S. Department of Education has recently implemented rule changes that have sent many schools scrambling to revise their disciplinary policies.
Anytime the rules of discipline and investigation become unclear, it's generally the accused who pays the price. If you're facing a school investigation for alleged sexual misconduct, hiring an attorney-advisor can significantly improve your chances for a better outcome. Here's what you need to know.
Rule Changes for the Investigation of Sexual Misconduct
Students are guaranteed protection from any form of discrimination on the basis of sex, as outlined in Title IX. For many years, Title IX has been interpreted to include sexual harassment and assault as forms of such discrimination. However, in May 2020, the Department of Education (DOE) announced significant changes in the rules that may profoundly impact how schools address sexual misconduct allegations. These rules took effect for the 2020-21 school year. Among the most notable changes:
- A single investigative process for sexual misconduct allegations for faculty, staff, and students, including live hearings. These hearings must include cross-examination of witnesses similar to those of a courtroom—and any witness who chooses not to participate in the hearings cannot have their testimony included in the investigation.
- Clarifying off-campus jurisdiction. Colleges and universities are only responsible for investigating alleged incidents of sexual misconduct that occur at locations and events under which the school exercises “substantial control.” This includes certain off-campus events as well as off-campus fraternity and sorority housing. It does NOT cover incidents occurring in other types of off-campus housing, even if that housing is mainly dedicated to students. Nor does it cover incidents happening with students studying abroad.
- Schools must have “actual knowledge” of alleged incidents. Under new Title IX rules, schools are only responsible for investigating sexual misconduct allegations about which they have “actual knowledge.” Previously, schools were also held responsible for alleged incidents about which they should have “reasonably known.”
Narrowed Definition of “Sexual Misconduct”
Perhaps one of the most impacting changes is in what the DOE now classifies as “sexual misconduct” under Title IX. Previously, sexual misconduct was broadly defined as any unwelcome conduct of a sexual nature. Now, Title IX only recognizes sexual harassment/misconduct that falls into one of these three categories:
- Incidents of sexual assault, dating violence, domestic violence, or stalking;
- Incidents of quid pro quo harassment (e.g., attempts by faculty/staff 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.”
These phrases, “objectively offensive” and “equal access,” have sparked more than a little controversy because of the broad range of possible interpretation. Technically, if a school can argue that if an act of sexual misconduct did not specifically deny a student equal access to education, it does not qualify for Title IX protection. Because of what is at stake in a Title IX case, what is deemed to constitute "severe" and "pervasive" can also be subject to fierce debate.
What These Changes Mean for the Accused
Taking these rule changes at face value, they seem to provide additional advantages and protections to students accused of sexual misconduct. However, there are two specific developments with the new rules that may actually have the opposite effect for the accused:
First—many schools have chosen to rewrite their own policies to broaden the scope of sexual misconduct. While the changes to Title IX interpretations affect colleges and universities nationwide, there's nothing to stop individual schools from revising their own disciplinary codes to fill in the gaps supposedly left under Title IX. Depending on the circumstances, a student accused of sexual misconduct in South Dakota may no longer be subject to investigation under Title IX, but may still be disciplined under individual school policies—and possibly even have to deal with parallel investigations for the same incident.
Second--the rule changes themselves may be short-lived. The new DOE rules have already been challenged in the courts by the Attorneys General for 18 states and the District of Columbia. In addition, if the next presidential administration is Democrat, there's a high likelihood that these rules will be revisited or rescinded, rolling back to Obama-era interpretations.
Why You Need an Attorney-Advisor
With so much uncertainty about the rules and with so many new variables in play, the risks are very high for students accused of sexual misconduct to be denied due process or disproportionately disciplined, putting there reputations and futures in question. That said, accused students are allowed to have an attorney-advisor during misconduct investigations, and doing so could have a significant impact on the outcome. An experienced advisor understands the most up-to-date information on Title IX protections, as well as the policies of the specific school in question. A skilled attorney-advisor will also gather evidence and arrange witnesses to help with your defense. In addition, when an attorney is involved in the hearing, even in an advisory capacity, the school naturally becomes more accountable to respect its own rules and processes. In the end, the student is afforded due process and quite often can clear their name and avoid harmful disciplinary actions.
South Dakota College Sexual Misconduct Advisor
The Lento Law Firm has successfully defended many students across the country against sexual misconduct allegations and unfair disciplinary proceedings—so much so that attorney Joseph D. Lento is considered by many as a pre-eminent expert in Title IX and sexual misconduct matters and student discipline cases. If you are a South Dakota college student facing possible disciplinary action for alleged misconduct, you owe it to yourself to have the best defense possible. Take control of your future and restore your good name. Give the Lento Law Firm a call at 888-535-3686 for a consultation.
South Dakota 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:
- Augustana College
- Black Hills State University
- Colorado Technical University Sioux Falls
- Dakota State University
- Dakota Wesleyan University
- Globe University Sioux Falls
- Kilian Community College
- Lake Area Technical Institute
- Mitchell Technical Institute
- Mount Marty College
- National American University Ellsworth AFB Extension
- National American University Rapid City
- National American University Sioux Falls
- Northern State University
- Oglala Lakota College
- Presentation College
- Sinte Gleska University
- Sisseton Wahpeton College
- South Dakota School of Mines and Technology
- South Dakota State University
- Southeast Technical Institute
- University of Sioux Falls
- University of South Dakota
- Western Dakota Technical Institute
It is critical to make certain the college sexual misconduct investigation at your South Dakota 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 Pennsylvania, 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 South Dakota and throughout the nation. Make certain your or your student's interests are protected - Contact National Sexual Misconduct Attorney Joseph D. Lento today at 888-535-3686 or by completing our online form.