Sexual misconduct allegations are among the most serious a person can face. In our digital world, such allegations can follow a person online essentially forever. Being accused of such an action can be particularly scary for a college student, though. They risk probation, suspension, even expulsion. And often, the expulsion comes with a transcript notation about the nature of the offense. That can prevent a student from enrolling anywhere else. In short, a sexual misconduct allegation can ruin a student's academic career; as a result, it can further ruin their chances of establishing a professional career.
Given all that is at stake, colleges and universities would seem to have an obligation to provide the accused with resources and due process rights to help defend themselves against such charges. Typically, schools offer every possible form of aid to victims, as well they should. Yet, too often, they forget the most basic principle of American jurisprudence: all of us are innocent until proven guilty.
A History of Title IX
If most campus judicial systems are deeply unbalanced in favor of complainants, how exactly did we get here?
First, it's important we understand the situation on college campuses in the late 1960s and early 1970s. Far from being the zealous protector of women's rights academic institutions are today, most colleges were hostile environments for women, where sexual discrimination and harassment ran rampant. In response to this situation, the federal government passed Title IX in 1972, which created clear guidelines for prosecuting instances of discrimination and harassment and tied federal education funding to schools' willingness to pursue such prosecutions.
It took time, but the law did eventually have its intended effect, transforming college campuses into places where women and minorities could feel safe and welcome.
Unfortunately, the law was not without its problems. For one thing, by tying prosecutions to federal funding, Title IX created a clear incentive for schools to investigate absolutely every complaint, no matter how minor, in an effort to prove they were in full compliance. In addition, over the decades since 1972, the government gradually expanded the definition of “harassment” to include essentially every form of sexual misconduct, from classroom discrimination to stalking, dating violence, and even rape.
Title IX Revisions and the Response
In early 2020, the Trump administration, under the direction of education secretary Betsy DeVos, issued new Title IX guidelines designed to address some of the imbalances that had developed in how the law was applied. Among other changes, the administration narrowed the definition of “harassment” and placed strict limits on campus jurisdiction. In addition, they instituted a live hearing process and gave defendants the right to cross-examination.
While these changes were meant to level the playing field, in many cases, they actually had the opposite effect.
The problem was, many schools regarded the new Title IX rules as a direct affront to their own authority and an attempt to undermine the good work they had done in the name of women and minority rights. Rather than embrace the changes, they actively looked for ways to get around the new Title IX. The most popular of these methods was to shift sexual misconduct that no longer fit the government's definition of harassment into the student code of conduct. This created two separate mechanisms for dealing with sexual misconduct allegations and two separate processes for prosecuting those allegations. Often defendants found themselves with even fewer due process rights than before, and in almost every case, schools made navigating the complexities of the campus judicial system nearly impossible.
Wake Forest and Sexual Misconduct Allegations
In August 2020, as the new Title IX rules went into effect, Wake Forest, like many other schools across the country, instituted its own policy changes, creating two separate tracks for dealing with sexual misconduct allegations: the “Title IX Sexual Harassment and Non-Title IX Sexual Misconduct Grievance Procedures.” The two tracks are similar, though there are subtle and important differences between them.
The Title IX office handles both types of allegations. Once a complaint is made to this office, the Title IX Coordinator makes a decision about which track to use and contacts both sides to explain their rights and how the process will proceed.
The matter can be resolved through informal resolution if both parties agree, though this option is not available for allegations of non-consensual sexual penetration.
If the case moves to a formal grievance, the Title IX office appoints an investigator to review evidence, interview witnesses, and take statements from both sides. Under Title IX, an investigation report is completed and submitted to a hearing panel. Under university policy, in contrast, only the complainant may request a hearing. Otherwise, the case is decided by the investigator, who also assigns any necessary sanctions.
A hearing, if necessary, is conducted by a panel drawn from a pool of students, faculty, and staff who have been trained in hearing procedures. This panel reviews the investigative report and may call witnesses. Both sides may submit questions for the panel to ask of these witnesses. However, while under Title IX rules, the parties' representatives may directly cross-examine these witnesses (page 7), under university policy, questions must be submitted in writing to the panel who ultimately decide whether or not to ask them.
At the conclusion of the hearing, the panel deliberates and makes a finding of responsible or not responsible. They also determine sanctions if those are appropriate.
Both sides may appeal the panel's decisions, but only for a very circumscribed set of reasons such as clear procedural errors.
Wake Forest's list of potential sanctions for such defendants who are found guilty includes counseling, no-contact orders, probation, suspension, and expulsion.
Joseph D. Lento Can Help
The judicial process at Wake Forest can be confusing at best. Luckily, Wake Forest, like many schools, allows students to choose an advisor who may be an attorney. If you or your child should find yourself accused of sexual misconduct, contact Joseph D. Lento immediately. Joseph D. Lento specializes in student disciplinary cases and has unparalled experience defending clients from sexual misconduct allegations. Joseph D. Lento will fight to make sure you get the due process rights you deserve. He will stand by you from beginning to end and work hard to get you the best possible resolution.
For more information, contact the Lento Law Firm at 888-555-3686, or use our automated online form.