School Harassment Attorney

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What Is a School’s Role in a Sexual Assault Case?

If you have been accused of sexual misconduct or you are filing a complaint regarding potential Title IX violations or school code violations, you need to keep a few facts in mind about the role of your educational institution. What a school professes to do, what it is required to do, and what it actually does can be very different things.

The Duty to Protect May Focus Inward

Colleges and universities like to market themselves as a safe haven for students and “a home away from home” with staff and faculty who serve as beneficial guardian-like figures for students while they are away from home. Some schools may also emphasize that they act in the best interests of students. But the bottom line is that both the schools as institutions and the staff and faculty who work there operate to protect their own interests first and foremost.

In other words, if the school offers an advisor to help you after you’ve been accused of wrongdoing or if you want to file a complaint, keep in mind that the advisor works for the school, not you. Their priorities might not line up with your own. Their primary goal is to ensure that the school follows applicable laws, regulations, and policies in a manner that protects their funding and support. 

This is one reason why it is so helpful to work with a school harassment attorney during a sexual misconduct case. Your attorney will be focused solely on protecting you, not trying to make the school look good to the government or potential donors. An attorney experienced in handling campus matters can help protect your due process rights and work to ensure your side of the story gets heard. Your legal advocate will also provide unbiased advice you can trust to help you reach a positive outcome.

Look Closely at School Policies

Every school has created a unique set of rules governing how they are supposed to handle allegations of sexual harassment or other forms of misconduct. It is important to study the details of those rules and policies. The policies will determine the role the school is supposed to play in the case.

It is important to ascertain whether the school is following policies. If you notice a violation or omission while the case is in progress, you may be able to force the school to act in accordance with stated rules. Alternatively, or if the violation is not noticed until the school has issued a finding, you can work with a school harassment attorney to file a lawsuit based on the school’s failure to follow stated policies.

In addition, it is also essential to determine whether the school policies are in compliance with current federal and state laws and policies set by the U.S. Department of Education. Since Title IX policies have changed so drastically in recent years, school rules may not meet current guidelines. Lack of compliance provides a student with an opportunity to challenge findings and the procedure used to reach those findings.

It is important to remember that while school policies may address student conduct, Title IX potentially penalizes the school itself for allowing harassment or other misconduct to occur.  For that reason, schools naturally want to defend themselves first before acting to protect students.

A School’s Duty When Sexual Harassment Is Reported

School officials are often confused about their Title IX obligations when a student or staff remember reports an incident of sexual harassment. The federal rules establishing a school’s duty have changed according to political priorities and are likely to continue to do so. Accordingly, it is important to look at the most current regulations and guidelines to understand the full scope of a school’s obligations.

When and How a School Must Respond

Under the Final Rule established in 2020, schools have an obligation to respond when they have “actual knowledge of sexual harassment.” Prior to that, schools had a duty to act if they knew or should have known about the harassment, and that obligation will probably soon return under anticipated new rules.

A school is said to have actual knowledge of sexual harassment when the institution’s Title IX Coordinator receives notice or when notice is received by another official who has the authority to institute corrective measures.

Once a school has notice, the duty with regard to how the school must respond is vague under the current law. The school’s response must not be “clearly unreasonable in light of the known circumstances.”

Two obligations are clear. The school must offer supportive measures to every complainant, even if they choose not to file a formal complaint. Moreover, when a formal complaint is filed, the school has a duty to investigate and keep records of all reports of sexual harassment and the resulting investigations.

A Fair Grievance Process for Investigation and Adjudication

Federal rules allow colleges to establish their own procedures for investigating and resolving complaints. The process established is supposed to incorporate due process principles, treat everyone fairly, and lead to reliable findings regarding responsibility. Specifically, the school’s grievance process must:

• Provide written notice of the allegations to both complainant and respondent
• Give both parties an equal opportunity to choose an advisor and to submit and review evidence
• Objectively evaluate evidence using trained Title IX personnel
• Require written consent before use of medical or psychological treatment records
• Include a presumption of innocence, placing the burden of proof on the school to prove a violation
• Use either a preponderance of evidence standard or a clear and convincing evidence standard
• Not allow the investigator or Title IX Coordinator to adjudicate the matter
• Hold a live hearing with cross-examination
• Shield complainants from inappropriate questions about sexual history

When the adjudication is complete, schools must send both the complainant and the respondent a written explanation of the finding and the reason for the conclusions. If a respondent has been found responsible for sexual harassment, the school has a duty to implement remedies.

Regardless of the outcome, schools must offer both parties an equal opportunity to appeal and protect everyone involved in the case from retaliation.

If You’ve Been Accused of Sexual Misconduct or Harassment at College, You Need an Experienced School Harassment Attorney

As a college student facing accusations of sexual misconduct or sexual harassment is a very serious matter. These accusations have the potential to trigger both academic discipline and criminal charges; and, if you are unable to dispute the accusations successfully, they could truly impact the rest of your life. If you are facing these accusations, protecting yourself needs to be your priority, and it is strongly in your best interests to speak with a school harassment attorney right away.

Assisting students accused of sexual misconduct or harassment in violation of a school code of conduct across the United States

Many college students believe that teasing, flashing, or other acts of a sexual nature are harmless and simply to be seen as entertaining. Increasingly, however, targets of these behaviors, both male and female, are reporting them to the administration of your college or university. Regardless of your stated intention or belief that the conduct was welcomed or accepted by the other person, if your actions are received as threatening or even just unwanted, you may be accused by your school of serious sexual misconduct or harassment. Acts such as unwanted sexual advances, exposure, voyeurism, or sexually explicit communications are all violations of your college’s code of conduct and may result in extremely serious long-term consequences.

Our highly experienced school harassment attorneys at Nesenoff & Miltenberg, LLP know how to protect your rights in the face of serious code of conduct or Title IX infringement allegations, so please call Nesenoff & Miltenberg, LLP at 212-736-4500 for a consultation today.

Schools take complaints of sexual misconduct and harassment very seriously

Federal laws such as the Clery Act and Title IX of the Education Amendments of 1972 require colleges and universities that receive funds from the federal government to take sexual complaints extremely seriously and, if they fail to do so, they may face sanctions from the Department of Education. Under Title IX, schools are required to investigate complaints of sexual harassment. For this reason and more, schools often initiate an extensive investigation into allegations of sexual misconduct or harassment.

If the school determines that you violated the code of conduct and the alleged misconduct or harassment occurred, the administration is required to do whatever is necessary to prevent and deter future misconduct. This often means that violators face harsh penalties including:

• Disciplinary probation
• Formal reprimand
• Suspension
• Expulsion
• Loss of financial aid or housing

In the event that you are suspended or expelled, your transcript will likely reflect the fact that you violated the code of conduct regarding sexual harassment or misconduct. This can substantially affect your chances of admission into other universities or advanced degree programs and ultimately your career.

What constitutes sexual misconduct on (or off) a college campus?

Sexual conduct does not have one specific definition. Rather, laws vary from state to state, and policies vary from one college to the next. Acts that constitute sexual misconduct in some states and at some schools may be classified as sexual harassment in others, so determining what laws or policies apply to your situation is the first step toward building an effective defense.

Generally speaking, sexual misconduct includes a broad range of conduct from unwelcome comments to sexual assault. Making inappropriate jokes, using sexual innuendo, and other forms of conduct that are not intended to cause harm may fall into this category. When facing any type of allegations, the specific label your state or your school applies is far less important than the penalties that are at stake and the defenses you have available.

What constitutes sexual harassment in the school environment?

Sexual harassment can take many different forms. Broadly speaking, colleges and universities can (and will) discipline students for forms of sexual harassment that are verbal, nonverbal and physical in nature. This includes (but is not limited to) acts such as:

• Making comments about a person’s physical appearance
• Sending sexually inappropriate emails, texts or direct messages
• Posting sexually inappropriate comments on others’ social media posts
• Inappropriately touching or groping a person without that person’s consent
• Exposing oneself or making obscene gestures
• Hazing rituals
• Stalking (either in person or online)
• Sharing sexually explicit photos or videos with another person
• Sharing sexually explicit photos or videos of another person (including revenge pornography)
• Making someone feel intimidated in a sexual manner
• Sexual assault

While consent can be a defense to sexual harassment in some cases, consent isn’t always easy to prove. In addition, in many cases, accusers will assert that they felt coerced or felt that they had no choice but to consent or stay silent out of fear for their safety. Of course, under no circumstances should you fall victim to false allegations; and, if the allegations against you simply are not true, your sexual harassment attorney can gather the available evidence to build as strong a case as possible.

What should you expect after being accused of sexual harassment at school?

Once you have been accused of sexual harassment, your school will almost certainly conduct an investigation. Depending on the severity of the allegations, the police may investigate as well (the police will almost certainly be involved in cases involving allegations of sexual assault or rape. These investigations can be intimidating, and they can also be dangerous. If you are facing accusations, you will want a school harassment lawyer to represent you during the investigative process. Your lawyer will be able to communicate with the school and the police for you, assert your legal rights on your behalf and begin steering the matter toward as favorable a resolution as possible.

Once the school’s investigation is over, you will most likely be required to attend a disciplinary hearing (unless your lawyer is able to resolve your case at the investigative stage). As discussed above, this is a very serious matter that can potentially have life-altering implications. Your attorney can help you prepare, represent you at the hearing (if this is permitted), and ensure that you preserve your right to appeal if necessary (and if you have this right). Depending on the outcome of the hearing, at this point, the whole ordeal may be over, or you may find yourself facing one (or more) of the penalties listed above.

Disciplinary proceedings can be complex

In many cases, your school will conduct a disciplinary hearing to determine whether a violation occurred. Unlike a traditional criminal case, however, you do not have the right to be presumed innocent until proven guilty and the allegations against you do not have to be proven beyond a reasonable doubt for punishment to be imposed. You may not even have the right to have a lawyer with you or appeal the decision in the future.

Sexual misconduct and harassment cases often involve the alleged victim’s word against yours. For this reason, it is important to find any evidence possible to assert your innocence. Text messages, emails, witness reports, and more can demonstrate that any sexual conduct that occurred was not unwanted. Often, however, you may not realize that such evidence exists. An experienced attorney will know how to investigate the circumstances of your case in order to gather evidence and build an effective defense against the accusations.

Do I need to hire a school harassment attorney?

Given all that you have at stake, it is strongly in your best interests to hire a school harassment lawyer to represent you. When you hire a school harassment lawyer at Nesenoff & Miltenberg, LLP, your lawyer will:

• Investigate the Allegations Against You – When facing allegations of sexual misconduct or sexual harassment, it is extremely important that you gather evidence independent of the school’s investigation. Your sexual harassment attorney at Nesenoff & Miltenberg, LLP will investigate promptly to identify all available evidence and determine what witnesses are available to testify on your behalf.
• Represent You in All Formal and Informal Communications – In order to preserve your legal rights and ensure that you do not inadvertently say anything that could jeopardize your defense, your lawyer will represent you in all formal and informal communications with school officials and law enforcement.
• Build Your Defense – After gathering the available evidence and evaluating the circumstances of your case, your lawyer will build a defense strategy focused on protecting you to the fullest extent possible.
• Represent You at Your Disciplinary Hearing – If permitted, your lawyer will represent you at your disciplinary hearing. If your lawyer is not allowed to be present, your lawyer will help you prepare thoroughly—including anticipating questions, crafting and practicing your responses and prepared statements, and ensuring that you know exactly what to expect when your hearing date arrives.
• Evaluate Your Next Steps (if Necessary) – When sexual harassment allegations get publicized, they can cause significant harm to a college student’s reputation (this is especially common in cases involving high-profile student athletes). Unfortunately, when students are cleared of wrongdoing, this typically does not get the same level of coverage. If necessary, our lawyers can assist with media relations and rebuilding your public reputation. We can also assist with appealing the outcome of your disciplinary hearing and/or pursuing other legal avenues.

Let Nesenoff & Miltenberg, LLP Protect Your Rights

Allegations of sexual misconduct or harassment can have a seriously adverse effect on your future. Our highly knowledgeable Title IX and Conduct Code attorneys understand the different rules and procedures of collegiate disciplinary proceedings.  We know how to present evidence in your defense to mitigate or eliminate the consequences. Call Nesenoff & Miltenberg, LLP at 212-736-4500 now for a confidential consultation.