Tag Archives: Jack Montague

Yale’s Case against Montague Looks Shaky

Max Stern, the lawyer for the expelled Yale basketball captain Jack Montague, has spoken out, announcing that he will sue Yale on behalf of Montague in April, and clarifying some details in the case, including a very surprising one: that the aggrieved female did not file the sexual misconduct complaint. In his telling, Montague had sex with the woman four times and the woman says only the fourth time was non-consensual.

The Stern statement said, “On the fourth occasion, she joined him in bed, voluntarily removed all of her clothes, and they had sexual intercourse. Then they got up, left the room and went separate ways. Later that same night, she reached out to him to meet up, then returned to his room voluntarily, and spent the rest of the night in his bed with him”

The accuser waited around a year to speak to someone from Yale’s Title IX office, but decided not to file a complaint with Yale. But the Title IX officer filed a complaint. A disciplinary hearing occurred, amidst a campus frenzy following a survey suggesting that the New Haven campus was a hotbed of violent crime.

Related: Montague and Yale’s Poisoned Campus Culture

The indication that the Title IX officer—not the accuser—filed the charges should have triggered outrage on the Yale campus. The Title IX coordinator has authority under Yale’s procedures to file a complaint independently. But according to the regular Spangler Reports on campus sexual misconduct (my review of the most recent report is here), such a move is supposed to occur only in “extremely rare cases,” and only when “there is serious risk to the safety of individuals or the community.” Stephanie Spangler herself reaffirmed this point in February, telling the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

There is nothing in the facts as described by Stern that remotely fits these criteria. So why did the Title IX coordinator act? Did Montague’s status as a high-profile basketball player account for the decision? Was she, for instance, fearful of negative publicity from following Yale’s own guidelines? Or was she worried about the fallout from a recent AAU survey, which had generated negative publicity for the school?

Related: Yale’s Imaginary Crime Wave

Or perhaps it’s simpler than that: The Title IX office seems to have a custom of not following the restrictions laid out in the Spangler Report. Here’s a chart using data in the Spangler Reports, involving allegations of sexual assault of Yale undergraduates. (I have updated cases originally listed as “pending” when follow-up information was provided in a subsequent report.

Yale-Title IX

 

 

 

In the two starred 2014 cases, the accused student was found not guilty. Given Yale’s stated criteria—“extremely rare cases” involving “acute threat to community safety”—it should be all but inconceivable that any case filed by the Title IX officer ended with a not-guilty finding. That two did suggests that she had ceased following Yale’s own standards even before the Montague case.

(Despite these not-guilty findings, the accused student in both of those cases received what amounted to minor punishment—a no-contact order, which could have academic consequences by limiting course offerings. In two Title IX officer-filed cases, in fall 2011 and spring 2012, there were allegations of physical, but not sexual, violence involving couples that previously had a sexual relationship.)

The pattern here is obvious: the Title IX office has gradually become more and more aggressive in filing charges, culminating in the three cases in which charges were filed in the 2015 academic year, despite the supposed restrictions on the types of cases the office can file. So: has the Title IX coordinator decided that Yale’s own regulations don’t apply to her?

Media Reaction

Richard Bradley, probably too hopefully, suggested that this might be the case that prompts the fair-minded to recognize that cases such as this should be handled by the police. But for now, they’re still handled by secret university tribunals that deny due process to the accused.

Some in the media, however, appear to be hearing the message. Both the Daily News and the New York Post had powerful editorials condemning Yale’s handling of the case. Montague’s high school coach, Dennis King, invoked the witch-hunt metaphor, and added that he knew of no player “more dedicated to self-improvement, more single-minded in his love of the game, or more committed to his teammates.” And Montague himself attended the Yale NCAA games in which, but for Yale’s procedures, he would have played.

Related: Worst College President of 2015, Who Wins the Sheldon?

Perhaps because of this public pressure, Yale issued a statement defending its approach to campus sexual assault. Most of the press release was boilerplate, but one section was interesting—stressing that most students accused through Yale’s procedures don’t wind up being expelled. This passage telegraphs the university’s likely defense, borrowing from the standard pioneered by Judge Furman in the Columbia case—since the university doesn’t find all accused students guilty, it shouldn’t be vulnerable to any Title IX challenge, and the courts should wholly defer to its unfair procedures.

Writing in the Washington Post, Shanlon Wu, a former federal sex crimes prosecutor, placed these stats in context: “What would be far more telling would be the percentage of Yale’s campus sexual assault allegations that go forward to hearings. Sending nearly every college student accused of campus sexual assault to a hearing is an abdication of responsibility. Colleges and universities owe it to their students to review and investigate each allegation of sexual assault professionally and thoroughly — prior to sending it forward to a panel hearing. While every case deserves investigation, not every case deserves a hearing.” He also took note of the fact that the “training” Yale provides its disciplinary panelists remains secret.

The Hostage-Video Statement

In the aftermath of 30 for 30’s “Fantastic Lies” documentary profiling the Duke Lacrosse case, it’s hard not to focus on the differences in the campus atmosphere between then and now. During the lacrosse case, the students were the voices of reason—from the student government, to the student newspaper, to students who registered to vote against Mike Nifong. And perhaps the highest-profile student action came from the Duke women’s lacrosse team, in the 2006 national semifinals, who said nothing but wore armbands with the number 6, 13, and 45—the numbers of the three falsely accused men’s players.

Doubtless the Brodhead administration did not welcome this move—the Duke president, after all, had a month before suggested privately that a movie in which an accused murderer fooled his lawyer into believing his innocence was a good frame for the case. But Duke allowed the silent statement to proceed. And students in general were either supportive of or neutral toward the women’s lacrosse team members.

In 2016, the Yale men’s basketball team made a nearly identical, silent statement. They said nothing, but wore warm-up shirts with Montague’s number and nickname. Here, however, the campus backlash was furious. Unidentified students posted flyers accusing the team of defending “rapists.” Yale’s dean issued a statement that seemed to condemn the basketball team. Student reaction toward the team seemed overwhelmingly negative. And the team then issued a statement that came across as a written version of a hostage video, filled with buzzwords more common from Title IX officials than a typical college student, apologizing to the campus community.

There’s scant reason to believe that the Yale Daily News is up to the task that the Duke Chronicle performed so ably in the lacrosse case. Rather than examine whether the basketball players were inappropriately pressured to issue the hostage-video statement—and, if so, what such pressure would say about the intellectual environment at Yale—a long article in Monday’s Daily News broke the news that members of the team still spoke with Montague.

The piece also contained lengthy quotes from campus rape groups criticizing Stern. In their own words, reporters Daniela Brighenti and Maya Sweedler wrote, “Stern’s reasoning drew criticism from experts, victims’ advocates and sexual assault survivors, who argued that the language Stern used in the statement blames victims.”

But such standards—which essentially conflate the experiences of battered women in long-term relationships, who are often emotionally and financially dependent on the men who abuse them, with college students who engage in brief sexual relationships—render it impossible for any accused student to defend himself. If any behavior or evidence undermining the credibility of the accuser (who often, as appears to be the case here, is the only witness suggesting the accused student did anything wrong) can be dismissed as typical conduct of a “victim,” then all behavior confirms the accusation, and the accused must be found guilty.

Montague and Yale’s Poisoned Campus Culture

Jack Montague, captain of Yale’s basketball team, has been expelled from the university on some sort of sex charge and the story continues to get uglier. Since his family has basically declined to comment (for understandable reasons) and because Yale chooses (for incomprehensible reasons) to employ “a more expansive definition of sexual assault” than state or local authorities, there’s no way to know even what he allegedly did wrong.

That said: there’s no reason to trust that Yale’s deeply unfair process got the decision right.

Since 2011, I’ve often written about sexual assault cases at Yale—which, thanks (ironically) to an agreement with the U.S. Education Department’s Office for Civil Rights (OCR), has been required to release biannual reports about its cases. Though opaque, these reports give a sense of the current witch-hunt atmosphere on campus. The most recent report, for instance, brings news of an investigation into a report of sexual assault from a third party—who claimed that an unidentified person had sexually assaulted another unidentified person.

Yale’s Imaginary Crime Wave

Beyond the question of campus culture, Yale’s procedures deny an accused student a meaningful attempt to prove his innocence. Given the combination of the preponderance-of-evidence threshold (those judging guilt need only be 50.01 percent sure they are right) and the guilt-presuming “training” that most panels receive—which, to date, Yale has not made public— students accused of sexual assault effectively have to prove their innocence.

At Yale, the critical procedural obstacles for an accused student include a denial of direct cross-examination of the accuser; the lack of any meaningful right to legal representation in the disciplinary process; and severe restrictions on the amount of evidence he can possess, due both to the OCR-mandated haste with which sexual assault campus cases must proceed and to Yale’s inability (like all schools) to subpoena evidence. Even with these restrictions, Yale doesn’t promise to share all the evidence from its “investigation”—even all the exculpatory evidence—with the accused student or his lawyer.

Montague, a two-year captain of the team, vanished from the squad, without explanation, in early February. In an interview at the time, he cited personal reasons; then, as we now know, Yale expelled him.

His accuser never went to the police—a critical decision in interpreting the subsequent campus and media reaction.

In a campus environment in which enormous social, media, and (at least indirectly) administration pressure exists to oppose fair treatment of accused students, Montague’s teammates then did an extraordinary thing. In the first game after Yale reached its decision (again: at this stage, there’s no way of knowing whether the decision was factually correct, but it’s clear it was procedurally unfair), the teammates all wore cover shirts with Montague’s number and nickname on the back, and “Yale” spelled backward on the front..

In the midst of the lacrosse case, the members of the Duke women’s team took the field with wristbands containing the numbers of the three falsely accused men’s lacrosse players. They attracted some angry comments from the usual suspects (New York Times sports columnists) but in general enjoyed strong support from the student body.

Fast forward ten years. The basketball team’s comparable action triggered blind rage on campus. Unknown parties—presumably Yale students who were briefed on the allegations against Montague, which at this point were not public—blanketed the campus with posters demanding that the team “stop supporting a rapist.”

Yet the fiction of the college disciplinary process is that it doesn’t make determinations of criminal offenses. A judgment by Yale can’t deem anyone a “rapist” any more than it can deem someone an “armed robber” or a “drug dealer”—two other crimes that powerful advocates of the campus status quo, Sen. Claire McCaskill and Catherine Lhamon of OCR, have bizarrely claimed that colleges currently investigate.

But, as the Montague case reveals, that fiction is just that—a fiction—with both students and the public at large interpreting any university action as a determination that the accused party has committed a serious felony. This reality makes it all the more important that Yale have a fair process.

Reflections on the Duke Lacrosse Case

The posters triggered a frenzied reaction on campus. The Yale Women’s Center—an entity with an official Yale website and a Yale faculty advisor—issued a statement that all but identified Montague as expelled for sexual assault. After the New Haven Register reported on the statement, the item disappeared from the Women’s Center website, replaced by a new statement that acknowledged Montague’s (utterly ignored) protections under FERPA. An article by Sue Svrluga in the Washington Post perceptively captured the witch-hunt atmosphere on campus.

The combination of sensational, now-public, but wholly non-specific allegations and the basketball team’s first trip to the NCAA tournament since 1962 has attracted national media attention. The quality of the coverage, however, has left something to be desired.

Kyle Ringo Yahoo! Sports, for instance, informed readers that “it remains unclear . . . if there are ongoing investigations by the school or law enforcement.” Really? The New Haven Register’s Chip Malafronte wrote: “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

CBS News, meanwhile, featured a nearly two-minute story on its national news broadcast. The piece concluded with a paraphrase of an e-mail to students from Yale Dean Jonathan Holloway, who said he was “committed to providing a safe campus for all of you.” Ending the report in this fashion was a damning frame, leaving the viewer with the impression that Montague was a threat to the safety of campus. Yet, once again, we currently have no idea what Montague even was alleged to have done.

Holloway’s email was notable, and troubling, for another reason. To date, the dean has not seen fit to publicly condemn either the students who distributed the “rapist” posters or the Women’s Center figures who posted the statement ignoring FERPA obligations. But the email did criticize the basketball players, asserting that their wearing Montague’s number in warmups left many “upset and angry.” Holloway’s document offered no explanation of why he chose to criticize only one group of students on the issue.

Holloway, ironically, is also Edmund S. Morgan Professor of African American Studies, History, and American Studies. Here’s a Morgan quote on which both Yale students and administrators could do well to reflect: “When any group of people become sufficiently intent on attacking a particular evil, they are likely to discard as obsolete and ineffective any ground rules that society has developed for the peaceful or fair achievement of social objectives.”

The Team’s “Official” Statement

Anyone who has followed the issue of due process and campus sexual assault knew that the subject would prove too tempting for the New York Times to resist. After badly botching its last foray into events at Yale (the Patrick Witt case), The Times avoided sending error-prone Richard PérezPeña back to New Haven; the lead byline on its coverage of Montague was Joe Drape, the only Times beat reporter who covered the lacrosse case fairly.

Drape’s piece was the best the Times has produced on any sexual assault case since 2011. But, critically, it offered a bland description of Yale’s disciplinary process that didn’t mention any of its due process-unfriendly components.

Drape’s article broke news, by including a statement from the team. It read, as presented by the Times, that the team “supports a healthy, safe and respectful campus climate where all students can flourish.”

“Our recent actions to show our support for one of our former teammates were not intended to suggest otherwise, but we understand that to many students they did. We apologize for the hurt we have caused, and we look forward to learning and growing from these recent incidents. As student representatives of Yale, we hope to use our positions on and off the court in a way that can make everyone proud.”

While I’ve taught at Harvard and Williams, I never taught at Yale. So maybe Yale students actually write in the exact same tone and style as student life and Title IX bureaucrats. But, somehow, I doubt it. Obtaining the background of this strange, almost hostage-like, statement would seem like the kind of news a good campus newspaper could break. In 2012, the Yale Daily News was up to the task, and played a key role in exposing the Times’ errors in the Patrick Witt case. But the paper’s current group of editors and reporters has shown little inclination to speak truth to power on questions of campus due process, and I don’t anticipate any exploration of whether there was inappropriate pressure on these Yale students to issue this statement.

Looking Ahead

At this stage, Montague’s reputation has been ruined. (Take a look at his twitter mentions for a clue of the effects.) Even if he sues Yale, a possibility that his father raised in a statement, his good name has been severely damaged.

Although important, protecting the rights of the accused is not the primary reason for due process in campus sexual assault allegations. Rather, due process provides the best guarantee that the university reaches the correct results—since the decision, as we have seen in the Montague case, is a life-altering one.

Based on Yale’s unfair procedures, the university’s one-sided response, and what seems like a deeply poisoned campus culture, no one should have any confidence that the university got this decision right.