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.
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.
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 Pérez–Peña 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.
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.