Yale braces for lawsuit from student expelled by Title IX tribunal

Printed from: http://newbostonpost.com/2016/03/15/yale-braces-for-lawsuit-from-student-expelled-by-title-ix-tribunal/

NEW HAVEN, Conn. – Yale University’s Title IX-based policies for handling sexual assault allegations may come under legal scrutiny if a recently expelled basketball player makes good on his vow to take the Ivy League school to court over what his lawyer calls a “wrong, arbitrary” decision and the fallout since.

Jack Montague, a senior and former captain of Yale’s men’s basketball team, was expelled from the school on Feb. 10 after a panel of the University Wide Committee on Sexual Misconduct determined he had nonconsensual sex in October 2014 with a female student who is now a junior at the school.

In what is described as an outline of the relevant facts and the steps taken by the university, Max D. Stern, a Boston-based lawyer who represents Montague, says Yale hired an independent investigator to probe the allegations against his client. Yale and New Haven police were not involved and Montague hasn’t been charged with a crime in connection with the allegations.

“The facts not in dispute and as stated in the female student’s account are these: The two students developed a relationship that led to them sleeping together in Jack’s room on four occasions in the fall of 2014,” Stern wrote, citing the investigator’s report.  According to Stern, Montague’s accuser admits to voluntarily sleeping with the basketball captain on three of the four occasions and to having voluntary sexual relations with Montague on the second and third occasion.

The female student on the fourth occasion joined Montague in his bed and “voluntarily” removed all of her clothes and engaged in sex with him, Stern said. Then they both got up and went their separate ways. But she later returned to his room that same evening to spend the night, Stern said in the outline.

“The sole dispute is as to the sexual intercourse in the fourth episode. She stated that she did not consent to it. He said that she did,” Stern wrote.

Stern points out that the woman didn’t report the unwanted sex to a school official until a year later, and that it was that official, not the student, who reported it to the University Wide Committee.

“Only two persons could have known what happened on that fourth night,” Stern added. “The panel chose to believe the woman, by a ‘preponderance of the evidence.’”

Yale, like many universities across the country, adopted a ‘preponderance of evidence’ standard for adjudicating claims of sexual-assault after the U.S. Department of Education’s Office for Civil Rights in 2011 warned schools that not doing so would result in a loss of federal funding under Title IX.

Additionally, in July 2014, Connecticut lawmakers enacted a ‘preponderance of the evidence’ standard for institutions of higher learning dealing with sexual assault cases.

The process Yale used to expel Montague involved a secret vote from the committee’s five-member panel. School policy states that the “panel will reach its conclusions by a majority vote and by secret ballot, with no abstentions allowed.”

Yale defines sexual assault as “any kind of nonconsensual sexual contact, including rape, groping and any other nonconsensual sexual touching.” It defines consent as a “positive, unambiguous and voluntary agreement” that “cannot be inferred from the absence of a ‘no’” and “cannot be obtained from someone who is asleep or otherwise mentally or physically incapacitated, whether due to alcohol, drugs or some other condition.”

The adjudicating panel is also responsible for recommending a penalty “if a party is found to have violated university policy.” According to Yale policy, “the final decision whether to impose a penalty, and what penalty or penalties to impose, belongs to the relevant decision maker.”

In Montague’s case, the decision maker was Yale’s Dean of Students. The dean, however, is not permitted to know the breakdown of the panel’s vote, or whether the vote was unanimous or a simple majority decision prior to acting on the penalty recommendation.

At Yale, a simple majority vote is sufficient. Stanford University, by contrast, features a three-member panel and a recommendation to expel can only be made if the panel is unanimous, according to the school’s policy.

In his outline, Stern questioned why Montague’s accuser would “seek to re-connect and get back into bed with a man who she says forced her to have unwanted sex just hours earlier.”

“And yet the dean accepted this conclusion and ordered Jack to be expelled,” Stern wrote, without mentioning the five-member adjudicatory panel or its vote.

Recent media reports about statements by Yale students making accusations about Montague have slandered him, and the school took no steps to correct the student actions, Stern said. That prompted Montague to seek to “correct the record” through a lawsuit he intends to bring against the school, Stern said.

Yale has declined to comment on Montague’s expulsion.

Read Stern’s full outline here:

Attorney statement on Montague expulsion