The Montague Case

The case of Yale basketball player Jack Montague has gotten a lot of press in the last few days. At this stage I know nothing of the specific facts of the case. But there are several concerns that deserve mentioning:

(1) The fiction of the college disciplinary process is that it address violations of the campus code, not felony offenses. Therefore, it’s acceptable for colleges and universities to deny basic due process to accused students. At Yale, that means a student accused of sexual assault has:

  • no right to the discovery of exculpatory evidence (even if the university, lacking subpoena power, stumbles upon it);
  • no right to see the full evidence upon which the university relied to make its determination
  • no right to an impartial panel (panelists receive secret “training,” which at the few universities where it has been revealed—Stanford, Ohio State, Middlebury—has been guilt-presuming);
  • no right to meaningful representation by a lawyer in the disciplinary process (he can have a lawyer, but the lawyer can’t ask questions or address the panel);
  • no right to meaningfully cross-examine the accuser (questions must be submitted in writing to the panel, which can ask them or not, at its discretion);
  • no plausible right to follow-up cross-examination questions (see this Scott Greenfield post for the significance of this denial).

Again, the justification for these denials of basic due process is that no one is accusing the student of rape.

How, then, to reconcile this fiction with posters that blanketed the Yale campus asking the Yale basketball team to “stop supporting a rapist” [emphasis added]?

When the alleged disciplinary offense is the same as a felony, the idea that deny due process serves the interests of fairness is preposterous.

(2) Of the media coverage of this issue, one article handled the issue responsibly. In the New Haven Register, Chip Malafronte wrote: “There is no record of an arrest or court hearing involving Montague on file with the Connecticut judicial branch.”

Every article on this case should contain such a sentence. How can someone be a “rapist” if he hasn’t even been charged with a crime—much less convicted?

Other coverage of the case (Jezebel unsurprisingly stands out here) has been far less responsible. And I very much doubt, based on how this general issue has been covered in the last several years, that many reporters will follow Malafronte’s example.

(3) Moreover, all coverage of this incident should place Yale’s policy in a specific context. First—as I’ve pointed out in many essays at Minding the Campus—this is a university whose handling of sexual assault allegations is fundamentally unfair, and seems based more on a response to moral panic than a pursuit of justice.

Second, and of particular importance for this case given the posters blanketing the campus, Yale itself has admitted (in the words of Deputy Provost Stephanie Spangler) that the university “uses a more expansive definition of sexual assault” than required either under federal law or by the Connecticut criminal code.

Yale has never explained why it chose to redefine a term commonly understood in both culture and the law. And at this stage, it’s not public what specific allegations Montague even faced. But to the extent he faced allegations that don’t fit the definition of sexual assault, and as a result of Yale’s actions he has now publicly been branded a “rapist” in campus posters, it would seem that he has suffered real harm from Yale’s peculiar use of the dictionary.

(4) In the past few weeks, a lawsuit against the University of Tennessee and continuing controversy at Baylor have both shown that, in specific contexts, star athletes appear to get special treatment in sexual assault allegations.

But most accused student-athletes aren’t football or basketball players at Power Five conferences, and I know of no evidence that accused student-athletes in any other context get treated any better than the typical accused student. That is: they, too, are subjected to the kind of due process-unfriendly procedures that Montague apparently experienced.

Montague’s case is a reminder that in one important respect, accused student-athletes get worse treatment than the typical student. Perhaps the only meaningful protection for an accused student in the college disciplinary process is its secrecy—their chances of a not-guilty finding aren’t good, but at least the finding won’t become public.

But for athletes, as former Yale quarterback Patrick Witt and now Montague have discovered, maintaining that secrecy is much harder than for a non-student-athlete. In Montague’s case, because he was in the public eye, his departure from the team unsurprisingly raised questions that would not have been asked in the case of another student.

(5) In an official statement, Yale unsurprisingly (and appropriately in this instance) shielded itself behind FERPA and declined comment.

But, incredibly, an agent of the Yale administration took a different course. As quoted by Malafronte, the Yale Women’s Center released a public statement purporting to “speculate” and then adding: “[W]e can comfortably say that, should all of this be true, this is progress. It seems that a survivor felt that coming forward was a viable option and that they got the decisive outcome that they likely fought hard for . . . Though we can only speculate as to the intent behind the basketball team’s shirt protest, the team’s actions appeared to be a dismissal of the very real threat of sexual violence.”

In other words: an official Yale agency all but confirmed that Montague was expelled for “sexual violence.”

Between the publication of the Register article and this morning, someone (Yale’s general counsel, perhaps?) appears to have spoken to the Women’s Center, which released a modified statement “recogniz[ing] that FERPA and Yale policy prohibit Yale from commenting on the exact nature of any specific incident.”

But the Women’s Center has already commented. Its comment all but confirmed the rumors. And that comment, along with the harm it caused, can’t be undone.

The revised statement contains no apology to Montague.

13 thoughts on “The Montague Case

      • Professor Johnson, I just discovered this blog. I followed and admired your work on the Duke Lacrosse Hoax. I look forward to reading here. I am a Yale College alum and have followed the Montague matter through the Yale Daily News. The father’s comment reported would seem to indicate a lawsuit is being prepared and we will read his side of events with a Complaint filed in federal court.

        I doubt the existence of an advisor would make a student organization an agent of the University. They have not been judicious with their comments on past controversies at Yale, including the “No means yes, Yes means anal,” chant or X fraternity “loves Yale sluts” picture, both of which as I recall were weak and ill-fated attempts at humor, but they don’t represent any official position of the University. They may have been tipped off on what occurred but maybe not.

  1. It seems Montague would have an easy defamation case. He can sue both Yale— which despite its care, has ended up ruining his reputation, as I think a jury would agree—and whoever put up the campus posters. The posters were probably put up by students, but probably by students from wealthy families. I don’t know whether he’d be able to collect from them or whether bankruptcy would clear that debt. Actually, given how long it takes for a defamation case—2 years, maybe?— he could drag out the case until his defamers have graduated and gotten jobs, and then garnish their wages, attach their cars, and so forth.

  2. The Women’s Center should get a Technical Foul and be thrown out of the game. But there is no one to take the free throws and it isn’t really a game, is it?

  3. One of the more disturbing aspects of this case is that when the Yale men’s basketball team showed their support, other students at Yale criticized them. IIRC some students claimed that the mere fact of the team’s showing support stifled their voice, an absurd contention. I did not read any comments from students to the effect that free speech is a value or that they respected the team for taking a stand. Ultimately the team apologized for reasons that are not entirely clear. This is another way in which some of the Duke students of 2006 outperformed some of the Virginia students of 2014 or some of the Yale students of 2016.

  4. At TeenVogue Emma Webster wrote, “This isn’t about whether or not Jack is guilty; this is about a message that’s being sent to any victims of sexual assault. By publicly supporting their captain — as innocent as it may feel to them — those players are telling victims that if they come forward, they likely won’t be supported, and their voices won’t be heard.” Ms. Webster’s use of “victims” undercuts her opening clause; once there is a victim, Jack Montague is by definition guilty.

  5. It was reported that this comment made by the Yale Women’s Center on their Facebook page: “t is important to remember that there are power dynamics at play in all student organizations, athletic teams included, that leave some members with less agency than others. However, though we can only speculate the intent behind the basketball team’s shirt protest, student’s words and behaviors establish campus norms. The team’s actions seem to us a dismissal of the very real threat of sexual violence. That some of the members of the team thought the potential expulsion was a matter to protest shows that toxic attitudes about sexual violence persist on our campus.” This kind of thinking has the pernicious effect of making people who support someone who may be wrongfully accused or convicted question whether it is worth the cost of doing so. Given that minorities are often found in the class of wrongfully accused or convicted, the attitude of the YWC is bewildering, to say the least.

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