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.