Since the emergence of the Montague case in the spring, I’ve been struck by an oddity in Yale’s public statements—a consistent reference to the fact that, as the Spangler Reports show, not all male students accused of sexual assault are expelled. From a p.r. standpoint, this line of argument seemed like an odd one. (Whether all accused students have been expelled doesn’t explain why Yale administrators chose not to follow their own procedures when filing charges against Montague.) But from a legal standpoint, Yale’s statements seemed to be reading from perhaps the most troubling of all the campus sexual assault decisions—Judge Jesse Furman’s, involving a case at Columbia.

In his opinion, which is currently under appeal to the Second Circuit, Furman proposed a test, of sorts, for handling Title IX claims filed by the accused.  Unless the accused student could show that all males charged with sexual assault were clearly treated unfairly, he would lose. In the case of Columbia, the judge (almost incredibly) suggested that the controversy caused by the almost certainly false allegations of Emma Sulkowicz, and the resulting complaints that Columbia treated accusers unfairly, was enough to survive a Title IX challenge from the accused. The university could just say it was denying due process to avoid bad publicity, which is legally permissible. In Yale’s case, the fact that the Spangler Reports show that everyone charged isn’t expelled (even though the reports provide no data on the charges’ specifics) would be enough to satisfy Furman’s undemanding test.

It turns out there’s a logical explanation for Yale’s Furman theme in its Montague comments; the university if facing another lawsuit from an accused student (you can read it here), and has relied heavily on Furman to defend its actions. The Furman decision, in fact, provides the lead point in the university’s argument, which you can read here; “Doe v. Columbia Univ. provides an in depth analysis of a Title IX claim attacking university disciplinary proceedings on the ground of gender bias,” the university’s lawyers maintain. Yale then spends nearly five pages recapitulating Furman’s decision—which of course has no precedential value. Strikingly, the university brief neglected mention of a more recent “in depth analysis of a Title IX claim: within the 2^nd Circuit states (Prasad v. Cornell). Yale also didn’t see fit to mention the Middlebury case, which was also more recent than the Columbia affair—and even though it, like the lawsuit the university is defending, involved an instance of a university inquiry that initially occurred in parallel to another inquiry.

The specifics of this case (filed under John Doe) are very different than the Montague case. The two students were both Native Americans, and apparently political rivals within Yale’s Native American student organization. (They came from differing tribes.) Unlike in the Montague case, the accuser here went to the police; the accused student was arrested, and charged with three felonies, including sexual assault. He eventually pled nolo contendere to a misdemeanor charge of unlawful restraint; the sexual assault charge and other felonies were dismissed. After placing him on an administrative suspension, Yale then resumed his disciplinary process and expelled him for sexual misconduct.

Though the student was sentenced only to two years of probation, and the plea will be expunged from his record unless he violates the terms, the existence of the plea inevitably strengthens the university’s position—if the Doe case ever reaches summary judgment, Yale will argue (and probably successfully) that it’s well within its rights to expel a student who effectively admitted in court that evidence existed regarding his misconduct involving another student in a Yale dorm. (The complaint argues, and quite possibly correctly, that the accused student only accepted the plea to make the criminal case go away, but I don’t see how that understandable strategy weakens Yale’s position.)

That said: the case raises three issues that have bearing on the Montague case.

First, the complaint persuasively indicts Yale’s specially-trained University-Wide Committee. (A university spokesperson did not respond to my question about whether Yale will make public the contents of the panelists’ training. I’m not holding my breath.) Despite the general assertion that accused students don’t need the same due process protections as accused criminals because the university disciplinary process has an “educational” purpose, the Doe complaint maintains that the UWC essentially used material from the police file. Yale’s “independent” fact-finder, for instance, relied on police documents rather than an interview of the accuser, as UWC procedures require. This reliance on material from the criminal investigation was selective: the accused student had an impressive list of expert witnesses—including a SANE nurse—but the UWC dismissed them, on grounds that they weren’t cross-examined. (The UWC used this excuse even though the accused student had offered to make the witnesses available for cross-examination.) And the entire process was delayed for around two years, until resolution of the criminal case, despite OCR’s strong encouragement of 60-day adjudication. As in the Amherst case, it seems, the time limitation vanishes when it disadvantages the accuser rather than the accused.

Second, the complaint reinforces two elements from the Montague complaint. Doe, like Montague, portrays Yale as reactive, willing to weaken the rights of accused students, in response to negative publicity. (The complaint notes that Doe was the first student charged with sexual misconduct after the public controversy surrounding the Patrick Witt case.) And as both Doe and Montague were expelled, Doe reinforces the Montague argument that—even assuming the worst-case view of the facts—his punishment was wildly disproportionate. Montague’s accuser never went to the police, and there never was a criminal plea. Yet he suffered the same fate as Doe.

Third, the Doe case and the Montague case both will go before Judge Covello; it’s likely he’ll rule on Doe first. Will the university’s stronger position in Doe create a ruling that effectively hampers Montague’s position? Or will Covello encountering two cases of the UWC operating outside its own rules make him more suspicious of Yale?

A final point: in her letter to the judge in the Brock Turner case, accusers’ rights activist Michele Dauber maintained that a longer sentence wouldn’t really hamper Turner’s life, since, after all, he’d still probably be out of prison at age 22, and could then just complete his college education. She didn’t say where. I certainly couldn’t imagine someone with a sexual assault conviction on the sex offender list being admitted to Brooklyn. I’m sure Dauber wouldn’t want Turner re-admitted to Stanford after he served his time.

In fact, in the current environment, the chances of Turner getting a degree from anything but an on-line school like the University of Phoenix are virtually zero. In the Yale case, the student’s only criminal record was a plea to a misdemeanor offense unrelated to sexual assault. But because Yale expelled him for sexual misconduct, he’s essentially out in the cold. This student—admitted to Yale, with a good GPA while at Yale, and with the admissions benefit of being Native American—has applied to 28 schools that don’t automatically prohibit a student with a sexual misconduct record from transferring. He’s been rejected by most, and has heard nothing at all from the others. Why Dauber chose to mislead Judge Persky about Turner’s likely educational fate is, of course, something only the Stanford Law professor can answer.