The latest filings in the Jack Montague case at Yale confirm why negotiations between the two sides (which delayed the filing of the lawsuit) failed. Yale’s filing, though full of condemnatory passages about Montague, failed to answer the critical procedural question of the case: why did the university not adhere to its own procedures—publicly affirmed by Stephanie Spangler, who supervises Yale’s sexual assault adjudication system—regarding the limited circumstances in which the Title IX office can file complaints on its own?

The issues at play:

Fast & Loose with Procedure, I

Montague’s was a case that never should have been brought. The accuser was unwilling to file a complaint herself—despite strong pressure from Yale’s Title IX officials to do so. So Yale’s Title IX officials filed the complaint themselves—ignoring the fact that the university’s own procedures gave the Title IX office very limited justifications (none of which applied in this case) to substitute itself for the accuser as the complainant.

Stephanie Spangler, the person in charge of Yale’s sexual assault adjudications since 2011, was blunt on this issue (before Montague filed his lawsuit). On February 15, 2016, in an official Yale report, she stated, “Only in extremely rare cases, where there is serious risk to the safety of individuals or the community, will the University take independent action.” [emphases added] After charges were filed against Montague (but before the Title IX office’s involvement was public), Spangler told the Yale Daily News, “Except in rare cases involving an acute threat to community safety, coordinators defer to complainants’ wishes.”

So how did Yale explain this critical discrepancy? With the following assertion: “Nothing in the Report suggests that in this circumstance the Title IX Coordinator is empowered to file a complaint only where there are ‘risks to the safety of individuals and/or the community.’” Nothing, that is, except the words of the person who wrote the Report, in sentiments that she confirmed in a subsequent interview.

The most recent Spangler Report, produced after Montague filed his lawsuit, didn’t include Spangler’s damning admission.

Fast & Loose with Procedure, II

In the original complaint in this case, Montague’s lawyers asserted that not only was the decision to file the claim against Montague improper—but that Yale officials had violated procedure in other ways. The accuser made perfectly clear that she wanted to handle the matter through the informal process (in which, at Yale, the accused student is always found guilty, but only receives counseling, and can’t be suspended or expelled). The Title IX office initially appeared willing to go along with this route, but then something changed, and Title IOX officer Angela Gleason suggested that Montague had previously been found guilty of sexual misconduct. But this information was supposed to be secret.

In depositions, two Yale Title IX officials clearly admitted that they were obligated not to share Montague’s disciplinary history, as they unconvincingly claimed they hadn’t done so. Excerpts below:

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The fact-finder appeared to recognize there was something wrong here. In her draft report, she noticed that Yale Title IX official Angela Gleason had relayed something “slightly different” about the amount of information the Title IX office had shared with the accuser. The fact-finder worried that the report was providing “too much information about his prior record, which is not relevant to this investigation.” It’s easy now to see why the fact-finder was concerned.

The response of the Yale Title IX official to this problem? In her deposition, she suggested that the accuser had been untruthful in her statements to the Yale fact-finder about her conversations with the Title IX office. (Yet in its filing, Yale offers the accuser’s version of events, including specific details, as wholly true.)

As for the other Yale Title IX official deposed: he simply ignored the Spangler guidelines and offered an after-the-fact justification for why his office could file a complaint.

Fast & Loose with Procedure, III

Yale has—at least superficially—been more transparent than any other university in how they handle sexual assault allegations. A few years ago, they described a series of sexual misconduct scenarios, and the punishment that perpetrators would receive. In the scenario that most resembled the actions for which Montague was found guilty, Yale’s own document asserted that the “penalty would likely be a reprimand.”

Yale bypassed its own recommendation by deeming the incident Montague’s second occasion of sexual misconduct—with the first being a time as a freshman when, after a drunken, verbal argument outside a bar, he shoved a paper plate into a female student’s chest. But there was no indication this incident was gender-related (if the argument had been with a male, it doubtless would have unfolded in the same way), and discovery brought notice even from a Yale official that even some (specially trained, no less!) members of the Yale sexual harassment panel might not see this as a sexual misconduct question.

This, by the way, is the same “prior record” that Yale’s investigator described as “not relevant to this investigation.”

Does Yale Adjudicate Sex Crimes?

The most common defense universities use for weakening due process protections for accused students is that campus tribunals, unlike the criminal justice system, can’t send an accused student to jail—because they only investigate whether a student violated the university’s code of conduct, not a criminal statute.

And yet here are some quotes from Yale’s brief: “The plaintiff’s sexual assault of Ms. Roe”; “Ms. Roe did not report the sexual assault”; “nearly a year had passed between [Montague’s] sexual assault of Ms. Roe”; and, most bluntly, “On the night of October 18, 2014, the plaintiff, Jack Montague, sexually assaulted Jane Roe.” Throughout its motion, Yale simply presents as fact the accuser’s unverified assertions of an event that even the university’s fact-finder conceded lacked “direct witnesses to the sexual encounter between the parties.” The university’s apparent belief is that that a panel decision finding the accuser’s overall version of events more believable than Montague’s—even if, as preponderance allows, only by a margin of 0.2 percent—then everything the accuser recalled of the evening, more than one year later, is true. This is a case, moreover, where even one of the accuser’s friends, and supportive witnesses, confessed that the accuser “had no romantic feelings for [Montague] but she was sexually attracted to him,” a point of view that seems to corroborate Montague’s version of events.

It seems, in the end, as if Yale plays down the actual issue its adjudicators decide—when it needs to justify why it provides so few procedural protections to accused students. But then, once a guilty finding has been made, Yale is willing to state, in a legal filing, that its student committed an offense that Connecticut law considers a felony.

Harm?

According to Yale, Montague waited too long to file his motion, and therefore couldn’t have suffered irreparable harm from the university’s actions. (Much of this “delay” was a result of discussions between Montague’s lawyers and Yale, in the hopes of avoiding a lawsuit or avoiding needless claims in a lawsuit.) This is a case, it’s worth recalling, in which the accuser waited nearly a year to speak to Yale Title IX officers, and never filed a complaint herself. The university had no problem with her delay.

Yale, oddly, claimed that Montague failed to challenge the “accounts of the events giving rise to the discipline imposed upon him”—even though he has consistently done so from the first time this case reached the courts. The university also claimed that—having been publicly identified as someone who committed sexual assault, including by CBS Evening News and (before the Facebook posting mysteriously vanished) Yale’s own Women’s Center—its former student’s record “does not suggest any reputational injury.” Yale also, comically, blamed Montague for the publicity the case received, because his lawyer or his father responded to press inquiries as the accuser’s supporters were publicly attacking him, including in use of confidential material whose dissemination a Yale official said the university was powerless to stop.

In its most brazen line of argument, Yale asserted that even a (temporary) legal victory could not remove the effect of its actions, since “entering a preliminary injunction at this time will do nothing to remove the public stain which [Montague] claims is causing him harm.” It’s true, at least in part, that even a judicial victory won’t allow Montague to fully restore his reputation. (I doubt CBS Evening News will devote a segment to a hypothetical Montague victory in court, to balance its guilt-presuming segment on Yale’s initial actions.) But the idea that a judicial rebuke of the university would do “nothing” to improve Montague’s public standing curiously implies that Yale’s disciplinary process deserves such respect that even an unfavorable court action shouldn’t call into question the university’s determination.

Intoxication Levels as Justification

Yale contended that the panel correctly sided with the accuser because—while Montague admitted that he was drunk—she “was not intoxicated or otherwise impaired in any way that would have affected her recollection of those events.” By contrast, DePauw, Vassar, Michigan, Tennessee-Chattanooga, UCSD (and myriad other institutions) have maintained either that the accuser being intoxicated enhanced the credibility of her claims, or that the accuser’s intoxication level could not in any way be used to minimize her credibility. Yale’s argument suggests that for universities, when addressing questions of alcohol and sexual assault, the accuser is inherently credible, regardless of whether she’s intoxicated.

The case remains pending.

As the Amherst case moves toward eight months awaiting a ruling after a preliminary hearing, there was a minor development in the case: recent filings by the college, related to a delay of deadlines for subsequent filings, revealed that the accusing student (who I’ll call A.S.) successfully quashed the accused student’s subpoena. The ruling thus ensured that not only would A.S. not be deposed, but she would not need to produce any relevant documents in the case.

I’ve previously written about the Amherst case—perhaps the most egregiously unfair of the myriad due process cases that have emerged since the Dear Colleague letter. Having myself successfully resisted a third-party subpoena (when Duke attempted to compel me to reveal my sources in the lacrosse case), I’m sensitive to the ways in which the civil process can be abused. But the suggestion here that A.S.’s interests outweigh the obvious relevance of her testimony is puzzling.

In a ruling that was a model of circuitous reasoning, Judge James Robart, a Bush appointee, gave A.S. the benefit of the doubt on close legal issues because of her status as a sexual assault victim—in a case that challenged the basic fairness of the only proceeding that deemed her a sexual assault victim. (Despite an offer of facilitation by an Amherst administrator, A.S. pointedly declined to file a criminal complaint with police. Perhaps she realized that if she did so, she wouldn’t be able to conceal the text messages that undermined her credibility.) In so doing, Robart essentially accepted the legitimacy of Amherst’s procedurally dubious adjudication.

Robart ruled out a deposition on grounds that it “would force [A.S.] to relive a night in which she asserts Mr. Doe sexually assaulted her.” This was “heavy burden,” he argued, because “a live deposition would impose emotional and psychological trauma upon [A.S.].” Any “emotional and psychological trauma,” of course, would come only if A.S. was telling the truth when she testified to the Amherst panel—and the lawsuit provides considerable information, much of it from A.S.’s own texts, that calls into question the accuser’s truthfulness.

Even Robart conceded that supplying requested documents wouldn’t impose psychological trauma on the compromised accuser, but he ruled that the accused student’s requests were either “overbroad” or consisted of “communications that could readily be obtained from other sources” (that is, people who work at Amherst). Yet much of the requested material couldn’t come from Amherst employees. For instance, a critical aspect of the accused student’s case is the basic unfairness of an adjudication that went forward under the false premise that A.S. had not reduced anything about the incident to writing. So the subpoena asked A.S. for “all communications, including text messages or emails, between you and anyone else on February 5, 2012.” The only conceivable source of this material would be A.S., not any Amherst employees.

The subpoena also requested “all notes, journal/diary entries, recordings, transcripts, or other memoranda by you relating to Your Complaint, the Investigation, John Doe, [and] the John Doe Disciplinary Process”; and “any and all communications with witnesses in the John Doe Disciplinary Process concerning the topic of sexual misconduct, the John Doe Disciplinary Process, Your Complaint, John Doe, and/or your interactions with John Doe on February 4-5, 2012.” This, too, is material that’s critical to evaluating the fairness of Amherst’s disciplinary process, which no Amherst employee could provide.

Although the case was decided in Washington (where A.S. now lives), Judge Robart cited no precedents from Washington, or from Massachusetts, where the lawsuit is being tried. He primarily relied on Gonzales v. Google, Inc.—a California district court decision that arose out of the ACLU’s constitutional challenge to the Child Online Protection Act. Moreover, despite the obvious differences from the Amherst case in subject matter, requesting party (the federal government), and scope of request (initially, a list of all URLs on the Google search engine), Gonzales nonetheless required Google to turn over some information (a sample of URLs from its search index). Judge Robart, by contrast, admitted that the accused student’s subpoena could be narrowed, specifically with regard to the documents he was requesting, but disagreed with the Gonzales precedent on the wisdom of narrowing. Yet Gonzales was the only case in his opinion that received multiple citations.

A.S.’s motion to quash was filed by John Clune, a high-profile accusers’ rights attorney. (Among other cases, he represented Erica Kinsman in the Jameis Winston case.) His brief consisted of unsubstantiated claims that the sole purpose of the subpoena was to “harass” A.S. and suggestions that Max Stern, the accused student’s lawyer, somehow (for reasons Clune never got around to explaining) behaved improperly when he talked about the case on TV. Most outrageously, the brief wildly misinterprets the role that A.S.’s sexual history played in the accused student’s filing. According to Clune, this information was included “to portray her as someone who is promiscuous and thus more likely to have consented.” The lawsuit makes no such claim, nor anything resembling it. It included this information, since the texts showed that A.S. has misled both Amherst’s investigator and Amherst’s disciplinary panel about who she invited to her room after the incident with the accused student, when she extended the invitation, and for what purpose she extended the invitation.

That Clune came to A.S.’s side to prevent more information about her troubling behavior to come to light gave some sense of how damaging the accusers’ rights movement sees this case. That Robart credited this misrepresentation of the record is disappointing.

Ironically, whatever minor assistance the ruling might have to frustrating the Amherst student’s quest for justice, the victory might be a Pyrrhic one for the accusers’ rights movement as a whole. Judge Robart sent a message that the only way an accused student can obtain relevant evidence involving his accuser is—as a handful of accused students have done—to sue his accuser as well as the college. Expect more accusers to be added to future lawsuits as a result.

Williams has now filed its motion to dismiss (which you can read here) in the due process lawsuit about which I previously wrote. In the filing, Williams aggressively defends its finding of guilt against the accused student, and includes the full report prepared by the college’s hired investigator, Allyson Kurker. (In his lawsuit, the student had partially redacted the report.) But, curiously, the college allows to stand unchallenged the timeline of the case, which is the strongest argument in favor of the accused student.

In the realm of campus due process cases, events at Williams are unusual, in multiple respects. In contrast to the norm in these cases, the two parties had a lengthy (and dysfunctional, to put it mildly) relationship. At the critical points in the case, the accuser was an employee of the school, though their relationship began when both were Williams undergraduates. Finally, unlike many due process lawsuits, this was a he-said/she-said case in which the sexual assault allegation was not disprovable (unlike, for instance, the case at Amherst), and in which the accuser’s excuse for waiting more than a year to report was, at least, not implausible (unlike, say, the Jack Montague case at Yale).

Given its importance, which the Williams filing has now basically confirmed, it’s worth repeating the timeline of key events in the case. While these two people seem to have been arguing almost from the start of their relationship, they only brought their problems to the attention of the college beginning in late 2015:

Allegation One:

• Dec. 5, 2015: The accused student attended a party, at which he danced with another woman. The Williams employee confronted him, slapped him (after, she said, he swore at her), and took his phone.

• Dec. 6, 2015 (early morning hours): The employee emailed then-Williams dean Sarah Bolton, claiming that her wayward boyfriend had committed academic misconduct in three classes, by allowing her to write his papers for him. Shortly thereafter, she posted a message on the accused student’s Facebook page, informing him, “There isn’t anything in this world you can do to heal the wound you’ve made in me tonight.”

• Dec. 6, 2015 (mid-morning): The employee e-mailed the accused student, telling him, “Come get your phone. I need to talk to you . . . I did something bad . . . I’m sorry.”

Williams adjudicated this claim, but the accused student was found not guilty.

So, the undisputed record is: after a fight at a party (at which a college employee—perhaps verbally provoked, perhaps not—slapped a Williams student), the employee filed a claim of misconduct against the student. The college would deem that claim to be unsubstantiated.

Allegation Two:

• March 8-12, 2016: After the strain of the academic misconduct finally ended their relationship, the employee called the accused student 48 times and texted him nine times, as reflected in his phone records.

• March 13, 2016: The accused student’s lawyer sent a cease-and-desist letter to the employee, cc’ing it to Dean Bolton.

• March 14, 2016: The accused student’s lawyer met with Dean Bolton and Williams’ college counsel to express concerns about a Williams employee harassing her client.

• April 7, 2016: Williams issued a mutual no-contact order between the student and the employee.

• April 13, 2016: The accused student filed a formal complaint with Williams against its employee.

So, the undisputed record is: despite having been informed that an employee was allegedly harassing one of its students on March 13-14, and despite receiving a formal complaint about the matter on April 13, Williams did not open an immediate investigation.

Allegation Three:

• April 27, 2016: Dean Bolton informed the employee that the student had been cleared of the plagiarism allegations. (Normally, FERPA would prevent the sharing of such information, but Williams claims its actions were permissible, because the employee was the accuser in the plagiarism case.) Bolton told the employee (two weeks after the college had received a formal Title IX complaint about the employee’s behavior), “For now, the most important things are to continue to get support, and to ensure that you are safe.”

• May 10, 2016: The student was informed that the employee had filed a complaint against him, alleging that he had “displayed abusive behavior towards her during the past two years.” Williams hired the investigator made (in)famous by the Amherst case, Allyson Kurker, to investigate.

• Late spring 2016: In her initial interview with Kurker, the employee escalated her allegations, claiming that on one night in September 2014 (around 18 months before the end of their relationship), she hadn’t consented to have sex with the student. (This claim does not appear to have been part of the initial complaint she filed in May 2016.) The employee (who was at the time a Williams student) said she was drunk at the time. There were no witnesses to the incident, nor (it seems) did any contemporaneous electronic evidence exist. Two friends of the employee testified that she had told them about the incident, although one admitted that this disclosure came only in July 2016, after the employee first made the allegation to Kurker.

Williams had two choices in this (ugly) case. It could have treated these three sets of allegations as connected. In so doing, it likely would have concluded that a college employee who made an unsubstantiated misconduct allegation against a student (after a fight at a party), and who was then charged with harassing the same student, subsequently filed a retaliatory complaint, and any evaluation of the employee’s credibility needed to be viewed through the prism of the first two allegations.

Williams, of course, didn’t choose that approach. Instead, it effectively evaluated the sexual assault claim as if the accuser’s credibility hadn’t already (fairly or not) been eviscerated by her unsubstantiated earlier allegation. It found the student guilty of sexual assault, and expelled him. In its motion to dismiss, the college claims it had no choice but to follow this course, because federal law requires it to investigate all sexual assault complaints.

In its filing, the college cites to Judge Saylor’s important Brandeis decision—but a college evaluating a sexual assault complaint devoid of the context of the relationship between the two parties is one of the central faults to which Saylor attributed to Brandeis. Following the Brandeis precedent almost certainly would end in a Williams defeat.

Williams’ brief makes three basic arguments: (1) the college’s process was eminently fair; (2) this issue was a private one between two people, irrelevant to either the accuser’s status as a college employee or her gender; (3) the accused student’s disciplinary past implicitly provides support for the college’s handling of this case.

(1) Williams asserts that its “handling of student discipline is entitled to considerable deference,” and it also suggests that the accused student made no meaningful allegations of wrongdoing against the three disciplinary panelists who ultimately found him guilty. The college, the Williams brief asserts, followed its procedures, and that’s all it needed to do. Moreover, Williams argues, even if Dean Bolton were biased against the accused student (the college denies this point, but the dean’s sympathetic email to an employee against whom a Title IX complaint had been filed is tough to explain), she no longer works for Williams, and left the college before the final decision to expel occurred.

The college’s suggestion that its handling of the case was fundamentally fair depends on the court accepting its decision not to treat the May 2016 complaint as the culminating event in a pattern of allegations or odd behavior by the college employee, and on accepting its argument that a dean allegedly prejudicing the process at the start isn’t relevant as long as the dean wasn’t the final decisionmaker.

Given the wide range of court decisions on this issue—a California appeals court, after all, has upheld a procedure that one of its members compared to a kangaroo court—perhaps this argument will be enough for Williams to prevail.

(2) The Williams brief distances itself from the accuser in one important way. The college can’t be held liable for its employee’s alleged misconduct toward one of its students, it argues, because her “alleged conduct was not committed within the scope of her employment”; the “conduct all occurred in the context of the parties’ personal relationship, having nothing to do with her employment in the Alumni Office.”

It’s true that unlike, say, Alexander v. Yale (which involved a professor allegedly harassing a female student in his class), the employee didn’t encounter the accused student on her job. On the other hand, the Williams argument seems to absolve the college of lots of responsibility to investigate employee misconduct by claiming it’s “personal” and unrelated to “employment.”

The college brief goes to great lengths to deny the student’s gender discrimination claim, arguing (citing to the relevant case law on this issue) that he can’t show different, and more favorable, treatment by a similarly situated female accused student. (Given that 99 percent of accused students in campus sexual assault cases are male, and given the odd general circumstances of the case, there obviously is no identically situated female accused student.) But, back in the real world, imagine if Williams employed a male in the alumni affairs office who: (1) carried on a romantic relationship with a female student, despite discouragement from college guidelines; (2) physically confronted the female student at a party; (3) right after the fight, made an early-morning-hours academic misconduct claim about the female student that the college eventually dismissed; and (4) had an episode of possibly stalker-ish behavior toward the same female student.

Does anyone believe that if this hypothetical male employee then filed a sexual assault complaint against the female student that Williams would have taken the complaint seriously?

(3) The Williams brief points to the accused student’s previous disciplinary record (a one-year suspension for unspecified sexual misconduct—not involving the employee—and a finding of academic misconduct for which he received an F). This record is obviously relevant to the decision to expel, which was justified once the guilty finding had come in.

Williams leaves the implication that because the student was found (through Williams’ procedures, of course) to have committed some type of sexual misconduct in the past, he should be deemed less credible in this case. But that argument undermines the college’s case regarding the employee’s credibility. Having already been found guilty of cheating, presumably it was more likely that the accused student, per the Williams’ brief’s insinuation, would be found guilty a second time in the academic misconduct case. That he wasn’t would seem to call into question the employee’s credibility, since she made the allegation.

In another filing, Williams faults the student’s lawyer for an inflammatory e-mail she sent to the employee, which discussed the possibility of a lawsuit and the ways in which a lawsuit could show “how dishonest, narcissistic and emotionally unstable” the employee was. This issue has attracted the attention of Judge Ponsor, who (on his own initiative) has called for it to be discussed at the next hearing.

Williams’ supplemental brief also contains the curious claim that it uses “the preponderance of evidence pursuant to federal law.” Of course, federal law requires no such thing, as even Obama administration officials have conceded.

Based on the filings to date, the parties in this case are not particularly sympathetic. But even unsympathetic students are supposed to receive a fair process.

A hearing on the case (though not on Williams’ motion to dismiss) is scheduled for January 11. [Update, Jan. 5: The judge postponed the 1-11 hearing, and has now scheduled a hearing, to cover all matters, for Thursday, March 2.]