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.