The former captain of the Yale basketball team who was expelled last month plans to sue the university, his lawyer said Monday.
Max Stern, lawyer for former Yale student Jack Montague, said he was expelled on Feb. 10 because the university said he had "unconsented-to sex" in the fall of 2014.
"We strongly believe that the decision to expel Jack Montague was wrong, unfairly determined, arbitrary, and excessive by any rational measure,'' said Stern, in a statement emailed to media Monday morning. "Yale has been oblivious to the catastrophic and irreparable damage resulting from these allegations and determinations."
"The expulsion not only deprives Jack of the degree which he was only three months short of earning, but has simultaneously destroyed both his educational and basketball careers," said Stern, a prominent criminal defense lawyer in Boston.
Yale qualified for the NCAA Tournament for the first time in 54 years and will play Baylor in Providence on Thursday.
Yale basketball captain Jack Montague's departure last month has sparked a broad and emotional debate on campus about safety and sexual misconduct, with students reacting to what they have heard in the absence of an official explanation.
The university has declined to comment on the expulsion and Montague, a senior in his final semester at Yale, has not been charged with a crime. Yale and New Haven police are not investigating.
Yale "does not comment on specific cases of student discipline, out of respect for the privacy and confidentiality of all students involved in a disciplinary process," said university spokesman Tom Conroy.
However, Conroy said Yale's "procedures for addressing allegations of sexual misconduct are thorough and fair: The allegations are investigated by an impartial fact finder, heard by five trained members of the Yale community, and decided by the accused student's dean. Throughout the process, all parties have advisors, which can be legal counsel, and they can appeal a decision.''
"Where cases involve judgments about the witnesses' credibility, all of the available corroborating or contradictory information is carefully weighed to determine who is telling the truth."
Since Montague's departure last month, the issue has sparked a broad and emotional debate on campus about safety and sexual misconduct, with students reacting to what they have heard in the absence of an official explanation. University leaders have said they are committed to "providing a safe campus" for all students.
Stern said it was "not coincidental" that Yale officials' decision to seek Montague's expulsion came little more than a month after a report by the American Association of Universities about sexual assault on the Yale campus and a pledge by Yale President Peter Salovey to "redouble our efforts" to respond to the issue.
That report, released in September, showed that 32 percent of Yale seniors graduating that year had experienced at least one incident of sexual assault since arriving at the university.
"From what appears, Jack has been pilloried as a 'whipping boy' for a campus problem that has galvanized national attention,'' Stern said.
"Last week, the media widely reported on statements made by Yale students and posters put up on campus which condemned Jack Montague directly as the named culprit and as a rapist, thus slandering him with this accusation," Stern said. "He was never accused of rape and Yale took no steps to correct these actions."
Conroy, said Yale's decision "to expel a student is made only after the most careful consideration, based on the facts and, when appropriate, disciplinary history."
He said that one out of five formal sexual misconduct hearings ends without a finding against the accused, and, in two out of five cases, the accused student receives a reprimand or probation. Only about one out of 10 cases ends in expulsion, he said.
Stern said Montague, 22, was expelled after a panel of the Yale University-Wide Committee on Sexual Misconduct found that he had "unconsented-to sex" 15 months earlier, in October 2014, with a female student who is currently a junior at Yale.
According to an independent investigator hired by Yale, Stern said that Montague developed a relationship with the female student "that led to them sleeping together in Jack's room on four occasions in the fall of 2014."
After sexual intercourse on that fourth occasion, both members of the couple got up and went their separate ways, but later that same evening, Stern said, "she reached out to him to meet up, then returned to the room voluntarily, and spent the rest of the night in his bed with him."
"The sole dispute is as to the sexual intercourse in the fourth episode," Stern wrote. "She stated that she did not consent. He said that she did."
Yale has an "affirmative consent" policy that requires that a students have "positive, unambiguous, and voluntary agreement to engage in specific sexual activity throughout a sexual encounter."
"Consent cannot be inferred from the absence of a 'no;' a clear 'yes,' verbal or otherwise, is necessary," the policy says. "Consent to some acts does not imply consent to others, nor does past consent to a given act imply present or future consent."
A year after the incident, Stern wrote, the female student reported the incident to the Title IX coordinator. And he said, a Title IX official — not the student — filed a formal complaint with the University-Wide Committee.
Preponderance of Evidence
Stern said it "defies logic and common sense that a woman would seek to re-connect and get back into bed with a man who she says forced her to have unwanted sex just hours earlier. And yet the Dean accepted this conclusion and ordered Jack to be expelled. His decision was upheld by the Provost."
Only two people could have known what happened on that fourth night, Stern said, and the university panel "chose to believe the woman, by a 'preponderance of the evidence.'"
A "preponderance of the evidence" or just over 50 percent of the evidence, is needed to find a violation of a university's sexual conduct policy under Title IX, which is the civil law that requires universities to prevent sexual assault and harassment and address it when it does occur. It is the same civil standard that applies to discrimination in the workplace or elsewhere.
The standard is less demanding than in criminal courts, where the legal standard is beyond a reasonable doubt. In the past, some colleges used a "clear and convincing evidence" standard which fell between the criminal and civil standards.
"It is the federal government that has insisted that the universities apply only a preponderance of the evidence standard," Stern said in a telephone interview Monday. With life-changing consequences in the balance, Stern said, "either the standard should be higher or the student should be given a really fair chance at a hearing to develop the other side of the story."
A Shift In Campus Climate
In 2011, the U.S. Department of Education issued a firm reminder to colleges of their obligation under Title IX to provide a safe environment free of sexual harassment and sexual assault, warning that the department will review and take action on complaints. Many complaints are now under-investigation.
Yale itself came under federal scrutiny and in 2011 made a number of changes in its system for handling complaints, establishing the University-Wide Committee and expanding efforts to educate students about sexual misconduct and how to prevent it.
Stern said Monday that "universities, having turned a blind eye to a very serious problem for many, many years are now over-correcting and overreacting, in part because of enormous and justified criticism … and also because of the enormous pressure brought to bear by the federal government which has insisted that they show their vigor in prosecuting these cases. That translates into expulsion in many cases on the basis of very little evidence."
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