On Wednesday, a lawyer for the ex-captain of the Yale men’s basketball team told Business Insider his client wants readmission to the Ivy League University.
The former basketball captain, Jack Montague, is seeking readmission as part of a lawsuit he’s planning to file against the university over its decision to expel him as the result of a sexual misconduct allegation.
The lawyer’s statement to Business Insider appears to be the first indication so far of what the lawsuit will be seeking.
“We strongly believe that the decision to expel Jack Montague was wrong, unfairly determined, arbitrary, and excessive by any rational measure,” Max Stern, Montague’s attorney, wrote in a statement obtained by Business Insider last week.
The impending lawsuit raises questions about whether Montague — who says he had consensual sex with the female student who filed the complaint against him — has any hope of returning to Yale.
One legal expert explained that even if Montague wins the suit, it would not be enough to force Yale to reverse its decision and readmit him.
“As far as I know, the Yale expulsion is a final decision and he has exhausted his Yale appeals,” Jeannie Suk, a Harvard Law School professor, told Business Insider.
Suk has been vocal about these types of cases in the past, often arguing that the criminal court system, not colleges, should be the adjudicators of alleged sexual misconduct.
“A lawsuit will not be able to force Yale to reverse its expulsion, even if Montague prevails against Yale in court. It will be a lawsuit for damages, alleging that Yale violated state and/or federal law in the policy or procedure they used to investigate and adjudicate his disciplinary case,” she continued.
Suk is referring to the fact that Yale’s University-Wide Committee on Sexual Misconduct (UWC) — the office tasked with investigating sexual-assault claims — has already conducted an investigation and found “sufficient evidence” for his expulsion.
“Yale found Montague responsible for sexual misconduct on a preponderance of the evidence standard,” Suk explained.
“Preponderance of the evidence means the adjudicator found it over 50% likely that he violated Yale’s sexual misconduct policy,” she added.
A preponderance of evidence is typically the standard used in civil lawsuits, and is used as the burden of proof on most college campuses when determining if somebody is “responsible” for a sexual assault.
By contrast, prosecutors in criminal cases must prove their case “beyond a reasonable doubt.” This burden of proof is normally placed in the certainty range of 98% to 99%.
Montague has a better chance of being readmitted to the Yale if the school decides to settle with him to avoid a court’s decision, Suk said. Still, she doesn’t believe it’s likely that Yale will grant Montague readmission.
“The settlement could involve an agreement to pay Montague money, an agreement that his expulsion would be expunged from his record, or it could even mean Yale agrees to let Montague re-enroll, which is highly unlikely,” she said.
A lawsuit will be filed against Yale sometime in April, according to Stern, Montague’s lawyer. Suk speculates that the suit will claim Yale violated Title IX, which prevents gender discrimination in education, among other laws.
As colleges increase their efforts to punish sexual misconduct on campus, there has also been an uptick in the number of lawsuits filed against them by students (mostly male) who have been accused and punished for alleged violations.
Many of the lawsuits use the argument that colleges are violating Title IX and have mishandled investigations.
And some of these students are finding success. A suit filed against Swarthmore College by a male student referred to anonymously as John Doe ended in a dismissal in 2014 after the school agreed to vacate its findings that he violated sexual misconduct policy, as Inside Higher Ed reported.
It was a swift reversal for Swarthmore, which previously stood behind its findings. Under the agreement, Doe, who had been expelled from Swarthmore, would have needed the case to be re-investigated by the school before being granted readmission. But he was already enrolled at another college and did not pursue that course of action.
Montague’s expulsion in February spurred tension on campus after his teammates wore T-shirts in support of him during a televised basketball game game.
Posters then appeared around campus over the past few weeks telling the team to “stop supporting a rapist,” according to the Yale Daily News, and the dean of Yale College stepped in to urge students to treat each other civilly.
The Yale’s men’s basketball team responded with a statement addressing the controversy.
“Yale Men’s Basketball fully supports a healthy, safe and respectful campus climate where all students can flourish,” the statement provided to Business Insider read.
“Our recent actions to show our support for one of our former teammates were not intended to suggest otherwise, but we understand that to many students they did. We apologise for the hurt we have caused and we look forward to learning and growing from these recent incidents.”
Yale did not immediately respond to a request for comment on whether or not the university would ever grant readmission to Montague.
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