Filed in a federal court last week, Montague v. Yale University et. al joins more than 100 recent civil suits alleging that college students accused of sexual misconduct were not granted fair hearings in campus proceedings.

On June 9, counsel for former men’s basketball captain Jack Montague filed a lawsuit seeking relief for the damages Montague sustained after being expelled for violating University sexual misconduct policy. Montague’s lawyer claims that Yale breached its contractual obligations to Montague and violated Title IX by subjecting him to the “erroneous” process that resulted in his expulsion.

Though many of the 115 similar lawsuits have yet to be resolved, they contextualize the charges laid out in the Montague case, particularly the eight claiming that the University committed a breach of contract. While there is not much precedent to indicate the most likely path forward, current cases illustrate several potential avenues for the Montague lawsuit.  

Similar charges were made in John Doe v. Brandeis University, an ongoing civil suit in federal court in Massachusetts. In that case, a Brandeis student who received a disciplinary warning after being found guilty of sexual misconduct sued his school, alleging among other things that Brandeis violated the rules outlined in its handbook for handling claims of student misconduct, thereby committing a breach of contract.

In one of the most powerful critiques of university sexual misconduct procedures, presiding judge F. Dennis Saylor denied Brandeis’s motion to dismiss charges in March, ruling that four of the eight charges, including the breach of contract charge, could stand.

Such language can also be found in a February memorandum by William E. Smith, chief judge for the United States District Court for the District of Rhode Island, in response to Brown’s motion to dismiss charges in the 2015 case John Doe v. Brown University. Writing that some of Brown’s actions “violated the covenant of good faith and fair dealing” inherent to its contract with the plaintiff, Smith allowed seven of the 11 breach of contract charges brought by the plaintiff to stand.

In addition to permitting the breach of contract charge to stand, Saylor also allowed the allegation that Brandeis violated an implied covenant of good faith and fair dealing to stand.

As the Brandeis and Brown suits have yet to go to trial, it is difficult to take stock of their potential impact. But Saylor and Smith’s decisions to allow the breach of contract charges to stand offer at least two precedents that support the plaintiff in Montague.

Saylor went further than Smith when evaluating the charges in the Brandeis case. Explicitly supporting the lower evidence standard mandated by the U.S. Department of Education’s Title IX compliance guidelines, Saylor questioned whether Brandeis’s sexual misconduct procedures have gone too far. In his memorandum on the motion to dismiss, Saylor concluded that the plaintiff “plausibly alleges” that Brandeis breached its contract with the student by failing to afford him “basic fairness” throughout his proceeding.

“‘Basic fairness’ is an uncertain and elastic concept, and there is little case law to serve as guideposts in conducting the fairness inquiry,” Saylor wrote. “Nonetheless, the concept must be given some meaning, and the requirement that a university provide some level of ‘fairness’ clearly suggests that there is such a thing as an unfair proceeding, and that a failure to provide such a proceeding may be actionable under certain circumstances.”

Although Saylor did not determine what standard ought to be used to evaluate Brandeis’s actions — and did not make any decision regarding the actual alleged misconduct — his memorandum reopens the possibility of a federal court striking down a university’s sexual misconduct policies. The precedent Saylor sets could influence the Montague case, which explicitly challenges the University’s procedures.

Andrew Miltenberg, a New York-based lawyer who filed the first-ever civil suit on behalf of a student accused of sexual assault, said the breach of contract charge has, over the last year and a half, gained traction in courts.

“Title IX appears to be, for lack of a better phrase, the sexy way that the media tends to look at these cases. But that’s not really the theory that seems to be working,” Miltenberg said.

The Montague lawsuit rests in part on the charge that, by failing to abide by the procedures set out in University Wide Committee on Sexual Misconduct Procedures, the Sexual Misconduct Policies and the Yale College Undergraduate Regulations, the University committed a breach of contract.

“An express contract or, alternatively, a contract implied in law or in fact was formed between Montague and the University,” the lawsuit reads. “The contract contained an implied covenant of good faith and fair dealing. It implicitly guaranteed that any proceedings would be conducted with basic fairness.”

In recent years, dozens of universities have been taken to court for their handling of sexual misconduct allegations. Lawsuits claiming that accused students’ due process rights were denied have proliferated since the Department of Education’s Office of Civil Rights issued a public letter to Title IX coordinators in April of 2011. The 19-page document, known as the “Dear Colleague” letter, laid out a series of guidelines for educational institutions that receive federal funding and are thereby obliged to comply with Title IX, the clause of the Education Amendments of 1972 that prohibits discrimination on the basis of sex.

Perhaps most significantly, educational institutions were instructed to use a “preponderance of the evidence” standard  — meaning, the letter explains, “it is more likely than not that sexual harassment or violence occurred” — when investigating allegations of sexual harassment or violence.

This lower standard, used in campus proceedings involving sexual misconduct but not in criminal cases, reduces the level of certainty required to find students guilty of sexual misconduct, opening the door for students to claim that their due process rights — to hear and respond to evidence, or to cross-examine opposing witnesses, among others — were violated.

Due process is a constitutional right, but Rendell-Baker v. Kohn (1982) ruled that private universities are not required to adhere to the same standards of due process as courts. A student undergoing a Title IX investigation at a college is not guaranteed the same rights — a jury of one’s peers or the right to know opposing evidence, for example — as a criminal who committed a comparable crime in a non-university setting.

Because universities independently create procedures for addressing Title IX complaints, there is no universal standard of rights granted to accused college students. Therefore, rather than charge universities of violating undefined or unestablished due process rights, many of these lawsuits allege that universities violate an implicit contract made between the school and the student when universities fail to abide by their own rules.

Miltenberg predicted that these lawsuits will continue to be filed, but since courts tend to react slowly to societal shifts, change will require rulings from judges who are comfortable making decisions that seem to lack precedent.   

If Montague v. Yale goes to court, it will be heard by federal judge Alfred V. Covello, who is also currently presiding over John Doe v. Yale, a lawsuit brought by a male student expelled from Yale College for violating sexual misconduct policies in 2012.

  • Muhammad Ali Kamal

    Montague is Sexual Misconduct Coordinate at Yale University, New Haven in Connecticut.

  • Muhammad Ali Kamal

    Montague predicted a sexual misconduct allegations at Yale University, New Haven in Connecticut.

  • Muhammad Ali Kamal

    Montague precedes a sexual misconduct allegations at Yale University, New Haven in Connecticut.

  • Bobby Obvious

    Wow, a rare well-written article on Montague and Title IX from a Yale publication. Unfortunately, though, the article skips over important details and examples that would demonstrate that the process is ridiculous. In particular, it coldly goes through the legal context based on court cases relating to the Title IX 2011 Dear Colleague letter. It doesn’t go through the questioned constitutionality of the letter since it de facto makes the Executive branch of the federal government a law-making body. That is the purview of the Legislative branch (only). This has been called out even this year by Senator Lankford in a letter to the Department of Education. Relatedly, the Department of Education is putting strong pressure on Universities to find sexual assaults and to adjudicate harshly. A great demonstration of that is the number of Title IX cases created by the Title IX administrator as opposed to the student accuser, often against the wishes of the accuser. Thus, these cases are politically motivated with politicians and administrators ambivalent of the real individuals that are caught in between. The Montague case is a great example, but there are many more.

    This article does not go through any of the obvious cases that demonstrate the issue in denying due process for these types of crimes. If any individual, even a Yale journalist, were to search the internet, they would quickly and easily find several cases where the charge doesn’t pass a reasonable sniff test never mind a preponderance of the evidence or, especially, reasonable doubt. Since these cases quickly become public and they only (typically) protect the identity of the accused, they thus ruin the lives of innocent people. This is why there are so many lawsuits already with many more to come. Some examples:

    – Search Occidental College, 2014, Jane and John Doe. Esquire did an in-depth article on the case and the surrounding issues. tl;dr – two drunk college students had sex. If anything, Jane was more aggressive according to witnesses, but they both regretted it the next day. The school was under pressure to be a leader in fighting sexual assault. The Title IX coordinator pressured Jane to report John after she initially declined. Three months later, John was expelled. He applied and got into a different school, but an “anonymous tip” got the 2nd school to expel him. He’s now suing.
    – Search Grant Neal, CSU Pueblo on Reason’s website. Consensual sex, but a Title IX complaint was filed by the athletic program director against the wishes of the both students. She said, “Our stories are the same and he’s a good guy. He’s not a rapist, he’s not a criminal, it’s not even worth any of this hoopla!” They issued a no-contact order, but she still texted him, “I miss you & care about you so much Grant [Neal]! Everything will work out…I promise” He was expelled. Lawsuit.
    – Search WSU Rose title IX rape lawsuit, Reason. Again check Reason website article. In this case, two drunk people had consensual sex and the accused is FEMALE! She was clearly more aggressive, but he arguably consented. They were both drunk. He regretted it the next day. She realized that the Title IX kangaroo courts strongly favor the accuser, so she counter-filed a Title IX report. Too late, his case won and she was expelled. She applied to the University of Idaho, and was rejected because her disciplinary history made her a “risk.”

    There are tons of examples. None of this was covered in the article and it provides important context. Go to a website called helpsaveoursons for more background.

    Title IX 2011 Dear Colleague Letter has destroyed lives on flimsy and often contradictory “evidence.” Their “courts” are not impartial, they are there to protect the school’s reputations and protect their status with the Dept of Education. The Letter has increased tuition costs for all through legal advisors, counselors and other administers that adjudicate these cases and later defend them for lawsuits. It is a demonstration of constitutional overreach by the Executive department. It’s also now being extended to police speech – what’s next, the thought police? Stop the madness and let the Legislative and Judiciary branches of government do their job. Let police departments conduct proper investigations. Where needed, have police officers go through sexual assault response training as some departments have done. Get universities out of adjudication.

  • ThomasA

    You should also mention that the procedures outlined in the “Dear Colleague” letter of 2011 are being enforced, despite the fact that they are not legally binding as outlined in the Administrative Procedures Act. And yet, the Dept. of Education is insisting that it has the force of law.

  • ShadrachSmith

    Covello was nominated to the United States District Court for the District of Connecticut by President George H.W. Bush on April 1, 1992, He became chief judge in 1998, and assumed senior status on February 4, 2003.

    I would call this a good draw for Yale, a bad draw for Montague. Betting Yale wins a motion to dismiss, and Covello won’t take any evidence until/unless it is sent back to him on remand.

  • Bobby Obvious

    Been 3 days and still no comments approved. You going no comments for controversial articles now? Or is your new thing to delay comments until people forgot about your article?

    It’s poor form to have an echo chamber for ideas at a supposedly top school.

    • Bobby Obvious

      Yup, about 2 weeks to publish the comments