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.