Jack Montague, the former Yale basketball captain expelled for sexual misconduct in 2016 and now suing the University on the grounds of gender discrimination, filed a document in federal court in July pointing out that Yale destroyed notes taken by panelists on the University-Wide Committee on Sexual Misconduct during his Title IX hearings.
The destruction of those notes could be a violation of federal law, legal experts say.
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act, known as the Clery Act, obligates colleges and universities receiving federal funds to disclose all campus crime statistics to the general public. In its Clery Act guidance materials, the Department of Education requires that schools retain “supporting records” used in their annual safety reports for at least seven years. Yale includes statistics about complaints of sexual misconduct in its safety reports.
On July 18, Montague’s lawyers filed a document opposing a motion by Yale asking the judge assigned to the case to reach a ruling without a trial. In a footnote attached to a synopsis of Yale’s investigation into Montague, the document noted that after a UWC hearing for Montague in January 2016, Yale “destroyed the UWC panel members’ notes at the conclusion of the appeals process, pursuant to an unwritten but supposedly customary ‘practice.’”
Yale’s failure to save those notes could constitute a violation of the Clery Act, experts say, although the rules are a legal gray area.
“Whether or not Yale may be in violation will depend upon exactly what they are doing with the records from sexual violence … conduct proceedings,” said S. Daniel Carter, the president of Safety Advisors for Educational Campuses. “If an institution is destroying records from these proceedings rather than retaining them, I believe this would be in violation.”
A spokeswoman for Montague, Karen Schwartzman, declined to comment. University spokesman Tom Conroy denied that Yale had violated any Clery standards by destroying the UWC panel members’ notes.
“The Clery Act language does not require that we keep the notes to which you refer,” Conroy said. “Yale keeps the official records of UWC cases, which is consistent with the requirements of the Act.”
Laura Egan — senior director at the Clery Center, a nonprofit organization that provides counsel on Clery Act compliance — said that it’s not entirely clear which materials universities should be obligated to save in sexual misconduct proceedings.
“Clery does not go so far as to say which aspects of a disciplinary record would be required to be retained,” Egan said. “It warrants greater analysis by the Clery compliance team in the Department of Education.
In 2013, Yale was fined $165,000 for violations of the Clery Act. The U.S. government had found that the University failed to accurately report campus crime statistics, including by omitting four incidents of forcible sex offenses in 2001 and 2002.
Carter said that institutions that violate the Clery Act may face up to $55,907 in fines per violation, as well as the limitation or suspension of federal aid.
Congress signed the Clery Act into law in 1990.
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