On Feb. 10, 2016, Yale’s University-Wide Committee on Sexual Misconduct (UWC) found then-men’s basketball captain Jack Montague to be in violation of the school’s sexual misconduct policy and recommended expulsion. Two weeks later, Provost Benjamin Polak refused to hear Montague’s appeal request, and the senior guard was officially expelled from the university. In June 2016, he sued his former school in order to return and complete his studies.
Yale filed a motion of summary judgment in May 2018 to have Montague’s case dismissed, but Judge Alfred Covello of the U.S. District Court for the District of Connecticut ruled last month that the suit can go forward.
While the expulsion and subsequent lawsuit have attracted national attention to the university at large over the last three years, the response of Yale Athletics to Montague’s history of reportable incidents has largely evaded scrutiny.
Over the course of Montague’s career at Yale, he was involved in three separate events that resulted in hearings for violations of university policies. The first official reference to any of these acts was a Feb. 24, 2016 statement from the athletic department that Montague would not be returning to the team. According to the Yale Daily News, the release did not contain any specifics regarding the student’s departure and noted that the university would make no further comment. The statement was released the same day that Montague was formally expelled from the university.
Since Montague’s expulsion, there were no statements from the athletic department mentioning any forms of discipline they provided for any of these three events. Since there were no responses from Yale Athletics, was the department correct in leaving the interim and long-term discipline to the university, or should it have been more actively involved?
To help figure this out, Ivy Hoops Online contacted three experts.
Erin Buzuvis is a graduate of the Cornell Law School and a professor of law at the Western New England School of Law who researches and writes about gender and discrimination in education and athletics. She is also the author of the Title IX Blog. Donna Lopiano is the president of Sports Management Resources, the former CEO of the Women’s Sports Foundation, and the former Athletics Director for Women at the University of Texas at Austin. Barbara Osborne is a graduate of Boston College Law School, a former associate athletics director at Brandeis University and is the director of the graduate sports administration program at the University of North Carolina at Chapel Hill.
Yale Athletics did not respond to requests from IHO for comment for this article.
Incident one
As noted in the June 2016 Complaint and Jury Demand, on the last day of Montague’s freshman year at Yale, he and some classmates stood outside a pizza parlor in New Haven. Some of the students, including Montague, were intoxicated. He engaged in a discussion with the other students, including Sally Smith (a pseudonym), a graduating senior, for approximately 10-15 minutes.
According to Smith, Montague, who appeared to be annoyed by the end of the conversation, rolled up a paper plate from the pizza parlor and put it down the front of Smith’s tank top. Smith did not allege that Montague made any statements of a sexual nature during the interaction and it was undisputed that there was no skin-to-skin contact during the incident.
Smith filed a formal Title IX complaint against Montague in August 2013, after she graduated from Yale. Her allegation was that Montague had violated the University’s Sexual Misconduct Policies by engaging in sexual harassment. In October 2013, the complaint was heard by the school’s UWC, which concluded that Montague violated the school’s sexual misconduct policies and unanimously recommended that he be placed on probation for four terms (Fall 2013 until the end of Spring 2015); prohibited from holding a leadership position in any student activity, organization, or sport; required to enroll in sexual harassment and gender sensitivity training through the school’s SHARE center; required to meet with a member of the SHARE Center once each semester for the remainder of his time at Yale “to review and reflect on his interactions and relationships with female students at Yale”; and be required to receive training on the appropriate use of alcohol.
In his sophomore year, Montague came off the bench to play in eight of the team’s first nine games. The one game he missed, against UConn on November 11, was due to injury. Ultimately, he played in 26 of the team’s 33 games as the Bulldogs’ backup guard and was named the program’s Most Improved Player.
On April 16, 2015, in the spring term of Montague’s junior year, Yale basketball announced that he had been elected captain for the 2015-2016 season by a vote of his teammates. “It means a lot to be elected captain,” Montague told Yale Athletics. “It is something that is very important to the program and to the school, as well as the tradition that has been passed down over the years. I hope to be an upperclassmen (sic) who guys can look up to, a guy who my teammates can trust and learn from. I also hope to be someone who can provide a sense of confidence for the team and especially the newcomers.”
Was it acceptable for Yale Athletics to allow Montague to be appointed captain during his probationary period?
Lopiano said that the wording of the punishment and the athletic department policy needed to be evaluated before answering that question. She noted that the UWC recommendation did not mention any prohibition about the student being nominated or elected during the probationary period, only serving in a leadership position. So the penalty did not prevent Montague from being selected captain, provided he started after the spring term of 2015.
While Yale did not make its 2014-2015 Yale Student-Athlete Handbook available for review, the 2008-2009 Yale Athletics Student-Athlete Handbook, the most recent one available online, did have a section related to the election and responsibilities of team captains on page 21:
The Department of Athletics has a specific policy on captain elections for Yale’s intercollegiate teams, the most integral part being that each Yale varsity team has one and only one captain at any time. The remainder of the policy sets the procedure for electing a captain and should be reviewed by the coach prior to the election. A captain assumes his or her responsibility immediately upon election and holds it until the subsequent election. In very unusual circumstances the coach may, after consultation with the approval of the director of athletics, remove the captain and appoint a replacement. Should, for any reason, a captain not be able to fulfill his or her responsibility as captain, the head coach may appoint a replacement.
Expert analysis throughout this article assumes that relevant guidelines in the Yale Athletics Student-Athlete handbooks from 2013-2014 through 2015-2016 were the same as those in the 2008-2009 handbook, just as relevant guidelines were the same as the 2003-2004 handbook. Yale Athletics did not respond to a request for the student-athlete handbooks for those years.
Since the policy also noted that all juniors who were varsity letter winners from the recently concluded season were eligible for the position, should head coach James Jones and or athletic director (AD) Tom Beckett have removed Montague’s name from consideration? Even if the student was left on the nomination list and elected, should the coach have conferred with the AD to remove the student from that position and appointed another athlete as captain?
“Yes, it appears that he (Montague) should not have been allowed to even be considered for captain, as the role began immediately after the election according to the student handbook,” Osborne said. “At minimum, the administration should have revoked his captain title.”
Said Buzuvis, “If that’s the policy, then the AD and the coach are responsible for making sure it is implemented.”
Incident two
A complaint was submitted by the Yale chief of police to the school’s Executive Committee on Sept. 24, 2015 alleging that Montague’s conduct 18 days earlier violated the school’s undergraduate regulations governing “Defiance of Authority.”
According to the 2015-2016 Yale College Undergraduate Regulations Handbook on pages 11 and 12, “Defiance of Authority” is described as:
Defiance or belligerence toward or lying to a University police officer, faculty member, or other University official who, in the line of duty, issues an order or asks for identification or information. Students are expected to carry University identification cards at all times and must identify themselves to University officials upon request. It is understood that University officials or police officers will identify themselves before making such a request.
According to information in a January 2017 filing from Yale University, Montague became belligerent with Yale police officers who had detained a male friend. The officers detained his friend for interfering with their efforts to check on the well-being of a female student. When Montague arrived on the scene he was advised to back away until
the police were finished with their investigation, but he refused to follow instructions and repeatedly attempted to engage the officers while they were speaking with the female student and with each other.
Montague apologized to the Executive Committee for his conduct and blamed his lapse of judgment on
intoxication. The Executive Committee found his actions were in violation of Yale’s undergraduate regulations governing “Defiance of Authority” and issued a written reprimand.
In his senior year, Montague started the opening game against Fairfield on Nov. 13 as well as the next 19 contests.
Should Yale Athletics have disciplined Montague after he was found in violation of the Defiance of Authority standard?
“This depends on the policies of the college and the athletic department,” Buzuvis said. “There is no external legal requirement that coaches must be involved in disciplining student-athletes for general misconduct.”
The Sportsmanship and Ethical Conduct section of the 2008-2009 Student-Athlete Handbook reads on page 12:
We understand and appreciate that Yale student-athletes observe the rules, spirit, philosophy and customs of their sport and the Yale athletics department.
However, student-athletes engaging in poor sportsmanship and/or wittingly violating Yale, Ivy or NCAA codes of conduct will be subject to disciplinary action by the department of athletics which may include warning, probation, suspension or dismissal from their team.
“Yes,” Lopiano said after reviewing the policy. “The policy says ‘will’ so at the very least, one would have expected some form of athletic department discipline.”
Incident three
Yale’s senior deputy Title IX Coordinator brought a formal complaint on Nov. 18, 2015 to the UWC alleging sexual assault by Montague based on a report that, on Oct. 18, 2014, he had sexual intercourse with a female student, Jane Roe (a pseudonym), without her consent.
Montague denied the allegations in the UWC complaint and indicated that all intimate interactions with Roe were consensual.
According to UWC policy, a party may be accompanied by an adviser at any stage of the UWC process. The adviser “may be anyone of the party’s choosing and offer personal and moral support, before, during, and after a hearing, and help the party prepare for meetings related to a complaint.” Montague chose coach James Jones.
There were no public statements of discipline toward Montague from Yale Athletics, and he continued to start each game for the Bulldogs.
Should Yale Athletics have put any interim measures in place for Montague, such as a suspension or a removal of his captaincy, after the allegation of sexual assault?
Lopiano again pointed to athletic department policies. With an absence of any specific policy regarding this issue, the athletic department would have to defer to university policy. While Osborne noted that schools almost never hold athletes accountable until after they have gone through the disciplinary process, Buzuvis mentioned that the athletic department at Indiana University is one such group that has crafted a policy that actively deals with this issue in a timely manner:
Indiana University Student-Athlete Code of Conduct Section 5.1.9.2
If a student-athlete is named as a respondent in a complaint to the Office of Student Ethics for an alleged violation of the University’s Sexual Misconduct Policy or is the subject of a police investigation for a sex-based criminal offense, a decision of whether to suspend the student-athlete from competition will be made before the next competition if possible by a committee consisting of the Faculty Athletics Representative, the University’s Title IX Coordinator, and a representative of the Office of the Vice President and General Counsel or their designees. Their decision, which is independent of any ongoing University investigation, shall be based on the nature of the allegation and the information available to the committee at that time. The committee’s decision to impose an interim suspension or not during the pendency of the University investigation shall not be considered in the student conduct process or have any bearing on the University’s ultimate finding of responsibility with respect to the allegation.
The viewed Yale student-athlete code of conduct, however, does not have any policy like this in place and the university’s Title IX interim restrictions were limited to interactions with Roe only. As a result, it would appear that Yale Athletics should not have imposed any discipline to Montague for the allegation.
But Osborne feels that an athletic department can suspend an athlete due to campus safety even without a definitive plan in place. In her opinion, someone who has been accused of sexual assault should be considered a safety risk. Combine the third allegation against Montague with his two previous acts, and there appeared to be a pattern of behavior reasonably suggesting he was someone who posed a risk to the health and safety of the campus.
Lopiano agreed that athletic departments have to look at campus-wide safety issues in absence of policies, but she believes that this is a complicated issue and the player would certainly push back to protect his rights.
“Interim measures are not supposed to serve a punitive purpose,” Buzuvis said. “Being suspended from playing – or from serving as captain – are measures that don’t as directly serve the purpose of safety to the complainant as would an interim order removing the respondent from her class or from her dorm. This causes some to see an interim athletic suspension as really serving more of a punitive purpose, and thus not appropriate for an interim measure.”
On the other hand, “Allowing the accused athlete to keep playing potentially sends the message that the athlete is not a threat to anyone’s safety, which the athlete could exploit in order to continue to offend,” Buzuvis continued. “So with this in mind, I can see why some schools have taken the approach of suspending athletes who are accused.”
With these views noted, Yale Athletics still appears to have been justified in its deference to university policy and protection of Montague’s rights instead of challenging both in favor of campus safety.
Administrative response?
In reviewing the events and the available policies, it appears that Yale Athletics did not act in accordance with its policies when it avoided any discipline to Montague after the UWC found Montague to have violated Yale’s sexual misconduct policies in the fall of 2013 and the Executive Committee finding that Montague violated Yale undergraduate regulations governing “Defiance of Authority” in the fall of 2015. In addition, Yale Athletics failed to follow its policy when it allowed the athlete to be elected captain in the spring of 2016.
So what should Yale’s administration do?
Regarding the captaincy issue, Osborne felt that the least the administration could do is to give the coach “a stern reminder about the probation as well as the student handbook policy.” Overall, she feels that Yale, as one of the top schools in the nation, needs to show moral and ethical leadership when having to make difficult decisions between supporting survivors or athletes.
For Buzuvis, the administration needs to perform “an assessment of the harm caused by the breach and an effort to remediate (and) alleviate it.” They would also need to “demonstrate accountability and assurance that the breach will not be repeated.” She also believes that a middle-ground approach like Indiana’s that allows for the possibility of interim athletic suspension but with some process beforehand to protect the athlete’s procedural rights needs to be endorsed.
“The normal response of the institution would be to investigate and adjudicate to decide whether athletics employees acted appropriately,” Lopiano said. “If the institution found misconduct or poor administrative judgement, it would follow its own personnel policy which is usually ‘gradually escalating discipline’ which has a range of choices and would depend on whether the employees had previously demonstrated such deficiencies as to the severity of the discipline.”
Lopiano feels that it is important for the athletic director to be as transparent as possible when dealing with these difficult choices and explain to the campus why the department’s decisions were made.
Going forward
At the end of August 2017, Beckett announced he would retire as AD in June 2018. During his last few months in office, news broke that former track & field athlete Luke Perischetti was given a three-term suspension in the Spring 2017 term due to a violation of the sexual assault policy, and then-women’s soccer coach Rudy Meredith began secretly working with federal prosecutors as a cooperating witness in what would turn out to be the largest college admissions scandal in the nation’s history. In November 2018, the Yale Daily News reported that football captain Kyle Mullen withdrew from Yale last summer in the midst of a pending investigation by the UWC of an allegation that he committed “sexual penetration without consent.”
After a nationwide search, Colgate AD Vicky Chun was named to replace Beckett in February 2018 and arrived at Yale that summer. Those looking for significant changes in policy detail, public accountability and support for the larger Yale community hope Chun can move beyond the minor and major controversies that have marred her first several months in charge to take the department in a new direction.