Yale Forced To Settle Bizarre Due Process Rape Case; Due Process Now Applies to Private Universities Also – Federal Judge

WASHINGTON, D.C. (June 27, 2019) – Yale University has settled a case charging that it violated the due process rights of former basketball player Jack Montague in expelling him for an alleged rape.

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This capitulation comes on the heals of a new precedent-setting ruling from a federal judge in Tennessee that private universities, just like public ones, must provide due process protections to students accused of sexual assault, notes public interest law professor John Banzhaf.

This bizarre and outrageous Yale case - in which an administrator reportedly first helped bring the charges and then chaired the disciplinary hearing which found him guilty, another administrator allegedly mislead the woman into thinking that Montague was a serial rapist, and the university investigated him for stuffing a pizza plate down a woman's shirt as "sexual harassment" - is only the latest example where legal action was effective in challenging practices which were claimed to violate a student's due process rights.

The Tennessee ruling creates a a very important legal precedent, says Banzhaf, because courts in the past generally rejected student challenges, based upon fairness arguments, to findings by colleges that they committed rape, and only began ruling for the students when they began arguing that the campus hearings violated due process.

But due process, prior to this Tennessee decision, was applied only to state colleges and universities, not to the much larger number of institutions of higher education which were private, explains Banzhaf.

Several other courts had held that due process did not apply to cases of this type involving private colleges, but, as Judge John Fowlkes, Jr., noted in the cases involving Rhodes College, those cases were only based upon a "breach of contract claim against a private university"; i.e. that the university had promised in its policy statements to treat students fairly.

But this case is different, Fowlkes ruled: "These cases are distinguishable, however, from the present circumstance because although Defendant Rhodes is a private university, Plaintiff's claim here, regarding cross-examination, invokes due process concerns under Title IX, not a breach of contract theory."

Thus Banzhaf is repeating the suggestion that he had made earlier to attorneys for students charged with rape; argue violation of due process rather than simply unfairness, or that error occurred in the campus hearing, and do so based upon the important federal rights established by Title IX.

In other words, says Banzhaf, a simple change in pleadings by lawyers for the accused - the words used in the complaints to bring these campus rape cases to courts - can finally impose on all institutions of higher education, private as well as public, the obligation to conduct disciplinary proceedings which are fair and accord due process.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.

Professor of Public Interest Law

George Washington University Law School,

FAMRI Dr. William Cahan Distinguished Professor,

Fellow, World Technology Network,

Founder, Action on Smoking and Health (ASH),

2000 H Street, NW, Wash, DC 20052, USA

(202) 994-7229 // (703) 527-8418

http://banzhaf.net/ jbanzhaf3ATgmail.com @profbanzhaf