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Surprising settlement

Payout to Johnson over rape case raises questions

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Jordan Johnson isn't the first college student accused of sexual assault to be compensated for how his university investigated the matter, but the circumstances surrounding the former University of Montana quarterback's recent settlement with the state—and it's sheer size, at $245,000—are raising eyebrows across the country.

As universities have scrambled to clamp down on sexual assault and abide by tougher federal rules, men expelled for rape are increasingly fighting back, claiming campus disciplinary proceedings denied them a fair hearing. Unlike in years' past, they're beginning to win.

The Foundation for Individual Rights in Education, a libertarian-leaning nonprofit, counts 85 cases across the country where accused rapists have sought redress through the courts, Director of Policy Research Samantha Harris says. Many of the students' lawsuits are dismissed by judges, some are settled quietly and, recently, a few are scoring legal victories.

Johnson's is unusual in several respects, not just for its high profile. For one thing, his initial expulsion was apparently reversed by Commissioner of Higher Education Clay Christian, allowing Johnson to return to school and the UM football team. Yet state attorneys still agreed to dole out almost a quarter of a million dollars to avoid a potential lawsuit.

"I can't think of other situations where a student was awarded large amounts of money before a suit was even filed," Harris says. "It makes you wonder what the facts were."

Allegations that Johnson raped a fellow UM student while the two watched a movie at her apartment were laid out in a widely publicized 2013 criminal trial, which resulted in his acquittal. The case was later featured in author John Krakauer's Missoula: Rape and the Justice System in a College Town. But how UM and the Montana University System handled a separate investigation under the federal gender discrimination law known as Title IX has remained less clear.

Though the state admits no wrongdoing, Johnson's attorney, David Paoli, says the negotiated settlement confirms that UM officials mistreated his client. In a statement released once the settlement was complete, Paoli said there was "little doubt" the sum would have been larger had Johnson pursued litigation, but that the out-of-court deal allowed Johnson to "get on with his life."

A news report from The Associated Press indicated the state also believed it would have prevailed in court, however, the attorney who handled mediation for the state, Dale Cockrell, says his remarks were misrepresented. Rather, he says the number of factual disputes and legal issues in play prompted the state to decide settlement was the best option.

"No one knows who would prevail at trial," he says.

Increasingly, male students accused of rape are suing their universities for how their cases are handled. - PHOTO BY JOE WESTON
  • photo by Joe Weston
  • Increasingly, male students accused of rape are suing their universities for how their cases are handled.

Johnson's case arose as UM's handling of rape reports attracted public scrutiny. Johnson and Paoli contend campus officials responded by maliciously prosecuting the star quarterback through a biased disciplinary process in which former Dean Charles Couture "predetermined" Johnson's guilt and President Royce Engstrom, after two appeals, approved his immediate expulsion.

"They disregarded rules that they were required to follow. It was the individuals failing at multiple turns, intentionally and in a very biased fashion," Paoli says.

Officials have not released any information about those proceedings, citing student confidentiality, but one sequence of events was pieced together by Krakauer using a variety of records.

The turning point in Johnson's case came when Christian apparently ordered a new hearing, at least partially because he believed UM had applied an evidentiary standard that was not codified in its student handbook when the assault was alleged. The lower burden of proof, known as the "preponderance of the evidence," was mandated by federal officials in 2011, but UM didn't update the university's student code of conduct until Johnson's hearing was already underway nearly a year later.

According to Krakauer's telling, UM officials and external reviewers saw the oversight as irrelevant, but Paoli made it a central thrust of his defense.

To Harris, of the Foundation for Individual Rights in Education, Paoli's point isn't trivial. "At a minimum, students need to know what is expected of them and what procedures are available to them if they get involved in the conduct system," she says.

Regardless, Krakauer says the university "bent over backwards to be fair to Johnson."

"The woman he allegedly raped is the person who was treated unfairly in this case, as the U.S. Department of Justice made clear after thoroughly investigating the matter," he says in a statement. "If anyone should have received a big settlement, it was Johnson's victim."

Krakauer says he is "extremely disappointed" by the state's decision not to defend itself in court, and that the strategy encourages other students charged with rape to sue the state, regardless of whether the students are guilty as charged. It also raises the stakes of Krakauer's pending case before the Montana Supreme Court to force the release of records surrounding Johnson's hearing.

"Montanans have a constitutional right to know why Johnson's expulsion was overturned by the commissioner," Krakauer says, "and why they are now on the hook for paying Johnson a quarter of a million dollars—even though he seemingly received preferential treatment for being a star athlete."

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