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Higher education commissioner, dean of students reinstated expelled UM quarterback
Former UM quarterbackJordan Johnson

Higher education commissioner, dean of students reinstated expelled UM quarterback

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Jordan Johnson

Jordan Johnson

The state's commissioner of higher education and University of Montana's dean of students made separate decisions that reversed the 2012 expulsion of former Grizzlies quarterback Jordan Johnson, according to "Missoula: Rape and the Justice System in a College Town."

"Commissioner (Clay) Christian vacated the University Court's finding of guilt and sent the case back to the University of Montana to be readjudicated," wrote best-selling author Jon Krakauer in "Missoula," released last week.

Then, UM hired an independent consultant to re-investigate the rape allegation against Johnson, the book said.

In March 2013, the football player was acquitted of sexual intercourse without consent by a jury in Missoula County District Court.

Last Tuesday, Doubleday released "Missoula" by investigative journalist Krakauer, who examined acquaintance rape cases at UM from 2010 to 2012. The book shares the experiences of women who reported sexual assaults, including one gang rape, and found law enforcement authorities reluctant or ill-equipped to prosecute the crimes.

It also brings to light new information about how Johnson successfully overturned his expulsion from UM. Following the higher education commissioner's decision, the independent investigator reviewed the case, according to "Missoula."

"At the conclusion of the consultant's inquiry, the consultant determined that Johnson's testimony wasn't credible and that there was indeed clear and convincing evidence that Johnson raped Washburn," read the book, using the pseudonym Cecilia Washburn for the woman.

The investigator reached the same conclusion made by Dean of Students Charles Couture, reviewed by the vice president of student affairs, confirmed in a University Court disciplinary hearing, and apparently signed off on by President Royce Engstrom, according to the book and court records.

But those officials' decision did not stand.

"University of Montana Dean of Students Rhondie Voorhees, who replaced Dean Charles Couture when he retired in July 2012, rejected the independent consultant's determination that Johnson was guilty," the book said.

Voorhees directed the Missoulian's questions about the reversal to the UM Office of the President, and Engstrom and legal counsel Lucy France discussed disciplinary procedures in general. France also discussed how UM was changing its standard for reviewing complaints in that time period.

According to court records filed earlier this year, Engstrom agreed that a student accused of rape in 2012 – at the same time, and with identical facts, as the case against Johnson – should be expelled from UM.

The president also fired former athletic director Jim O'Day and Grizzlies football coach Robin Pflugrad in March 2012. The firings came after federal investigations into how the school handled sexual assaults and in the midst of an NCAA investigation of the athletics program.

Last week, the president said he could not comment on the circumstances of the quarterback's reinstatement laid out in Krakauer's book, but he defended Voorhees.

"I'm not going to comment on that, other than to say that Rhondie Voorhees is an extremely conscientious individual, and she is doing the job very well, and I am totally supportive of how she does her job," Engstrom said.

***

Commissioner Christian also declined to comment on the way Krakauer describes how UM "invited (Johnson) to return as the Grizzlies' quarterback." However, Christian discussed how his office handles appeals in general.

"The commissioner cannot substitute his opinion or replace that decision," Christian said. "But it can look at procedural aspects of a decision."

If the commissioner believes it's warranted, he said, he can overturn a decision. He can also remand a decision to the campus to be reconsidered in light of any procedural issues the commissioner found problematic.

One possible procedural matter is the law in place at the time of the alleged crime, he said.

"There's some foundational law in the country that talks about you only being able to be charged with and prosecuted for the law of the land at the time that an act was committed," Christian said.

In April 2011, the U.S. Department of Education and its Office for Civil Rights told universities to use a "preponderance of the evidence" standard – a lower standard of proof – to evaluate cases of sexual violence instead of the "clear and convincing" standard that was in place. It did so in a document now known as the "dear colleague" letter.

"Washburn" alleged the rape took place on Feb. 4, 2012.

UM was transitioning to the new standard in 2012 and published its new formal policy on discrimination and harassment in August 2013 after the U.S. Department of Justice approved it, said France, UM legal counsel.

In the transition, she said, some UM officials reviewed cases under the new standard – after UM had received the "dear colleague" letter announcing the change, but before it had published new formal policies on sexual harassment and discrimination.

According to "Missoula," Johnson's lawyer used the shift in standard to help the quarterback return to UM.

"Despite the wall of secrecy erected by the commissioner's office around the Jordan Johnson case, public information released from other sources indicates that when Johnson appealed his expulsion to Commissioner Christian, (lawyer) David Paoli apparently persuaded Christian that the University Court incorrectly used 'a preponderance of the evidence' as the burden of proof in finding Johnson guilty of raping Washburn, instead of holding to the more exacting 'clear and convincing evidence' standard," Krakauer wrote.

In 2013, the U.S. Departments of Justice and Education "rebuked the university for using 'the clear and convincing evidence' standard," the book said.

"The feds also said that Voorhees' unilateral acquittal of Jordan Johnson 'did not result in an equitable resolution' of Cecilia Washburn's complaint.

"But the government's findings came too late to do Washburn any good."

***

Paoli, Johnson's lawyer, also reviewed the process as laid out by Krakauer. In the book, the author said UM's adjudication process did not allow the woman to appeal Voorhees' decision.

"Krakauer's claim, like many others in his book, is demonstrably false," Paoli said in a statement. "The accuser absolutely had the right to appeal Dean Voorhees' decision, and she did appeal it. Krakauer very likely knows this given how he has bragged that he relied on 'documents he shouldn't have.' "

In general, France said either party can appeal decisions made by the dean, including ones remanded by the commissioner, a situation true in 2012 as well. She said she could not think of any exceptions.

Josh Van de Wetering, a lawyer who represented the woman, said he could not discuss the matter or questions about an appeal without violating his client's confidentiality.

Kevin McRae, deputy commissioner for communications in the Office of the Commissioner for Higher Education, said all campuses now use the "preponderance of the evidence" standard in discrimination cases.

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Related to this story

Tuesday's release of best-selling author Jon Krakauer's latest project, "Missoula: Rape and the Justice System in a College Town," had many locals anxious if not uneasy. Not among them was University of Montana athletic director Kent Haslam, who called the latest account of several highly publicized sexual assault allegations against UM football players in 2012 and 2013 an "opportunity" not to be shied away from.

Jon Krakauer has "no doubt" rape victims in Missoula will be served poorly with Kirsten Pabst as the Missoula County attorney. On Tuesday, Doubleday will release the bestselling author's book called "Missoula: Rape and the Justice System in a College Town." In the book, women tell stories of being raped by acquaintances and failed by the justice system in cases from 2010 to 2012.

Doubleday will produce no advance reading copies of "Missoula," the book about campus rape by bestselling author Jon Krakauer. And some local bookstore owners and partners said Monday they do not expect to even receive copies of the book before the April 21 release date and have no readings scheduled with the author in Missoula.

Jon Krakauer's new book, "Missoula: Rape and the Justice System in a College Town," will come out April 21, according to the bestselling author's website. The book presents "a stark, powerful, meticulously reported narrative about a series of sexual assaults at the University of Montana — stories that illuminate the human drama behind the national plague of campus rape."

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