The Clayton Christian Connection to the Jordan Johnson Story

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I was planning to write about the bizarre decision by Commissioner of Higher Education Clayton Christian to give Jordan Johnson a second chance, but to her credit, Keila Szpaller beat me to it today. Her story outlines what Jon Krakauer discussed in his Missoula: Rape and the Justice System in a Small Town –that Commissioner Clayton Christian intervened to overturn the decision to expel Jordan Johnson, sending it back to the university. There, despite the finding of an independent investigator that Johnson was not credible, brand new Dean of Students Rhondie Voorhees overturned the original decision and let Johnson return.

From Krakauer:

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, 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. Blatantly disregarding the Department of Education’s Dear Colleague Letter, which explicitly stated that “preponderance of the evidence is the appropriate standard for investigating allegations of sexual harassment or violence,” Commissioner Christian vacated the University Court’s finding of guilt and sent the case back to the University of Montana to be readjudicated, this time using “clear and convincing evidence” as the burden of proof.

The “Dear Colleague” letter refers to the 2011 letter from the Department of Education that argued the epidemic of sexual violence on college campuses demanded a stronger response from universities, contending correctly that permitting sexual violence and harassment directed at women violates their Title IX rights to equal access to education. That Commissioner Christian was more persuaded by a technical reading of the law than the rights of someone who may have been sexually assaulted suggests he was looking for an excuse to return Johnson to the school—and the all-important team, not upholding the University’s own process or the new federal guidelines.

And even then, the investigator that the University of Montana hired to investigate Johnson found that there was “clear and convincing evidence” that Johnson raped his accuser. From Krakauer again:

During its reappraisal of the Jordan Johnson case, the university hired an independent consultant to conduct an impartial reinvestigation of Cecilia Washburn’s allegation. 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.

New Dean Rhondie Voorhees used this scholarly approach to decide that Johnson was not likely guilty:

According to the government’s 2013 letter to President Engstrom, Dean Voorhees found both the complainant [Cecilia Washburn] and accused student [Jordan Johnson] to be credible and expressed a belief that this was “a case of differing perceptions and interpretations of the events in question.” However other parts of [the dean’s] analysis questioned [Washburn’s] credibility. For example, some of [Washburn’s] statements began with “I think” or “I don’t think,” and [Dean Voorhees] believed that the use of the word “think” denoted a “hesitant and equivocal response.” The [dean] concluded that there was not clear and convincing evidence to find that [Johnson] committed sexual misconduct.

Well, I think that the University of Montana treated this case horribly and I think that the intervention of the Commissioner of Higher Education was motivated, at least in part, by something other than seeing justice and decent treatment of a student at one of the schools he oversees.

Back in 2012, I was astonished and disappointed when I learned how the Board of Regents conducted the search to hire Mr. Christian for the position as the next commissioner. Hint: they didn’t conduct one. Instead, as I noted then, they gave a $300,000/year job to oversee Montana’s colleges to someone who lacked the educational credentials to become a principal of a Montana school. In fact, until the Regents changed the rules for Christian, the job required that the Commissioner hold a doctorate, as has every commissioner since 1972.

I’m not suggesting that Mr. Christian’s lack of education made him make a terrible decision, but it does seem that the “unique background” he brought to the position led him to a decision that prioritized something other than ensuring access to education for all students.

I know some people in Missoula just want this story to go away, but reporter Szpaller is to be commended for continuing to report it, as was Gwen Florio for breaking and doggedly reporting the story originally. Simply proclaiming that Missoula has solved its past failures on sexual violence isn’t enough. The whole ugly truth needs to be exposed first.

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About the author

Don Pogreba

Don Pogreba is an eighteen-year teacher of English, former debate coach, and loyal, if often sad, fan of the San Diego Padres and Portland Timbers. He spends far too many hours of his life working at school and on his small business, Big Sky Debate.

His work has appeared in Politico and Rewire.

In the past few years, travel has become a priority, whether it's a road trip to some little town in Montana or a museum of culture in Ísafjörður, Iceland.

6 Comments

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  • Universities are utterly incapable of handling sexual assault cases – I think the initial mistake in all of this was assuming that they could. They are instructed to use a preponderance of the evidence, but they have no effective way of collecting that evidence and no experience or training dealing with that, or any, standard of evidence.

  • I think the problem is that the people making a decision on what constitutes ‘a preponderance of the evidence’ have too much of a vested interest in the outcome, one way or the other. We allow judges to hear civil cases based on the PoE standard only because they have no vested interest in the outcome. But we’ve set up a system where universities are responsible for hearing these cases on a PoE standard, which we know is subject to error, and where their decisions in either direction can and are frequently challenged by the losing party in an actual civil court, for which the University is liable, to be judged on the same weak standard. Rape is too big a deal to be dealt with by a non-neutral party; there’s too much incentive to fudge the evidence in one direction or another (and we’ve seen the direction Universities tend to see as the path of least resistance) to protect the interests of the University. If there’s a need for the a non-criminal system using a less-than-reasonable doubt standard to punish campus rape or at least release findings that pressure Universities to expel these students, and there may be, it needs to be run by a body with no vested interest in the results, just like the normal civil system.

  • Emily Joffe’s article at Slate is worth reading: http://www.slate.com/articles/double_x/doublex/2014/12/college_rape_campus_sexual_assault_is_a_serious_problem_but_the_efforts.html

    In Missoula, Jordan Johnson was acquitted by a jury, a jury that included women. I’m not going to second guess that jury. Johnson was fortunate to have been defended by good lawyers. And he was fortunate that his last stop was in a court of law, where the case against him had to be proved beyond a reasonable doubt, not in the university’s kangaroo court, where the standard was a preponderance of evidence, and the kangaroos running the court were kicking fairness and due process out the window.

    Accusations of rape should always be handled by our criminal justice system, imperfect though it may be. Universities should shut down their kangaroo courts.

  • It strikes me that the PoE standard was never meant to ‘punish’ the guilty, but rather to protect the interests of those victimized. Hence, it is very easy for any entity involved to become a ‘victim’ when when given authority for how the standard is applied. If that is the case, and I think it is, it can be manipulated easily to the benefit of whatever ‘commissioner’ decides it’s efficacy.

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