On June 13, 2012, the student's attorney appealed the president's decision to the Commissioner of Higher Education. "Under the governance ... of the Board of Regents, the commissioner 'may not substitute his or her judgement for the substantive decision made by the president unless the president's decision was arbitrary and capricious, clearly erroneous based on the facts in the record, or violated some legally protected right of the appellant.' "
1. This was the first such appeal that had gotten to the BOR under the University's "new" policy of "preponderance of the evidence."
2. The University instituted this policy without notice to JJ, in the middle of the proceeding.
3. The BOR had notice that a Federal Judge had already remarked on how poorly the matter had been handled.
4. The University Administration had bungled the only actual on-campus, violent rapes that occurred during this whole debacle by letting the alleged Saudi perpetrator go, giving him a week's head start, and then announcing that "oh whew, maybe it was all for the best." Oddly, "advocates of victim's justice" never got wound up about that; it served no useful political narrative that the University's biggest failing during this time was in regard to actual violent sexual assaults clearly under its jurisdiction because that narrative conflicted with an over-riding multicultural narrative.
5. The BOR knew it had an obvious lawsuit on its hands by the way that Engstrom had handled the whole affair, and in particular by signing off on the "findings" of the embarrassing Kangaroo Court proceeding when he clearly should not have.
6. Publicizing their decision would have brought further embarrassment to UM's already beleaguered administration by bringing attention to the fact that Engstrom had clearly violated "a legally protected right," namely that of due process. Indeed, publicizing that decision would have created a liability on the part of UM and the State of Montana to civil litigation by creating an "admission."
7. Federal privacy law trumps the DOJ "guideline," because one is law and one isn't, overturning Engstrom was a foregone conclusion, and the BOR rightfully held that these proceedings should be confidential.
8. The BOR would have signalled, by releasing any decision, that Engstrom was not a 'disaster waiting to happen,' he was a 'disaster that happened.'