Wednesday, January 7, 2015
How to Fight the Campus Speech Police: Get a Good Lawyer That’s what student Daniel Mael had to do after Brandeis charged him with ‘harassment’ in a dispute over Israel.
Rolling Stone magazine in November published a 9,000-word account of a horrific gang rape alleged to have occurred in 2012 at a University of Virginia fraternity. The story triggered a national outcry. UVA administrators pre-emptively suspended all fraternal activities on campus, effectively tarring an entire class of students for maintaining a culture of rape and impunity.
Then the original story collapsed. The confusion and anger that followed was a teachable moment about campus frenzies and baseless moral panic. But the episode also threw into high relief another facet of modern higher education: university administrators who, in their eagerness to mollify critics, trample students’ rights and in the process lives and reputations.
Often students from unpopular groups and those who hold unpopular views find themselves alone, facing zealous administrators at closed-door disciplinary hearings. In these places the basic rights of Americans—including the right to counsel, due process, the presumption of innocence and even free speech—don’t apply.
That was the predicament faced by Daniel Mael, a senior majoring in business at Brandeis University near Boston. The 22-year-old native of Newton, Mass., is on the honor roll and has immersed himself in student life, intramural sports and Brandeis’s Orthodox Jewish community. As a student journalist, he has published articles in national outlets.
The problem: Mr. Mael is a pro-Israel man of the right on a campus increasingly hostile to conservatism and the Jewish state. The other problem: The Brandeis administration, as at so many colleges, is more committed to shielding students’ political sensitivities from “harassment” than challenging their minds. Brandeis administrators define harassment so broadly that almost any student could be guilty at any time.
Speaking by phone while on winter vacation in Israel this week, Mr. Mael says: “They try to intimidate students into being silent, in the interest of people’s feelings not being hurt, rather than encourage debate.”
In fall 2013, a public dispute about Israel broke out between Mr. Mael and Eli Philip, another Brandeis student and a leader of the campus affiliate of J Street, an advocacy outfit that describes itself as “pro-Israel, pro-peace.” In the course of the debate Mr. Philip’s feelings were hurt—“then all hell broke loose,” Mr. Mael says. The result was a yearlong disciplinary saga that would threaten his future.
Yet unlike many students in this situation, Mr. Mael fought back, eventually retaining top-shelf legal counsel. The legal record generated by the case, now exclusively obtained by the Journal, shines a rare light on the hidden realm of campus discipline.
Like most harassment claims, the one Mr. Philip brought against Mr. Mael arose from actions and counteractions over which the two parties disagree. On Oct. 14, 2013, two campus pro-Israel organizations, the Brandeis Israel Public Affairs Committee and Stand With Us, hosted Barak Raz, a former spokesman for the Israel Defense Forces, or IDF.
As he wrote in a contentious Facebook exchange with Messrs. Mael and Raz and other students the next day, Mr. Philip, then a junior, said he “did walk in late, and did not hear the beginning and framing” of Mr. Raz’s lecture. Then Mr. Philip posed a question about the checkpoints the IDF operates in the Palestinian territories. “Motivated by deep frustration, the question was not asked calmly,” Mr. Philip would write in an op-ed about the incident published more than a month later in the Jewish Exponent, a Philadelphia periodical. (Mr. Philip didn’t respond to an email request for comment.)
Mr. Mael, also a junior at the time, says Mr. Philip was “particularly obnoxious” and “disrespectful” toward the speaker, behavior that Mr. Mael says continued online the next day, when, during the same Facebook exchange, Mr. Philip accused Mr. Raz of having “lie[d] to a roomful of students.” Mr. Mael says he decided to hold his political opponent accountable by challenging him in the university’s marketplace of ideas, including by publishing articles and circulating petitions.
Mr. Philip interpreted this as harassment, and in a Dec. 9, 2013, complaint to Brandeis administrators, he presented charges under the university code of conduct. Mr. Philip said in his written complaint that at a lunch meeting two days after the IDF event, Mr. Mael “accused me of behavior unfitting a Jewish soul” and of harboring “deep-seated ‘evil inclinations.’ ” Mr. Mael, Mr. Philip went on, “informed me that I damaged the Jewish community, that I should resign from my position as student leader, and that he must take action to restore the Jewish community.”
Mr. Mael says his words were misquoted and taken out of context, but that’s beside the point. Religious-oriented conversations, however passionate, don’t amount to harassment, a principle that the U.S. Equal Opportunity Commission has set forth regarding workplaces and one even more relevant on college campuses, where philosophical disputation is supposed to be part of the air students breathe. Nor did the encounter amount to conduct with “the purpose or effect of unreasonably interfering” with Mr. Philip’s “education or work performance,” as the Brandeis student code defines harassment. The students, after all, were having lunch.
Mr. Philip’s filing also complained that Mr. Mael attended J Street meetings. “His presence, sitting in the back of the room and typing notes after each comment, was uncomfortable and intimidating.” Blaming Mr. Mael’s influence, Mr. Philip noted that “the Orthodox community stopped speaking to me and routinely ignored me.” Also: “Getting lunch and dinner at the kosher section in Sherman dining hall became an uncomfortable experience.”
A responsible university administrator might have counseled Mr. Philip to take a deep breath and develop thicker skin for the slings and arrows of adult life. But on Dec. 5, 2013, Dean of Students Jamele Adams summoned Mr. Mael to his office, without informing him about the purpose of the meeting, the student says: “I was handed a copy of the Rights and Responsibilities handbook and told to familiarize myself with it because Eli was considering certain actions.”
Mr. Mael says he was also advised to avoid using social media—an odd discouraging of his free-speech rights and a hint of what lay ahead as the administration picked sides in the dispute.
For months, though, nothing happened. Mr. Philip went to Morocco for a semester abroad, and during that period Mr. Mael recalls he had “nothing to do with the dean.” He pressed on with his campus activism, helping to draw national attention to the Brandeis decision in April to withdraw its offer of an honorary doctorate to human-rights activist Ayaan Hirsi Ali.
Then, three months ago, almost a year since the original incident, Mr. Adams re-entered Mr. Mael’s life. Again he was summoned to the dean’s office without knowing themeeting’s purpose. “I’m told that there are charges against me under bullying, harassment and religious discrimination,” Mr. Mael recalls. “And I’m told that I have to give a response—guilty or not guilty—ideally within 48 hours.” A guilty determination could have led to his suspension or expulsion from school. Since this was around the Jewish holiday of Sukkot, Mr. Mael was given about a week to reply.
Crucially, Mr. Mael wasn’t allowed to keep a copy of the complaint. Dean Adams told him that this was routine “procedure,” Mr. Mael says. “How am I supposed to tell my parents that I’m being brought to court and by the way I don’t know what the charges are?” Mr. Mael recalls thinking. “This is antithetical to the values of our Constitution.”
In a panic after the meeting with Dean Adams, Mr. Mael consulted his friend Noah Pollak, of the Washington-based Emergency Committee for Israel, which retained the Covington & Burling law firm to act on his behalf. Yet when Mr. Mael’s lawyer initially corresponded with university counsel, he was informed that “parties involved in the conduct process are not permitted to engage legal counsel to act or speak on their behalf.”
Covington & Burling paid no heed. With the deadline approaching and still without a copy of the complaint, Mr. Mael opted to plead not guilty and request a full hearing before a jury of his fellow students.
Andrew Flagel, Brandeis’s senior vice president for students and enrollment, wouldn’t discuss the Mael case, citing federal privacy regulations, but said there is no university policy to advise students to curtail their speech online while a disciplinary case is pending. Mr. Flagel added that it is university practice not to provide the accused with a copy of a complaint but added that this is “one of the things we’ve been evolving.” Regarding the right to counsel, Mr. Flagel said: “This is not a legal proceeding, so your assumption that there is a right is not in evidence.”
By the end of October, Mr. Mael was finally provided a copy of the charges he would face. And Covington & Burling submitted to Brandies two lengthy legal memoranda blasting violations of Mr. Mael’s rights. One letter concluded: “We reserve all rights on behalf of Mr. Mael, including the right to assert claims for the reputational and other harms caused by the baseless allegations at the heart of this proceeding.” In other words: See you in court.
OnDean Adams informed Mr. Mael via email that the “allegations against you will not be adjudicated through our Student Conduct Board. The accuser has withdrawn from the option to do so and therefore this case should be considered closed and without determination of fault or sanction. . . . Thank you for your cooperation.”
Thus closed a window on life at American universities, where administrators are only too happy to indulge the objections of students whose feelings are bruised in the combat of ideas. Mr. Mael considers himself fortunate not to be facing expulsion. “It’s imperative to understand that if I didn’t have extremely qualified counsel,” he says, “I would be under duress.”
As it happens, Brandeis University is named for the U.S. Supreme Court Justice Louis Brandeis, a free-speech champion and ardent Zionist.
Mr. Ahmari is a Journal editorial-page writer based in London.