January 2015
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 the Oct. 8
meeting’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.
On Oct. 27 Dean
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.
Wall Street Journal, January 2, 2015.
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