January 3, 2015

HOW TO FIGHT THE CAMPUS SPEECH POLICE: Get A Good Lawyer:

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.”

That’s good. But until you cost people jobs and reputations — that is, do the kind of damage to them that they’re perfectly happy meting out to others — you won’t bring this to a stop. You won’t see justice in this setting without a healthy measure of fear.

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