Does The Constitution Apply On College Campuses?

Brandeis University was founded in 1948 as a nonsectarian Jewish community-sponsored co-ed university. It is named for Louis Brandeis, the first Jewish Justice of the United States Supreme Court. Justice Brandeis was a champion of free speech and an ardent Zionist. I am sure he would not be pleased with some recent developments at the university that bears his name.

Today’s Wall Street Journal posted a story about Daniel Mael, a senior majoring in business at Brandeis. Mr. Mael is very active on campus–he is a part of Brandeis’s Orthodox Jewish community, and as a student journalist has published articles in national outlets. On October 14, 2013, two pro-Israel campus groups hosted Barak Raz, a former spokesman for the Israeli Defense Forces (IDF). Eli Philip, another student, who was the leader of the campus affiliate of J Street, attended the event. A rather unfriendly Facebook exchange followed between Mr. Mael and Mr. Philip. The discussion then moved to articles and petitions.

The story continued:

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.Mael was called into the Dean of Students office on December 5, 2013, and instructed to familiarize himself with the Rights and Responsibilities handbook as Mr. Philip was considering certain actions. Mr. Mael was also advised to avoid using social media. Then on October 8, 2014, Mr. Mael was again called to the dean’s office. At that time he was told that there were charges against him of bullying, harassment and religious discrimination. He was given a week to plead guilty or not guilty to the charges. Mr. Mael was not allowed to keep a copy of the complaint.

The story continues:

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.

Mr. Mael was provided with a copy of the charges by the end of October.

The article explains:

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.”

First of all, if Mr. Philip was all that upset about what Mr. Mael was saying on social media, he could easily have blocked him. Second of all, Mr. Philip needs to learn that other people are also entitled to their opinions. Thirdly, I think Justice Brandeis would be turning over in his grave if he know what was going on in the college named after him.