Yale is currently defending itself against three ongoing lawsuits from men who have been disciplined for sexual misconduct and allege that Yale discriminated against them on the basis of gender.
But the University is not alone. Since the administration of former President Barack Obama released the 2011 “Dear Colleague Letter” — which recommended that universities adopt a less demanding, “preponderance of evidence” standard in sexual misconduct proceedings — dozens of male students across the country have sued their universities alleging they were disciplined for sexual misconduct on the basis of unfair procedures.
Earlier this month, Daniel Tenreiro-Braschi — a Yale junior who was given a two-semester suspension in December for groping and creating a hostile academic environment — filed the most recent suit against Yale. The News has chosen to identify Tenreiro-Braschi because the information he provided in his publicly available complaint — including a reference to an op-ed he wrote for the News — makes him easily identifiable. In addition, two people with knowledge of the case confirmed that Tenreiro-Braschi is the plaintiff.
“In this recent case, the plaintiff is wrong on the facts, wrong on the law and we believe when the facts come out the University will prevail,” Vice President for Communications Eileen O’Connor said. “We are not going to reassess our procedures because of lawsuits.”
Tenreiro-Braschi did not respond to multiple phone calls requesting comment over the weekend and early this week.
Before Tenreiro-Braschi filed his lawsuit against Yale earlier this month, Jack Montague — the former men’s basketball captain who was expelled for “penetration without consent” in 2016 — was the most recent student to have sued the University for discrimination on the basis of gender after being disciplined for sexual misconduct. But Tenreiro-Braschi’s lawyer, Andrew T. Miltenberg — a New-York based attorney who specializes in campus sexual assault litigation — said he has advised six Yale students undergoing University-Wide Committee on Sexual Misconduct procedures who believe they have faced “substantial discrimination” during the process.
In March 2017, the Connecticut branch of the United States District Court denied Montague’s motion to prevent the University from enforcing his expulsion. In a hearing on Thursday at the Richard C. Lee United States Courthouse in New Haven, Tenreiro-Braschi will seek to have the UWC’s findings and sanctions suspended so he can remain in class as the lawsuit works its way through the judicial system.
Last month, Yale College Dean Marvin Chun upheld a recommendation from the University-wide Committee on Sexual Misconduct to suspend Tenreiro-Braschi for two semesters. The UWC found that Tenreiro-Braschi had violated Yale’s sexual misconduct policies when he groped two female students on a charter bus to the 2016 Yale-Harvard game, as well as groping one of those students while they were both independently studying abroad in Paris and engaging in sexual harassment that created a hostile academic environment for the student he groped in Paris.
One of the complainants reported that Tenreiro-Braschi told her, “I want to f— you,” as he groped her breast and buttocks on the bus to Cambridge. According to UWC documents included in the lawsuit, he was highly intoxicated during both groping incidents and was receiving alcohol counseling at the time of the bus trip.
Tenreiro-Braschi was a member of LEO, formerly known as Sigma Alpha Epsilon. According to a statement from the fraternity’s leadership, he is not currently a member.
“It is LEO’s policy to expel any member who is found guilty of violating the University’s Title IX rules on sexual misconduct,” the statement said.
The lawsuit alleges that Yale failed to conduct an adequate, reliable and impartial investigation. It also contends that the Department of Education’s Office of Civil Rights decision last year to rescind and review the 2011 “Dear Colleague Letter” brings into question whether Yale’s preponderance of evidence standard is fair.
“I’d like to see Yale’s policies mature and become more refined and a little more equitable and a little more transparent,” Miltenberg told the News on Friday. “And my hope is that through these cases that happens, but my immediate concern is that this young man’s life trajectory has been significantly altered by what we think is a very flawed process.”
Tenreiro-Braschi was set to begin the Brady Johnson Program in Grand Strategy when he was suspended from Yale in December, according to the lawsuit. In addition, the suspension cost him an internship at a prominent Wall Street investment bank. The lawsuit says Tenreiro-Braschi was a conservative columnist for the News who received a letter of gratitude from University President Peter Salovey after he penned a column defending “a recent controversial gift” to the University. That appears to be a reference to a column Tenreiro-Braschi wrote last spring defending Blackstone founder Stephen Schwarzman ’69, a confidante to President Donald Trump whose $150 million gift to the University has drawn criticism from students.
According to Harvard law professor Jeannie Suk Gersen, more than 70 students who claim that their universities have used unfair procedures to discipline them for sexual misconduct have managed to defeat universities’ motions to dismiss lawsuits.
Gersen added that the pattern of court rulings has moved universities to reconsider their procedures. Still, she maintained that the “preponderance of evidence” standard will likely remain in place, even in the wake of the lawsuits. Most respondents allege unfairness in other aspects universities’ policies and procedures, she said, rather than attacking the evidentiary standard.
But Tenreiro-Braschi’s suit against Yale alleges that the University’s evidentiary standard is unfair, given that Secretary of Education Betsy DeVos moved to rescind the guidelines in the fall.
“The courts have generally pushed back against unfair procedures that many universities have used in the past several years,” Gersen said. “When lawsuits survive motion to dismiss, or in anticipation of that, universities find it wise to settle with the student rather than face greater liability down the road.”
A week before Tenreiro-Braschi filed his case, Yale settled with a former student who accused the University of expelling him over false sexual assault allegations in 2012. The agreement did not include any payment, apology or change in disciplinary action against the student. Yale is also litigating a Title IX case brought by an alumnus who was placed on probation for sexual misconduct in 2015.
Katharine Baker, an expert on campus sexual assault and a professor at the Chicago-Kent College of Law, said the withdrawal of the “Dear Colleague Letter” has emboldened more men to sue. But although DeVos suggested that the letter interfered with due process, she added, many of those men are invoking Title IX and suing on the grounds of gender discrimination.
According to Scott D. Schneider, an expert on higher education law who advises schools on Title IX compliance, the men filing the suits after being accused of sexual misconduct often claim that the investigating officials may have had conflicts of interest. But he said the proliferation of such lawsuits is unlikely to push Yale to reconsider its sexual misconduct procedures.
Still, the court could find that some part of Yale’s policy was fundamentally unfair to those accused of misconduct, Schneider added. In response, Yale could appeal that decision in appellate court or make adjustments accordingly.
The UWC was formed in 2011.
Hailey Fuchs | firstname.lastname@example.org