Editor’s note: Yale University has since expunged the suspension for sexual misconduct from Daniel Tenreiro-Braschi’s Yale College disciplinary record, and Tenreiro-Braschi ended up graduating from Yale on time. Click here to learn more.
A month after Andrew T. Miltenberg — a New York-based lawyer who specializes in campus assault due process and at the time was representing a Yale junior accused of sexual misconduct — compared his client to civil rights activist Rosa Parks, the attorney and his legal partners on Feb. 16 withdrew from the case.
“People like John Doe in this case I think are somewhat of a hero,” Miltenberg told the News last month. “This is a Rosa Parks moment for certain people and not everybody that feels oppressed has the ability to litigate those cases.”
Now, the Yale junior, Daniel Tenreiro-Braschi — who received a two-semester suspension from Yale late last year for groping and “engaging in sexually harassing conduct that created a hostile academic environment” — will be represented by Susan Kaplan and Robert Fleischer, who were appointed last week.
Miltenberg declined to comment on the case, including on why he and his legal partners Stuart Bernstein and Phillip Byler withdrew. Kaplan said the reason for their withdrawal is “privileged information.”
Helen Price ’18, former president of Unite Against Sexual Assault at Yale, described Miltenberg’s comparison of Tenreiro-Braschi with Rosa Parks as “utterly disgusting,” especially given that women of color experience disproportionately high rates of sexual violence.
Asked whether his withdrawal from the case was a result of criticism surrounding the Rosa Parks comments, Miltenberg said he was unaware of any backlash.
Miltenberg, whom Newsweek named the “go-to attorney for students accused of sexual misconduct,” has represented 150 students in Title IX proceedings on college campuses and has fought around four dozen lawsuits against various schools. At Yale alone, he has represented half a dozen students undergoing University-Wide Committee on Sexual Misconduct proceedings.
Tenreiro-Braschi’s new lead attorney, Kaplan, also specializes in cases of campus due process. In an interview on Tuesday, Kaplan told the News that Tenreiro-Braschi would not have provoked the same reaction from University administrators and other students had he been a woman.
“There’s accusations that John Doe gets drunk, and he then gets handy with a girlfriend,” Kaplan said. “Let’s again reverse the scenario. Female students get drunk all the time. An immediate consequence but a predictable consequence of female student drunkenness is you get a little more sexy, everyone does. Alcohol reduces your social prohibitions … It’s still being done without affirmative consent. It’s still touching people who may not want to be touched. No one would think of going to the Title IX office and saying Jane gets drunk and touches men at parties.”
This is not Kaplan and Fleischer’s first Yale case. The two are currently representing another Yale student, referred to as John Doe in court documents, who invoked Title IX to accuse the University of gender discrimination in 2016. In addition to his federal district court complaint, Doe also filed a complaint with the Department of Education Office of Civil Rights after he graduated in May 2015, though the department dropped the case last September.
Miltenberg, Bernstein and Kaplan are among a growing number of attorneys specializing in cases of what some experts call “reverse-gender discrimination.” Harvard law professor Jeannie Suk Gersen said there are over 70 students nationwide who have won cases against their universities, arguing that they were disciplined for alleged sexual misconduct as a result of unfair procedures.
In recent weeks, Miltenberg’s firm has actively advertised on the websites of college student newspaper websites. His advertisements have appeared on the News’ website, as well as that of the Washington Square News, New York University’s independent student newspaper.
Eric Rosenberg, another attorney who specializes in campus sexual misconduct, said students are “academically and professionally done” if they are found to have engaged in sexual assault on campus, and filing a lawsuit can often be the only remedy.
According to Katharine Baker, a legal expert on campus sexual assault, the increasing number of attorneys practicing in this area of law reflects growing opposition to the Obama administration’s 2011 Dear Colleague Letter, which established a preponderance of evidence standard for campus sexual misconduct cases. Last September, Secretary of Education Betsy DeVos rescinded the “Dear Colleague Letter” and issued temporary guidelines allowing schools to return to the higher bar of a “clear and convincing evidence” standard.
Attorneys representing students alleging discrimination based on Title IX now think they have a better chance of winning, Baker said, adding that such lawyers can make “a decent living” in these cases with plaintiffs paying an hourly rate. Some feel so strongly about the cause that they represent victims on a pro-bono basis, she added.
“We think there’s an argument to made that Yale’s evidentiary guidelines are unclear and to the extent that they needed to be made clearer — which is something we think Betsy DeVos’ withdrawal of the Dear Colleague Letter guidance has tried to achieve,” Miltenberg told the News last month, when he was still representing Tenreiro-Braschi.
Joshua Engel, a lawyer who has represented men accused of sexual misconduct in court proceedings, said the biggest chunk of any settlement — which could amount to millions of dollars in these cases — typically consists of the attorney’s fees. He added that the winning party is entitled to their attorney’s fees under the federal Civil Rights Act and under Title IX.
Earlier this month, Tenreiro-Braschi withdrew a motion asking for Yale’s punishment to be provisionally lifted so that he could resume classes this semester. Kaplan said the previous attorney handled the motion and that she does not have information to share about why it was withdrawn.
Yale received 82 complaints of sexual misconduct between Jan. 1 and June 30, 2017.
Hailey Fuchs | firstname.lastname@example.org