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The Supreme Judicial Court of Massachusetts has spoken in the case of the Brandeis student who was railroaded by his college. It’s a good news/bad news scenario (not unlike the presidential election). As civil liberties lawyer Harvey Silverglate put it (metaphorically), “The patient died, but a significant victory for other students” was won. Schaer v. Brandeis Universityhad the potential to tighten disciplinary procedures at private colleges by providing clearer and more substantial protections for student defendants. Which it may have done, in the long run, but not for David Schaer. As I explained in an earlier column, Schaer had been convicted of “unwanted sexual activity,” i.e., date rape, and “creating a hostile environment.” He was suspended for four months and placed on probation for the entire following school year. Schaer sued the university for breach of contract, claiming that it had failed to abide by its student judicial code, which guarantees the accused a fair hearing based on “substantive and procedural due process.” The Massachusetts Appeals Court found that Schaer may have been “unwarrantly placed on trial” because Brandeis had indeed violated its student judicial code by failing to make an adequate record of the proceedings, admitting inflammatory testimony, and not applying the “clear and convincing evidence standard established for decision making by the code.” But on Sept. 25, Massachusetts’ highest court ruled 3-2 that, notwithstanding the “due process” phrase in Brandeis’ code, the private university was not required to provide student defendants with the protections that the accused ordinarily receive in criminal and civil courts. Therefore, said the Supreme Judicial Court, there was no breach of Brandeis’ contract with Schaer. As for the concerns raised by the lower court, Justice Ruth Abrams, writing for the majority, declared sharply, “It is not the business of lawyers and judges to tell universities what statements they may consider and what statements they may reject.” Abrams did admit that it would have been better if the “extremely brief” record of the proceedings had been more complete. But, as she emphasized, nothing in the Brandeis code “suggests that disciplinary proceedings will be conducted as though they were judicial proceedings.” Along with his counterparts at hundreds of colleges across the nation, Alan Rose, the lead lawyer for Brandeis, was delighted. He told The Chronicle of Higher Education triumphantly, “All of those parents who dropped off their kids at campuses this fall can take some comfort in knowing that if a student on campus misbehaves in some way, that the administration on campus can deal very quickly with that misbehaving student without fearing that courts will interfere with that process.” The opinion of the Schaer majority also inspired some unusually vehement (for that court) dissents. Justices Roderick Ireland and Judith Cowin wrote separately in favor of Schaer. Justice Ireland was disturbed that, although 13 people testified at the hearing, the record was only 12 lines long. That scanty record, wrote Ireland, hardly complied with Schaer’s right under the code to “a summary of the testimony and evidence presented.” (But it must surely further the goal, articulated by Rose, of disposing of disciplinary proceedings “very quickly.”) Justice Ireland also pointed out that the code requires the university to “thoroughly and impartially” investigate charges, but the record in Schaer does not indicate any such inquiry was done. Brandeis officials apparently never interviewed Schaer nor granted him an opportunity to provide witnesses. Dissenting Justice Cowin returned to Schaer’s complaint. While the Brandeis code mandates a “clear and convincing” standard of proof, she wrote, “the contradictory evidence contained in the complaint is sufficient to raise the possibility that the university board on student conduct reached its decision without applying a clear and convincing evidentiary standard.” And that, she added, should, “at the very least,” have been taken into account by the Supreme Judicial Court. With this, Justice Cowin was only warming up. She next pointed out, “Schaer’s complaint alleges that … incorrect evidentiary decisions may have been made; certain evidence may have been improperly admitted; the campus atmosphere [clamorous student demands for harsher, quicker sentences in cases of alleged date rape] may have unfairly tainted the hearing.” “Drawing all inferences in Schaer’s favor,” the justice continued, “his complaint provides sufficient allegation of contractual violations that he should not be prevented at this early stage of the litigation from pursuing his claim further.” Cowin agreed with her three opposing colleagues’ concern about judicial interference “with academic and disciplinary decisions made by private colleges and universities.” But that, she insisted, “should not alter basic contract law and the traditional standard for evaluating a complaint… . [T]he university, like any other, must abide by its contracts.” WHAT ABOUT BEING FAIR? Although a rehearing before the Supreme Judicial Court has been denied, there is reason to believe that Brandeis’ lawyer and counsel for other private colleges across the land may have been premature in their exultation. After all, the Schaer majority, citing precedents in Massachusetts case law, did say, “In addition to reviewing the allegations of breach of contract, ‘we … examine the hearing to ensure that it was conducted with basic fairness.’” One of the court’s citations was to Coveney v. President and Trustees of the College of the Holy Cross (1983), which suggested that school officials must “act in good faith and on reasonable grounds” and “not arbitrarily or capriciously” in disciplining students. The Schaer court concluded by stating that “nothing in this decision dampens the teachings of Coveney.” In other words, students at private colleges are entitled to basic fairness. This assertion probably does not comfort Schaer, but it greatly encourages Harvey Silverglate, who is co-director of the Foundation for Individual Rights in Education. FIRE, together with the American Civil Liberties Union, submitted an amicus brief on Schaer’s behalf. In a statement for FIRE, this is how Silverglate saw the result in Schaer: “The justices held, in Schaer v. Brandeis, first, that the student rights set forth in college and university student handbooks must be honored by campus administrations under notions of traditional contract law. “Second, the justices ruled that regardless of what rights are or are not promised by student handbooks, private colleges and universities have a legal obligation to conduct disciplinary proceedings against students ‘with basic fairness.’ “This latter doctrine will prevent colleges from seeking to avoid any obligation of fairness to students by revising student handbooks in order to make them even more one-sided than they already are. In short, the Supreme Judicial Court was in unanimous agreement that colleges and universities are part of the greater society.” Silverglate went on to say — justifiedly — that the majority had cavalierly disregarded the very specific charges in Schaer’s complaint that Brandeis had violated its contractual guarantees of “basic fairness.” He added, as Schaer’s original complaint had charged — and as Justice Cowin had noted — that “FIRE believes that the disciplinary system broke down in this case because the vagaries of political correctness dictated that, in a contest between a male and a female student on an issue as politically contentious as who is believed and who is punished in a date rape situation, the man must lose.” Silverglate’s reference to those who might seek to avoid “any obligation of fairness” is a recognition that the people who write student codes have traditionally not been very keen on providing the particulars of justice. As I noted in my previous column, the 1998 book “The Administration of Campus Discipline” actually advises private-college lawyers to strip their codes of all indicia of the American legal system: “[P]ut your computer on ‘spell check’ and make sure criminal law words like ‘guilt,’ ‘prosecutor’ and ‘defendants’ do not appear in your code.” That is still sound advice for those paid to protect colleges from students whom they’ve mistreated. That’s the bad news in the Schaer decision. The good news is that, write and rewrite as they will, colleges can no longer revise away the requirement of basic fairness. Nat Hentoff is a longtime columnist for the Village Voice, a syndicated columnist for United Media/NEA, and a columnist for Editor & Publisher magazine. He has written numerous books, including “Living the Bill of Rights” (1998) and “Speaking Freely” (1997). “Due Process” appears monthly in Legal Times.

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