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In my experience on the college lecture circuit, there is always an obligatory dinner before my speech. The president, a dean or two, and assorted other professors are there. When I’m at a private college or university, I often ask them about the campus disciplinary process: Can the accused bring in a lawyer? Can he or she cross-examine witnesses and get a transcript of the hearing? What is the standard of proof, and can decisions be appealed? Most of the time, the answer is that few, if any, such protections apply — even though the punishments can be severe. Expulsion or lengthy suspension can haunt the “convicted” for years, as long-ago students have attested. Nonetheless, at those convivial pre-speech dinners, I’m usually told that disciplinary hearings are not, nor should they be, criminal proceedings. Records are purportedly expunged (but, as I point out, word still gets around). For the sake of the students, I’m told, convictions must, like the college, remain private. “And the college,” I respond, “must be protected from a lawsuit.” There is a chilled silence. From campus to campus, the lack of due process in college disciplinary systems (and the student judicial codes on which they’re based) is a reliable conversation stopper. But now a case of sufficient resonance — Schaer v. Brandeis University — has arisen to force colleges and universities to talk about it. A July 21 front-page story in The Chronicle of Higher Education reports that the National Association of College and University Attorneys invited Brandeis’ lawyer to their June annual meeting to discuss how other colleges might avoid similar suits. “Two hundred and fifty people showed up.” In Brandeis’ disciplinary proceeding in the spring of 1996, David Schaer was charged with “unwanted sexual activity and creating a hostile environment” for a female student. Schaer insisted that the activity was consensual, which his accuser denied. The hearing panel apparently believed her. Schaer’s punishment was to be suspended from school for three months and placed on probation for the entire following school year. His subsequent lawsuit focuses on the disciplinary procedure itself, not on the facts of his alleged offense. He accuses Brandeis of breach of contract for failing to abide by its own student judicial code. The Middlesex County, Mass., Superior Court granted the university’s motion to dismiss Schaer’s complaint for failure to state a claim on which relief could be granted. But the Massachusetts Appeals Court ruled that Schaer may have been “unwarrantly placed on trial” because Brandeis may have violated its own student judicial code in a number of crucial ways. The case is now before the Supreme Judicial Court of Massachusetts. The American Civil Liberties Union of Massachusetts and the Foundation for Individual Rights in Education have filed a joint amicus brief on behalf of Schaer. (Note: I’m on the board of FIRE. Its members are not compensated. I do not advise on policy nor — as is my custom in all organizations in which I’m involved — attend meetings. My son Nicholas is FIRE’s legal director.) A decision is expected from Massachusetts’ highest court this month. Meanwhile, Alan Rose, Brandeis’ lead lawyer, indignantly told The Chronicle of Higher Education: “David Schaer has taken an internal, confidential matter in which � Schaer’s name was not even mentioned, and has succeeded in making this into a story” carried by media throughout the country. “It reminds me,” said Rose, “of the Vietnam strategy of burning the village in order to save it.” The campus village will not be destroyed by Schaer’s suit, but student judicial codes may be significantly scorched. A reading of the appeals court’s unanimous decision, written by Judge Rudolph Kass, indicates why many college and university attorneys are anxiously awaiting the next ruling. Kass’ tone can be rather acerbic. “Stripped of euphemism, Brandeis’ complaint against Schaer was that he raped a fellow student.” The reason that summary judgment was not justified, wrote Kass, is that a private university’s hearing for an accused student must be conducted with greater care, and will be reviewed by the court with greater scrutiny, “when the underlying offense is one that society would regard severely, such as theft, distribution of drugs, or rape.” And “when a private university, or more generally, a private association, provides for hearings” under that association’s code, the “student is entitled to a hearing that substantially observes that code.” For precedent, the appeals court found, among others, an 1884 Massachusetts case. Gray v. Christian Society held that “it is a requirement of common justice that a person not be deprived of membership in a society, except in accordance with its rules, and in that case, a fair hearing.” Kass then listed the ways in which “the hearing panel and its [faculty] advisor failed woefully in according Schaer the procedural due process required by the code.” The Brandeis code assures students, in so many words, “due process” in disciplinary proceedings. First, Kass wrote, the university failed “to make a careful evaluation of the facts and the credibility of persons reporting them” before bringing the complaint against Schaer. “If those preliminary inquiries, in the nature of testing for probable cause, were not made or wholly superficially made,” said the court, “Schaer may have been unwarrantly placed on trial in what the complaint describes as a superheated atmosphere.” Second, the hearing panel — three-quarters of whose members were students — did not make “an adequate record” of the proceedings. Third, the hearing panel received “irrelevant and inflammatory testimony and arbitrarily excluded relevant evidence.” For example, a Brandeis police officer “was allowed to testify that when she saw the complainant one month after the encounter, ‘She looked like a rape victim.’ ” Kass asked “ [o]n what possible basis a police officer could know such a thing.” Another witness “was allowed to give his opinion that Schaer was ‘a self-motivated egotistical bastard who had no respect for women.’ ” Kass concluded that both statements were “ so without rudimentary foundation that they can be said to be in violation” of the Brandeis code. Moreover, said the court, “the hearing panel failed to apply the ‘clear and convincing evidence’ standard established for decision making by the code.” Customarily, the student judicial codes of private colleges and universities avoid the term “due process” — and other troublesome legal concepts. (Public colleges and universities, as state agents, do not have the option of avoiding constitutional standards.) However, administrators at our nation’s private institutions of higher learning are aware of the risks, should their codes ever be reviewed by real judges in real courts. The Chronicle of Higher Education article quoted most revealingly the advice from the first chapter of a 1998 book, “The Administration of Campus Discipline,” which reads, “P]ut your computer on ‘spell check’ and make sure criminal law words like ‘guilt,’ ‘prosecutor’ and ‘defendants’ do not appear in your code.” Thereby, “you will not fall into the ‘trap’ of incorporating criminal law legal concepts into your student code.” Yet “due process” did make it into Brandeis’ code. It seems that the formulators of the code had originally come from the University of Rhode Island, a public institution, and they carried that inflammatory phrase with them. Now David Schaer has taken Brandeis to court over that guarantee provided in the code. A number of other Massachusetts schools — including Boston College, Smith College, Williams College, Boston University, Northeastern University, and Tufts University — have filed an amicus brief on behalf of Brandeis. In The Chronicle of Higher Education article, Margaret Wood Hassan, one of the lawyers on the brief, warned: “If the probable-cause standard is the new standard for universities, you’ll need a criminal DA in every university disciplinary system.” But the issue is not whether universities need to run full-fledged court systems on campus. Massachusetts’ high court is not likely to require a DA in every quad. What the appeals court spoke of was “common justice” and Schaer’s “common-law right” to have Brandeis adhere to its contract with him. A minimum level of fairness might do. 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).

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