©2014 Kenneth N. Margolin
In 1999, a case out of Brandeis University provided the Massachusetts appellate courts the opportunity to hold that private colleges and universities must provide to students charged with serious breaches of the school’s conduct code, disciplinary hearings that were fundamentally fair, and that followed the rules written by the school in the student Handbook. Instead, the Supreme Judical Court sent a message to private colleges that anything goes, that basic fairness even in a matter that could change a student’s entire life, was not a concern of the courts.
The case was Schaer v. Brandeis University. David Shaer, a junior, was charged with raping a female student, having intercourse with her as she slept after she had made clear that she did not want to have sex. Shaer claimed that the intercourse was not only consensual, but ardently invited by the female student. The Brandeis Student Handbook contained a section on disciplinary proceedings that promised an impressively fair hearing for students charged with breaches of the Code. The college’s pre-hearing investigation would include a careful evaluation of the facts and the credibility of persons reporting them. The decision of the disciplinary board would be made solely upon evidence and testimony introduced at the hearing, and the accused could be found to have violated the Code only upon “clear and convincing evidence.” A faculty advisor was to advise the student members of the disciplinary board of the “requirements and provisions of substantive and procedural due process.” The board, in writing its decision, was to make a record of the proceedings. In the event of an appeal to a university appellate board, to which the student was entitled, the record of the proceedings would be the only record that would inform the appeals board of what happened at the disciplinary hearing.
The Brandeis disciplinary board found that Schaer was guilty of having subjected a fellow student to unwanted sexual contact and to have created a sexually harassing environment. He was suspended for four months and placed on disciplinary probation for the remainder of his enrollment at Brandeis. The finding would remain permanently on his student record. Schaer sued Brandeis in Superior Court, alleging among other things, that the Student Handbook created a contract between him and Brandeis, and that Brandeis breached the contract by failing to follow its own procedures at his hearing. Schaer made several explicit allegations. The university breached the promise of a careful investigation by failing to seek his statement or to ask him to provide witnesses. The requirement of a decision based only on the evidence presented at the hearing was violated by accepting baseless evidence, including testimony by a police officer who said that the complainant, who he saw a month after the alleged event, “looked like a rape victim,” and another witness who said that Schaer was arrogant and had no respect for women. The board, Schaer alleged, could not have legitimately found the evidence of the offense to be “clear and convincing.” The faculty advisor, Schaer alleged, did not adequately advise the students, thus depriving Schaer of a fair hearing. Finally, Schaer alleged that the disciplinary board’s “record” of the 13 witness, 5 ½ hour hearing, was only 12 lines long, and thus so inadequate that it violated the requirement that the board create a record of the proceedings.
The Superior Court dismissed Schaer’s allegations at the earliest stage, on Brandeis’ Motion to Dismiss based upon Schaer’s alleged failure to state a claim upon which relief could be granted. Courts rarely allow Motions to Dismiss a Complaint, because judges are required to assume for the purposes of the Motion, that everything alleged in the Complaint is true. Courts are further required to make all reasonable inferences in favor of the plaintiff. Schaer appealed to the Massachusetts Appeals Court. The issue before the Appeals Court was whether the facts alleged by Shaer were sufficient to allow him the opportunity to use discovery to further develop his claim that Brandeis breached its contract with him and denied him a fair hearing. In a thoughtful decision, the Appeals Court reversed the Superior Court and ruled that Schaer's lawsuit could proceed.
The Appeals Court acknowledged that courts are generally wary of becoming involved in the administration of colleges and universities. The Court noted, however, the importance of a college education and the potential lifelong harm of a suspension, expulsion or misconduct finding in a student's record. Justice Kass, writing for the Court, reasoned that the more serious the offense charged, the more appropriate would be judicial scrutiny of the disciplinary proceeding. He also held that judicial involvement was more reasonable when the issue involved a matter customarily decided by courts, such as the rape allegation in the case against Shaer, as opposed to issues more in the realm of academia, such as an allegation of plagiarism. Finally, Justice Kass implied that college students had a right to disciplinary hearings that were fundamentally fair, and that a hearing could not be fair if the school effectively violated its own published rules. Shaer's suit might ultimately fail, noted Kass, but dismissing his case before discovery was premature. The Appeals Court decision struck a balance between the need for college administrators to maintain safety and order in their institutions, and to apply their own expertise in managing their schools, and the reasonable expectation of students that their colleges will keep their promises in cases of serious disciplinary allegations.
In a troubling decision, devoid of in depth legal analysis, Massachusetts’ highest court, the Supreme Judicial Court (“SJC”), reversed the Appeals Court and reinstated the trial court’s dismissal of Shaer’s case. Rather than concern itself with fairness in gravely serious matters, the Court employed a pedantic, literal reading of the Conduct Code provisions of the student handbook. Thus, the SJC decided that even though the Code required the college to make a careful evaluation of the facts, there was no mention of speaking to the accused, and thus no such requirement. Similarly, the SJC, while criticizing the 12-line report of the 5 ½ hour hearing, stated that since no length was specified in the Code, 12 lines did not violate the requirement that a report of the disciplinary hearing be created. When commenting on the stunningly baseless and inflammatory testimony against the accused, considered by the disciplinary board, the Court simply held that “[I]t is not the business of lawyers and judges to tell universities what statements they may consider and what statements they must reject.”
In essence, the message from the Supreme Judicial Court to college students is that they should check their expectation of justice at the campus gate. Only two of the judges who voted with the majority in 2000, are still sitting on the SJC, one of whom, Justice Ireland, dissented. Perhaps if another case reaches the SJC, involving the minimum protections that a private college must grant to a student charged with infractions that could result in suspension or expulsion, the Court will undo the unjust principles it established in Schaer v. Brandeis University.