PRIVATE UNIVERSITIES AND DUE PROCESS

Mackenzie Becker

The Supreme Judicial Court of Massachusetts will soon issue what could be a landmark decision with repercussions for universities and colleges around the nation. The State’s highest court heard oral arguments in May on Schaer v. Brandeis University, a case concerning the extent to which courts can intervene in the disciplinary proceedings of students by colleges and

In 1996, David Allen Schaer, a junior biology major at Brandeis University, was accused of rape after a late encounter with a female Brandeis student. The  female  student stated that she awoke to being raped after telling Schaer she did not want to have sexual intercourse subsequent to some foreplay. Schaer admits to sexual intercourse, but states that sex was not only consensual but ardently invited.

[The case stands out because generally courts do not like to intervene into disciplinary proceedings of private schools which are not bound to provide their students with constitutional imperatives of due process.]

Although Schaer’s accuser never brought criminal charges against him, the female student complained to Brandeis administration who referred the case to the university’s Board of Student Conduct. Schaer received a hearing before the university board consisting of four students and two faculty members in April of 1996. The board found Schaer guilty of engaging in unwanted sexual activity with a female student and thereby creating a hostile environment for his accuser. The board forbade Schaer to be on Brandeis property during a three month suspension, which meant he was not able to complete a biomedical project on schedule that he had intended to work on over the summer. Schaer was also put on probation for the rest of his time at Brandeis. Furthermore, Schaer was ordered to undergo professional counseling. Schaer filed for a new hearing before the university appeals board but his request was denied.

Schaer then filed a complaint in Massachusetts Superior Court seeking an injunction against the suspension and compensatory damages. His case was dismissed by the Superior Court, but the Massachusetts Appeals Court ruled in 1999 that his case should be allowed to proceed. In the pending appeal before the Supreme Judicial Court of Massachusetts, Schaer has received support from both the ACLU of Massachusetts and FIRE, the Foundation for Individual Rights in Education Inc, which is a nonprofit organization devoted to academic freedom on college and university campuses. Both organizations have filed amicus briefs with the court.

In Schaer’s complaint, Schaer alleged that the university both failed to provide a fair disciplinary process and that Brandeis did not abide by the rules it set for itself. The Appeals Court of Massachusetts found that based on Brandeis’ description of the university’s disciplinary procedure, the university provides a procedure that is “manifestly adequate for a private association” for its students.¹ However, the Appeals Court found merit in Schaer’s claims that the university may have violated its own disciplinary proceedings set forth in its rights and responsibilities section of its student handbook.

The case stands out because generally courts do not like to intervene into disciplinary proceedings of private schools which are not bound to provide their students with constitu­ tional imperatives of due process. While state universities usually have well identified disciplinary proceedings in which they are required to provide certain due process rights, courts usually associate the relationship between a private college and a student as similar to a contract relationship, or the relationship between an employer and employee. Similar to an association, rules are created by that private college or university and the students must agree to abide by them. When those rules are followed, courts do not intervene un­ less those rules are arbitrary or unreasonable. However, a court can and will intervene when a university or  college does not follow its own guidelines. That is the crux of Schaer’s argument.

Brandeis University’s Student Handbook clearly sets forth that Brandeis University is required to provide its students with a hearing. No one argues Brian Schaer received a hearing. However, Schaer claims that the hearing he received did not comport with the rights and responsibilities code in the Student Handbook.

The code requires  that the  board make  a careful evaluation both of the facts and of the credibility of those that report the facts. The Appeals Court noted that nothing in the record  seemed  to  establish   that  these  careful  evaluations were made, such as interviewing Schaer prior to the proceedings to make sure he had not been unwarrantably placed on trial in what the complaint describes as a superheated atmosphere. Furthermore, the code requires that a record of the proceedings be made. The hearing lasted almost six hours and yet what the accuser and accused  said was summarized in a total of twelve lines. The board also, against requirements of the code, allowed prejudicial evidence such as the testimony of a police officer who stated that when he saw the accuser one month after the encounter, “she looked like a rape victim.” The code also requires a clear and convincing evidence standard, a requirement that Schaer claims was not met.

Several questions arise as to the ability of the Brandeis Board of Student Conduct, or any university disciplinary board for that matter, to adjudicate fairly. It is important for students and the administration to have a strong understanding of what constitutes date rape as it becomes more and more of a problem across college campuses nationwide. Can a university have a less stringent definition of date rape than the criminal standard that courts apply and yet still be fair to both the accuser and the accused? Can a university, reduce the burden of proof necessary to convict males of rape to show that sexual crimes are not tolerated on their campus in hopes of not deterring qualified students? The Brandeis Board of Student Conduct’s standard requiring  only  clear and convincing evidence could be much easier to meet than that of the traditional criminal standard of beyond a reasonable doubt. Undoubtedly, criminal courts  are  better equipped to provide due process than a board composed of mostly students who may not understand what due process requires. One might wonder if students and faculty alike are trained well enough to deal with sexual crimes, as these issues differ dramatically from the more common alcohol or academic violations.

Private universities and colleges have the right to determine their own disciplinary proceedings. This fact is one of many that differentiates those schools from publicly-funded institutions. Whether private institutions are adequately equipped to deal with sexual misconduct could depend on how strictly universities adhere to their established codes. While the Massachusetts Court of Appeals was quick to reiterate that private universities do not have to abide by Constitutional requirements of due process unless necessitated by a university code, students may want to question both the university’s disciplinary proceedings and how fairly those proceedings are abided by before choosing a school. The Supreme Judicial Court of Massachusetts may make that decision for itself soon enough, and could expand the obligations of private universities to provide greater due process protections to their students.

¹ Schaer v. Brandeis Univ., 48 Mass. App. Ct. 23, 716 N.E.2d 1055 (1999)