Brandeis Lawsuit Puts Campus Courts in the Dock

Private colleges nationwide now fear increased scrutiny of their disciplinary codes

By BEN GOSE

Four years ago, a judicial panel at Brandeis University found David Schaer guilty of

ALSO SEE: Shaping a Student Judicial Code to Avoid Court Scrutiny Colloquy: Join a debate on the issues raised in this article The full text of a ruling by a Massachusetts appeals court that a former Brandeis University student should be allowed to sue the institution for allegedly mishandling the judicial process that led to his suspension on a sexual-misconduct charge.

"unwanted sexual activity," and of creating a "hostile environment" for the woman who had accused him of the offense.

The punishment came down in April of his junior year: He was to be suspended for the summer. He appealed, but the penalty was upheld. That meant that Mr. Schaer, a biology major, would be unable to work that summer on a leukemia-research project in a Brandeis laboratory.

Mr. Schaer could have written off the suspension as a mere bump in the road. After all, he would return in the fall and graduate on time with his classmates.

Except for one thing: Many students on the campus now viewed David Schaer as a rapist, even though Brandeis avoids using such criminal-law words to discourage courts from meddling in its affairs. He lost 20 pounds and had trouble sleeping, he told The Chronicle last month, in his first interview since the suspension. Someone put a sign on his door telling him to go home. He had trouble getting dates, and when a woman did go out with him, she had invariably been briefed in advance about his troubles. Student activists circulated a petition describing his conviction (although not naming him) and asking for at least a three-year suspension.

"Every time I managed to crawl out of my hole, [the petitioners] came around," he said, tears forming in his eyes. "Even my friends signed it -- not knowing it was me. I felt like I'd been put on a list of sexual offenders."

David Schaer did not serve his suspension quietly -- and as a result, hundreds of college administrators know about a sexual encounter that he would like to forget. He sued Brandeis, accusing the university of bungling his case and violating his rights during an unfair judicial hearing. A local court dismissed the case. But a three-judge panel of the Massachusetts Appeals Court overturned that decision last September, throwing to the wind the courts' customary deference to the decision-making of private institutions.

The appeals-court judges ruled unanimously that Brandeis may have violated its own student-judicial code by failing to make an adequate record of the hearing; failing to advise students on the judicial panel about the requirements of due process; and allowing "irrelevant and inflammatory evidence" to be introduced. The judges, who reversed the trial judge's decision, also said that the serious charge against Mr. Schaer should have been handled with great care.

Brandeis appealed that ruling to Massachusetts' highest court, the Supreme Judicial Court. Oral arguments were heard in May, and a decision is expected by September.

The appeals-court decision has sent a chill through academe, where few fears are greater than sharp scrutiny from the courts. Although the case is being tried in a state court, Massachusetts is well-known for its private colleges, and its legal decisions involving colleges are followed closely around the country. Last month, the National Association of College and University Attorneys invited Brandeis's lead lawyer in the case, Alan D. Rose, to come to their annual meeting, in Washington, to talk about the Schaer case and how other colleges might avoid similar lawsuits. Two hundred and fifty people showed up.

Brandeis officials decline to discuss the case or their procedures for handling judicial hearings. But Mr. Rose believes that even if the Supreme Judicial Court permits the case to move beyond the consideration of a motion to dismiss, Brandeis will prevail when the university is allowed to present its version of the events in court.

"It was not some monolithic institution that sat in judgment of David Schaer," Mr. Rose says. "It was his peers."

Ten other private colleges in Massachusetts -- including Boston University, the Massachusetts Institute of Technology, and Williams College -- have submitted a brief in support of Brandeis arguing that the appeals-court decision, if it stands, could transform college disciplinary hearings into "mini-litigations."

Institutions that have long held their students to a higher level of conduct than is expected of them in society may no longer feel that they can do so, knowing that a judge may second-guess their every decision. Litigation costs could soar, and colleges may feel compelled to hire student-affairs officials who understand the criminal definitions of due process. Both trends could fuel a rise in already-steep tuitions. "Every student who is disciplined by a college or university will feel invited to go to court," warns Michael B. Rosen, Boston University's associate general counsel.

But Mr. Schaer's supporters, including the American Civil Liberties Union and some well-known foes of political correctness, say the colleges are painting doomsday scenarios to deflect attention from their real purpose: remaining the sole arbiters of the language in their conduct codes.

"What the colleges want is the right to interpret their own rules," says David M. Lipton, Mr. Schaer's lawyer. "That, of course, is a right that no one has."

If defendants in campus judicial proceedings aren't ultimately protected by the courts, then they may too easily fall victim to the vagaries of campus politics, Mr. Lipton says.

At Brandeis, that meant appeasing women who didn't think the college took date rape seriously enough.

"Women are being given the right to decide after the fact of consensual sex that it wasn't consensual," says Mr. Lipton. "If in the process some men suffer unjustified attacks on their reputations, colleges in my opinion simply don't care."

David Schaer and his accuser, whom we'll call Jane Smith (she is not named in campus or court documents), met while working on Brandeis's student newspaper, The Justice, where he was the photography editor. They started dating in the summer of 1995, and had sex once during that time, he says, but they eventually split up. (He says the paper's policy of discouraging relationships between staff members was to blame.)

The incident that led to Mr. Schaer's suspension occurred in February 1996. Mr. Schaer, who is now working on a Ph.D. in immunology at a university in New York City (he declines to name it), had little trouble recalling the night during a two-hour interview last month at a Boston hotel not far from his lawyer's office.

They had been at the same party before midnight. Mr. Schaer says he had two or three beers, but left early to take a drunk friend home.

Ms. Smith called him at his dormitory room, asking him to come "fool around." She later acknowledged in a deposition that by "fool around" she meant come over to have sex.

Mr. Schaer remembers her being "conscious and quite aware of what was going on" when he got to her four-room, on-campus house. Their first attempt at intercourse, with an unlubricated condom, was painful for her and he stopped, he says. They later engaged in additional foreplay, and Ms. Smith asked him to put on a lubricated condom, he says. Midway through intercourse, she said she would like to stop, and switch to oral sex. "I said, 'I'm almost done, can I just finish?,' and she said, 'Yes, but hurry,'" according to Mr. Schaer. Thirty seconds later, the encounter was over, and Ms. Smith started to cry.

"I was completely confused -- she had invited me over," says Mr. Schaer. "I asked if she was OK, and she was unresponsive. I then asked if she wanted me to stay or go. Five to 10 minutes later, she said go."

Ms. Smith's recollection of the events in her room -- written as a third-person account and submitted to the university's Student Judicial System -- differs from Mr. Schaer's:

"He removed her clothing, she asked him not to get undressed, but he did. They kissed and he started touching her, she asked him to stop, he did. He put a condom on, she said that she did not want to have sex with him, he removed the condom. Because of her intoxicated state, she was in and out of sleep and awoke to Schaer having sex with her. She told him to stop, that she did not want to be doing this, he stated that he was almost done, he then finished and got off of her. She turned over and started crying, she then asked him to leave. After a short conversation he left the room."

A day later, Ms. Smith called Mr. Schaer (who had left his wallet in her room) and said he hadn't stopped when she had asked him to. Mr. Schaer disagreed, and reviewed the events with her. One month later, he learned that she had filed a complaint and that he would face a hearing before a campus judicial panel.

Ms. Smith had sought a three-year suspension for Mr. Schaer. Instead, the panel, made up of six students and two professors, suspended Mr. Schaer for the summer, ordered him to receive professional counseling, and told him to avoid his accuser for the rest of his time at Brandeis.

"I just broke down and cried," Mr. Schaer says. "I couldn't understand why they were finding me responsible."

Date-rape cases are among the thorniest issues faced by campus judiciaries. The Schaer case is similar to incidents on other campuses, such as the Adam Lack case at Brown University (The Chronicle, October 11, 1996). The students had been drinking. The woman had been sexually assertive. The dispute centered on whether the woman had made clear her lack of consent.

Such cases rarely proceed in the courts, where district attorneys tend to view them as unwinnable. But colleges can't ignore them. For one thing, women's groups on campuses routinely argue that college administrators should take stronger action to reduce date rape. March 1996, the month before Mr. Schaer's hearing, was "Women's Month" at Brandeis, and The Justice published articles about date rape in several issues. An editorial cited the controversial statistic that one in four college women is raped.

The federal government, meanwhile, has applied pressure of its own. Just last year, in a case involving elementary-school students, the Supreme Court ruled that schools and colleges that receive federal funds can be held liable if they are "deliberately indifferent" to a student's sexual harassment by a peer.

"In a way, we wish that these cases would just go away," says Edward N. Stoner II, a lawyer in Pittsburgh who has written a widely used model for a student-disciplinary code. "But it's the hardest cases that establish what the living-learning environment is like on your campus. If you don't deal with them, word gets around fast."

But how, exactly, should colleges deal with such murky situations? Margaret Wood Hassan, a Boston lawyer and the primary author of the brief backing Brandeis that was filed by the Massachusetts colleges in the Schaer case, says Brandeis's "unwanted sexual activity" charge allows it to punish students for behavior that falls well short of rape. That Mr. Schaer was suspended for only a summer is prima-facie evidence that the judicial panel did not think a rape had occurred, she says. "You generally don't let people you think are rapists walk around your college campus," she adds.

Yet such punishments make clear that Brandeis and other colleges want men and women to treat ambiguity in sexual situations as a no, she says. "We're saying we expect a higher level of conduct than the courts require," Ms. Hassan says. "We're saying to the man, 'You may not have behaved criminally, but you behaved inappropriately.' That's a right that the university absolutely has."

Mr. Rose, the lawyer representing Brandeis, notes that Mr. Schaer's academic transcript has never mentioned his punishment, and that university disciplinary records are destroyed after five years.

"David Schaer has taken an internal, confidential matter in which the term 'rape' was never used by Brandeis, and in which David Schaer's name was not even mentioned, and has succeeded in making this into a story in which his name is carried by" media outlets around the country, Mr. Rose says. "It reminds me of the Vietnam strategy of burning the village in order to save it."

But Mr. Schaer says he has no regrets about the lawsuit. When he applied to a Ph.D. program at Columbia University a few years ago, he was asked on the application whether he had ever been suspended. He answered yes, and provided an explanation. Columbia rejected him.

"Do you lie down and say okay when someone accuses you of something you didn't do?" Mr. Schaer asks.

Harvey A. Silverglate, a Boston civil-liberties lawyer who along with the A.C.L.U. of Massachusetts has filed a brief in support of Mr. Schaer, says the light punishment indicates that in sexual disputes, college panels side with women over men, however scant the evidence. "Suspension or expulsion is the penalty if you're guilty," Mr. Silverglate says. "And a short suspension over the summer is the penalty if you're innocent.

"The system has been perverted to accomplish preordained political goals. That is what makes this case important. It is really testing whether that can be done."

Courts have a long history of declining to interfere in student disciplinary matters, especially at private colleges, where the courts tend to cite respect for the independence of private associations.

Prior to the 1960's, "dean's justice" prevailed, notes Sheldon E. Steinbach, vice president and general counsel of the American Council on Education. "You could get thrown out of any college -- boom -- just like that," he says.

But a variety of trends -- including the rising cost of tuition and the demise of in loco parentis -- have prompted courts to give college hearings a closer look.

Citing two Massachusetts cases from 1983 as precedents, the appeals court in the Schaer case said that Brandeis needed to conduct the hearing with "basic fairness," and that it needed to substantially, but not rigidly, observe its code. The appeals court then went further, saying that hearings "must be conducted with greater care, and will be reviewed by a court with greater scrutiny, when the underlying offense is one that society would regard severely, e.g. theft, distribution of drugs, or rape."

That statement seems intuitive, but it worries colleges. "We think the appeals court has it backwards," Mr. Rose says. "The more serious the offense, the more quickly the university needs to be able to act in order to protect potential victims."

Mr. Rosen of Boston University says colleges could become paralyzed in trying to figure out what "serious" means. A punishment for playing a stereo too loudly may seem innocuous. But if that blemish on a student's record were to deny him a military appointment, could the student sue, saying that his case had not been handled with appropriate care?

"How do we know that our judgments are going to be the same as the courts'?" Mr. Rosen says. "What if we say, 'This is a minor matter,' and the court says, 'No, this is a major matter'?"

Brandeis and its supporters also say the appeals court wrongly assumed that Brandeis's code provides the same protections for accused students that a criminal court provides.

Ms. Hassan, the author of the brief for the Massachusetts colleges, says private colleges don't provide as many protections as the criminal courts because campus punishments are "educational" in nature. Expulsion is the maximum sentence. Most private colleges, for example, require accused students to tell their version of events; the students have no Fifth Amendment right against self-incrimination. That right, as well as strict rules governing evidence, are applicable in criminal courts, Ms. Hassan argues, because the potential punishment -- jail time -- is far more severe.

"It would be very difficult for colleges to maintain the type of educational environment that they work so hard to create if they were required to respond to disciplinary problems under the considerably technical problems of criminal law, without any participation by the accused," Ms. Hassan says.

However, Mr. Schaer's advocates say that Brandeis chose to adopt a code that provides far more protections for accused students than do some other private colleges. The appeals court only required the university to follow its own rules, they say.

The appeals-court decision is "nothing more than a statement of the relatively ancient rule," says Mr. Lipton, Mr. Schaer's lawyer. "'He who writes a contract will have any ambiguity in it construed against him.'"

A review of Brandeis's rules and the evidence presented at Mr. Schaer's hearing does raise serious questions about the fairness of the proceeding.

Brandeis's code requires that the facts "be gathered from the accuser ... and a careful evaluation of these facts, as well as the credibility of the person reporting them, shall be made." But the appeals court found that "nothing in the record ... bears on who evaluated what the accuser said, how that was done, who was spoken to, and whether any credibility assessment was made." The court also noted that no one had interviewed Mr. Schaer before the proceeding started -- a routine way to evaluate the validity of charges and to establish "probable cause" to proceed. As a result, he may have been "unwarrantably placed on trial," the court said.

Brandeis maintains that it did evaluate the facts and the credibility of the accuser. "It is within Brandeis's discretion whether and to what degree to investigate further," Mr. Rose states, in a legal brief.

Ms. Hassan says the court failed to acknowledge that Brandeis's code does not require an accused student to be interviewed prior to an inquiry. "If the probable-cause standard is the new standard for universities," she says, "you'll need a criminal D.A. in every university disciplinary system."

The appeals court also found that Brandeis may have failed to adequately handle the evidence in the case. While Brandeis notes in its code that "the technical rules of evidence applicable to civil and criminal cases shall not apply," it also states that "unduly repetitious or irrelevant evidence may be excluded."

The appeals court said that the rule "implies a minimum level of competence" and that Brandeis should have known to keep certain testimony out of the hearing. The court wrote: "The complaint states that 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.' On what possible basis a police officer could know such a thing does not appear. Another witness was allowed to give his opinion that Schaer was 'a self-motivated egotistical bastard who had no respect for women.' Both statements are so without rudimentary foundation and so unfairly prejudicial that they can be said to" violate Brandeis's rules.

Brandeis may be most vulnerable, according to observers, because of its failure to make an adequate record of the hearing. Its code states that an administrator will write up "a summary of the evidence presented and the decision rendered." Thirteen witnesses testified at the hearing, but only what Mr. Schaer and Ms. Smith said was summarized. His testimony was presented in five and a half lines; hers in six.

The scant record makes it extremely difficult, on appeal, for a court to determine whether Brandeis met its own "clear and convincing" standard. "What ... Brandeis passes off as a record discloses no more than 'she said' against 'he said,'" the court wrote.

"Schaer may have a good point there," says Mr. Rosen of Boston University. "That's why we tape our proceedings."

Alan Charles Kors, a University of Pennsylvania historian and foe of political correctness who last year started the nonprofit Foundation for Individual Rights in Education with Mr. Silverglate, argues that Brandeis and other colleges fail the most basic test in defending their judicial hearings. "Who would want someone he or she loves to be tried under these procedures? The fact that they wouldn't indicates that they don't get to the truth."

Ms. Hassan, who has a son and a daughter, turns the question on its head. "I don't want my child to go a college where a student is allowed to stay on campus because the college could not prove beyond a reasonable doubt that the person was violent. I want the college to use reasonable judgment to decide who should be there."

The colleges are pulling out all the stops to find sympathy for that view on the Supreme Judicial Court. The court's chief justice, Margaret H. Marshall, was Harvard University's general counsel until last year, and Harvard is conspicuously absent from the colleges' supporting brief. People on both sides of the dispute say Harvard's absence is a step calculated to ensure that Justice Marshall need not recuse herself. (Harvard officials declined to comment.)

But Mr. Silverglate notes that the strategy could backfire, if Justice Marshall had concerns about college hearings during her time at Harvard. "Some of the toughest judges in criminal cases are former defense lawyers," Mr. Silverglate says, by way of analogy. "They know the tricks."

David Schaer, meanwhile, is far less interested in institutional change than in personal redemption -- a chance to clear his name. Just a few months ago, he says, he was in a bar on Landsdowne Street in Boston, and one of Ms. Smith's friends walked up and began to curse him out. "This has followed me," he says.

Even if Mr. Schaer is vindicated, the decision may not be a victory for college students who face serious disciplinary charges. Private colleges are bound only by what they promise. It's a safe bet that many of those promises, spelled out in codes of conduct, are in the process of being changed -- with phrases like "due process" being hurriedly excised.

"Lawyers now are probably saying to their [university] clients, 'Be really careful about what you say,'" acknowledges Ms. Hassan. "'We don't want what happened to Brandeis to happen to us.'"

Shaping a Student Judicial Code to Avoid Court Scrutiny

After you are finished drafting your code, put your computer on "spell check" and make sure criminal law words like "guilt," "prosecutor" and "defendants" do not appear in your code. Instead, you will have a process in which you determine whether a student violated the college's rule or is to be held "responsible." It will be comforting to know that, if you delete criminal law words from your code, there will be at least two other advantages. The first advantage is that it will help you to treat everyone who comes before your board as "students," which is, after all, what they are. ... The second advantage is that, if you delete these criminal law words from your code, you will not fall into the "trap" of incorporating criminal law legal concepts into your student code. This would, potentially, be a serious error. Student affairs professionals do not, usually, understand all the nuances of the criminal law because, generally, they are not lawyers. You do not want to suggest, to either a judge who might review your code or a lawyer for a student who has violated the code, that your institution intended to follow criminal law procedures. ...

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