Cases: Schaer

Schaer vs. Brandeis

David Schaer, on whose behalf we filed a brief in conjunction with The Foundation for Individual Rights in Education (“FIRE”) and the American Civil Liberties Union of Massachusetts (“ACLUM”), sued Brandeis University, where he was matriculated, after it suspended him because of a conviction for sexual misconduct in the school’s kangaroo court. That conviction followed a hearing that was patently unfair and indeed bordered on the absurd. The facts were such that a fair and rational hearing likely would have resulted in Schaer’s acquittal at Brandeis’ campus disciplinary tribunal.

Schaer was a sophomore at Brandeis in March 1996 when a female friend, with whom he had had consensual sex on numerous occasions, initiated a disciplinary proceeding against him in the Brandeis student judicial system for allegedly unwanted sex. The charge, tantamount to an accusation of rape in the criminal justice system, stemmed from consensual intercourse that she initiated on Valentine’s Day the month before.

Late in the evening of that day, Schaer’s accuser called him, said she wanted him to “fool around” with him, and invited him to sleep over in her room. He initially declined, but on her persistence during a second phone call, went to her room. The couple engaged in sexual intercourse two times, though never to completion. After the second act of intercourse Schaer’s accuser was, to his surprise, upset. The two discussed the events of that night in the subsequent days, and both said they had misgivings about the way things had gone.

Schaer was shocked, however, when, a month later, he learned that his accuser had filed a complaint against him with the police and initiated a disciplinary proceeding against him in the student judicial system. Schaer was summoned, with four days notice, to defend himself at a disciplinary hearing against charges of “inappropriate and unwelcome sexual conduct” and sexual harassment. Found responsible for the charges, he was suspended for the summer, placed on probation for the remainder of his time at Brandeis, and ordered to undergo psychological counseling. The summer suspension derailed his plans to conduct research for his senior thesis in a campus laboratory. (Interestingly, the penalty was so light so as not to interfere with Schaer’s ongoing education. One wonders whether the lightness of the penalty – presumably for the serious crime of rape – was a result of the fact that the tribunal did not really believe that he had raped the complainant. If so, then this would be the penalty reserved by Brandeis for the innocent!)

Schaer filed suit against Brandeis in the Middlesex Superior Court, arguing that the disciplinary procedures against him were not conducted in accordance with the University’s published policies which, on paper, establish procedural safeguards designed to protect the falsely accused. He contended that the rules for disciplinary procedures constitute a contract and that by not investigating the claim against him thoroughly, using evidence improperly, failing to make a record of his hearing, and not employing a stricter standard of proof, Brandeis breached this contract.

The Appeals Court of Massachusetts (the Commonwealth’s intermediate appellate court) rejected Brandeis’ motion to dismiss the complaint proffered by Brandeis on the grounds that Schaer’s claims, even if true, were not sufficient to show breach of contract. When the University appealed, Harvey Silverglate—who advised Schaer’s lead counsel, David M. Lipton, throughout the proceedings—filed an amicus brief on behalf of FIRE and ACLUM. The brief argued that two bodies of law require Brandeis to follow its published rules: the law of contracts and the common law governing how private associations must treat their members.

The Supreme Judicial Court, by a split vote with two justices in vigorous dissent, held that universities do have a legal obligation to follow their established procedures and set forth a meaningful expectation standard – which treats university rules as having the meaning universities could reasonably expect their students to give them – for establishing whether they have done so. Based on this standard, however, the justices concluded that Brandeis did not specifically violate any of its rules it its treatment of Schaer. Thus, for example, a few handwritten lines on a piece of paper were deemed adequate to comply with the University’s rule to maintain a record of the proceedings.

Though Schaer’s complaint was dismissed, students and professors have used the “reasonable expectation” standard that the SJC established in Schaer v. Brandeis to good advantage. Thus far at least, private universities in Massachusetts are required to abide by their own rules and regulations when seeking to try and discipline a member of the academic community for alleged wrongdoing.

©2005 Good & Cormier