Seeking Justice on Campus

The Supreme Judicial Court of Massachusetts heard arguments Monday in a case that tests the proper role of the legal system in student discipline. David Schaer, a former student at Brandeis, has accused the school of violating its own disciplinary procedures in a 1996 hearing that found him guilty of sexual misconduct. Although the court decision will consider only whether Brandeis followed its own rules in disciplining Schaer, a more important issue remains--namely, whether universities are competent to decide questions of fact in serious disciplinary matters.

Schaer sued Brandeis after a disciplinary process through which he was judged to have engaged in "unwanted sexual activity," activity that he argued was consensual. The university's Board of Student Conduct, most of whose members were students, suspended Schaer for three months over the summer and placed him on disciplinary probation for his senior year. After losing an administrative appeal at Brandeis, Schaer sued in state court to clear his record and receive compensatory damages. He argues that Brandeis violated its published rules for disciplinary procedures by keeping an inadequate record of the evidence, condensing several hours of testimony from a number of witnesses into what one court has called a 12-line "he said, she-said" exchange. Further, Schaer's supporters accuse Brandeis of allowing the presentation of prejudicial testimony, such as a statement by a police officer who saw Schaer's accuser a month after the incident and said that she "looked like a rape victim" or the assertion by one witness that Schaer was "a self-motivated egotistical bastard who had no respect for women."

A state appellate court has ruled that Schaer's case should be allowed to proceed to trial, and this decision ought to be upheld. Universities owe their students some form of procedural safeguards in disciplinary matters, and at the very least universities should be held to the procedures described in their official publications. Should a university make no guarantee whatsoever of fair process in its student handbook, as the Civil Liberties Union of Massachusetts has argued, students might be inclined to go elsewhere; to renege on procedural guarantees infringes on basic notions of fairness. The courts should feel no reluctance to interpret (albeit generously) the terms of university regulations and serve as the last line of defense for students who have been denied the protections of established rules.

Yet there are deeper questions posed by the case that will not be addressed in the Supreme Judicial Court's ruling. The matter at issue is not whether state courts should set university discipline policies, or whether offenses should have to rise to the level of illegality before universities may punish them. Universities represent special communities whose members have certain rights and obligations not extended to the general public. A university has every right to expect higher standards of conduct from its students than the minimum necessary to avoid a prison sentence. Furthermore, the courts should not become a "super-dean's office" to which students run after every adverse disciplinary decision. Brandeis, as well as each of the 10 area universities that have argued on its behalf, has every right to expect some independence in disciplinary matters. The decision of an appropriate punishment for a given offense is within the scope of a university's educational mission.

The issue of fact-finding, however, is more complicated. Rape and sexual misconduct are some of the most serious offenses that universities encounter, and the only outcome more upsetting than the evasion of punishment by a guilty party would be the false conviction of an innocent student. Furthermore, although they may be perfectly competent to make determinations of fact in questions of academic dishonesty or the like, university committees are not adequately equipped to conduct fact-finding for offenses that could constitute serious crimes. The subcommittees of Harvard's Administrative Board that make findings of fact should not be able to play-act as courts of law. These subcommittees have the power to forever tarnish students with a judgment of a serious offense, but they do not currently give students the opportunity to retain independent representation or to cross-examine witnesses, rights that all free societies view as essential to fair procedure. When faced with serious offenses, university disciplinarians should reserve their judgment for the issues of punishment that they are competent to decide, and leave the fact-finding to the courts.