A former Brandeis University student, who challenged the school's disciplinary proceedings after he was punished for sexual misconduct, lost his case when Massachusetts' highest court ruled in a 3-2 decision that colleges have broad discretion in disciplinary action.
The case was closely watched by college administrators across the country because of its potentially damaging effect on college discipline, especially after the Appeals Court ruled that the disciplinary hearing for the student, David Schaer, had been unfair. Brandeis appealed to the SJC.
"A university is not required to adhere to the standards of due process guaranteed to criminal defendants or to abide by rules of evidence adopted by courts," Judge Ruth Abrams wrote for the majority in the SJC decision. "The facts alleged do not show that Schaer was denied basic fairness."
Schaer was suspended for four months in 1996 after a female student accused him of rape.
According to the woman's complaint, she asked him to come to her dorm room, but after some foreplay, she told him that she "did not want to have sex." Later, she woke up to find Schaer having sex with her.
Schaer claimed that the sex was consensual. After the university board suspended him for unwanted sexual activity and creating a hostile environment, he sued the university, claiming that he had been unfairly disciplined.
His complaints included the fact that a Brandeis police officer was allowed to testify that she saw the alleged victim one month after the incident and that she "looked like a rape victim." Another witness testified that Schaer was a "self-motivated egotistical bastard" and a third witness testified about Schaer's comments in a newspaper meeting about an editorial on rape.
The Appeals Court had called the first two statements "without rudimentary foundation" and "unfairly prejudicial," but the SJC ruled that, "it is not the business of lawyers and judges to tell universities what statements they may consider and what statements they must reject."
"Brandeis thought that it was clear from the complaint that he was given all the process that was required," said Alan D. Rose, Brandeis' lead lawyer in the case.
At Amherst, administrators have struggled with the idea of adjudicating serious felonies within the college system. "We have considered the question: shouldn't we rely on the criminal law and the civil law with the various powers of the court to subpoena and punish rather than setting up a parallel system with very little power, very little expertise and only modest powers of punishment?" said President Tom Gerety, who called campus proceedings in serious cases "a really messy business."
But Gerety said that, though Amherst's system is imperfect, "most of us believe that leaving it to the courts would make our residential life system a hell for those who have been victimized."
"Particularly in the area of sexual relationships, there's plenty of reason to conclude that because of the privacy and intimacy of many of the behaviors, were we to rely on the criminal law exclusively, most offenders would never be punished," Gerety added.
"I think it's important that colleges are open to handling complaints of that nature," said Associate Dean of Students Frances Tuleja, who handles disciplinary matters. "But we don't think it's the optimal way to go."
Dean of Students Ben Lieber said that he encourages students to go to the criminal justice system. "I'm firmly convinced that the best place for these types of cases is the criminal justice system," he said. "Handling plagiarism, cheating, low-level vandalism-we do a pretty good job at that. Colleges really know how to do that and it is our business. Serious felonies are another story."
But Brandeis' lawyer disputed that view. "To say that a student could go to the police or the district attorney's office doesn't really solve the problem," Rose said. "You can't wait three, six, nine months while a DA decides whether or not to pursue a case."
Lieber said that in the past few years, no student has been convicted of a serious sexual offense within the College's disciplinary system.
But he added that, on occasion, students have left campus until their accuser has graduated to avoid the possibility of College charges. "The threat of pressing charges is powerful and can have that outcome and has had that outcome," Lieber said. "Whether that benefit is enough is an open question."
Lieber and Sexual Assault Counselor Gretchen Krull said that one advantage college discipline affords the victim is a lower standard of proof, but both added that other factors make the system less desirable.
"For example, the accused has the right to question the person who brought charges," Krull said.
Another problem is that, unlike the criminal courts, the College is legally bound to keep private the name of someone convicted in its disciplinary system, Lieber said.