Although Schaer Loses Case, Supreme Judicial Court Reaffirms Fundamental Student Rights

BOSTON, MA—In an important decision released on September 25, Schaer v. Brandeis, the Supreme Judicial Court of Massachusetts reaffirmed longstanding precedent that rights guaranteed to students in college handbooks have the force of contract. In addition to ruling that colleges and universities can be sued for breach of contract based on promises contained in student handbooks, the Court also reaffirmed the common law principle that colleges and universities must treat students with basic fairness even in the absence of such contracts.

Although the Court split 3-2 in favor of Brandeis, all five Justices rejected the attempts by Brandeis, and by the private colleges that supported its position in a friend-of-the-court brief, to overturn prior case law that upheld the rights of students in college disciplinary proceedings. Although Brandeis hails the decision as a “victory,” its celebration is premature. “In fact, one more such victory and the abuse of power by private colleges and universities will be undone,” said Harvey Silverglate, Vice President and cofounder of FIRE.

The Justices, in their decision in Schaer v. Brandeis, upheld the rights of students in two vital ways. First, they ruled that the rights set forth in college and university student handbooks must be honored by campus administrations under notions of traditional contract law. Second, the Justices ruled that regardless of what rights are or are not promised by student handbooks, private colleges and universities have a legal obligation to conduct disciplinary proceedings against students “with basic fairness.” This latter doctrine will prevent colleges from trying to avoid their obligation of fairness to students by revising student handbooks in order to make them even more one-sided than they already are. In short, the Supreme Judicial Court was in unanimous agreement that colleges and universities are part of the greater society, not totalitarian enclaves immune from the rules of civilized society.

Unfortunately, three of the five Justices who heard the case concluded that Brandeis had met its legal obligation to student David Arlen Schaer in his disciplinary hearing on an x-girlfriend’s charge of date rape. The factual issue was whether Brandeis had complied with the promises made in its own student handbook.

Two Justices wrote stinging dissenting opinions, disagreeing with the three-Justice majority on the question of whether Brandeis’ actions in the case complied with their contractual obligations and rose to the minimum standard of fairness required. The majority concluded that Brandeis had minimally complied with its own obligations as they applied to Schaer’s case in particular. However, even the three-Justice majority noted, for example, that Brandeis’ cursory twelve-line summary of a thirteen-witness hearing was barely adequate under the University’s own rules in its student handbook. “We note that the report was extremely brief,” the Court wrote. “The better practice would have been to produce a more complete report.” The dissenting Justices concluded that the majority opinion “analyze[d] the provisions in the ‘Rights and Responsibilities’ section [of the student handbook] in a manner inconsistent with the standard principles of contract interpretation.”

FIRE filed a friend-of-the court-brief, along with the ACLU of Massachusetts, in support of Mr. Schaer’s position. FIRE agrees with the dissenting Justices that Brandeis’ conduct toward Mr. Schaer does not live up to either its contractual obligations or its obligation to treat its students with fundamental fairness. Indeed, FIRE believes that Brandeis’ disciplinary system simply broke down under the demands of political correctness, which dictate that the man must always lose in a contest over who is to be believed in a case alleging date rape. Who would want a son, brother, friend, or loved one tried under such circumstances? Indeed, Brandeis implicitly recognized its own miscarriage of Justice in finding Schaer guilty by suspending him merely for a summer.

Although FIRE is pleased that the Supreme Judicial Court of Massachusetts has reaffirmed that students have rights and that universities have obligations in the disciplinary arena, we are nonetheless disappointed that the majority of Justices on the court did not see through Brandeis’ politically correct handling of the case against Mr. Schaer. FIRE will continue to work for the elevation of fairness, rationality, and Justice over the influence of political correctness on college and university campuses in Massachusetts and around the nation. We note with satisfaction, however, that the Court rejected the goal of the private colleges and universities involved in this case—to remove themselves from the rule of law. Colleges and universities have legal obligations to fairness in their treatment of the lives and reputations of their students. Further, it is now up to students, faculty, honest administrators, parents, alumni, and trustees to make certain that the judicial codes that guarantee specific contractual rights and protections meet the expectations of decency and of appropriate concern for the protection of innocence.

FIRE is a nonprofit, tax-exempt organization devoted to protecting the values of fairness, rights of conscience, and academic freedom in American higher education. Its primary office is in Philadelphia, with another office in Boston.

Harvey A. Silverglate, Vice President of FIRE:
617-523-5933, Email:

Thor L. Halvorssen, Executive Director of FIRE:
215-717-3473, Email:

Schools: Brandeis University Cases: Brandeis University: Refusal to Provide Due Process to Person Accused of Sex Offense