BOSTON, MA—This week’s front page story in the Chronicle of Higher Education investigates the case of David Arlen Schaer, a former undergraduate student at Brandeis University who filed suit after he was suspended by a campus judicial board for “unwanted sexual activity.” Schaer sued Brandeis for breach of contract. While promising a system that would afford him due process (that is to say, the same level of rights required on public college and university campuses), the university put Schaer through a Star Chamber proceeding. Schaer expects a ruling any day now, almost certainly before the fall semester begins, from the Supreme Judicial Court of Massachusetts. FIRE filed a joint amicus brief with the ACLU of Massachusetts on behalf of Schaer in March of this year. Running scared, the general counsels of more than ten New England Universities (Babson, Bentley, B.U., B.C., MIT, Northeastern, Smith, Stonehill College, Tufts & Williams) filed briefs with the court, urging them to reject the Schaer case.
The Appeals Court of Massachusetts ruled that Schaer may have been “unwarrantably placed on trial.” Schaer’s position is that Brandeis:
- failed to advise student-jurors of Brandeis’s own due process requirements
- failed to allow Schaer the opportunity to confront and question the witnesses against him
- failed to exclude ‘irrelevant and inflammatory testimony’ of witnesses that bore no relations to the case
- failed to keep a record of the trial
“There is virtually no place left in the United States where kangaroo courts and Star Chambers are the rule rather than the exception—except on college and university campuses,” notes FIRE’s President, University of Pennsylvania Professor Alan Charles Kors. “Due process, that is to say, fundamental fairness, is diminished in cases involving the most serious charges. In fact, in civilized societies, the more serious the charges, the greater the procedural safeguards become. Sadly, hundreds of colleges and universities have established special tribunals, with fewer protections and presumptions of innocence, to hear cases of sexual misconduct. Charges are treated like verdicts.”
Universities and colleges routinely deny students the right to legal counsel, the right to confront witnesses against them, the right to a public trial, the right to make a record of the proceedings in order to assure an adequate record for subsequent review, and the right to an impartial judge or jury. At public universities, such conduct can be challenged successfully because public institutions are all bound by the requirements of the Bill of Rights, including the obligation to accord due process of law.
However, students, faculty, and parents increasingly pursue breach of contract and false advertising lawsuits against universities that promise, in their literature and handbooks, substantive justice in their judicial processes, but then deliver biased Inquisitions.
Kors coauthored The Shadow University: The Betrayal of Liberty on America’s Campuses, in 1998, with FIRE’s codirector, Boston civil liberties lawyer Harvey Silverglate. They described a case in that book that is strikingly parallel to the Schaer case. After sexual intercourse that followed mutual use of marihuana and mutual physical intimacy, a female student brought campus charges of rape against a male student. A university panel found him guilty and expelled him. The district attorney was pressed by campus activists to bring a criminal charge of rape against the young man. It took a real jury, operating under the rule of law, and aware that under the law both men and women are equally responsible for their behavior, only half an hour to acquit the student of the charges.
Other cases in which FIRE maintains an active interest reveal that due process violations are not limited to students. Faculty members are also victims. In a case at Cornell University, a psychology professor was charged by four students with sexual harassment. A university committee specially constituted to deal with charges of sexual misconduct, and which offered fewer procedural protections, reviewed all the evidence and concluded that the professor unequivocally did not commit any of the acts alleged against him. This, however, was of little importance when it came to sanctioning him. The panel convicted him of sexual harassment because it “felt that his actions made the women feel very uncomfortable and ‘constituted a pattern of sexual harassment.'”
“There is a very simple test for evaluating these campus procedures: who would want someone he or she loves to be tried under these procedures?” says Kors. “The pursuit of truth and justice is incompatible with unfair procedures.”
Harvey A. Silverglate, coauthor, with the ACLU lawyers, of the joint FIRE/ACLU amicus brief, says: “I’ve been a trial lawyer for over three decades. I’ve witnessed a wide array of problems and injustices in the law enforcement and judicial systems. Yet even I am shocked by what passes for fairness among college administrators who run campus judicial tribunals. There is absolutely no sense that the mission is to determine the truth. Instead, pre-determined verdicts cater to the politically correct orthodoxies of the day, goring the ox of the unpopular or unorthodox student.”
FIRE is currently reviewing more than forty active cases involving denial of minimal due process cases at colleges and universities across the country. In one case at Pennsylvania State University in January, 2000, a student was charged with a violation of the code of student conduct. He was given a copy of a list of his “rights” under the campus judicial charter. The judicial administrator involved, however, simply crossed out certain rights (specifically: the right to an open hearing, the right to tape the proceedings, and the right to appeal the hearing decision). The student contacted FIRE. After FIRE reminded Penn State of its moral, contractual, and constitutional obligations, charges against the student were quickly dismissed.
According to Kors, “universities find it impossible to defend in public what they do, in secret, in their judicial systems. The appeals court’s published decision and the fact that the Supreme Judicial Court will be ruling openly on the Schaer lawsuit are positive steps toward keeping colleges fair and honest.” Said Kors, “General Counsels must ensure that their disciplinary proceedings, the results of which can so severely affect the lives of students, are carried out with the utmost considerations for fairness.”
The Foundation for Individual Rights in Education is a nonprofit educational foundation. FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of individual rights, freedom of expression, the rights of conscience, and religious liberty on our campuses.
Thor L. Halvorssen, FIRE: 215-717-3473, Email: firstname.lastname@example.org
Harvey A. Silverglate, FIRE: 617-523-5933, Email: email@example.com
David M. Lipton, 617-818-6339, Email: firstname.lastname@example.org (attorney for David Schaer)