Kaminer on Schaer

Harvey Silverglate’s optimism sometimes gets the best of him. It’s not
hard to imagine him spinning, sincerely, for a political candidate
caught with his pants down: ‘The Senator is pleased that the American
people have learned he has good legs,” Harvey might say.

Wishful thinking aside, this is what happened in the Schaer
case: The Supreme Judicial Court of Massachusetts held that private
colleges and universities have contractual obligations to follow their
own rules for disciplining students. But it showed great deference to
the university’s interpretation of its rules: The Brandeis rulebook,
for example, guarantees a “careful evaluation of the facts” when an
accusation is made. What does a “careful factual evaluation” entail?
The SJC held that it does not require investigators to interview the
accused, seek evidence from him, or allow him to present witnesses.

The SJC also held that that private colleges and universities
owe some basic fairness to students caught up in disciplinary
proceedings, regardless of the rules. But the court set the standard of
fairness lower than the expectations set for George Bush in the
presidential debates. The majority of justices did not find that the
university acted unfairly when it essentially convicted Schaer without
hearing his side of the story in a very ambiguous case of alleged date
rape. In other words, the SJC does not consider it unfair for a private
university to take an accusation of rape at face value, effectively
presume the guilt of the accused, and find for the complainant after a
sham, quasi-judicial proceeding. The ruling in Schaer v. Brandeis doesn’t limit the use of kangaroo courts on campus; it encourages them.

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