Justice 101

January 14, 2001

Early in the morning on Valentine’s Day in 1996, Brandeis University student David Schaer says he got a call from an on again, off again girlfriend. They had both been at a party earlier in the evening and now discussed his coming over to her room to “fool around”. Later that night, after engaging in what Schaer says was consensual sex, the young woman turned away and began to cry. She then asked him to leave her room.

Columbia University

Columbia University in New York City is the latest battleground over campus judicial systems. The University recently set up a special court and a special code for sexual misconduct. SAFER, Students Active for Ending Rape, proudly takes credit for organizing a grass roots campaign to get the university administration to adapt the new code. The group claims that the old policy was insensitive to victims and seldom used. But the new code has alarmed critics because it denies the accused the right to cross examine witnesses, be present during testimony or have legal counsel present. SAFER claims the policy is a model for other colleges and sees it as the beginning of a movement to address sexual assault on campus.

Critics like Thor Halvorssen, director of the Foundation for Individual Rights in Education, Inc., say that this is an example of their worst nightmare – that the policy is inherently unfair and violates civil liberties. They claim that political correctness is reeling out of control and that accusations of sexual misconduct are all that is needed to convict someone of a crime that is tantamount to rape.

Sarah Richardson, President of SAFER, is dismayed at the firestorm created by the policy. Richardson feels that traditionally, complaints of sexual misconduct were ignored by officials and that student victims were “laughed at and assumed to be lying.” SAFER feels that the policy is a “great step forward” and disputes allegations that it is unfair.

In fact, Richardson argues that the new policy has made the university proactive about sexual assault by requiring student education and statistic collection.

Patricia Catapano, Columbia’s Associate General Counsel, says that universities are not obligated to follow the rules of a courtroom because they have different goals than the courts. “When you’re talking about being accused of rape and having the right to counsel, you’re talking about the criminal system. At the university our goal is to maintain the campus free from sexual misconduct and to educate our students. It’s not to send our students to jail.”

Six weeks later, Schaer was informed that the woman had filed formal charges of sexual misconduct against him. He was called in front of the Student Judicial Board. In the closed proceedings, without the right to a lawyer, Schaer faced a panel of five students and two faculty members who found he had engaged in unwanted sexual activity. He was given a four-month suspension over the summer session, put on probation and ordered to seek counseling. Schaer fought back. He filed a lawsuit against Brandeis arguing that his civil rights had been violated.

Thor Halvorssen, Director of FIRE, the Foundation for Individual Rights in Education, Inc., says “David Schaer is the victim of one of the most horrible kangaroo courts in existence.”

Halvorssen is outraged by what he calls a “witchhunt” on campuses and a rise of “star chambers” at universities across the country. Student/faculty judicial boards – often, according to Halvorssen, with an agenda — are allowed to mete out punishments for serious offenses with no guarantee of due process.

Halvorssen says that at some colleges students face possible career threatening sentences without basic rights like the right to an attorney, the right to confront their accusers, the right to hear evidence against them and to cross-examine witnesses. FIRE has a network of lawyers who take on cases like Schaer’s pro bono. The message to parents – this could be your child.

Schaer’s lawsuit accused Brandeis University of violating his civil rights and failing to follow its own procedures in an investigation. The lower court dismissed the case, but an appellate court reinstated it, questioning the fairness of the proceedings and saying Schaer may have been unwarrantably placed on trial. Last September however, the Massachusetts Supreme Court reversed that decision and said, basically, that the courts had no right to interfere with Brandeis’ internal affairs.

Brandeis, and other New England universities, who had filed briefs in support of the school, was relieved by the ruling. They argue that colleges have a right to discipline students according to their own community standards in a process they deem fair.

Brandeis’ lawyer, Alan Rose, argues that universities have a legal and moral obligation to keep their campuses safe and nip potential problems in the bud; that a failure to do this would open them up to massive litigation. “If we had a system in which universities did not act on allegations, especially serious allegations of sexual misconduct, you would have a firestorm on campus.”

The Schaer case reaches the heart of a debate raging on university campuses. Should schools be able to adjudicate and punish students for serious offenses without due process?

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