Schaer v. Brandeis University

• Decision Date: 30 September 1999
• Docket Number: No. 97-P-1868,97-P-1868
• Citation: Schaer v. Brandeis University, 716 N.E.2d 1055, 48 Mass.App.Ct. 23 (Mass. App. 1999)
• Parties: David Arlen SCHAER v. BRANDEIS UNIVERSITY & others. 1
• Court: Appeals Court of Massachusetts

Page 1055

716 N.E.2d 1055

48 Mass.App.Ct. 23

David Arlen SCHAER v. BRANDEIS UNIVERSITY & others. ¹

No. 97-P-1868.

Appeals Court of Massachusetts Middlesex.

Argued May 11, 1999.

Decided Sept. 30, 1999.

David M. Lipton for the plaintiff.

Alan D. Rose, Boston, for the defendants.

Present: KASS, PORADA, & LENK, JJ.

KASS, J.

As framed, the charges upon which Brandeis University (Brandeis) disciplined David Arlen Schaer, a third-year undergraduate, were (1) engaging in unwanted sexual activity; and (2) creating a hostile environment for the accuser, both offenses in violation of the rights and responsibilities section of the student handbook. The university board on student conduct found Schaer to have committed those infractions and disciplined him with a three-month suspension and by placing him on disciplinary probation for his last college year. On appeal the parties present questions about the availability and extent of judicial review of a private university's disciplining of one of its students.

Schaer filed a seven-count complaint in Superior Court asking for injunctive relief and compensatory damages; the former was denied and, thereafter, the complaint as a whole was dismissed for failing to state a claim for which relief can be granted. Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). We affirm in part and reverse in part that disposition.

Stripped of euphemism, Brandeis's complaint against Schaer was that he raped a fellow student; i.e., the accusing student said that after some foreplay she had told Schaer she "did not want to have sex" and then, while awakening from sleep, found Schaer inside her. ² Schaer's response was that the sexual intercourse in which he had engaged with his accuser was not merely consensual, but had been urgently and ardently invited by her. He asked for and received a hearing before the university board on student conduct (board). That board consisted of six students (counting the chairperson as a student--the record is not clear on the point) and two faculty members. ³ Thirteen witnesses (including the principals) appeared before the board. As noted, the board found Schaer responsible for the violations charged. The sanction of suspension bridged the summer recess but forbade Schaer's being on Brandeis property. That sanction was not without consequence because Schaer had intended to spend the summer continuing work on a biomedical research project in a Brandeis laboratory. In addition, the board ordered Schaer: on probation for the balance of his "time as a student at Brandeis"; to avoid any and all contact with his accuser; and to "[u]ndergo appropriate professional counseling and provide proof of same to the Dean of Student Affairs." Schaer filed a request for a new hearing before the university appeals board on student conduct (appeals board). The appeals board "did not find sufficient merit in [Schaer's] written presentation to grant a new hearing." ⁴

These events occurred in the winter and spring of 1996, i.e., the encounter was in the early hours of February 14, and the appeals board denied rehearing on May 13, 1996. By now, Schaer would either have graduated or completed his undergraduate work elsewhere. There is no suggestion of mootness, however, because there are claims of money damages and, more significantly, because notation of the board's decision in Schaer's student record has potential for harming his career. See Greene v. Howard Univ., 412 F.2d 1128, 1130-1131 (D.C.Cir.1969); Clayton v. Trustees of Princeton Univ., 608 F.Supp. 413, 436 (D.N.J.1985), quoting from an earlier decision involving an earlier phase (summary judgment) of the same case reported at 519 F.Supp. 802, 805 (D.N.J.1981); Note, Common Law Rights for Private University Students, 84 Yale L.J. 120, 129 (1974).

Schaer's complaint is anything but a "short and plain statement of the claim." Mass.R.Civ.P. 8(a)(1), 365 Mass. 749 (1974). It sends 125 paragraphs sprawling over thirty-four pages. One gets the point; Schaer alleges that the Brandeis disciplinary process was fundamentally unfair. That is not a promising claim as the student manual attached as an exhibit to the complaint describes a procedure that is manifestly adequate for a private association. There are, however, more specific allegations that Brandeis in Schaer's case did not abide by the rules it set for itself and students in the rights and responsibilities code (code). Those are:

(a) Brandeis failed, prior to bringing the complaint against Schaer before its "judicial system," to make a careful evaluation of the facts and of the credibility of persons reporting them as required by § 17 of the code ⁵;

(b) The board failed to make a record of the proceedings, as required by § 19.4 of the code;

c) The hearing panel received irrelevant and inflammatory testimony and arbitrarily excluded relevant evidence, in violation of § 19.13 of the code;

(d) The hearing panel failed to apply the "clear and convincing evidence" standard established for decision making by § 19.13 of the code;

(e) The hearing panel and its advisor failed woefully in according Schaer the procedural due process required by § 18.11 of the code.

Those five allegations, and the inferences to be drawn from them, must be taken as true for purposes of deciding whether the dismissal under rule 12(b)(6) was correct. Nader v. Citron, 372 Mass. 96, 98, 360 N.E.2d 870 (1977). McCone v. New England Tel. & Tel. Co., 393 Mass. 231, 232, 471 N.E.2d 47 (1984). Blieden v. Blieden, 14 Mass.App.Ct. 959, 961, 438 N.E.2d 371 (1982). We proceed to consider whether, on the five allegations, Schaer can prove any set of facts that would entitle him to relief. General Motors Acceptance Corp. v. Abington Cas. Ins. Co., 413 Mass. 583, 584, 602 N.E.2d 1085 (1992). Pucci v. Amherst Restaurant Enterprises, Inc., 33 Mass.App.Ct. 779, 783, 605 N.E.2d 309 (1992). We shall touch summarily on some of the other counts in the complaint.

1. Failure to comply with Brandeis's code. Courts are chary about interfering with academic and disciplinary decisions made by private colleges and universities. See Russell v. Salve Regina College, 890 F.2d 484, 489 (1st Cir.1989), rev'd on other grounds, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991), reinstated 938 F.2d 315 (1st Cir.1991); Clayton v. Trustees of Princeton Univ., 608 F.Supp. at 437-438. See also Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 87, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). Cf. Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. 16, 19, 445 N.E.2d 136 (1983); Cloud v. Trustees of Boston Univ., 720 F.2d 721, 724 (1st Cir.1983). It is a deference born of respect for the independence of private associations and disinclination by courts to be drawn into their internal governance. See Chafee, The Internal Affairs of Associations Not for Profit, 43 Harv. L.Rev. 993, 1021-1029 (1930). ⁶ Reluctance of courts to become involved in student discipline diminishes as the subject matter graduates from academic issues to misconduct. Board of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. at 87-91, 98 S.Ct. 948. Barnard v. Shelburne, 216 Mass. 19, 22, 102 N.E. 1095 (1913) (involving a public high school but making the academic failure/misconduct distinction). Napolitano v. Trustees of Princeton Univ., 186 N.J.Super. 548, 567, 453 A.2d 263 (App.Div.1982). Tedeschi v. Wagner College, 49 N.Y.2d 652, 658, 427 N.Y.S.2d 760, 404 N.E.2d 1302 (1980). Swem, Due Process Rights in Student Disciplinary Matters, 14 J.C. & U.L. 359, 361-364 (1987). So, for example, a court is most unlikely to adjudicate whether an examination has been graded fairly or a student has been fairly placed on probation by reason of poor academic performance. Plagiarism is more an academic than societal offense. Napolitano v. Trustees of Princeton Univ., 186 N.J.Super. at 569-570, 453 A.2d 263. If a student is disciplined for defacing college property or postgame brawling, the degree of deference will still be very considerable because this involves concerns peculiar to the educational institution. Should the student, however, be suspended or expelled for misconduct, such as theft or--as here--rape, the subject matter is not only familiar to courts but mars the record of the student in a manner that is likely to have serious consequences for the student in admission for graduate study or competition for a job. See Greene v. Howard Univ., 412 F.2d at 1130-1131; Clayton v. Trustees of Princeton Univ., 608 F.Supp. at 436; Note, Common Law Rights for Private University Students, 84 Yale L.J. at 129. See also Rutledge v. Gulian, 93 N.J. 113, 118-119, 459 A.2d 680 (1983) (speaking of valuable relationship that a person has to the institution).

In Coveney v. President & Trustees of the College of the Holy Cross, 388 Mass. at 19-20, 445 N.E.2d 136, the court applied as the standard of review whether the college, in dismissing a student for misconduct, had acted arbitrarily or capriciously. In that case, decided on a motion for summary judgment, it was undisputed that the student had committed a serious infraction of college rules (there, too, the offense was sexual in nature) and the dispute was only about whether expulsion was justified. The degree of discipline, the court concluded, was within the discretion of the institution and a hearing before the president was adequate; there was no inherent requirement for a hearing with the trappings of procedural due process, e.g., right to counsel, right to confront witnesses, right to cross-examination, etc. Id. at 21-22, 445 N.E.2d 136. See Goss v. Lopez, 419 U.S. 565, 583, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).

The Coveney opinion neither dismisses the idea that a student at a private university in certain circumstances is entitled to a hearing nor forgoes the duty of a court to examine whether the disciplinary proceedings, including the hearing, have been conducted with basic...