When David Schaer sued Brandeis University for denying him a fair hearing before the school's judicial board, ten area colleges filed briefs in Brandeis' defense. Tufts was among them. In late September, the Massachusetts Supreme Court ruled against Schaer, and convicted him of sexual misconduct.
Tufts officials breathed a collective sigh of relief at first news of the decision. If successful, Schaer's case would have called into question the very foundation of Tufts' form of justice: specifically, the right of a private institution to conduct hearings and mete out punishments when students are accused of criminal charges.
"It was a victory for us," said Veronica Carter, Tufts' associate dean of students and the head of judicial affairs.
Schaer was convicted of "unwanted sexual activity" after a former girlfriend filed charges against him with the university. According to the plaintiff, who was admittedly inebriated at the time of the incident, Schaer engaged in forced intercourse with her while she slept. He denied the charges, arguing at the hearing that the sex was consensual. When the verdict came down, Schaer found himself banned from campus for the summer, on disciplinary probation, and ordered to undergo counseling.
The subsequent lawsuit initially concerned the technicalities of the Brandeis judicial system. Were the school's own rules followed by the disciplinary board of four students and two faculty members? The Supreme Court's ruling, however, has set broad guidelines for all private universities in its jurisdiction.
The 3-2 majority opinion ruled that "a university is not required to adhere to standards of due process guaranteed to criminal defendants." That decision, written by Justice Ruth Abrams, allows university administrators to construct unique standards of justice, which may or may not reflect the norms of the American criminal justice system.
The laws of the Commonwealth have long supported this precedent, only permitting student appeals of university disciplinary findings in cases where the school's own rules were applied in an "arbitrary or capricious" manner. It is rare that the university procedures themselves come under scrutiny, and the recent ruling further strengthened the hand of academic judicial officers.
"The ruling says that private schools have the right to create their own judicial systems," Dean of Students Bruce Reitman said. "[Tufts] made a decision way back that we have a moral obligation to pursue [criminal-level] cases. It's probably nice that the Court affirmed that right."
But critics of the power of collegiate judiciaries, both at Tufts and throughout Massachusetts, argue against the latitude afforded to universities in their ever-evolving establishment of a disciplinary structure. Accusations range from a pro-victim bias to amateur hearings to overly ambiguous statutes. Daniel Lewis (LA, '00), a former member of the Tufts Community Union Judiciary (TCUJ), sat on a sexual assault case last year and emerged highly skeptical of Tufts' justice. Since then, he has been active in efforts to defend civil liberties on college campuses.
"The system has its problems," Lewis said. "When dealing with real crimes, I don't think the University has the wherewithal to handle these cases. It's better to leave it to real police."
On the Tufts campus, Lewis argued, there is an inherent bias towards the victim that can potentially taint the objectivity of collegiate judicial panels.
"At Tufts, being accused is step one to being guilty," he said.
Schaer was not alone in his lawsuit, which named seven Brandeis administrators as defendants in addition to the university. The Massachusetts chapter of the American Civil Liberties Union filed an amicus (friend-of-the-court) brief on Schaer's behalf. The Foundation for Individual Rights in Education (FIRE), an organization that has been highly critical of Tufts in the past, filed one as well.
For attorney Harvey Silverglate, FIRE's vice president and co-founder, universities throughout the nation do not protect the rights of accused students.
"We don't happen to know any university that has a system that is adequate to the task," Silverglate said. "We do have a suggestion for how to deal with this problem. If there is a charge against a student where it constitutes serious criminal conduct, the university would be better off letting the criminal justice system take its course and letting the student judiciary follow-up.
"I haven't found anyone on any campus who is professional about this. They pride themselves on the fact that these proceedings are not legal proceedings," he said.
Reitman disagrees. When addressing the topic, he cited a situation in which a student accused of rape was permitted to remain on campus. There was no university intervention prior to the findings of the criminal court and raped again before his conviction and sentencing. "What do you do with a person when you're waiting for the court for a year and half?" he asked. His answer: "To the best of your ability, you go forward with the procedure."
Reitman has much confidence in the procedure. Since 1987, there have been 26 student-to-student rape charges filed with the Tufts administration. Thirteen times, the accused student voluntarily left Tufts. One quarter of the cases were resolved in formal mediation and only about six ever reached the hearing stage. Of those, the guilty to not-guilty ratio is exactly even. That last statistic, Reitman said, "hopefully demonstrates that there's some fairness."
According to Reitman, approximately 40 percent of cases are appealed, but the student almost always objects to the severity of the punishment rather than any procedural improprieties.
"I think it is very professional. It's very well organized," said Jessica Branco (LA, '00), former co-chair of the TCUJ. Branco, who was in charge of the TCUJ when the Tufts Christian Fellowship controversy broke last year, sat on three disciplinary panels during her time at Tufts, including the case Lewis characterized as unjust.
"I do believe that justice was served [in that case]," she said. "I think it's a very effective judicial system for the University to have in place."
The state Supreme Court seems to agree with Branco. In fact, its ruling almost takes for granted the ability of college administrators to create disciplinary procedures that do not resemble criminal law, but nonetheless maintain appropriate levels of fairness.
Carter spoke with a Brandeis attorney about the case after the Court handed down the Brandeis decision, and has since modified Tufts procedures to eliminate any legalistic terminology that would give students the false impression that University due process mirrors state criminal justice. "We update the booklet every summer," she said. "We did try to change our wording after the case."
