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Schaer v. Brandeis University9/30/1999
97-P-1868 Appeals Court
Middlesex.
May 11, 1999.
Education, Private colleges and universities, Disciplinary matter. Due Process of Law, Private college. Contract, Private college. Privacy.
Civil action commenced in the Superior Court Department on June 4, 1996.
The case was heard by Herman J. Smith, Jr., J., on a motion to dismiss.
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. 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. 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 " 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."
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 sa
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