Kaminer on Schaer
September 28, 2000
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.