January 14, 2001
Transcript, originally aired January 14, 2001
ANNOUNCER: Coming up, colleges and campus crime. Are universities dispensing justice by dispensing with due process?
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THOR HALVORSSEN, DIRECTOR, THE FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, INC.: At private universities, they can set up their own systems. And many times, the universities will proudly say, "We are private. And the constitution does not apply here."
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ALAN ROSE, ATTORNEY: 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.
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ANNOUNCER: When CNN & TIME continues.
BERNARD SHAW, CO-HOST: If your son or daughter is returning to college right now, you may want to take a moment to sit them down and go over their school handbook, specifically the section on campus justice. Why?
Here's Kathy Slobogin.
KATHY SLOBOGIN, CNN CORRESPONDENT: Twenty-one-year-old David Schaer was enjoying his junior year at Brandeis University when he was charged with sexual misconduct in a campus tribunal.
SCHAER: There was no question when I went in that room that because I was accused they had to find me guilty of something.
SLOBOGIN: For five hours, without the right to an attorney, Schaer faced a panel of five students and two faculty members. By the time it was over, he says his college career was in ruins. His parents were in shock.
PHYLLIS SCHAER, MOTHER OF DAVID SCHAER: Parents don't know that this goes on. We're not lawyers. We're not trained in this. It's horrifying.
SLOBOGIN: Phyllis and Leonard Schaer believe their son was the victim of a rare kind of justice found on many college campuses where the accused had no guarantee of due process and face penalties that can affect them for the rest of their lives.
P. SCHAER: Nobody warns you. No one tells you that when you attend these schools you're giving away your rights.
SLOBOGIN: Colleges and universities have been dispensing campus justice for over 800 years for infractions ranging from plagiarism to cheating. But a growing chorus of critics charges that students are increasingly being subject to star chambers, tried for offenses which would be considered criminal off campus with few of the protections of a courtroom. Thor Halvorssen is the director of FIRE, the Foundation for Individual Rights in Education, a group which helps students who feel their rights have been trampled, fight back.
HALVORSSEN: David Schaer is the victim of one of the most horrible kangaroo courts in existence.
These are only the cases we actually have case files for.
SLOBOGIN: He says in one year more than 400 students have contacted him for help.
HALVORSSEN: There are hundreds of universities out there that have these problems.
SLOBOGIN: Judicial proceedings vary widely from campus to campus. But according to a recent national survey published in the "Columbia Law Review," about 40 percent of all colleges deny accused students the right to an attorney. What's more, 40 percent of private schools also deny them the right to present witnesses in their defense.
HALVORSSEN: At private universities, they can set up their own systems. And many times, the universities will proudly say, "We are private. And the constitution does not apply here."
SLOBOGIN: Halvorssen says sexual misconduct cases in particular have ratcheted up the controversy ever since a 1990 federal law directed schools to set up procedures to address sexual assault on campus.
HALVORSSEN: Most of the time, the people targeted and convicted in these campus courts keep quiet about it. Nobody wants to be known as a campus rapist.
SLOBOGIN: David Schaer is one of the few students to speak out. He says he was involved in an on-again-off-again relationship with a female student at Brandeis, a relationship both admit was sometimes sexually intimate.
After a party on the night of February 13, 1996, the woman, who declined to be interviewed for this report, called Schaer and discussed him coming to her room in these dorms.
SCHAER: She asked me to come over and said we can fool around. And I asked her, I said, "What, do you want to have sex?" And she said, "Maybe."
SLOBOGIN: In a later deposition, the woman confirmed she had called Schaer. She admitted that by "fool around," she meant sexually. She also admitted that when Schaer got to her room, they began to have consensual sex.
SCHAER: We had attempted to have intercourse.
SCHAER: Yes. I mean, she gave me the condom.
SLOBOGIN: The woman claims not to remember that, and many other details. But at one point, the accounts of the evening sharply diverge. The woman claimed in a written complaint to the university that she was drunk, in and out of sleep, and that she awoke to find Schaer having sex with her a second time without her consent.
Schaer says it was consensual.
At any point this evening did she say, "I don't want to have sex tonight?"
SCHAER: I don't believe she ever did.
SLOBOGIN: Was she ever asleep, unconscious, out of it?
SCHAER: Her saying that she woke up to me having sex with her is just ludicrous. She was very much awake. And we were doing things with each other. She was never asleep. She wasn't drunk.
SLOBOGIN: It wasn't until six weeks later that Schaer was informed by a Brandeis official that the woman had filed formal charges of sexual misconduct against him, that if he didn't admit responsibility he would face a student judicial proceeding.
SCHAER: I couldn't believe it. I know I didn't do anything wrong. It's one of the reasons I was naïve enough to go through this trial. I believed that if just tell the truth, everything will be fixed.
SLOBOGIN: Schaer says the hearing was stacked against him. At Brandeis, accused students are forbidden to have an attorney. And although he was given a list of witnesses, he says he was not informed what the testimony against him would be.
SCHAER: I couldn't believe some of the stuff that went on at that hearing.
SLOBOGIN: Schaer said that the campus police detective who saw the woman a month after the incident was allowed to testify that the she looked like a rape victim. What's more, Schaer said his hearing took place amidst hysteria on campus. The student newspaper, The Justice, had just run a rape awareness campaign. There were stories by rape survivors, and reports on the prevalence of campus rape.
SCHAER: We had gone from a campus that had reported I think three or four acts of unwanted sex a year to three in one month.
SLOBOGIN: Schaer was found responsible for engaging in "unwanted sexual activity." He was suspended for the summer session, put on probation for his senior year, and ordered into counseling. A petition calling for his suspension for three years was circulated on campus. Schaer says a sign saying "Rapist Go Home" was taped to his door.
SCHAER: My life was just turned up into a living hell. This is not "did you cheat on your test." This is not "did you steal something from the cafeteria." This is something that stuck with me my entire life. I've been labeled a rapist on this campus.
DAVID LIPTON, ATTORNEY: David Schaer went into this proceeding like a lamb to the slaughter.
SLOBOGIN: The Schaer family hired attorney David Lipton to sue Brandies, claiming David Schaer's civil rights were violated.
LIPTON: They did not do even the most rudimentary investigation. Had this case been brought to a police department or a district attorney's office, they would have done an investigation, and, it's my judgment, that under no circumstances would anyone have ever proceeded against David Schaer criminally in this case.
SLOBOGIN: Schaer's suit was dismissed by a trial court. But a Mass appellate court reversed that decision, saying Schaer may have been unwarrantably placed on trial in what he claims was a super-heated atmosphere.
Brandeis appealed that decision. Ten other schools, including MIT, Tufts, and Williams filed a brief in support of their appeal. Last September, the highest court in Mass ruled against David Schaer, saying essentially that universities should discipline students the way they see fit, without interference from the courts.
ROSE: If we had a system in which universities did not act on allegations, especially serious allegations of sexual misconduct, you'd have a firestorm on campus.
SLOBOGIN: Attorney Alan Rose defended Brandeis.
ROSE: A university is entitled to set its own standards of conduct. What constitutes a serious offense on a university campus may vary widely from what someone out on the street might regard as a serious offense.
SLOBOGIN: What that means is that sexual activity that would be perfectly legal off campus can be defined as misconduct on campus.
So, a man could be subject to a sexual misconduct charge if he has sex with a woman who has had a drink, even if she said yes?
ROSE: That is correct. If the culture on campus says that if you have had a drink, you cannot knowingly consent to a sexual relationship.
SLOBOGIN: At the time of Schaer's incident, there was nothing in the Brandeis student handbook prohibiting sex and alcohol. But Rose said that campus culture discouraged it. He said David Schaer was being charged with campus misconduct, not a criminal offense; that the panel which judged Schaer gave him a fair hearing.
ROSE: What Mr. Schaer had here was a jury of his peers. They heard all this testimony, and they decided to believe the complaintant's side of the story, and not to believe his side of the story. That, I think, is the essence of fairness.
SLOBOGIN: David Schaer may think he was denied a fair hearing at Brandeis, but at Columbia University he would have had even fewer rights. Here, there is a separate code and separate judicial proceedings for sexual misconduct. Critics say it is the worst erosion yet of the rights of the accused; activists see it as a groundbreaking model.
SARAH RICHARDSON, STUDENTS ACTIVE FOR ENDING RAPE: We feel that this policy as a great step forward.
SLOBOGIN: Sarah Richardson is a leader of a student group called SAFER, or Students Active for Ending Rape. SAFER organized rallies and marches to push for Columbia's new code, charging that Columbia's old policy was insensitive to victims and rarely used.
RICHARDSON: For years and years, when students brought a complaint of sexual assault, they were laughed at, assumed to be lying, and became the center for scrutiny. And this is a problem in our society at large.
SLOBOGIN: Columbia's policy calls for student education and prevent campaign. But while it may be more accessible to victims of sexual misconduct it denies the accused not only the right to an attorney, but the right to cross-examine witnesses.
HALVORSSEN: Columbia University wants to do away with all due process protections - it wants to convict. All they are interested in is proving to a group of student activists that they have convicted more men of rape this year.
SLOBOGIN: Are you confident that this process is fair to the accused?
PATRICIA CATAPANO, ASSOCIATE GENERAL COUNSEL, COLUMBIA UNIVERSITY: Yes I am.
SLOBOGIN: Patricia Catapano, Columbia's Associate General Counsel, says universities should not have to function like a criminal court.
Why does a university have a different set of rules?
CATAPANO: Because a university has a different set of goals. When you are talking about being accused of rape and having the right to counsel, you are talking about the criminal system. At the university, our goal is to maintain a campus that is free from sexual misconduct, and to educate our students. It's not to send our students to jail.
HALVORSSEN: That's hogwash. You do not try someone for rape and say this is educational.
SLOBOGIN: David Schaer says he can't leave behind the ordeal of his campus conviction.
SCHAER: It will follow me around because I went through four years of what was supposed to be the best years of my life, and I just wish they never happened. I wish I never went to Brandeis, and my college life, no matter how good any part of it was, has been relegated to this one incident. I'll never get over it.
SHAW: Columbia's new approach to campus discipline is drawing the ire of the college's ACLU student chapter. The group is meeting with peers and faulty in an attempt to reform the university's controversial code.
ANNOUNCER: For more reporting of this kind, read TIME magazine this week.