Ad Board Challenge Faces Uphill Battle

Harvard's administrative board provides students with few of the legal protections provided by courts, such as the right to cross examine accusers and to be represented by counsel. But while many call the system unjust, its standards have proven difficult to challenge in court.

Aside from the lawsuit brought against the University last month by two students seeking their diplomas, four attorneys who have been involved with administrative board cases say they are aware of only one other challenge to make it to trial in recent years.

Even that case--a 1997 challenge--ended in a settlement between the two parties after a week of trial testimony.

"There have been cases before, [but] they have generally been settled," says Harvey A. Silverglate, who represents one of the plaintiffs in the current lawsuit.

Lawyers familiar with College disciplinary proceedings say challenges to the system are few and far between because courts are reluctant to intervene in University matters.

"In ordinary circumstances, courts are extremely reluctant to overturn a disciplinary decision from a University," said Roderick MacLeish Jr, a Boston lawyer who has advised 12 College students on cases before the administrative board.

Courts have intervened in the past when issues of race, gender, and handicap have been involved.

MacLeish said the 1997 lawsuit, in which he and Frankfurter Professor of Law Alan M. Dershowitz argued a case in court for a week before reaching a settlement, involved a handicapped student.

For other students, the Courts have generally been hesitant to become involved unless officials' conduct is deemed "arbitrary and capricious."

In the 1983 case of Coveney v. President and Trustees of the College of Holy Cross, the court declared that it would not overturn school decisions "if school officials act in good faith and on reasonable grounds."

"The courts stated basically 'we're not going to second guess administrators as long as there is no race and gender bias...we're not going to get involved in these matters,'" MacLeish said.

Attorneys for the two students in the current challenge attempted to avoid this problem by claiming that the University had violated its contract with students. But on Tuesday a federal judge rejected the claim that suspending the students after they had completed their graduation requirements constitutes contract violation.

Attorneys for the students have also claimed the College violated its own administrative board rules during the investigation. But according to Harvard Law School Professor Bruce L. Hay, it would take a fairly significant breach of University protocol for the courts to step in.

"If the University did follow the procedures that it usually follows, whatever it decided would probably be considered final," he said. "If the University held a hearing and found misconduct occurred, a court would usually be reluctant to overrule it."

Still, administrative board critics hold out the hope that a court might find Harvard's system so unfair that it would be willing to step in.

"The 'arbitrary and capricious' [legal] standard is a very tough one, but if there is an institution that's arbitrary and capricious, it's the ad board," MacLeish said.

"You're seeing more and more cases go to court, and I can't wait for a good one to come up," he added. "This may not be the right one, but maybe this will break some ground."