Harvard Not To Aid Brandeis In Lawsuit

While 10 prestigious private Massachusetts colleges have signed a legal brief in support of Brandeis University, which is facing a lawsuit from a 1997 graduate alleging unfair disciplinary treatment, Harvard will not join them.

The state's highest court heard arguments yesterday in the suit of Brandeis graduate David A. Schaer, who was suspended from the school after being accused of "unwanted sexual conduct" by a female undergraduate.

The case has been seen as a pivotal test of students' rights on college campuses. Most universities--Harvard included--are reluctant to have their internal processes subjected to legal questioning.

Harvard's General Counsel's office did not return repeated calls yesterday afternoon, and University Attorney Allan A. Ryan Jr. declined to comment on why Harvard did not join the group in filing the brief.

The state Supreme Court is considering a Brandeis appeal following a ruling by a lower appeals court that Schaer had legal grounds to challenge Brandeis' decision.

Schaer has alleged--both in Brandeis and legal appeals--that he did not get a fair hearing, and that the school did not follow its own rules.

According to Brandeis counsel Alan D. Rose '67, the school maintains Schaer received a fair hearing. He added that students played a significant role in the decision to suspend Schaer, because four of the six members of the disciplinary board that made the decision were students.

Schaer's lawyers emphasized that they believe a ruling in their client's favor would not break new ground, because Brandeis already has an obligation to follow its own rules.

Instead, according to both Harvey A. Silverglate, educational law expert and Boston lawyer, and American Civil Liberties Union lawyer Bill Newman, such a ruling would only affirm existing state law, which says that the relationship between a student and a university is contractual in nature.

An organization founded by Silverglate--the Foundation for Individual Rights in Education (FIRE)--along with the ACLU have also filed a friend-of-the-court brief supporting Schaer's case.

Newman, who helped author that document, said if Brandeis wins, the decision "will have an onerous and chilling effect on college students rights."

According to Silverglate, this case has attracted attention because it is one of the few cases in which a student plaintiff has successfully challenged a university's disciplinary finding--even if only in one round of the appeals process. The courts originally ruled in favor of Brandeis, but Schaer successfully appealed.

"The student has almost always lost" in legal challenges, Silverglate said. "The lower courts have not taken seriously the application of these old principles of minimal fairness to private colleges. What shocked Brandeis...on appeal was that the intermediate appellate court said we had to take students' rights more seriously."

Silverglate said Harvard's decision not to join the other schools supporting Brandeis does not necessarily suggest the University disagrees with its peers.

Rather, he said, Harvard's absence from the group may stem from its connection to Massachusetts Chief Justice Margaret H. Marshall, who formerly served as the University's chief general counsel.

If Harvard had signed on to the brief filed by the 10 schools, Silverglate said, Marshall may have been forced to excuse herself from the case.

If this happened, the group of private schools--which includes MIT, Boston University and Williams College--would lose a potentially sympathetic judge on the bench, Silverglate said.

"[Harvard] didn't want to disqualify a member of the court whom it felt was probably sympathetic to it," he said.

Harvard has faced similar legal challenges in the recent past.

In July, a federal court ruled that Harvard had the right to suspend two graduating students and deny them diplomas even though they had completed all their graduation requirements.

The University's Administrative Board had found the students guilty of stealing money from Harvard Student Agencies (HSA).