|||THE SUPREME JUDICIAL COURT OF THE STATE OF MASSACHUSETTS
|||September 25, 2000
|||DAVID ARLEN SCHAER V. BRANDEIS UNIVERSITY.
|||Alan D. Rose (Alan D. Rose, Jr., with him) for the defendant. David M.
Lipton for the plaintiff. The following submitted briefs for amici curiae:
Harvey A. Silverglate, William C. Newman, & John Reinstein for American
Civil Liberties Union of Massachusetts & another. Robert E. Sullivan,
Margaret Wood Hassan, Andrea C. Kramer, & Nina R. Mishkin for Babson
College & others.
|||Present (Sitting at Worcester) Marshall, C.J., Abrams, Greaney, Ireland,
& Cowin, JJ.
|||The opinion of the court was delivered by: Abrams, J.
|||May 1, 2000.
|||Practice, Civil, Complaint, Motion to dismiss. Contract, Private college.
Due Process of Law, Private college. Education, Private colleges and universities,
|||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.
|||After review by the Appeals Court, the Supreme Judicial Court granted
leave to obtain further appellate review.
|||The plaintiff, David Arlen Schaer, a student at Brandeis University (Brandeis),
filed a seven-count complaint in the Superior Court against Brandeis, seeking
injunctive relief and compensatory damages.*fn1
One Superior Court judge denied injunctive relief and another dismissed
the entire complaint for failing to state a claim for which relief can be
granted. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 755 (1974). Schaer appealed
from the dismissal of his complaint. The Appeals Court affirmed for the
most part, but reversed on count three of the complaint, which alleged breach
of contract. Schaer v. Brandeis Univ., 48 Mass. App. Ct. 23 (1999). We granted
Brandeis's application for further appellate review.*fn2
We conclude that Schaer has failed to state a claim on which relief may
be granted. We affirm the judgment of the Superior Court.
|||1. Facts and procedural history.
|||On March 25, 1996, a female student (complainant) filed a report with
the Brandeis student judicial system. In the report, she stated that Schaer
came to her dormitory room during the early hours of February 14, after
she had spoken with him on the telephone. The complainant alleged that,
after they kissed, she told Schaer that she "did not want to have sex."
She further alleged that she later awoke from sleep to find Schaer having
intercourse with her.
|||After a hearing on April 24, the university board on student conduct (board)
found Schaer to have: (1) engaged in unwanted sexual activity and (2) created
a hostile environment. The board suspended Schaer for approximately four
months*fn3 and placed
him on disciplinary probation for his remaining time at Brandeis. *fn4
Schaer requested a new hearing before the university appeals board on student
conduct (appeals board). The appeals board denied his request on May 13.
|||On June 4, Schaer filed his complaint in the Superior Court, alleging
that he had been unfairly disciplined. He sought injunctive relief and compensatory
damages. A Superior Court judge held a hearing and denied Schaer's request
for an injunction. Brandeis then moved to dismiss Schaer's complaint for
failure to state a claim for which relief could be granted. See Mass. R.
Civ. P. 12 (b) (6). A second Superior Court judge granted Brandeis's motion,
and Schaer appealed.
|||The Appeals Court upheld the Superior Court judge's judgment of dismissal
except with respect to Schaer's breach of contract count.*fn5
We agree with the Appeals Court that only the breach of contract claim needs
to be analyzed. As to this claim, the Appeals Court reversed the Superior
Court, concluding that "Schaer's complaint, indulgently read, Federico
v. Brockton Credit Union, 39 Mass. App. Ct. 57, 61 (1995), states a claim
that Brandeis did not substantially conform its disciplinary process in
Schaer's case to the [contract]." Schaer v. Brandeis Univ., supra at
29. The Appeals Court based its conclusion on Schaer's allegations that
Brandeis failed to follow certain procedures outlined in "Rights and
Responsibilities" (contract), which is contained within Brandeis's
student handbook. Id. at 28-29. The Appeals Court concluded that Brandeis
failed to follow its own procedures in five respects.*fn6
Id. at 29-30.
|||As a threshold matter, we note that the judge could have dismissed Schaer's
complaint for failure to state "a short and plain statement of the
claim." Mass. R. Civ. P. 8 (a) (1), 365 Mass. 749 (1974). See Garrity
v. Garrity, 399 Mass. 367, 369 (1987). The complaint, including attachments,
is more than 115 pages and includes 125 separately numbered paragraphs.
See Schaer v. Brandeis Univ., supra at 25 ("Schaer's complaint is anything
but a 'short and plain statement of the claim.' Mass. R. Civ. P. 8(a)(1)
. . . . It sends 125 paragraphs sprawling over thirty-four pages").
Each of the seven counts incorporates paragraphs one through 108 in their
entirety. In short, the complaint fails adequately to inform Brandeis "'of
the nature of [each] claim and the grounds on which [Schaer] relies.' Druker
v. Roland Wm. Jutras Assocs., 370 Mass. 383, 385 (1976)." Garrity v.
Garrity, supra. Because neither the Superior Court nor the Appeals Court
dismissed Schaer's complaint on this basis, we turn to the substance of
the motion to dismiss.
|||A motion to dismiss under rule 12 (b) (6) should be allowed if Schaer
has "fail[ed] to state a claim upon which relief can be granted."
In evaluating a rule 12 (b) (6) motion, we take into consideration "the
allegations in the complaint, although matters of public record, orders,
items appearing in the record of the case, and exhibits attached to the
complaint, also may be taken into account." 5A C.A. Wright & A.R.
Miller, Federal Practice and Procedure Sect. 1357, at 299 (1990). We also
accept Schaer's factual allegations as true. Warner-Lambert Co. v. Execuquest
Corp., 427 Mass. 46, 47 (1998). However, we do not accept legal conclusions
cast in the form of factual allegations. "The rule that we accept [Schaer's]
well-pleaded factual averments and indulge every reasonable inference hospitable
to [his] case 'does not entitle [him] to rest on "subjective characterizations"
or conclusory descriptions of a "general scenario which could be dominated
by unpleaded facts."'" Judge v. Lowell, 160 F.3d 67, 77 (1st Cir.
1998), quoting Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 53 (1st
Cir. 1990). See generally 5A C.A. Wright & A.R. Miller, Federal Practice,
supra at 315-318 nn.16-21, and cases cited.
|||Because the parties do not dispute the fact that a contractual relationship
exists between Schaer and Brandeis, we assume, without deciding, that such
a contractual relationship exists. Thus, we employ "the standard of
'reasonable expectation -- what meaning the party making the manifestation,
the university, should reasonably expect the other party to give it.'"
Cloud v. Trustees of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983), citing
Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert.
denied, 435 U.S. 971 (1978). We therefore review each factual allegation
to determine whether Schaer has asserted facts which establish that Brandeis
failed to meet his reasonable expectations, thereby violating its contract
|||a. Failure to investigate in accordance with procedures established by
Sect.Sect. 16.5 and 17 of the contract.
|||Schaer contends that Brandeis violated Sect.Sect. 16.5 and 17 of the contract
by failing to investigate the complaint. Schaer asserts that at the time
of the investigation, he was not asked to give a statement, to offer evidence,
or to provide witnesses. As the Superior Court judge noted, Schaer has failed
to state a claim under Sect. 16.5 because that section does not apply to
investigations of student misconduct.*fn8
|||Section 17 provides, in relevant part: "[T]he available facts shall
be gathered from the [complainant] and a careful evaluation of these facts,
as well as the credibility of the person reporting them, shall be made.
If corroboration of the information presented is deemed necessary, further
inquiry and investigation shall be undertaken." Nothing in this section
requires university officials to obtain an interview from the accused student,
to seek evidence from the accused student, or to grant the accused student
an opportunity to provide witnesses at the investigatory stage in the proceedings.
Thus, Schaer could not assign to the contract the meaning he now claims
it has. On the facts alleged, Schaer has not stated a claim for which relief
may be granted on the ground that Brandeis violated Sect.Sect. 16.5 or 17
of the contract.
|||b. Failure to employ the standard of proof required by Sect. 19.13.
|||Schaer alleges that Brandeis violated Sect. 19.13, which requires that
the board must base its finding "only upon clear and convincing evidence."
His contention that the board failed to use the appropriate standard is
a legal conclusion, not a factual allegation. "It is only when . .
. conclusions are logically compelled, or at least supported, by the stated
facts, that is, when the suggested inference rises to what experience indicates
is an acceptable level of probability, that 'conclusions' become 'facts'
for pleading purposes." The Dartmouth Review v. Dartmouth College,
889 F.2d 13, 16 (1st Cir. 1989). See generally 5A C.A. Wright & A.R.
Miller, supra. Schaer has not set forth facts specifically supporting this
allegation. In the absence of such facts, we conclude that Schaer has not
stated a claim for which relief may be granted.*fn9
|||c. Failure to use evidence in accordance with the procedures outlined
in Sect. 19.13.
|||Schaer contends that the board violated its contract by excluding testimony
from an expert (Schaer's sister *fn10
) as to the difference between rape and "regretted sex." Instead
of admitting this testimony, Schaer asserts, the board used its own experience
to reach its finding. Schaer concludes that this violated Sect. 19.13, which
provides, in relevant part: "Decisions shall be based solely upon evidence
and testimony introduced at the hearing." As the Superior Court judge
noted: "This claim does not state a violation of [Sect.] 19.13. While
that rule prohibits the board from evaluating evidence not introduced at
the hearing, it does not preclude members of the [board] from using their
own common sense and expertise." Schaer has not stated a claim for
a violation of Sect. 19.13.*fn11
|||d. Failure to make a record, as required by Sect. 19.14.
|||Schaer also alleges that Brandeis violated Sect. 19.4, which requires
a record of the proceedings. Schaer does not dispute that a record was made,
but contends that the record is insufficient. Specifically, he contends
that the "'record' does not contain a summary of the testimony, in
direct contravention of the language of the rule." Further, he contends
that the brief record is inadequate documentation of thirteen witnesses
who presented conflicting testimony over more than five hours.
|||Section 19.14 provides, in relevant part: "A record of each hearing,
comprised of a summary of the testimony and evidence presented, and of the
decision rendered, shall be made by the adviser to the board." The
section does not require that the testimony of each witness be summarized.
It does not require the record to be any minimum length.*fn12
We note that the report was extremely brief. The better practice would have
been to produce a more complete report. Nevertheless, nothing in the contract
suggests that disciplinary proceedings will be conducted as though they
were judicial proceedings. We conclude that Schaer may not properly claim
that the record here failed to meet his reasonable expectations.*fn13
|||In addition to reviewing the allegations of breach of contract, "[w]e
. . . examine the hearing to ensure that it was conducted with basic fairness."
Cloud v. Trustees of Boston Univ., supra at 725. See Coveney v. President
& Trustees of the College of the Holy Cross, 388 Mass. 16, 20 (1983).
The Superior Court judge carefully teased out the allegations of unfair
process Schaer sprinkled through his complaint. We have reviewed the complaint
and discern no additional allegations that require discussion.
|||The complaint includes allegations of violation of basic fairness due
to the improper admission of testimony from four witnesses.*fn14
Although these statements would be excluded from a courtroom under the rules
of evidence, a university is not required to abide by the same rules.*fn15
Brandeis may choose to admit all statements by every witness or it may choose
to exclude some evidence. It is not the business of lawyers and judges to
tell universities what statements they may consider and what statements
they must reject. We conclude that admission of these statements does not
constitute a violation of the contract. The facts alleged do not show that
Schaer was denied basic fairness.
|||The complaint also alleges that the hearing was conducted in an atmosphere
of "hysteria and misinformation." This allegation is based on
the fact that several articles and editorials about rape were published
in the student newspaper during March, 1996, Women's Month at Brandeis.
Schaer further alleges that some of the "hysterically published"
information is invalid. These allegations do not support a conclusion that
Schaer's hearing was not conducted with basic fairness. Nothing in these
allegations addresses the conduct of the hearing. There is no reasonable
inference from these allegations that the situation on campus, assuming
the truth of the allegations, affected the disciplinary proceedings. The
factual allegations in the complaint do not support the conclusion set forth
in the complaint.*fn16
|||We adhere to the principle that "[c]courts are chary about interfering
with academic and disciplinary decisions made by private colleges and universities."
Schaer v. Brandeis Univ., supra at 26, citing Russell v. Salve Regina College,
890 F.2d 484, 489 (1st Cir. 1989), rev'd on other grounds, 499 U.S. 225,
reinstated on remand, 938 F.2d 315 (1st Cir. 1991). A university is not
required to adhere to the standards of due process guaranteed to criminal
defendants or to abide by rules of evidence adopted by courts. "A college
must have broad discretion in determining appropriate sanctions for violations
of its policies. See Woods v. Simpson, [146 Md. 547, 551 (1924)]. Cf. Frank
v. Marquette Univ., [209 Wis. 372, 377-378 (1932)]." Coveney v. President
& Trustees of the College of the Holy Cross, supra at 20. Last, we advise
that nothing in this decision dampens the teachings of Coveney, which applies
in cases where there is no contractual relationship.
|||While a university should follow its own rules, Schaer's allegations,
even if true, do not establish breaches of contract by Brandeis. Thus, Schaer
has failed to state a claim for which relief can be granted. We affirm the
judgment of dismissal entered by the Superior Court.
|||IRELAND, J. (dissenting, with whom Cowin, J., joins).
|||I write separately because I believe the court, while correctly assuming
that a contract exists between Brandeis and its students regarding the university's
disciplinary procedures, fails to interpret the provisions of the disciplinary
code in a commonsense way, or in a manner consistent with the standard rules
of contract interpretation. The strained reading the court gives to these
contractual provisions is troubling because Brandeis should be required
to follow its own internal rules when imposing serious disciplinary sanctions
on a student. As consumers, *fn17
students should not be subject to disciplinary procedures that fail to comport
with the rules promulgated by the school itself. I therefore respectfully
dissent. As I also believe that the court does not apply the appropriate
standard of review to a motion to dismiss, I am in agreement with the dissent
of Justice Cowin. Post at .
|||The court assumes, without deciding, that a contractual relationship exists
between Brandeis and its students. Ante at . I would further state that
such a contractual relationship is well established in Massachusetts, see,
e.g., Hood v. Tabor Academy, 296 Mass. 509, 510 (1937) (student expulsion
analyzed under breach of contract theory); Mangla v. Brown Univ., 135 F.3d
80, 83 (1st Cir. 1998) (holding that "student-college relationship
is essentially contractual in nature" and that the "terms of the
contract may include statements provided in student manuals and registration
materials"); Dinu v. President & Fellows of Harvard College, 56
F. Supp. 2d 129, 130 (D. Mass. 1999), and cases cited ("That the relationship
between a university and its students has a strong, albeit flexible, contractual
flavor is an idea pretty well accepted in modern case law. . . . So too,
is the proposition that a student handbook . . . can be a source of the
terms defining the reciprocal rights and obligations of a school and its
students") and other jurisdictions, see, e.g., Bhandari v. Trustees
of Columbia Univ., No. 00 Civ. 1735 JGK (S.D.N.Y. 2000); Holert v. University
of Chicago, 751 F. Supp. 1294, 1301 (N.D. Ill. 1990) (relationship between
university and student "strictly contractual in nature").
|||The contours of this "relaxed" contractual relationship, which
also may be derived from associational rights, are that in exchange for
tuition and the student's compliance with university rules, the university
will not act "arbitrarily or capriciously" in disciplining a student.
Coveney v. President & Trustees of the College of the Holy Cross, 388
Mass. 16, 19 (1983). To me, it appears that this prohibition of arbitrary
and capricious action would also include the university's obligation to
follow the rules and procedures that it has itself put forth in regard to
disciplinary proceedings. See, e.g., Fellheimer v. Middlebury College, 869
F. Supp. 238, 244-246 (D. Vt. 1994) (analyzing disciplinary procedures and
finding that college failed to provide student with process described in
student handbook); Clayton v. Trustees of Princeton Univ., 519 F. Supp.
802, 806 (D.N.J. 1981) ("Certainly the proposition that once an organization
has established rules for itself it must follow them is not a radical proposition");
Harvey v. Palmer College of Chiropractic, 363 N.W.2d 443, 445 (Iowa Ct.
App. 1984) (university must follow disciplinary procedures detailed in student
handbook); Tedeschi v. Wagner College, 49 N.Y.2d 652, 660 (1980) (holding
that "when a university has adopted a rule or guideline establishing
the procedure to be followed in relation to suspension or expulsion that
procedure must be substantially observed").
|||The court, however, goes on to analyze the provisions in the "Rights
and Responsibilities" section in a manner inconsistent with the standard
principles of contract interpretation. The handbook was issued by Brandeis
unilaterally. As such, any ambiguities in the contract should be construed
against the drafter, especially, as here, where there is no opportunity
for meaningful negotiation of any of the terms. See Corso v. Creighton Univ.,
731 F.2d 529, 532-533 (8th Cir. 1984) (interpreting terms in university
handbook by rules of standard contract interpretation, court construed terms
against drafter). However, even interpreting the contract under the standard
articulated by the court, see ante at , that would adopt the meaning of
the terms that the university would expect the other party to give it, I
still do not understand how the court can read the terms of the contract
in the way that it does.
|||For example, Sect. 19.14 of the Rights and Responsibilities provides for
the making of a record, "comprised of a summary of the testimony and
evidence presented." Here the summary consisted of only twelve lines.
Given the student's right to an appeal under Sect. 19.16, it would seem
that the record here did not comply with the contract. Further, Sect. 16.5
states that violations of university regulations "shall be thoroughly
and impartially investigated," and it is not clear to me, taking Schaer's
allegations to be true, see Nader v. Citron, 372 Mass. 96, 98 (1977), and
cases cited, that there was a thorough investigation. These potential breaches
of the contract are explicated more fully in the dissent of Justice Cowin,
and the cogently reasoned opinion of the Appeals Court. See Schaer v. Brandeis
Univ., 48 Mass. App. Ct. 23 (1999).
|||In short, if the university puts forth rules of procedure to be followed
in disciplinary hearings, the university should be legally obligated to
follow those rules. To do otherwise would allow Brandeis to make promises
to its students that are nothing more than a "meaningless mouthing
of words." Tedeschi v. Wagner College, supra at 662. While the university's
obligation to keep the members of its community safe from sexual assault
and other crimes is of great importance, at the same time the university
cannot tell its students that certain procedures will be followed and then
fail to follow them. In a hearing on a serious disciplinary matter there
is simply too much at stake for an individual student to countenance the
university's failure to abide by the rules it has itself articulated. I
would therefore not affirm the dismissal of Schaer's complaint so hastily.
|||COWIN, J. (dissenting, with whom Ireland, J., joins).
|||I respectfully dissent from the court's opinion because in my view, as
the Appeals Court concluded, see Schaer v. Brandeis Univ., 48 Mass. App.
Ct. 23, 30 (1999), Schaer's complaint is sufficient to survive a motion
See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974). "The rules of
pleading in Massachusetts are generous." Capazzoli v. Holzwasser, 397
Mass. 158, 162 (1986) (Abrams J., concurring), quoting Spence v. Boston
Edison Co., 390 Mass. 604, 615 (1983). The lenient standard for assessing
the sufficiency of a complaint is well established: "a complaint should
not be dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim."
Nader v. Citron, 372 Mass. 96, 98 (1977). Moreover, "the allegations
of the complaint, as well as such inferences as may be drawn therefrom in
the plaintiff's favor, are to be taken as true." Id. "These generous
and indulgent criteria have reduced a plaintiff's obstacle in surmounting
a . . . failure to state a claim to a minimal hurdle." Brum v. Dartmouth,
44 Mass. App. Ct. 318, 321 (1998), S.C., 428 Mass. 684 (1999). See Warner-Lambert
Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998), quoting Gibbs Ford, Inc.
v. United Truck Leasing Corp., 399 Mass. 8, 13 (1987) ("It is a 'relatively
light burden to be carried in maintaining a complaint'").
|||The parties agree and the court assumes that "a contractual relationship
exists between Schaer and Brandeis." Ante at . Thus, the only question
to be decided is whether Schaer has alleged any facts which, if adopted
by the factfinder, would entitle him to a judgment on a breach of contract
claim against Brandeis. An indulgent reading of his complaint indicates
that for at least some of his allegations of breach of contract he has stated
sufficient facts to survive a motion to dismiss.
|||The complaint alleges that Brandeis did not apply a "clear and convincing"
standard as prescribed by Sect. 19.13 of the contract. The complaint states
that "testimony in this case was in conflict" and sets out in
great detail the contradictory evidence presented at the disciplinary hearing.
Contrary to the court's view that "Schaer has not set forth facts specifically
supporting this allegation," ante at , the recitation of the contradictory
evidence contained in the complaint is sufficient to raise the possibility
that the university board on student conduct (board) reached its decision
without applying a clear and convincing evidentiary standard. At the very
least, determinations must be made that are premature on a motion to dismiss.
|||The complaint alleges that Brandeis violated Sect. 19.13 which provides
that decisions shall be made solely on evidence and testimony introduced
at the hearing. According to the complaint, the board excluded evidence
of the difference between rape and "regretted sex" and instead
relied on its own experience and expertise in reaching its conclusion. The
court rejects this claim because in its view nothing in the contractual
provision "preclude[s] members of the [board] from using their own
common sense and expertise." Ante at . Although the board may employ
common sense to evaluate the evidence, it cannot be determined at this point
whether the board properly used common sense to evaluate the evidence presented
or improperly used "common sense" in lieu of evidence in reaching
its decision. The complaint is sufficient to permit Schaer the opportunity
to show the latter.
|||The complaint alleges that Brandeis violated its contractual obligations
pursuant to Sect. 19.14 of the contract by failing to create a record summarizing
the testimony and evidence presented and the decision rendered. The complaint
states that even though the hearing consisted of thirteen witnesses, the
summary consists of twelve lines. The court concludes that this allegation
is insufficient to establish a claim because the contract provision does
not "require the record to be any minimum length." Ante at . While
it is true that the provision does not set a minimum length requirement,
it does require a summary of the testimony and evidence. A claim is adequate
that alleges that a twelve-line record does not summarize a hearing with
|||Another allegation is that the hearing was not conducted with "basic
fairness." Ante at . In this regard, Schaer's complaint challenges
the testimony of various witnesses. According to the complaint, one witness,
a Brandeis police officer, testified that she saw the complainant one month
after the incident and that she "looked like a rape victim"; another
witness was allowed to testify that Schaer was a "self-motivated egotistical
bastard"; and a third witness testified that Schaer suggested a change
in a newspaper editorial concerning rape. Schaer's complaint contends that
the board's decision to admit this testimony prejudiced his case and created
an unfair proceeding. Although the board is not bound by the rules of evidence,
at this stage, these allegations of unfairness sufficiently state a claim.
|||Similarly, Schaer states that the board conducted the hearing in an atmosphere
of "hysteria and misinformation" that prevented him from receiving
a fair hearing. His complaint asserts that several articles on campus rape
appeared in the school newspaper during March, 1996, Women's Month at Brandeis,
and that some of the information published was untrue. Again, it may be
established at a future stage of the proceedings that such an atmosphere
did not exist, was irrelevant, or that it did not affect the hearing, but
that is not to be resolved at this point.
|||In reaching its conclusion, the court does not apply the rule that, in
assessing the sufficiency of a complaint, all factual inferences must be
drawn in favor of the plaintiff. Nader v. Citron, supra. Schaer's complaint
alleges that the board did not apply the proper standard of proof; incorrect
evidentiary decisions may have been made; certain evidence may have been
improperly admitted; the campus atmosphere may have unfairly tainted the
hearing; and the summary of the hearing did not meet the contractual requirement.
Drawing all inferences in Schaer's favor, his complaint provides sufficient
allegation of contractual violations that he should not be prevented at
this early stage of the litigation from pursing his claims further.
|||The contract requires that Brandeis provide Schaer with some element of
basic fairness. He claims through particularized allegations that it has
not done so. This is all that is required to survive a motion to dismiss.
Whether Schaer will fail at trial or even at the summary judgment stage
cannot be predicted here, but a motion to dismiss "is ordinarily not
the proper vehicle for testing the factual sufficiency of a plaintiff's
claims." Reardon v. Commissioner of Correction, 20 Mass. App. Ct. 946,
|||The court is concerned lest it interfere "with academic and disciplinary
decisions made by private colleges and universities." Ante at , quoting
Schaer v. Brandeis Univ., 48 Mass. App. Ct. 23, 26 (1999). I share the court's
concern, but its disinclination to interfere with university governance
should not alter basic contract law and the traditional standard for evaluating
the sufficiency of a complaint. I agree with Justice Ireland's dissenting
position that the university, like any other, must abide by it contracts.
The plaintiff has adequately alleged that it has not done so.
|||*fn1 In addition
to the injunctive relief and the breach of contract claim (at issue before
us), Schaer sought compensatory damages for: (1) violation of his civil
rights; (2) fraud; (3) interference with an advantageous and contractual
relationship; (4) violation of his right to privacy; and (5) intentional
infliction of emotional distress. Schaer filed this complaint against Brandeis
and seven individual defendants. None of the seven individual defendants
is a party to this appeal.
|||*fn2 We agree with
the Appeals Court that, although Schaer would have completed his undergraduate
work at Brandeis University (Brandeis) by now, this appeal is not moot "because
there are claims of money damages and . . . because notation of the board's
decision in Schaer's student record has potential for harming his career."
Schaer v. Brandeis Univ., 48 Mass. App. Ct. 23, 25 (1999).
|||*fn3 The suspension
was during Brandeis University's summer recess and prohibited David Schaer's
presence on the Brandeis campus. As the Appeals Court noted, it "was
not without consequence because Schaer had intended to spend the summer
continuing work on a biomedical research project in a Brandeis laboratory."
Schaer v. Brandeis Univ., supra at 24.
|||*fn4 The board
also ordered Schaer to avoid all contact with the complainant and to undergo
|||*fn5 Count III
of Schaer's complaint, entitled "Breach of Contract v. Brandeis,"
includes the following paragraphs: "113. [Schaer] repeats the allegations
contained in paragraphs 1 through 108 as if set forth at length. "114.
The [d]efendant, Brandeis, has by its action breached its agreement with
[Schaer] to provide him with an education and to accord to him all of the
privileges and rights of being a student at Brandeis, in exchange for [Schaer]
paying his tuition and fees and otherwise observing the rules and regulations
of Brandeis. "115. [Schaer] has performed all of his obligations under
the contract. "116. Brandeis has breached the contract and has caused
damage to [Schaer]. "Wherefore [Schaer] demands damages against Brandeis
measured by all of the payments made by [Schaer] for tuition and fees, compensation
for the damage to his reputation and for the emotional distress that he
|||*fn6 The violations
may be summarized using the Appeals Court's characterizations: "a.
Failure to make careful evaluation of the facts and of the credibility of
persons reporting them, as required by Sect. 17 of the [contract] . . .
. "b. Failure to make a record of the proceedings of the board, as
required by Sect. 19.4 . . . . "c. Receipt of irrelevant and inflammatory
evidence, in violation of Sect. 19.13 of the [contract] . . . . "d.
Failure to apply 'clear and convincing evidence' standard prescribed by
Sect. 19.13 of the [contract] . . . . "e. Failure to accord Schaer
the process due under Sect. 18.11 of the [contract]." Schaer v. Brandeis
Univ., supra at 29-30.
|||*fn7 We note that,
in her dissent, Justice Cowin tests the legal sufficiency of Schaer's complaint
without regard to the "reasonable expectation" standard set forth
in Cloud v. Trustees of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983).
Post at . Thus, her analysis is not in accord with Cloud.
|||*fn8 Section 16.5
is within a section entitled "Policy on Protection of Privacy"
and applies to investigations of reported privacy issue violations, such
as when a student's room is inspected by a member of the resident staff
without providing the requisite advance notice. In his dissent, Justice
Ireland relies on Sect. 16.5 to suggest that there may not have been a thorough
investigation. Post at . Section 16.5 simply is not applicable to investigations
of student misconduct.
|||*fn9 There is no
merit to Justice Cowin's assertion that, because there was conflicting evidence,
there is the possibility that the burden of proof was not met. Post at .
On the record before us, the board's decision is supported by a written
statement by the complainant, her complaint, testimony of corroborating
witnesses, and Schaer's own admissions. The Appeals Court incorrectly characterized
the record as "no more than 'she said' against 'he said.'" Schaer
v. Brandeis Univ., supra at 30. There was ample evidence which, if believed,
could have supported the board's decision on a clear and convincing standard.
The report, although short, reflects a judgment by the board that the complainant
and the corroborating witnesses were credited; Schaer and his witnesses
were not credited. Further, there is no basis for adding a requirement that
the board explicitly state that it is applying a clear and convincing standard.
Such a requirement is not part of the contract and courts do not require
jurors to so state. There is no basis for courts to impose a higher standard
on universities than that which they impose on themselves.
complaint states that his sister "had been a contributing writer on
sexuality to The College Woman's Handbook (Workman Press)." No additional
citation information is provided in the complaint.
|||*fn11 The Appeals
Court also addresses the introduction of statements of two witnesses as
a violation of Sect. 19.13. One witness, a Brandeis police officer, testified
that, when she saw the complainant one month after the incident, the complainant
"looked like a rape victim." A second witness was allowed to opine
that Schaer was "a self-motivated egotistical bastard." The Appeals
Court concluded that "[b]oth statements are so without rudimentary
foundation and so unfairly prejudicial that they can be said to be in violation
of Sect. 19.13." Schaer v. Brandeis Univ., supra at 30. Nothing in
Sect. 19.13 of the contract describes the admission of testimony of witnesses.
Thus, Schaer may not claim that his reasonable expectations, based on his
contract with Brandeis, have not been met.
|||*fn12 We recognize
that students were actively involved in these disciplinary proceedings.
Five of the seven members of the board were students.
|||*fn13 The Appeals
Court also discussed an additional allegation: "Failure to accord Schaer
the process due under Sect. 18.11 of the [contract]." Schaer v. Brandeis
Univ., supra at 30. See note 1, supra. The Appeals Court concluded that
"the issue could not be flicked away on a motion under rule 12 (b)(6)."
Id. We disagree. We have carefully read the voluminous complaint and cannot
find any allegation of a violation of Sect. 18.11 of the contract. Thus,
we conclude that Schaer has not stated a claim for breach of contract based
on a violation of this section of the contract.
|||*fn14 The testimony
of two of these witnesses is discussed above. See note 11, supra. The third
witness, according to Schaer, misstated a response Schaer had given in a
conference prior to the hearing. The fourth witness, a student who worked
with Schaer on the student newspaper, testified as to a change Schaer suggested
be made in an editorial about rape.
in its contract, Brandeis notifies its students in Sect. 19.10 of the contract
that, at a disciplinary hearing, "[t]he technical rules of evidence
applicable to civil and criminal cases shall not apply."
|||*fn16 We pause
to emphasize, in response to Justice Cowin's dissent, that our conclusions
essentially result from determinations that the facts alleged by Schaer,
even if true, do not establish claims for breach of contract; and that we
are not bound to accept as true conclusions of fact or law which Schaer
fails to support with specific factual allegations. We thus have not departed
from applying the appropriate standard of review to a motion to dismiss
for failure to state a claim.
|||*fn17 As college
costs have been rapidly increasing, students and their parents often must
make a substantial financial investment to obtain an education. See Contemporary
Calculus: Economically Driven Decisions are Transforming Higher Education,
U.S. News & World Rep., September 1, 1997 (reporting that, controlling
for inflation, the cost of an undergraduate education doubled between 1976
and 1995); College Tuition Outpaces Inflation Again, Wall St. J., March
12, 1999, at A2 (describing rapid increase in college costs, and reporting
that yearly tuition at some institutions is over $30,000 a year).
|||*fn18 I also
join in Justice Ireland's dissent that Brandeis should be required to follow
its own internal rules when imposing serious disciplinary sanctions on a
student. Ante at .
|||*fn19 The court
suggests that I am testing the legal sufficiency of Schaer's complaint without
regard to the "reasonable expectation" standard of Cloud v. Trustees
of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983). Ante at n.7. Schaer's
reasonable expectations are formed by the contract, and he could reasonably
expect Brandeis to abide by it. He has alleged that it has not done so and
has included in his complaint allegations adequate to support his contention.
Moreover, the Cloud case, as well as the decisions on which it relies, Lyons
v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert. denied,
435 U.S. 971 (1978), and Giles v. Howard Univ., 428 F. Supp. 603, 605 (D.D.C.
1977), were all decisions in which the term "reasonable expectation"
is used in conjunction with the respective courts' disagreement with the
plaintiffs' interpretation of the contract. That may eventually be the result
in this case, but it is not a result that can be reached on a motion to
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