Schaer v. Brandeis University

Abrams, J.

The plaintiff, David Arlen Schaer, a student at Brandéis University (Brandéis), filed a seven-count complaint in the Superior Court against Brandéis, seeking injunctive relief

1. Facts and procedural history. On March 25, 1996, a female student (complainant) filed a report with the Brandéis 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 months³ and placed him on disciplinary probation for his remaining time at Brandéis.⁴ 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 injunc-tive relief and compensatory damages. A Superior Court judge held a hearing and denied Schaer’s request for an injunction. Brandéis then moved to dismiss Schaer’s complaint for failure to state a claim for which relief could be granted. See Mass. R. Civ. R 12 (b) (6). A second Superior Court judge granted Bran-déis’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.⁵ 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 Brandéis 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 Brandéis failed to follow certain procedures outlined in “Rights and Responsibilities” (contract), which is contained within Brandéis’s student handbook. Id. at 28-29. The Appeals Court concluded that Brandéis failed to follow its own procedures in five respects.⁶ Id. at 29-30.

2. 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 Brandéis “ ‘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 § 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 aver-ments 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, 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 Brandéis, 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 Brandéis failed to meet his reasonable expectations, thereby violating its contract with Schaer.⁷

a. Failure to investigate in accordance with procedures established by §§ 16.5 and 17 of the contract. Schaer contends that Brandéis violated §§ 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 § 16.5 because that section does not apply to investigations of student misconduct.⁸

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 Brandéis violated §§ 16.5 or 17 of the contract.

b. Failure to employ the standard of proof required by § 19.13. Schaer alleges that Brandéis violated § 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.⁹

c. Failure to use evidence in accordance with the procedures outlined in § 19.13. Schaer contends that the board violated its contract by excluding testimony from an expert (Schaer’s sister¹⁰) 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 § 19.13, which provides, in relevant part: “Decisions shall be based solely upon evidence and testimony introduced at the hearing.” As tire Superior Court judge noted: “This claim does not state a violation of [§] 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 § 19.13.¹¹

d. Failure to make a record, as required by § 19.14. Schaer also alleges that Brandéis violated § 19.14, 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.¹² 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.¹³

3. 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.¹⁴ 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.¹⁵ Brandéis 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 Brandéis. 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.¹⁶

4. We adhere to the principle that “[c]ourts 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 Brandéis. 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.

So ordered.

1 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 Brandéis and seven individual defendants. None of the seven individual defendants is a party to this appeal.

2 We agree with the Appeals Court that, although Schaer would have completed his undergraduate work at Brandéis University (Brandéis) 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).

3 The suspension was during Brandeis’s summer recess and prohibited Schaer’s presence on the Brandéis 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 Brandéis laboratory.” Schaer v. Brandeis Univ., supra at 24.

4 The board also ordered Schaer to avoid all contact with the complainant and to undergo professional counselling.

5 Count III of Schaer’s complaint, entitled “Breach of Contract v. Brandéis,” includes the following paragraphs:

“113. [Schaer] repeats the allegations contained in paragraphs 1 through 108 as if set forth at length.

“114. The [defendant, Brandéis, 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 Brandéis, in exchange for [Schaer] paying his tuition and fees and otherwise observing the rules and regulations of Brandéis.

“115. [Schaer] has performed all of his obligations under the contract.

“116. Brandéis has breached the contract and has caused damage to [Schaer],

“Wherefore [Schaer] demands damages against Brandéis 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 has suffered.”

6 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 § 17 of the [contract] ....

“b. Failure to make a record of the proceedings of the board, as required by § 19.14 ....

“c. Receipt of irrelevant and inflammatory evidence, in violation of § 19.13 of the [contract] ....

“d. Failure to apply ‘clear and convincing evidence’ standard prescribed by § 19.13 of the [contract] ....

“e. Failure to accord Schaer the process due under § 18.11 of the [contract].” Schaer v. Brandéis Univ., supra at 29-30.

7 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 486-488. Thus, her analysis'is not in accord with Cloud.

8 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 § 16.5 to suggest that there may not have been a thorough investigation. Post at 485. Section 16.5 simply is not applicable to investigations of student misconduct.

9 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 486. 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.

10 Schaer’s 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.

11 The Appeals Court also addresses the introduction of statements of two witnesses as a violation of § 19.13. One witness, a Brandéis 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 § 19.13.” Schaer v. Brandeis Univ., supra at 30. Nothing in § 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 Brandéis, have not been met.

12 We recognize that students were actively involved in these disciplinary proceedings. Five of the seven members of the board were students.

13 The Appeals Court also discussed an additional allegation: “Failure to accord Schaer the process due under § 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 § 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.

14 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.

15 Indeed, in its contract, Brandéis notifies its students in § 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.”

16 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.