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
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
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.
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 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 § 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
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 with Schaer.
a. Failure to investigate in accordance with procedures established by §§ 16.5 and 17 of the contract. Schaer contends that Brandeis 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.
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
b. Failure to employ the standard of proof required by § 19.13. Schaer alleges that Brandeis 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.
c. Failure to use evidence in accordance with the procedures outlined in § 19.13. Schaer contends that the board violated its
d. Failure to make a record, as required by § 19.14. Schaer also alleges that Brandeis 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.
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.
The complaint also alleges that the hearing was conducted in an atmosphere of "hysteria and misinformation." This allegation
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 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.
The court assumes, without deciding, that a contractual relationship exists between Brandeis and its students. Ante at 478. 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 "studentcollege 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 vs. Trustees of Columbia Univ., No. 00 Civ. 1735 JGK (S.D.N.Y. 2000); Holert v. University of Chicago,
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 478, 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, § 19.14 of the Rights and Responsibilities
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 to dismiss.
The parties agree and the court assumes that "a contractual relationship exists between Schaer and Brandeis." Ante at 478. 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 § 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 479, 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 § 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
The complaint alleges that Brandeis violated its contractual obligations pursuant to § 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 480. 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 thirteen witnesses.
Another allegation is that the hearing was not conducted with "basic fairness." Ante at 481. 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 did not affect the hearing, but that is not to be resolved at this point.
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, 947 (1985).
The court is concerned lest it interfere "with academic and disciplinary decisions made by private colleges and universities." Ante at 482, 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 its contracts. The plaintiff has adequately alleged that it has not done so.
Schaer filed this complaint against Brandeis and seven individual defendants. None of the seven individual defendants is a party to this appeal.
"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 has suffered."
"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. Brandeis Univ., supra at 29-30.