Porter’s questions, addressed to both the dean and the board president, demonstrated Massachusetts abolitionist Wendell Phillips’s old saw that “eternal vigilance is the price of liberty,” or, perhaps more pointedly, Supreme Court Justice Louis Brandeis’s observation that “sunlight is said to be the best of disinfectants.” Whether the omission was in fact an oversight or, as Ludman’s shifting rationales would suggest, an attempt to get rid of a pesky enumeration of rights that students had come to rely on, Porter’s having raised the issue resulted in the speedy reinstatement of students’ rights. Chalk up another victory to the free press.
Emerson’s deletion of student rights from its handbook places the university at the vanguard of a larger, nation-wide campaign that neither began nor will likely end there. Lawyers specializing in advising colleges — including campus “general counsel,” who are reflexively more concerned with minimizing the schools’ legal liability than in protecting students’ rights — have been recommending for several years now that the once-ubiquitous listings of students’ rights be either modified or, worse, eliminated altogether. The main reason for this backlash is that courts in several states have suggested that schools must honor the promises of fairness and freedom they make to students in those handbooks.
Here in Massachusetts, in the 1999 case of Schaer v. Brandeis, in which a student sued the university, the Supreme Judicial Court based its ruling on a stated assumption that the guarantee of fair disciplinary hearings, found in the student handbook, could constitute an enforceable legal contract. (The student lost the case anyway, because the court concluded that Brandeis had provided him with a hearing that, in fact, lived up to the promise made in the handbook.)
Frightened by the thought of courts interpreting their handbooks as contracts, schools have started to make an end-run around the handbooks’ becoming legally binding. According to the Foundation for Individual Rights in Education — a nonpartisan organization that advocates for academic freedom and due process on campus [Ed. Note: and on which Silverglate serves as chair.] — no other schools have taken the radical step of Emerson’s administrators, though some have started down that road.
First, for instance, schools have started to explain that the rights are not contracts and are unenforceable; then they reserve the right to change the handbook language altogether. The University of New England in Biddeford, Maine, informs students that the school “reserves the right to change the policies, procedures, rules, regulations, and information in this handbook at any time.” Similarly, Creighton University, in Omaha, Nebraska, lists students’ rights but renders them meaningless by explaining that the school can “deviate from . . . this handbook at any time.”
That schools have relied on this ploy is unsurprising. As a result of Schaer and similar court opinions around the country, campus administrators panicked over the possibility that words — and rights — were suddenly going to have real meaning in campus life. But lawyers and administrators, ever creative at figuring out how to avoid having to deliver on what one promises, started to backtrack. The free student press at Emerson, however, proved a robust and vigilant check against the school’s lawyers and administrators. May it ever be so.
Harvey Silverglate, is a Cambridge-based lawyer and writer. James F. Tierney is a paralegal with Silverglate’s law practice.