Any freshman who matriculated this past month at Emerson College might have found in the current Student Handbook a list of student responsibilities, which set forth the conduct expected of the academic community. But returning Emerson students turning to that same page would have found a glaring omission, since the “Statement of Rights and Responsibilities” published in the 2006–2007 (and earlier) editions of the handbook had suddenly morphed into the current “Statement of Responsibilities.”

What happened, the returning students might ask, to the student bill of rights? Do students at Emerson now have responsibilities without having any rights? Who at Emerson made such a reckless and wholesale use of the “delete” key? And why?

That’s what Ashley Porter, a student reporter for the Emerson College student news organization EIV, sought to find out when she noted the disparity between the prior Student Handbook and the current edited version. Whoever prepared the new handbook for printing had excised the entire list of nine rights previously guaranteed to all students, including due process in disciplinary hearings, the right to be free from discrimination, the guarantee of privacy, and, most notable, a broad panoply of rights modeled after the United States Constitution’s Bill of Rights (speech, press, political belief and affiliation, peaceful assembly, and the right to petition for redress of grievances). An archived copy of last year’s handbook, saved for posterity on the third-party Web site Internet Archive (archive.org), outlined the surgery.

Porter tells the Phoenix that when she confronted Ronald Ludman, Emerson’s dean of students, he at first denied that the rights were removed from the handbook. Then, after being shown the irrefutable side-by-side evidence, Ludman acknowledged that the change had occurred, but, according to Porter, explained that “it was inappropriate for us to have them all written. . . . The handbook was changed to reflect the obligations of citizenship that the students take on once they become members of this community.”

Ludman notably failed to explain why it was “inappropriate” for students at a liberal-arts college, ostensibly devoted to academic freedom and liberal education, to be guaranteed rights taken for granted outside of the ivy walls. (While we’re on the subject of colleges as forums for open, intellectual debate, whatever became of the idea that the college campus is supposed to be the most, rather than the least, free place in our society?)

What happened next is the stuff of parody. Rebuffed by the administration, Porter turned to the new president of Emerson’s Board of Trustees, Peter Meade, who directed Porter to raise her questions with the administration — as she had already done. A few days later, Ludman informed Porter that, lo and behold, the enumerated rights had been “unintentionally edited out” and were being reinstated, with some revisions. Notably, the college added language protecting students from discrimination based on veteran status and gender identity. But it removed the right to due process, replacing it with a guarantee of a “fair disciplinary hearing” (thus avoiding having to accord all of the procedural rights guaranteed by the Constitution).

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.

Rights wronged
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.