In its Sept. 25 decision to deny the appeal of former Brandeis University student David A. Shaer, the Massachusetts Supreme Judicial Court (SJC) lost a valuable opportunity to stand up for students' rights in a college environment.

Shaer accused the school of unfairly disciplining him in 1996 after he was accused of date rape by a female undergraduate. Shaer, who claims the intercourse was consensual, asserted in court that Brandeis had breached its "contract" with him by disregarding the disciplinary procedures that it set forth in its own student handbook.

In its ruling, the SJC neglected to say whether the relationship between universities and students is indeed contractual in nature, though the courts treated it that way throughout the judicial process. Also, by not allowing Shaer's case to go to trial, the court failed to assert the principle that, when serious charges are involved, a university need not be the ultimate fact-finding and punitive authority.

That is the largest issue raised by the case--the jurisdiction of courts of law on a college campus. Currently, universities prefer to deal with most disciplinary matters in-house; 10 colleges in the area signed a legal brief supporting Brandeis in Shaer's case. There is a strong justification for a university disciplining its students in most cases--an institution of higher learning is a distinct community in which certain unique obligations exist between members. In addition, universities ought to have the ability to punish students for infractions of the rules that might not necessarily qualify as a crime in court.

But for more serious offenses, it is not necessarily the place of universities to act as legal tribunals. Serious allegations such as rape deserve to be considered by courts with the expertise, impartiality, fairness and fact-finding ability that a university disciplinary body may lack. A defendant against such a serious claim deserves an unbiased hearing that is guaranteed to be fair, where both sides of the story will be heard and the rights of both parties will be respected.

Courts should not cede their jurisdiction over such serious situations to universities that are unwilling to guarantee due process for both the victim and the defendant. If courts do delegate their responsibility to universities, the resulting privatization of justice sets a chilling precedent. Courts ensure due process and basic rights, such as the right to be represented by an attorney, because the decisions in serious cases like Shaer's have a huge impact on people's lives. A university's determination in such a case can have a similar effect. Therefore, those rulings ought to be made by a court of law where each side's rights are respected.

In addition, by denying to affirm that the relationship between universities and students is contractual--which, according to Shaer's lawyer, is already state law--the SJC provides no assurance that a college disciplinary body must follow its own guidelines and rules. This is contrary to the most basic notions of fairness. Students already have very few rights in a college disciplinary environment. When even those rights are disregarded at will by a university, students are completely at the mercy of the college.

If a body such as Harvard's Administrative Board has the power to ignore its own rules, then it becomes virtually omnipotent. If a university need not abide by the process that it sets down in its own student handbook, then those regulations and guarantees aren't worth the paper they're printed on.