(dissenting, with whom Cowin, J., joins). I write separately because I believe the court, while correctly assuming that a contract exists between Brandéis and its students regarding the university’s disciplinary procedures, fails to interpret the provisions of the disciplinary code in a commonsense way, or in a manner consistent with the standard rules of contract interpretation. The strained reading the court gives to these contractual provisions is troubling because Brandéis should be required to follow its own internal rules when imposing serious disciplinary sanctions on a student. As consumers,1 students should not be subject to disciplinary procedures that fail to comport with the rules promulgated by the school itself. I therefore respectfully dissent. As I also believe that the court does not apply the appropriate standard of review to a motion to dismiss, I am in agreement with the dissent of Justice Cowin. Post at 485-488.
The court assumes, without deciding, that a contractual relationship exists between Brandéis 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 “student-college 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 modem 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. Trastees of Columbia Univ., No. 00 Civ. 1735 JGK (S.D.N.Y. 2000); Holert v. University of Chicago, *484751 F. Supp. 1294, 1301 (N.D. Ill. 1990) (relationship between university and student “strictly contractual in nature”).
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 Brandéis 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 *485provides for the making of a record, “comprised of a summary of the testimony and evidence presented.” Here the summary consisted of only twelve lines. Given the student’s right to an appeal under § 19.16, it would seem that the record here did not comply with the contract. Further, § 16.5 states that violations of university regulations “shall be thoroughly and impartially investigated,” and it is not clear to me, taking Schaer’s allegations to be true, see Nader v. Citron, 372 Mass. 96, 98 (1977), and cases cited, that there was a thorough investigation. These potential breaches of the contract are explicated more fully in the dissent of Justice Cowin, and the cogently reasoned opinion of the Appeals Court. See Schaer v. Brandeis Univ., 48 Mass. App. Ct. 23 (1999).
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 Brandéis 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.
As college costs have been rapidly increasing, students and their parents often must make a substantial financial investment to obtain an education. See Contemporary Calculus: Economically Driven Decisions Are Transforming Higher Education, U.S. News & World Rep., September 1, 1997 (reporting that, controlling for inflation, the cost of an undergraduate education doubled between 1976 and 1995); College Tuition Outpaces Inflation Again, Wall St. J., March 12, 1999, at A2 (describing rapid increase in college costs, and reporting that yearly tuition at some institutions is over $30,000 a year).