The College Fix

Not followed: constitutional law, state law, Syracuse policy, repeated promises

Kent Syverud may have a benignly kooky name, but the chancellor is putting Syracuse University “on a course toward censorship of the worst kind: undefined censorship that can be punished after the fact, even though not foreseen.”

So said a Syracuse law professor who was prevented from actively representing his clients – Theta Tau pledges – in a disciplinary proceeding that found 15 of them guilty of harassment, for their participation in private satirical skits that leaked on the internet.

After Gregory Germain accused the school in a Washington Post op-ed of telling its students “they are disposable if they unintentionally embarrass the administration,” the newspaper attached a response from the administration.

It tried to excuse its conduct toward the pledges, saying there’s no debate that the skits were “extremely offensive” and they harassed others who saw the videos, “even if it that [sic] was not the underlying purpose or intent.”

This was too much for a Syracuse law graduate, Zach Greenberg of the Foundation for Individual Rights in Education, which previously launched a pressure campaign against the school to reinstate the 15 students.

It’s not Greenberg’s first rodeo against the private university: As a student he successfully pushed through a student government resolution asking the school to narrow its stunningly broad harassment policy, which prohibited “annoying” or “offensive” electronic messages.

“It is apparent that SU and the hearing panel fundamentally misconstrue the principles of freedom of expression to which SU has voluntarily committed itself,” he wrote in a Wednesday letter to Chancellor Syverud (below) with Ari Cohn, director of FIRE’s Individual Rights Defense Program.

MORE: Syracuse shows its fascism with 1-2 year suspensions for satire

Lies and the lying liars who tell them

The university not only violated its own policies and badly misconstrued First Amendment law, but also lied to the pledges, according to the letter.

It ignored “bias” objections from the pledges despite the fact that all disciplinary board members and alternates “report directly to your office,” which prejudged the students’ guilt from the very start, Greenberg and Cohn told Syverud:

A Board full of members who may reasonably fear adverse employment action for disagreeing with their superiors presents an obvious conflict of interest, one that impermissibly biases these individuals against the students and corrupts their determination.

Greenberg attended the first day of disciplinary hearings May 9 and served as the students’ expert witness, according to the letter. The board told the students it would “consider all relevant evidence and allow them to present witnesses,” but refused to allow live testimony from Greenberg. It told them to submit Greenberg’s written testimony to Eric Nestor (left), associate director of the Office of Students Rights & Responsibilities, who “promised to share” it with the board and add it to the case file.

When the board listed the “evidence, documents, and witnesses” it considered in rendering judgment on the 15, it had glaring omissions: namely any witnesses for the pledges or Greenberg’s expert-witness testimony.

This violates Syracuse’s “Bill of Rights” for students (below) and the Student Conduct System Handbook, which allows them to present relevant evidence – a “fundamental requirement of due process” as defined by the Supreme Court. It also violates assurances by board members to the pledges “throughout” the process.

Department of Public Safety Detective Michael Toia also testified that first day that no one at Syracuse submitted a complaint about the videos while they remained known only to the fraternity – nearly three weeks.

The 15 were nonetheless found responsible for harassment of those who watched the leaked videos, threatening their “mental health” (because they chose to watch them) and “tolerat[ing] or condon[ing]” sexist or sexually abusive behavior (that no one in the fraternity complained about).

(Prof. Germain wrote in the Post that the Title IX charge – allegedly added to justify holding the students’ transcripts – “was dropped after the Department of Education determined that it would violate the students’ free speech rights.” He had filed a Title IX complaint against the university with the feds for its “sham” proceeding.)

MORE: Germain files Title IX complaint against Syracuse for ‘sham’

The university’s “breach of the peace” justification for the harassment finding – that a person watching the videos “would become upset, reactive and responsive to its content” – is far out of step with First Amendment jurisprudence on “fighting words,” according to the letter.

The Supreme Court has narrowed this doctrine to “face-to-face communications directed at a specific individual that would likely provoke an immediate violent reaction from that individual.” Even Syracuse’s own policy requires a “specific individual” to be targeted:

SU’s own findings reflect the fact that the relevant audience reacted primarily with laughter, and not with violence. … SU may not claim that expression directed to certain individuals constitutes harassment because it might cause a reaction if a different audience were to hear it.

The board also ignored the “immediate” requirement in fighting-words doctrine and the “public” requirement in New York state law, Greenberg and Cohn wrote. Its determination to ignore the law and its own policies demonstrates its “arbitrary and capricious effort to penalize expression that brought substantial unwelcome attention to the university.”

In a blog post Thursday, Greenberg lays out where these punishments lead: toward a “learning environment hostile to dissenting, controversial, and minority voices, where students fear punishment for anything from harmless jokes to political statements.”

Read FIRE’s letter and blog post, and Greenberg’s expert testimony.

MORE: Pledges sue Syracuse, then university accuses them of sexual harassment

MORE: Syracuse fires prof for privately disagreeing with Theta Tau punishment

IMAGES: Concept Photo/Shutterstock

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