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Judge rules Syracuse can punish students for using the free speech it guarantees them

‘Contradictory’ ruling that encourages contract violations

Fraternity pledges who performed in crass, satirical skits engaged in “protected free speech” under Syracuse University’s own rules, a New York state judge ruled last week.

But the private university can still indefinitely suspend them because it determined the skits, which were recorded and leaked to the student newspaper, were “sexist” and threatened the “mental health” and “safety” of the student body when they were viewed.

The eight-page ruling by Jefferson County Supreme Court Justice James McClusky shocked a civil-liberties group, who called it “contradictory” and “flawed.” (In New York, “Supreme Court” designates a trial court.)

“This court ruling will only encourage private schools like SU to create, advertise, and then refuse to enforce illusory promises of free speech,” said Zach Greenberg, program officer in the Foundation for Individual Rights in Education’s Individual Rights Defense Program.

“Based on the logic of this ruling, students at private colleges can be expelled for flaunting universities rules, but these colleges should fear no consequences for defaulting on their obligations,” he wrote in a blog post Thursday.

FIRE has criticized Syracuse for infringing on students’ speech going back more than eight years, but the issue is personal for Greenberg, a 2016 Syracuse Law School graduate.

He wrote a resolution enacted by the student government in 2014 that asked the university to narrow a harassment policy that banned “annoying” and “offensive” email.

‘Being upset is not the equivalent of being harassed’

Justice McClusky had originally ruled against Syracuse when the Theta Tau pledges filed suit. Last summer he ordered the university to re-enroll “at least two” of the students it punished for their participation in the “roast” videos, which were initially posted to its private Facebook group.

But the judge granted wide latitude to Syracuse to interpret two of the three policies it charged the 10 students with violating.

Last spring the plaintiffs “performed a roast of current fraternity members in the basement of the fraternity house,” McClusky summarized. “The roast was an attempt to make fun of the current members for the entertainment of the fraternity as a whole.”

He noted that university administrators demanded “criminal sanctions” against the students “even after” the district attorney ruled out criminal charges, and that Syracuse fired a professor who privately criticized its decision.

MORE: Syracuse fires professor for disagreeing with expulsion of pledges

Above: The First Amendment is written on the Syracuse communications school

The judge can only review whether Syracuse failed to follow its own “representations … regarding its disciplinary rules,” to the point where “its actions were arbitrary and capricious,” “the results shock the conscious” or each decision “lacks a rational basis.”

The students’ speech in the leaked videos – including racial slurs, sexual miming and the word “retarded” – is “protected free speech” under Syracuse’s student code, McClusky said. The code gives students “the right to express themselves freely on any subject provided they do so in a manner that does not violate the code.”

Because the code doesn’t define “harassment,” and alleged harassment must target “a specific individual,” the pledges could not be guilty of harassment, the judge said:

The record is devoid of any specific individual to whom the speech was directed that was harassed. Nor do the words constitute “fighting words” or words that likely would cause an immediate breach of the peace [as the code requires]. The University could show people were upset at the words used by Petitioners, but those words were not directed to the people who were upset. … Being upset is not the equivalent of being harassed.

Syracuse can punish students for having debate that makes some feel unsafe

McClusky said the university had a rational basis, however, to judge the pledges guilty of violating a rule against “threaten[ing] the mental health … or safety of any person.” Syracuse cited the student body’s reaction to the leaked videos, which were posted by The Daily Orange.

It doesn’t matter that the pledges also have a rational interpretation of that code provision, that it requires specific people to have been threatened, according to the judge.

Even though he can “envision” Syracuse students also feeling unsafe “after a debate on abortion, a debate on the support of Israel, or a debate on the confirmation of Justice Kavanaugh,” McClusky is “not free to chose between two seemingly rational positions.” The university has the right to “stifle the words and actions of its students as it deems appropriate.”

The judge also said Syracuse made a “rational” determination, “based on some evidence,” that the pledges violated a “sexual abuse” policy. The fraternity roast at issue is close enough to a scenario mentioned in the policy – “having strippers at a fraternity event.” Violating this policy does not require that anyone at the roast was “offended” by the skits, McClusky said.

MORE: District attorney contradicts Syracuse that skit videos were criminal

FIRE’s Greenberg said the pledges have already appealed the ruling, which “inexplicably” upheld the punishments after determining the speech was protected.

McClusky “refused to apply one of the most basic principles of our legal system: Institutions must generally adhere to the promises they make,” especially in written policy materials, Greenberg wrote.

“Just as a college cannot take a student’s tuition and then refuse to provide any sort of education, SU may not purport to uphold its students’ expressive rights and then suspend them for speech protected under First Amendment standards,” he said.

The words of the First Amendment are printed on a Syracuse building, but “the university has made it clear that its stated commitment to student rights is worthless.”

MORE: Syracuse cancels Israel film screening because it will offend ‘BDS faction’

IMAGE: Brian A Jackson/Shutterstock, Syracuse University

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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