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Law professor files Title IX complaint against Syracuse for ‘sham’ proceeding against fraternity

No facts behind complaint, and ‘no human being’ filed it

It may be too late for Theta Tau to get a fair disciplinary proceeding at Syracuse University for its “satirical skits,” but the “faculty procedural advisor” for three of the 18 accused students wants to make sure the U.S. Department of Education is hovering like a hawk over the university.

Syracuse Law Prof. Gregory Germain filed a complaint on behalf of the three students with the department Wednesday, and followed up with a “supplement” Friday in response to Syracuse’s latest charge letter against the fraternity members and pledges.

Germain accuses Syracuse of anti-male discrimination, using Title IX for “political purposes” and violating the students’ “fundamental rights to due process.”

He said the new charge letter shows “the excessively broad scope and undefined nature of [the university’s] Title IX claim,” and makes plain that “no human being” filed a complaint:

The Title IX office that is administering the proceeding is the sole complainant, the prosecutor (a trained lawyer in the department will be making the University’s Title IX argument even though the students must defend themselves without counsel able to speak), and has complete control over the appointment of the hearing panel with administrators beholden to the Chancellor [Kent Syverud] for the jobs, and the conduct of the proceeding.

Germain told the department the university is wrongly using a Title IX hearing panel to judge both Title IX and Code of Student Conduct claims, the latter of which requires an “independent student panel”:

The University has rejected the proposal to have independent tenured professors on the hearing panel, has refused to provide a coherent statement on the factual basis for the claims against the students, or to cooperate in any way with the student’s [sic] requests for a fair hearing.

With the hearing just three business days from now, the feds must call Syracuse General Counsel Daniel French to warn him that the department “will be watching the case” to ensure Syracuse doesn’t violate the due process rights of students “with complete impunity and in secret,” Germain wrote.

It’s the only way to ensure the accused students get a “fair proceeding as opposed to a complete sham proceeding,” the law professor said.

Law professor’s Title IX supplemental filing against Syracuse for Theta Tau prosecution by The College Fix on Scribd

‘Thorny questions’ about Title IX and ‘victimless free speech’

In his capacity as an adviser to a student, Germain sent a lengthy letter Thursday to French, Title IX Officer Sheila Johnson-Willis and Office of Student Rights and Responsibilities officials Eric Nestor and Pamela Peter.

The law professor expressed his concerns about “the procedural fairness of the process, the propriety of refusing my proposal for a community mediation, and the dubious use of the harassment provisions of Title IX in a way that violates free speech rights.”

Sent the same day as the university’s new charge letter, Germain’s letter says the university has not detailed “the conduct alleged to constitute a violation or what specific rule was violated”  in the Theta Tau videos.

“The procedural aspects of this case raise particularly thorny questions about the use of Title IX to prosecute victimless free speech,” Germain said. He believes the administration is in violation of the Department of Education’s Office for Civil Rights policy on balancing “Title IX obligations with individuals’ First Amendment rights.”

Germain claims Syracuse is in violation of its own policy requiring “written notice” to accused students, because “no facts have been alleged” on what specific conduct violated Title IX:

The Student has not been given the Department of Public Safety charging statements, and has not been provided with access to the Department’s investigation, report or files. The Student cannot prepare a proper defense without knowing what he is alleged to have done that would fit within the rules. [The Fix has removed the student’s name from Germain’s letter.]

The student also received another letter April 29 adding an unspecified “additional predicate violation” of Syracuse’s sexual harassment policy: “These are long policies with multiple provisions, and do not constitute fair notice of the rules that the Student is being alleged to have violated, let alone the factual basis for the allegations.”

Germain said the charges contain “no factual allegations, and the facts that we know do not aid us in understanding what is being alleged,” particularly who was physically or mentally threatened by the conduct of students in the skits, and how.

The professor is particularly perplexed by the allegation of illicit substance use:

In order to prepare a defense, and identify witnesses who can oppose the secret charges, the Student should have an opportunity to view the evidence against him. This is especially when he complaints are being filed by the University and not by any particular students who were present and claim to have been harmed by the skits.

He called the short timetable for the hearing “completely unreasonable” and said it will leave students with too little time to “learn the basis for the charges from you, prepare a defense, and arrange for witness [sic].”

Law professor’s letter to Syracuse officials about Theta Tau prosecution by The College Fix on Scribd

Ban administrators whose ‘salaries and jobs’ controlled by chancellor

Germain asked the university to explain which set of procedures it will use, since the allegations fall under different sets, and how evidence will be presented when 18 students are being tried in a single hearing.

The law professor warned that the hearing will not be “fair and independent” if Chancellor Syverud appoints administrators whose “salaries and jobs” he controls to the hearing panel, considering Syverud has already denounced the accused students in video statements. They should be tenured faculty without connection to Syverud, Germain said.

He’s concerned about an “experienced prosecutor or administrator” making a case against students. Germain demanded that the Department of Public Safety officials – the entity behind the charges – be available “for examination by the panel as to the nature of the direction they received from the University, the evidence upon which the charges are based, and the correctness of the charges.”

The law professor also wants hearings to be recorded “for later review by a court concerning compliance with the policies and due process.” Germain asked the university to give his student “whatever factual evidence was used” to exclude him from classes and finals as a “significant threat” to campus.

He concludes by accusing the university of hypocrisy and buck-passing:

I am concerned that the University has made a decision to prosecute these students and seek heavy sanctions, where no students present have complained, out of a concern for its own image in the media, … to deflect blame from itself for failing to adequately supervise fraternity programs. Please keep in mind that these young students were pledging a University approved fraternity that had held these types of skits for many years without University complaint. The recruits were at the off campus event because the fraternity was approved by the University. The University has no provision prohibiting skits that use offensive or politically incorrect language or themes. The pledges were asked to make politically incorrect skits and roasts for the amusement of the fraternity members, and were told that the skits would be kept private for viewing solely by the participants. They thought it was a safe space to make over-the-top satirical jokes. It was an attempt at comedy, and did not reflect the real views of the participants. They have apologized for the skits and the negative public attention they have brought. To our knowledge, no one at the event was harmed or has complained about the skits.

IMAGE: Happy Stock Photo/Shutterstock

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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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