UPDATED: July 16, 2018 at 9:27 p.m.

A Syracuse University College of Law professor who’s advising three students charged with conduct violations in connection to the Theta Tau videos said he believes the university’s process for deciding the charges is unfair.

The students charged by the university for multiple policy violations — including sexual harassment and threatening behavior — will face a student conduct and Title IX complaint hearing on Wednesday morning, according to charging documents obtained by The Daily Orange. In mid-April, Chancellor Kent Syverud said individual students could be expelled or suspended due to their involvement in the creation of videos he called “racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities.”

“There’s no way we’re going to get a fair hearing tomorrow,” said Gregory Germain, the College of Law professor, on Tuesday. “This is a fundamentally unfair process.”

The Theta Tau fraternity was suspended and eventually permanently expelled from SU in mid-April, after the university confirmed it was involved in the creation of videos showing people in the organization’s house using racial and ethnic slurs and miming a sexual assault of a person with disabilities. In a statement on the chapter’s website, Theta Tau members called the videos a “satirical sketch.”

“I solemnly swear to always have hatred in my heart for n*ggers, sp*cs and most importantly the f*ckin’ k*kes,” the person on his knees repeats in a recording of one of the videos posted by The D.O. in April.

In another recording, a person sits down in a rolling chair and a different person yells, “He’s drooling out of his mouth because he’s retarded in a wheelchair.”

“Syracuse University’s student conduct process respects the rights of all students, and is designed to lead to fair outcomes in difficult cases,” said Sarah Scalese, SU’s associate vice president for university communications, in a statement. “The University strives to maintain a fully inclusive learning environment, and must respond to incidents that might relate to sex- or gender-based harassment. This is true when an individual files a complaint, or when conduct is alleged to create a hostile environment on the University’s campus or in its programs.”

Scalese declined to comment further on the procedure or status of pending conduct matters.

According to the charging documents, students are being accused of multiple policy violations that include:

• Physical harm or threats of physical harm
• Harassment beyond protected free speech
• Conduct threatening the mental health, physical health or safety of students, including hazing, drug or alcohol abuse and bullying, among other things
• Sexual abuse or harassment
• Illegal use, possession, purchase, distribution, manufacture or sale of alcohol, drugs or controlled substances, among other things

The charging document does not specify which actions in the video corresponded to each policy violation.

Germain said he believes the charges filed against the students he’s advising through the hearing process don’t acknowledge the intended satirical nature of the videos.

“Obviously they’re offensive, insensitive, juvenile (and) not very funny when we look at them outside of the context in which they were made,” Germain said. “If they were being charged with doing that — making offensive, unfunny, juvenile videos — they’d be guilty of it, I think. But that’s not what they’re being charged with.”

Germain said he believed the charges were filed based on the idea that students in the videos were intending to harass others, either physically or sexually. Anyone viewing the videos in their entirety would see that students were only participating in skits, he added.

“This wasn’t like a bunch of racist groups getting together and promoting hate,” Germain said. The skit depicted in one of the videos was intended to satirize a fictional fraternity that promoted hate, he added. People participating in the skit made a distinction between Theta Tau and the fictional fraternity that was being caricatured, Germain said.

Germain also expressed concern with the speed of the conduct investigation and hearing, which is taking place just over two weeks after the university charged the students with policy violations. Dolan Evanovich, SU’s senior vice president for enrollment and the student experience, said in April that students involved in the Theta Tau videos would face an “expedited and fair” process. Germain said he hasn’t been told why the university is accelerating the judicial process.  

Students involved in the Theta Tau videos would face an “expedited” conduct process, Dolan Evanovich said at an April press conference. Josh Shub-Seltzer | Staff Photographer

After Wednesday’s conduct hearing, a three-person board will determine the students’ punishments, according to charging documents.

SU brings the charges, appoints the board and picks the lawyer advising the board, Germain said. Because the university controls the hearing process and appoints the people adjudicating the charges, German said he doesn’t believe the trial will be independent.

Germain added that he asked if he could be involved in the selection of the hearing panel and its attorney adviser to ensure their independence, but was denied. He suggested the conduct board be composed of tenured professors independent of Syverud and other administrators who have publicly criticized the videos without acknowledging their satirical intent, but that suggestion was also denied, he said.

According to the charging documents, Wednesday’s hearing will begin with a presentation by the Department of Public Safety’s primary investigator. Then, each student will have the opportunity to speak to the conduct board. After student remarks, the board will determine guilt for student policy violations by a preponderance of evidence standard. Neither party is able to cross-examine the other, but the conduct board is allowed to conduct witness interviews or gather additional information at the hearing, per the documents.

Students are allowed to be advised by attorneys or other advisers, such as Germain, according to the documents. They can provide advice to students during the hearing but cannot write statements or otherwise participate, per the documents.

Instead of potentially expelling or suspending students, Germain said the release of the videos should have opened a dialogue about sensitivity. Germain said he suggested the university allow students to participate in a mediation process, in which people involved in the creation of the Theta Tau videos could engage in discussion with representatives of student protesters and university officials. He said mediation could have been a “teaching moment” for the students, unlike the “adversarial” and “hostile” process the students are currently facing.

Germain declined to name the students he’s advising through the conduct process, but he said the students are worried their lives will be “ruined” by Wednesday’s hearing.

“They feel very ashamed of having participated in these videos and very ashamed that people are seeing them and thinking of them as … alt-right, racist kids, which they’re not,” Germain said.

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MORE COVERAGE:

• Four prospective members, one brother of Theta Tau file lawsuit against SU
• SU will not publicly release names of students in Theta Tau investigation
• Complaints filed against 18 people present at Theta Tau event
• Second Theta Tau video shows mimed sexual assault of person with disabilities

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Published on May 8, 2018 at 6:20 pm

Contact Jordan: jmulle01@syr.edu | @jordanmuller18