Theta Tau fraternity was permanently expelled from the Syracuse University campus after videos with racist and sexist content were shared. A law professor argues that the way the students involved were disciplined was not in keeping with the university’s commitment to free speech. (Julie McMahon/The Syracuse Newspapers via AP)

A diverse group of 15 students (white, African American, Hispanic, Jewish, Muslim, Christian) who were pledging an engineering fraternity were asked to do a roast of the fraternity members for their joint amusement. The skits were crude: masturbation jokes; a politically conservative member was made to be an alt-right bigot who formed a competing fraternity to spread racism; a skit about sexually assaulting a fraternity member who was so controlled by his girlfriend that he could not move (patterned after a viral Brandon Rogers YouTube video). They were making fun of themselves and each other in outlandish ways using very crude language.

Everyone laughed at the outrageousness and stupidity of the skits and went home. No one complained.

Unfortunately for the students, the fraternity made a video for members who could not be present. And someone got access to the fraternity’s private Facebook page, made a cellphone recording of the screen, and sent the videos to the Daily Orange newspaper and university officials.

Seeking to get out in front of the story, the university chancellor publicly characterized the videos not as skits but as events that were “extremely racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities.” Protests followed demanding the release of the videos, and edited portions of the two videos were released by the school newspaper. The university quickly expelled the fraternity, and the chancellor issued videotaped messages to the community promising swift student prosecutions, seeking suspensions or expulsions.

Syracuse University has a broad free speech policy that promises protection for offensive speech. A hearing was scheduled in two weeks, during the students’ final exams, to determine whether the students committed physical violence, threats or harassment; used drugs or alcohol illegally; and whether they committed sexual harassment under Title IX, the federal law that prohibits sex discrimination in schools that receive federal funding.

I was asked to serve as a “procedural adviser” for several of the students. I could attend the hearings with the students, but I could not speak to the hearing panel; the students had to defend themselves.

Gregory Germain, a professor of law at Syracuse University College of Law, took this photo to illustrate his role as a procedural adviser who was not allowed to speak at the hearing. (Courtesy Gregory Germain)

I asked, but the university never explained, how these skits could constitute physical violence, harassment or threats when the only response of the audience was laughter.

The hearings were nothing like American court proceedings in which an independent judge or jury hears both sides and renders a decision. The university was both the complainant and in complete control of the process. The office bringing the charges appointed administrative employees to the panel, hired a lawyer paid by the university to instruct the panel and scripted the proceeding.

The Title IX claim was dropped after the Department of Education determined that it would violate the students’ free speech rights. The panel proceeded to find the students guilty of several different flavors of harassment as well as threatening the health or safety of others. All of the students were suspended for one to two years, depending on their roles in the skits.

Some people may feel the students got what they deserved for using offensive language or themes. But that does not justify ignoring the free speech promises made by the university in the Code of Conduct.

The university used an unfair process to convict these kids of things that they did not do.

Abridging free speech rights in this way will create fear among students and faculty that they can be prosecuted and punished for saying things that the administration or another student or faculty member does not like, even when the speech does not cross the line into prohibited conduct under the university’s rules.

All the university (or the complainant) has to do is manipulate the rules to fit the facts. With its control of the hearing process, the university can dictate the result.

This is very troubling to those of us who believe that a great university must be a place for the free exchange of ideas and dialogue, and fairness in its hearing processes.

I have no problem with a rule allowing the university to punish real harassment directed at another student who suffers real harm. But no student has claimed to have been harassed in this case.

Instead, the university is punishing speech that was not directed at anyone who did not welcome it. That speech may be offensive (especially out of context). But is it harassment? If, as in Alice in Wonderland, “harassment” can mean whatever the university wants it to mean, then there is no free speech at Syracuse University.

This will create a climate of fear that prevents the free exchange of ideas and learning. It also sends a strong message to students that they are disposable if they unintentionally embarrass the administration.

The chancellor has put the university on a course toward censorship of the worst kind: undefined censorship that can be punished after the fact, even though not foreseen.

Anyone who cares about our university should be very worried about this result.

Gregory Germain is a professor of law at the Syracuse University College of Law. 

Syracuse spokeswoman Dara Royer offered this response: 

The university recognizes that reasonable people may have different views as to the appropriate response or punishment for those involved in this incident. Syracuse University’s student conduct process respects the rights of all students, and is designed to lead to fair outcomes in difficult cases. No student conduct case is easy, and the university approaches the process fairly and professionally. This matter has been handled no differently.

The Theta Tau fraternity videos presented a situation where the rights of one group to speak freely collide with the rights of others to have a safe and welcoming learning environment. The Theta Tau videos have had a significant impact on the well-being of students, faculty and staff on this campus and in the greater university community. The videos contain language, even if offered under the guise of satire, that is sexist, racist, ableist, anti-Semitic and demeaning to the LGTBQ community. That the videos were extremely offensive does not appear an issue of debate. Moreover, speech or conduct can be harassing in nature based on its effect on others, even if it that was not the underlying purpose or intent.

The university recognizes that a healthy and rigorous learning environment must allow for a diverse array of ideas, even those that may be viewed by a majority as provocative, or potentially incendiary. The university’s speech policies are designed to balance free expression with the university’s obligation to maintain an educational environment that is devoid of discrimination or harassment. The university expects members of its campus community to adhere to the standards and values set forth in university policies. The university allows and empowers all students to freely express themselves within these important parameters.