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UNIVERSITY STUDENTS WERE CHARGED WITH VIOLATIONS OF THE CODE OF CONDUCT STEMMING FROM THE RELEASE OF VIDEO CLIPS DEPICTING SKITS PERFORMED AT A ROAST HELD BY A FRATERNITY; THE SKITS INCLUDED RACIAL AND RELIGIOUS SLURS AND SIMULATED SEXUAL ACTIVITY AND VIOLENCE; THE 4TH DEPARTMENT HELD THAT THE DISCIPLINARY PROCEDURES COMPORTED WITH THE RULES, THE CODE VIOLATIONS WERE SUPPORTED BY THE EVIDENCE AND THE SANCTIONS DID NOT SHOCK ONE’S SENSE OF FAIRNESS; A STRONG DISSENT ARGUED THE CODE PROVISION PURPORTING TO PROHIBIT SPEECH WHICH “THREATENS” THE “MENTAL HEALTH” OF A PERSON IS SO VAGUE THAT IT CAN NOT SUPPORT A CONVICTION (FOURTH DEPT).

The Fourth Department, over a dissent, affirmed Supreme Court in this Article 78 proceeding contesting the disciplinary procedures used by Syracuse University (respondent), the disciplinary provisions of the respondent’s Code of Student Conduct, and the punishment imposed by respondent on the petitioners (students). The petitioners participated in a roast held by their fraternity which was videotaped. The videotaped skits “included dialogue in which students professed hatred for persons of certain races, ethnicities, and religions while using slurs to refer to those groups, and depictions of simulated sexual activity and sexual violence directed at persons imitating women and a disabled individual.” Eventually portions of the video were made public. Petitioners were afforded a group hearing and were found to have violated the charged code provisions. Sanctions which included one or two-year suspensions were imposed. After noting that private colleges are not held to constitutional free speech and due process standards, the Fourth Department determined the disciplinary procedures substantially complied with the code provisions, the evidence supported the charged code violations and the sanctions did not shock one’s sense of fairness. The dissent focused on one of the charged code provisions which prohibits “[c]onduct—whether physical, verbal or electronic, oral, written or video—which threatens the mental health, physical health, or safety of any person or persons including, but not limited to hazing, drug or alcohol abuse, bullying or other forms of destructive behavior:”

​FROM THE DISSENT:

… [T]here is one aspect of this case that I cannot reconcile with the applicable law, namely, respondent’s decision to convict petitioners of violating Section 3 of the Code. … Section 3 empowers respondent to punish any student for “[a]ssistance, participation in, promotion of, or perpetuation of conduct—whether physical, verbal[,] electronic, oral, written or video—which threatens the mental health . . . of any person or persons” … . * * *

… [D]oes that provision create any distinction between speech that merely offends and speech that truly harms another person’s psychological, psychiatric, or neuro-cognitive functioning? … [H]ow does Section 3 channel the factfinder’s discretion so as to punish only the latter and not the former? … [T]he staggering breadth of the provision is matched only by its indefiniteness, and it effectively serves as a systemic instrument for the suppression of any viewpoint that falls outside the zone of permissible opinion decreed by the most strident and self-righteous of the campus community. To convict petitioners under such a vague and standardless diktat is, to my mind, the very embodiment of arbitrary and capricious administrative decision-making that should be annulled under CPLR article 78 … . Matter of John Doe 1 v Syracuse Univ., 2020 NY Slip Op 06586, Fourth Dept 11-13-20

 

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