Syracuse Faculty Prosecutor Melting Down: If You Can't Stand the Heat ...
December 15, 2010
by Adam Kissel
One of FIRE's longtime allies, David Ross, keeps a list of people interested in FIRE issues and of administrators who have been involved in some way in a FIRE case. When he gets a press release from FIRE about a violation of someone's rights, he often copies this list when he writes the university to ask for an explanation. After he wrote Syracuse University Chancellor Nancy Cantor about our outrageous case at Syracuse University College of Law (SUCOL), he received a response from the faculty prosecutor, SUCOL Professor Gregory Germain. I replied to it, and that's when Germain started to lose his composure.
We have learned that Chancellor Cantor is circulating Germain's first response—but not FIRE's counterpoint or Germain's second response—whenever someone writes her about the case. It seems that many people are writing her, since we already have received several reports that Chancellor Cantor is using Germain's first response as her reply.
I reproduce all four messages below, omitting duplicated material, contact information, the long recipient list (which included the Chancellor and SUCOL Dean Hannah Arterian), and FIRE's original press release.
From: David Ross
Sent: Tuesday, December 14, 2010 1:56 PM
To: Chancellor; Hannah Arterian; Alternative Dispute Resolution; [Len Audaer]; Gregory Leo Germain
Cc: [a long list]
Subject: FW: FIRE News: Syracuse University Threatens ‘Harassment' Charges over Satirical Blog; Seeks Gag Order on Alleged Author
Dear Chancellor Cantor,
I'm forwarding a press release I just got from FIRE, the Foundation for Individual Rights in Education, about Syracuse's treatment of Len Audaer. I'm forwarding it to you and to academics and others around the country who are interested in free speech and open debate on university campuses. The press release, frankly, makes SU look foolish, at best.
Please write to me, and to the others to whom I've forwarded this note, and justify Syracuse's actions.
David S. Ross
On Tue, Dec 14, 2010 at 3:12 PM, Gregory Germain wrote:
Dear Mr. Ross:
I have sent you a private email in response to your demand, but I thought I would send something to the group, especially since you have asserted on your website that "FIRE has never gotten the facts of any of their cases wrong, and they've never distorted the facts in their presentations."
First, I would ask that you obtain and review my entire motion, and then determine whether I have demanded a "gag" order that would prevent the publication of provided information. In fact, what I am seeking is an order to prevent the disclosure of the NAMES of the individual students, faculty and staff who were involuntarily targeted on the blog from being publicly disclosed on the internet or otherwise without their consent. My application does not prevent the publication of the documents with the individual names redacted. Also, my motion asks that any documents be published in their entirety so that organizations like FIRE cannot continue to take statements out of context to further their political ends. I would invite Mr. Kissel and FIRE to publish my entire motion rather than misleading their constituents with their personal characterizations of my request.
Secondly, I have brought no charges in connection with the sucolitis blog. I have been engaged in a careful investigation of the facts and law. You can be assured that when and if charges are brought, all evidence I have discovered will be provided to the accused.
Third, FIRE has repeatedly suggested that that it is somehow improper for me not to provide all of the information I've discovered in my investigation to the potential targets of my investigation. I am sure you know enough about the law to know that investigators are under no obligation to (and generally do not) provide information to the people they are investigating until charges are brought. Any other rule would interfere with the investigatory process. The Courts have consistently said even in governmental prosecutions that due process does not attach until charges are brought. Our rules work the same way.
Fourth, I have made no public statements about who is or are the targets of my investigation. The only way anyone knows about a target is because the target has chosen to disclose publicly that he is the target of my investigation. I have at all times protected the privacy rights of those who are being investigated. You will have to decide whether one who has sought public attention deserves sympathy for the public attention received.
Finally, contrary to your and fire's repeated assertions, I am not an administrator. I am a teacher who was appointed by the faculty to enforce our code of student conduct by investigating student allegations, and if appropriate filing a complaint alleging a violation. If I file a complant, the charged student is accorded substantial due process. There is a hearing panel consisting of three independent faculty members and two independent students, and a hearing in which the defendant may cross examine witnesses, call witness, and be represented by counsel. Please explain how that does not accord with your or FIRE's notions of due process?
In conclusion, I ask that you obtain a complete copy of my motion from FIRE or whatever source FIRE used to obtain a copy, read it, and then explain to this list whether "FIRE has [ever] gotten the facts of any of their cases wrong, [or] distorted the facts in their presentations."
Associate Professor of Law
Syracuse University College of Law
From: Adam Kissel
Sent: Tuesday, December 14, 2010 5:14 PM
To: [Gregory Germain]
Cc: [the long list]
Subject: Re: FIRE News: Syracuse University Threatens ‘Harassment' Charges over Satirical Blog; Seeks Gag Order on Alleged Author
In FIRE's eleven years of experience, we have learned that students who keep the essential elements of their free speech cases a secret-whether by choice or, as intended here, by order-tend to fare far worse than those who take their cases to the public. We find that universities tend to stop violating someone's rights once those violations are exposed to public scrutiny. Public awareness of a free speech case helps prevent people such as Professor Germain from manipulating the process and further violating someone's rights.
Professor Germain has tried to prevent not merely people's names from being published, but much more. He is acting to prevent the publication not only of any accuser's name, but also the name of any other person who was mentioned on the blog. He also is acting to prevent the publication of "the complaint, the students' charging statements, the blog entries, and the testimony of witnesses" unless they are published in their entirety and with names redacted-and not just by Mr. Audaer and his attorney, but by any media source that seeks access to the documents. Professor Germain surely knows that he is essentially demanding that the media not cover the case at all, for these documents are fundamental. In the United States, responsible media organizations tend not to accept such demands. Such demands on the press are neither fair nor reasonable.
The entirety of the order that we are aware of follows:
Defendant Leonard J. Audaer and his agents are hereby ordered not to post on the internet or otherwise disclose any information obtained in the course of this proceeding, including without limitation the complaint, the students' charging statements, the blog entries, and the testimony of witnesses, without assuring that all recipients of the information agree in writing as follows:
1. The names of the individuals identified in the information will not be disclosed in any article or posting on the internet without the prior written consent of the named individual.
2. In order to prevent misleading selective posting of information, if any document is posted on the internet or is otherwise made available on a public forum, the entire document must be posted in its entirety, except that the names of non-consenting individuals will be redacted and removed before posting. [Posted at http://www.thefire.org/article/12614.html.]
In addition, many colleges do in fact offer an informal process during the initial treatment of a sexual harassment allegation. The accused party learns the nature of the complaint (generally including the content of the expression or interaction and thus the identity of the accuser) and has a chance to respond prior to the initiation of a formal complaint. This process often resolves issues with sensitivity and justice to both accused and accuser. Syracuse apparently does not have or care to use such a process, except in this strange way of holding charges over the head of a student for months without revealing the most basic information he needs to defend himself. Who would sign away his rights without knowing what he is to be charged with, what it concerns, and who has filed a complaint against him?
Audaer faces serious punishments, including the possibility of expulsion, all seemingly as a result of his alleged involvement with a plainly satirical blog. Presuming that this prosecution is about SUCOLitis, it seems impossible that the contents of the blog (see http://www.thefire.org/case/845) could constitute harassment under Syracuse, state, or federal standards for actionable harassment in the educational context.
Apparently, for Professor Germain, it is right and fair to drag an investigation on for months while a student faces possible expulsion, and then to use a parallel from criminal law to defend what is, at best, a morally bankrupt decision to withhold basic information from the student. Syracuse seems to have no written procedure justifying Professor Germain's pattern of prosecution here.
Finally, reasonable professors know that when they are appointed to enforce a code of student conduct, they act as administrators, not merely faculty members. In his role here as prosecutor, Professor Germain is acting as an administrator.
Vice President of Programs
Foundation for Individual Rights in Education
From: Gregory Germain
Date: Tue, Dec 14, 2010 at 7:13 PM
Subject: RE: FIRE News: Syracuse University Threatens 'Harassment' Charges over Satirical Blog; Seeks Gag Order on Alleged Author
To: Adam Kissel
Cc: [the long list]
Well, thank you Adam for admitting, sort of, that your original post was inaccurate. [I admitted no such thing -AK]
I don't like the way you use language such as "people like Professor Germain." What does "people like Professor Germain" mean? I'm bad and you're good?
The fact is, you don't know me or anything about me. We've never met or spoken. I'd be willing to bet you've never read anything I've written, and that you know nothing about my history or views. Nevertheless, your organization has been engaged in a smear campaign against me because I was unfortunate enough to be tasked by the faculty with investigating student complaints. If someone else had been tasked with the investigation, you'd be trying to smear them. All you seem to know how to do is attack. It's unfortunate that you don't go into cases with an open mind, and instead blindly shoot broadsides without any understanding of the situation.
I completely disagree with your comments that the order would prevent your organization from reporting the case. You can report the case without using names or quoting from the materials, or you can quote the materials in their entirety - assuming the accused wants to provide you with the information. If you (and an accused) want your readers to be informed about documents, you can post the entire document without names being mentioned. It costs very little on the internet to post entire documents, as you know.
Contrary to your assertions, it is obvious that what you want is to be able to whip your constituents into a fury by misrepresenting the proceedings by quoting selective excerpts out of context. What I want is full and complete disclosure of the facts (without names) if the defendant wants disclosure, or complete confidentiality if the defendant does not want disclosure. Misleading information and mischaracterization of documents is not in the public's interest, and is not in my school's interests. And there is no reason to further drag through the internet mud the names of the individual students, faculty and staff who were targeted in the blog without their consent, or who testify in the case. They are entitled to confidentiality just like the defendant is entitled to confidentiality.
So we disagree about complete disclosure, and have very different motives. At least have the decency to tell your readers the truth about the nature of our disagreement, and not state falsely that I am seeking an order that would require the proceedings to be secret. That was simply a lie. Moreover, if you really want to fully inform people of the reason for my request, you should quote my entire motion and not just the proposed order.
Contrary to your suggestion, we do have a process of quietly and privately meeting with students who are being investigated. If a student takes responsibility for making a mistake, I am very interested in resolving the case on favorable terms.
I have never made a public statement about who is the target of my investigation. The only reason the public knows about a particular student being the target of my investigation is because that student has sought media attention for his case. Students charged in our process are entitled to privacy under Federal law, and I have not violated that privacy.
Your comment about my investigation dragging on "for months" is also misleading. I have been investigating this case for about two months. Two months is not a long time to investigate a case. If you had any experience with investigations you would know that. Unlike many schools that deal with claims administratively, we have a full blown judicial process to accord due process. I have to prove the case, both on the law and facts. It takes time to put a prosecution together, and I do it carefully and thoughtfully. I am not going to be goaded into bringing claims before I am ready to prove them.
Finally, you conclude by saying that there is no merit to the case, knowing that I cannot respond. You say:
"Presuming that this prosecution is about SUCOLitis, it seems impossible that the contents of the blog (see http://www.thefire.org/case/845) could constitute harassment under Syracuse, state, or federal standards for actionable harassment in the educational context."
That is, of course, a totally unsupported legal conclusion based on no facts whatsoever. In reading your continuing posts on the subject, I have wondered whether you have actually read the whole blog or whether you have only read selective parts of it. In any case, you are entitled to your opinions, just as I am entitled to mine. If I believe that there has been a violation, I will bring a complaint and a panel of three independent faculty members and two independent students will decide which of us is right, after a full hearing where the defendant can be represented by counsel, cross examine my witnesses and call his/her own witnesses. That's a real and fair process for determining facts and law, not your blog where you state your unsupported opinions over and over and over again as if they were incontrovertible facts.
Associate Professor of Law
Syracuse University College of Law
Well, Professor Germain says that he wants us to reproduce whole documents or not reproduce them at all, so there you have them.