FIRE letter to Syracuse University Chancellor Nancy Cantor, October 25, 2010

October 25, 2010

Nancy Cantor, Chancellor
Syracuse University
300 Tolley Administration Building
Syracuse, New York 13244

Sent via U.S. Mail and Facsimile (315-443-3073)

Dear Chancellor Cantor:

As you can see from the list of our Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of liberty, free speech, legal equality, due process, the right of conscience, and academic freedom on America's college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.

FIRE is deeply concerned about the threat to freedom of expression presented by Syracuse University's decision to investigate at least one student on charges of "harassment" due to the protected content of an explicitly satirical blog about the Syracuse University College of Law (SUCOL). Syracuse is morally and legally obligated to uphold the promises of free speech it makes to its students. By pursuing this investigation, Syracuse betrays its promises, chills expression, and inhibits the marketplace of ideas on campus.

This is our understanding of the facts. Please inform us if you believe we are in error.

According to the SUCOLitis blog at http://sucolitis.wordpress.com (now apparently accessible only with a password), SUCOLitis "is written by a highly dedicated team of scarily talented 2 and 3L students whose only goal is to entertain you, the people of Syracuse University College of Law. And maybe to get jobs at The Onion." The blog also carries a disclaimer that further explains its content and purpose:

Disclaimer
SUCOLitis is a satirical publication and not a news blog. No actual news stories appear on the site. The views and opinions purportedly expressed should not be attributed to any persons,living or dead, including those with whom they share names and other descriptive details. SUCOLitis does not show up on search engine results ...

The blog is written anonymously.

On October 15, 2010, SUCOL Associate Professor of Law Gregory Germain e-mailed law student Leonard Audaer, informing him that "I have received a charging statement from a student against you, and have begun an investigation of the charges. The charges are extremely serious."

On October 18, according to Audaer's undisputed, enumerated, written account of a meeting among Audaer, Germain, and Senior Assistant Dean for Student Life Tomás A. Gonzalez, Audaer was told that he was being investigated for "harassment":

44.    Professor Germain said that no complaints against other students had been received and that Len Audaer was the focus of the investigation.

45.    Dean Gonzalez stated that there was likely to be a second investigation, carried out by Syracuse University's Judicial Affairs department.

46.    Len Audaer asked how the two investigations would be related.

47.    Dean Gonzalez informed Len Audaer that they would be separate and could come to different decisions, but that they were able to share evidence.

48.    Professor Germain said that the Judicial Affairs investigation was different, and that it related to the use of electronic resources for the purposes of committing harassment.

49.    Dean Gonzalez told Len Audaer that he would receive information about Judicial Affairs investigation imminently.

50.    Professor Germain told Len Audaer that he was strongly inclined to prosecute him.

Audaer was presented with no specific expression that had been identified as "harassing," nor was he provided with the name of any complainant.

On October 19, Audaer e-mailed Germain and Gonzalez, asking them to confirm his account of the meeting. On October 19, Germain replied by e-mail, stating in relevant part, "I don't have time to read or respond to your summary of our meeting." According to Audaer, Gonzalez also replied, stating that Gonzalez was unwilling to comment on the record about any meeting conducted as part of any investigation.

These investigations are morally and legally unacceptable because the speech involved is not harassment and because any investigation of this speech as "harassment" violates Syracuse's express promises of freedom of speech. These points stand without regard to who is responsible for which expression on the blog. Syracuse promises in its Student Handbook that "[s]tudents have the right to express themselves freely on any subject provided they do so in a manner that does not violate the Code of Student Conduct," and that "Syracuse University is committed to the principle that freedom of discussion is essential to the search for truth and, consequently, welcomes and encourages the expression of dissent." The current investigations betray these guarantees.

The Code of Student Conduct bans harassment under very strict definitions in two different locations. The code at first defines harassment as follows:

Harassment, whether physical or verbal, oral or written, which is beyond the bounds of protected free speech, directed at a specific individual(s), easily construed as "fighting words," and likely to cause an immediate breach of the peace. [Emphases added.]

Later in the code, the Computing and Electronic Communications Policy provides a second definition of harassment:

Harassment: Harassing others by sending annoying, abusive, profane, threatening, defamatory or offensive messages is prohibited. Some examples include obscene, threatening, or repeated unnecessary messages; sexually, ethnically, racially, or religiously offensive messages; continuing to send messages after a request to stop; and procedures that hinder a computer session. [Italics added.]

Satirical blog posts (which are not "sent" but rather must be sought out by readers) do not come close to meeting either standard under any reasonable reading of these policies.

The Code of Student Conduct also bans sexual harassment, invoking federal and state law and interpretations by the Office for Civil Rights of the U.S. Department of Education (OCR). Syracuse should note that the misinterpretation of federal harassment law by colleges and universities had become so rampant that on July 28, 2003, OCR Assistant Secretary Gerald A. Reynolds issued an open letter to all college and university presidents in the United States that clarified the relationship between harassment law, federal regulations, and the First Amendment. Secretary Reynolds wrote:

[I]n addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR ... Some colleges and universities have interpreted OCR's prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.

Specifically, the Supreme Court has defined student-on-student harassment as conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) (emphasis added). By definition, this includes only extreme and unusually repetitive behavior-behavior so serious that it would prevent a reasonable person from receiving his or her education. For example, in Davis, the conduct found by the Court to be actionable harassment was a months-long pattern of conduct including repeated attempts to touch the victim's breasts and genitals and repeated sexually explicit comments directed at and about the victim.

To be clear: Discriminatory harassment, properly understood and as defined by the Supreme Court, refers to conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "so severe, pervasive, and objectively offensive, and ... [that] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Id. at 652. Again, under any reasonable reading of this exacting legal definition, the blog entries in question do not constitute harassment and are thus instances of protected speech. Syracuse's Code of Student Conduct specifically only prohibits harassing speech that is "beyond the bounds of protected free speech." Given that the Supreme Court has clearly defined the boundary separating protected speech from actionable harassment in the educational context, Syracuse may not selectively ignore this definition in choosing to prosecute a student for harassment.

Syracuse's sexual harassment policy also invokes state law, stating that "New York State also prohibits sexual harassment through its Human Rights Law." The New York State Division of Human Rights brochure titled "Sexual Harassment" (available at http://www.dhr.state.ny.us/pdf/trifold-sexual_harassment.pdf), however, states that "the law requires the behavior to be severe and/or pervasive, so that one joke or comment may not be enough to be sexual harassment."

Put simply, to be legally punishable for harassment, a student must be far more than simply rude or offensive. Rather, he or she must be actively engaged in a specific type of discrimination to such a degree that the student effectively bars another student from equal access to the university's resources, as defined by law. The satirical material on SUCOLitis comes nowhere near the level of severity or pervasiveness that that would justify a sexual harassment charge against anyone responsible for the expression.

The principle of freedom of speech does not exist to protect only non-controversial speech; indeed, it exists precisely to protect speech that some members of a community may find controversial or offensive. Syracuse has bound itself to this principle in its promises, and it has a moral and legal duty to uphold its promises. The right to free speech includes the right to say things that are deeply offensive to many people, and the Supreme Court has explicitly held, in rulings spanning decades, that speech cannot be restricted simply because it offends people. In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court held that "the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.'"

Indeed, many types of jokes-including parody and satire-exist precisely to challenge, to amuse, and even to offend, and such speech is unambiguously protected under the First Amendment. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court ruled that the First Amendment protects even the most outlandishly offensive parody-in that case, a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. Such blatantly ridiculing speech is protected under the First Amendment. In Texas v. Johnson, 491 U.S. 397, 414 (1989), the Court explained the rationale behind these decisions well, saying that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." As a private institution, Syracuse made the choice to promise freedom of speech to its students. Under such promises and principles, there can be no question that the writers of SUCOLitis may not be punished for "harassment."

We urge you to show the courage to correct Syracuse's error in investigating Audaer for the protected speech of the anonymous authors of the SUCOLitis blog. Since no harassment has occurred, either by law or by Syracuse's own policies, the investigation of Audaer or any other potential author of the blog cannot be understood as any more than a politically motivated witch hunt. The SUCOL and university investigations must cease immediately, and Audaer's disciplinary record must be cleared of any reference to this matter. FIRE further requests that you publicly acknowledge the free speech rights that Syracuse has promised to its students and publicly declare that no student will be investigated for contributing to SUCOLitis, so that speech will no longer be chilled in the Syracuse community. While we hope this situation can be resolved amicably and swiftly, we are committed to using all of our resources to see this situation through to a just and moral conclusion.

With this letter we enclose a signed FERPA waiver from Leonard Audaer, permitting you to fully discuss his case with FIRE.

Please respond by November 12, 2010. We look forward to hearing from you.

Sincerely,

Adam Kissel
Vice President of Programs

Encl.

cc:

Hannah R. Arterian, Dean, Syracuse University College of Law
Tomás A. Gonzalez, Senior Assistant Dean for Student Life, Syracuse University College of Law
Gregory Germain, Associate Professor of Law, Syracuse University College of Law
Steve Goodstadt, President, Law Student Senate, Syracuse University College of Law
Thomas V. Wolfe, Senior Vice President and Dean of Student Affairs, Syracuse University
Gerald M. Martin, Director, Office of Judicial Affairs, Syracuse University
Roy S. Gutterman, Director, The Tully Center for Free Speech, Syracuse University
David Rubin, Professor and Dean Emeritus, S.I. Newhouse School of Public Communications, Syracuse University