On January 8, 2019, in a court decision that could double as the film treatment for a remake of National Lampoon’s Animal House,  a New York judge upheld Syracuse University’s suspension of ten members of the Theta Tau fraternity who had taken part in a vulgarity-filled private performance.

Judge James P. McClusky of the state’s Fifth Judicial District agreed with the students that videos of the performance that were leaked to the media amounted to “protected speech.” The videos, shot during a “roast,” showed participants facetiously taunting a new member with racial epithets and homophobic humor. But McClusky concluded that because Syracuse is a private institution and therefore not subject to the First Amendment, it can suspend the students if it chooses to do so.

“The privilege of being a private institution allows the university to act with limited interference by the state and as such is free to encourage or stifle the words and actions of its students as it deems appropriate,” wrote the judge.

The students contended that the university failed to adhere to its own code of conduct, which acknowledges that students “have the right to express themselves freely on any subject” — provided they do in a manner that doesn’t violate the code.

McClusky, who affirmed that he had jurisdiction to review the case to determine whether the university’s decision lacked a rational basis, rejected Syracuse’s contention that the videos constituted some form of harassment. “Being upset is not the equivalent of being harassed,” he wrote.

He likewise seemed skeptical of the university’s contention that seeing the videos threatened anyone’s mental or physical safety (a line of argument the school had put forward, bolstering it by pointing out the student body’s reaction to their publication). “The court can envision students having the same reaction of feeling ‘unsafe’ after a debate on abortion, a debate on the support of Israel, or a debate on the confirmation of Justice Kavanagh; issues upon which one would think an institution of higher education would encourage debate,” McClusky observed.

That wasn’t enough for McClusky to conclude that the university’s stance was “not rational.” Rather, wrote the judge, Syracuse’s determination that the skits “were sexist and/or sexually abusive is rational and based on some evidence.”

University administrators learned of the performance after someone obtained videos of the March 30 event that had been posted to the fraternity’s private Facebook page and passed them along to the Daily Orange, Syracuse University’s student-run newspaper. On April 18, the paper published one of the videos and a story about the incident. Three days later, the Daily Orange published a second video.

The videos went viral. Not long after the first video was published, the university suspended its chapter of Theta Tau, a national fraternity for engineering majors that was founded in 1904.

Kent Syverud, Syracuse’s president and chancellor, denounced the video and generally acted as if there had been a school shooting on campus. In a campus-wide email to students, he denounced the videos, which he described as “extremely racist, anti-Semitic, homophobic, sexist, and hostile to people with disabilities.” Wrote Syverud: “I am appalled and shaken by this and deeply concerned for all members of our community.”

The actions depicted in the videos are crude and puerile: Frat brothers engage in simulated sex acts and dish out racial and ethnic slurs as one member pledges to a fictional “Tri Kappa” fraternity (as in: KKK), which is characterized as the “main enemy of Theta Tau.”

Most, but not all of the participants are white. They perform their skits for an unseen audience, whose members respond to the staged shenanigans with enthusiastic laughter.

In response to the Daily Orange story, the Syracuse chapter of Theta Tau released a statement in which its members apologized “to everyone affected by the racist video.” The statement also attempted to provide some context, explaining that each semester, new frat members are “given the opportunity to write and act out a skit, in order to roast” one of the fraternity’s senior members.

“This year, one of these brothers is a conservative Republican, and the new members roasted him by playing the part of a racist conservative character,” the statement read in part. “It was a satirical sketch of an uneducated, racist, homophobic, misogynist, sexist, ableist and intolerant person…. None of the satire was said or done in malice.”

Despite the apology, there were demonstrations against Theta Tau on campus, as well as forums to discuss the incident. Campus police interrogated the fraternity brothers.

The local district attorney reviewed the videos and found no evidence of criminal activity.

On April 21, a day after a campus sit-in at which students berated Syverud and presented him with a list of demands that included banishing Theta Tau and all those involved, the chancellor expelled the fraternity and suspended more than a dozen of its members indefinitely.

In addition to the lawsuit McClusky has ruled on, which was brought by ten suspended students identified only as John Doe, five John Does are suing Syracuse University in federal court. Of the five, one is African-American, one is Indian-American, and one is a “citizen of Central America,” according to the complaint.

The federal suit, which is pending in the Northern U.S. District of New York, claims Syracuse’s Theta Tau chapter is “co-educational,” and  that its demographics make it “two times more diverse” than the university’s College of Engineering and Computer Science.

In a letter addressed to the university following the banishment of Theta Tau, Ari Z. Cohn, an attorney at the nonprofit free-speech group Foundation for Individual Rights in Education (FIRE), asserts that the three students shown lobbing anti-Semitic slurs in one of the videos are themselves Jewish.

More recently, in a commentary on FIRE’s website, FIRE legal fellow Zach Greenberg called Judge McClusky’s ruling “contradictory” and predicted that it will encourage schools to renege on their commitments to free expression.

Greenberg reported that the students intend to appeal McClusky’s order. But in the meantime, he warned, Syracuse students should be aware that “their expressive freedoms are determined not by university policy, but by the arbitrary whims of university administrators, who may defy students’ rights with impunity.”

For Further Reading:
“Campus Prude Group at Notre Dame Co-Opts #MeToo Rhetoric, Demands Online Porn Ban”