Opinion
003261/2020
03-10-2021
The FRATERNITY OF ALPHA CHI RHO, INC., Petitioner, v. SYRACUSE UNIVERSITY; and M. Dolan Evanovich, Individually and as Senior Vice-President for Enrollment and the Student Experience, Respondents.
Schlather, Stumbar, Parks & Salk, LLP by Raymond Martin Schlather, Esq., for Petitioner. Hancock Estabrook, LLP by John G. Powers, Esq. and Michael G. Marrero, Esq., for Respondents.
Schlather, Stumbar, Parks & Salk, LLP by Raymond Martin Schlather, Esq., for Petitioner.
Hancock Estabrook, LLP by John G. Powers, Esq. and Michael G. Marrero, Esq., for Respondents.
Scott J. DelConte, J.
This is an Article 78 Proceeding in which Petitioner The Fraternity of Alpha Chi Rho, Inc. challenges the outcome of a disciplinary proceeding brought against it by Respondent Syracuse University. The disciplinary proceeding was based upon accusations that an individual yelled racial slurs at a minority University student. The individual — who denies that he said anything derogatory or racially offensive — did not attend Syracuse University, was not a member of Alpha Chi Rho and was off-campus at the time of the alleged incident. He was, however, friends with an Alpha Chi Rho member, and had been drinking at the fraternity house earlier that day. Because of this, the fraternity was charged by the University with violating its Code of Student Conduct, which prohibits harassment. Following a hearing, the University's Student Conduct Board found that the woman had been harassed, and that Alpha Chi Rho was responsible for the harassment, suspending the fraternity for one year.
Alpha Chi Rho appealed the Conduct Board's ruling to the University Appeals Board, which reversed the Conduct Board's decision on the grounds that a fraternity could not be held responsible for the independent, off-campus actions of former guests who were not fraternity members. Less than a month later, Respondent M. Dolan Evanovich, a Senior Vice President at the University, rejected the Appeal Board's decision and reinstated the findings of the Conduct Board, claiming that there was an implied "expectation" in the University policies that fraternities would be held responsible for the actions of their guests, even though the rules did not expressly say so. Alpha Chi Rho then commenced this Article 78 proceeding, challenging Evanovich's rejection of the Appeals Board decision. The University and Evanovich, in turn, move to dismiss the Petition. For the reasons set forth below, the relief requested in the Petition is GRANTED , the motion to dismiss the Petition is DENIED , and the determination of Evanovich rejecting the decision of the University Appeals Board is hereby annulled.
I.
The Fraternity of Alpha Chi Rho, Inc. is a nationwide college fraternity organization with local chapters at multiple colleges, including Syracuse University (NYSCEF Doc. 1). In the afternoon of November 16, 2019, four Syracuse University students who were members of Alpha Chi Rho and around 10 to 15 of their friends — who were not affiliated with the fraternity or the University — hung out and drank for several hours at the fraternity house located at 131 College Place (NYSCEF Doc. 2). At around 7 p.m., the group left the fraternity house to go back to a nearby apartment and watch a basketball game ( Id. ). As they were walking, one of the individuals in the group — identified as K.F. — briefly ran towards a woman standing outside of a parked car ( Id. ). According to the woman — who immediately reported the incident to the University Department of Public Safety — K.F. and others in the group yelled racial slurs at her during this interaction (NYSCEF Doc. 37).
After an investigation, the Department of Public Safety filed complaints against each of the four fraternity members for violating Sections 2 and 3 of the University's Code of Student Conduct, which prohibit harassing or threatening behavior (NYSCEF Doc. 3; one fraternity member was also charged with violating Section 17, which requires students in leadership positions to prevent or report misconduct). On December 6, 2019, a hearing was held by the University Conduct Board, during which each of the four fraternity members denied making — or even having heard — any derogatory or racially offensive statements during the November 16 incident ( Id. ). At the conclusion of the hearings, by letter dated December 19, 2019, the Conduct Board advised that it had found that the four fraternity members were not responsible for any violations of the Code of Student Conduct, because it did not find that any derogatory or racially offensive language had been used during the incident (Id.).
On January 10, 2020, Alpha Chi Rho was given notice that the Department of Public Safety had subsequently filed a complaint against the fraternity itself based upon the same incident, charging that "members and guests of your fraternity were verbally harassing a female student by calling her the ‘N-word’ as she walked by College Place’ " (NYSCEF Doc. 13). A hearing was held on January 17, 2020 by the Conduct Board, during which Alpha Chi Rho was not permitted to be represented by an attorney. At the conclusion of the hearing, in a decision sent out on February 11, 2020, the Conduct Board determined that the fraternity had violated the Code of Student Conduct when, "on or about November 17, 2019, a guest of four members of the Alpha Chi Rho fraternity made a derogatory comment and harassed a Syracuse University student" (NYSCEF Doc. 21). The Conduct Board then suspended the fraternity for one year ( Id. ).
Alpha Chi Rho immediately appealed the Conduct Board's decision to the University Appeals Board, arguing that it was not responsible for the independent, off-campus actions of its former guests and, further, that the University had made allegations of sexual harassment during the hearing without giving the fraternity any advance notice or allowing it to be represented by an attorney during the hearing, in violation of the procedure requirements in the University's Code of Student Conduct. On February 21, 2020, the Appeals Board issued a decision overturning the Conduct Board's decision, ruling that "University policy does not provide a basis on which to find the respondent [fraternity] responsible for the conduct that the lower Board found to have occurred" (NYSCEF Doc. 23). Specifically, the Appeals Board found that because K.F. "was not a guest of the fraternity and is not a Syracuse University student," [he] could not serve as a representative of the fraternity and [there is] no other basis on which [the fraternity] could be held responsible for his alleged actions" ( Id. ).
By letter dated March 3, 2020, Respondent M. Dolan Evanovich, the University's Senior Vice President of Enrollment and the Student Experience, rejected the decision of the Appeals Board, and reinstated the Conduct Board's determination finding Alpha Chi Rho responsible for violating the Code of Student Conduct based upon the independent, off-campus actions of its former guest (NYSCEF Doc. 25). In his determination to reject the Appeals Board decision, Evanovich concluded that "[a]lthough it is true the Code [of Student Conduct] does not expressly cover guests of organizations, such an expectation is present throughout the University's Fraternity and Sorority Affairs policies," including the "Revocation of Recognition" policy and provisions relating to official social events (NYSCEF Doc. 25).
Alpha Chi Rho then commenced this Article 78 proceeding, arguing that Evanovich's rejection of the Appeals Boards’ decision was arbitrary because the Code of Student Conduct does not allow the University to punish fraternities for the independent, off-campus actions of their former guests and, further, that the University failed to substantially comply with the procedural requirements in its disciplinary process by not providing notice of the sexual harassment allegations and by prohibiting the fraternity from having an attorney advisor during the hearing (NYSCEF Doc. 1). The University and Evanovich, in turn, move to dismiss the Article 78 proceeding, arguing that the Court must defer to Evanovich's interpretation that the Code of Student Conduct imposes responsibility on fraternities for the actions of their former guests, and that the appropriate procedural requirements of its disciplinary process were substantially complied with (NYSCEF Docs. 35, 36).
II.
The law is well-settled that disciplinary proceedings brought by private universities against students, student organizations and fraternities are not subject to the "full panoply of due process guarantees" under our State and Federal Constitutions, because the relationships between those entities are private, contractual ones ( Doe v Syracuse University , 188 AD3d 1570, 1571 [4th Dept 2020] ). Accordingly, a private university's decision in a disciplinary matter may only be challenged in a judicial proceeding on the grounds that the university: (1) "failed to substantially comply with its procedures;" (2) made a determination that "lacks a rational basis;" or (3) imposed a penalty "so excessive that it shocks one's sense of fairness" ( Doe , 188 AD3d at 1572 ; Aryeh v St. John's University , 154 AD3d 747, 748 [2nd Dept 2017] ). Here, Alpha Chi Rho claims that Evanovich's rejection of the Appeals Board's decision lacks any rational basis and, additionally, that the University violated the disciplinary procedures in its Code of Student Conduct.
With respect to the rejection of the Appeals Board's decision, Evanovich's March 3, 2020 determination that the University had the authority to punish Alpha Chi Rho for the independent, off-campus actions of its former guest is based upon his claim that "[a]lthough it is true the Code [of Student Conduct] does not expressly cover guests of organizations such an expectation is present throughout the University's Fraternity and Sorority Affairs policies" (NYSCEF Doc. 25, 26). However, the examples that Evanovich relies upon to establish this "expectation" do not support such a broad interpretation. Specifically, the "Social Events Policy" only covers guests attending officially defined "Chapter social events," and the "Revocation of Recognition" provision only covers guests that have, in the judgment of the Assistant Dean, been determined to pose "an unacceptable risk of harm to persons or property," neither of which happened in this case (NYSCEF Doc. 26).
There is no provision in the Fraternity And Sorority Affairs policy, or in the University's Code of Student Conduct, that would allow the University to punish fraternities for the independent, off-campus actions of former guests (NYSCEF Docs. 9, 23, 26). This is because fraternities cannot control the actions of its former guests, and it would be unreasonable to punish a fraternity for something that it could not control. While the Courts will generally defer to a university's interpretation of its own policies, such deference does not extend to "unreasonable or irrational" interpretations, such as Evanovich advances here ( Hyman v Cornell University , 82 AD3d 1309, 1310 [3d Dept 2011] ). Alpha Chi Rho did nothing wrong, and the determination that it is nonetheless responsible for K.F.’s alleged harassment — which occurred off-campus and was not witnessed by any fraternity members — has no rational basis. As such, the rejection of the Appeals Board decision must be annulled as arbitrary ( Pell v Board of Education of Union Free School District No.1 , 34 NY2d 222, 231 [1974] ), and the Appeals Board decision reinstated.
Because the reinstated Appeals Board decision vacates the sanctions in this case, the University's alleged violations of the Code of Student Conduct's disciplinary procedures are moot. Nonetheless, there is no question that a university must substantially comply with the procedures in its disciplinary rules — whatever those procedures might be — in order to impose a punishment on a student, social organization or fraternity ( Ebert v Yeshiva University , 28 AD23d 315, 315 [1st Dept 2006]). While Alpha Chi Rho was not charged with sexual harassment in this case, there were allegations by multiple witnesses that K.F. had also sexually harassed the victim by attempting to look up her dress during the incident (NYSCEF Doc. 37). The University not only knew about these allegations but, most critically, introduced evidence of them during the hearing before the Conduct Board.
Section 8.1 of the University's Code of Student Conduct requires written notice only of "the alleged facts upon which the charges are based," which the University's January 10, 2020 letter — referring only to the use of racially offensive language that the fraternity was charged with and initially found responsible for — substantially complies with (NYSCEF Doc. 13). However, the University's refusal to allow an attorney to represent the fraternity at the hearing when it knew that allegations of sexual harassment had been made (NYSCEF Doc. 15), violated Section 6.3 of the Code of Student Conduct, which permits attorney advisors in any case that "involves allegations of sex-based discrimination or harassment" (NYSCEF Doc. 9). As with the Appeals Board, the Court finds this violation of the governing disciplinary procedures quite troubling, particularly in light of claims that the charge against the fraternity was motivated by factors other than its merits. Accordingly, if the Appeals Board decision had not been reinstated, this Court would remit the matter for a new hearing.
III.
Accordingly, upon due deliberation, it is hereby,
ORDERED that the Petition of The Fraternity of Alpha Chi Rho, Inc. is GRANTED , the March 3, 2020 determination of Respondent M. Dolan Evanovich is ANNULLED, and the February 21, 2020 decision of the University Appeals Board vacating the sanctions against the Petitioner is REINSTATED , with full force and effect; and it is further
ORDERD that Respondents Syracuse University and M. Dolan Evanovich's motion to dismiss the Petition is DENIED .