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STATE OF NEW YORK

SUPREME COURT : COUNTY OF ONONDAGA
_ _-_---_ _ _ __ _ _-_ _ _ _ _-_ _ __ _ __ _ _ __ __ _ __ _ _ _ __ _ __ _ _ __--_-

In the Matter of

THE FRATERNITY OF ALPHA CHI RHO, INC.

Petitioner, VERIFIED PETITION

-vs. Index No.

SYRACUSE UNIVERSITY and M. DOLAN Justice Assigned:

EVANOVICH, Individually, and as Senior

Vice-President for Enrollment and the

Student Experience,
Respondents.

In a Proceeding Pursuant to CPLR Article 78

_ _ _ _ _ _ _ _ __ _ __ __ _-_ _ _.-_ _-_-_ _-_ _ __ _ _ _ _ _ _ _ _ __ __ _ _ _ _ __ _

Petitioner, by its attorneys, Schlather, Stumbar, Parks & Salk, LLP, as and for

its Petition herein, sets forth the following, both upon its direct knowledge and upon

information and belief:

1. Petitioner The Fraternity of Alpha Chi Rho, Inc. (Fraternity) is a

national collegiate fraternal organization, and Connecticut not-for-profit

corporation, with local chapters at multiple colleges in New York State, including a

local chapter at Respondent Syracuse University, located at 131 College Place,

Syracuse, New York, which is duly recognized by Respondent's Office of Fraternity

and Sorority Affairs (FASA) and organized and operated pursuant to FASA's

Community Policies and Expectations.

2. At all times pertinent herein, Respondent was and is a private

university governed by a Board of Trustees, duly organized and existing under the

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laws of New York State, with principal offices and campus located in Syracuse,

Onondaga County, New York.

3. At all times pertinent herein, Respondent M. Dolan Evanovich (VP

Evanovich) is the Senior Vice-President for Enrollment and the Student Experience

and is responsible for the overall supervision of the University Student Conduct

System.

4. The venue of this proceeding is Onondaga County, New York which a

county within the judicial district where Respondent made the determination

complained of.

5. This is a special proceeding brought pursuant to Article 78 of New York

State's Civil Practice Law and Rules (CPLR) in the nature of mandamus and

prohibition, and to review administrative determinations of Respondent upon

exhaustion of all available, relevant administrative remedies.

6. As more fully developed below, Respondent's decision to suspend

Petitioner for one year and impose other sanctions was part of a deeply flawed

administrative process: that was made in violation of lawful procedure; that was

arbitrary, capricious and an abuse of discretion; and that denied to Petitioner due

process under the rules and regulations of Respondent. Respondent is proceeding,

and has proceeded, with its decision to suspend Petitioner and impose other

sanctions, in violation of Respondent's own policies and procedures.

7. This proceeding is being commenced within four months after

Respondent's decision became final and binding upon Petitioner.

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STATEMENT OF FACTS

8. On November 16, 2019, at approximately 4:30 p.m., a group

consisting of four members of the Fraternity (John Does #1-4) and some friends

unaffiliated with the University and Fraternity went to the Fraternity house to

socialize. Neither the four members of the Fraternity, nor any of the friends, lived in

the Fraternity house. They ate, drank some beer and listened to music. See,

Voluntary Affidavits of John Does #1-4, attached as Exhibit A; University Conduct

Board (UCB) Opinions, attached as Exhibits B, P and T.

9. At approximately 6:45 p.m., the group and others left the Fraternity

house to go to an apartment to watch a basketball game. There were about 15-20

people, including John Does #1-4, most of whom were not University students.

These 15-20 people walked down College Place, and were congregated into three

smaller groups. See, UCB Opinions, attached, as Exhibits B, P and T.

10. One member of the group, K.F., who was friends with John Doe #4,

but not a University student, was walking more briskly ahead of the others. See,

Voluntary Affidavits of John Does #1-4, attached as Exhibit A; UCB Opinions,

attached as Exhibits B, P and T.

11. As the group neared a car parked on the side of the road, K.F., still

ahead of the rest of the group, approached a young woman (Complainant) who was

outside of the vehicle and spoke with her very briefly, a few seconds at the most,

while the rest of the group continued walking past the car. See, Voluntary Affidavits

of John Does #1-4, attached as Exhibit A; UCB Opinions, attached as Exhibits B, P

and T.

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12. Video footage confirmed the brevity of the encounter. John Doe #1

saw K.F. by the car, but did not hear what was said. John Doe #2 thought he heard

K.F. joke about getting a ride in the car. John Does #3 and #4 did not see K.F.

approach the vehicle at all. The encounter was so brief that the group never

slowed down on their way to the apartment, and none of the John Does even

thought about it for the rest of the evening. See, Voluntary Affidavits of John Does

#1-4, attached as Exhibit A; UCB Opinions, attached as Exhibits B, P and T.

13. The Complainant, who was near the car with her mother, brother,

sister and niece, claimed that as the group passed by the car, she heard "another

voice"
make a comment about her legs, and that people in the group were

"chanting"
the n-word. She stated that people in the group said it "about 4 to 5

times". See, DPS Statement, attached, as Exhibit C, p. 1.

14. However, neither the Complainant's mother nor sister, both of whom

gave statements to the Department of Public Safety (DPS), heard any chanting, nor

heard anyone use the n-word. The Complainant's sister told DPS that she saw a

male approach the Complainant and heard him say "look at that body bag", but

"they"
that it was the Complainant who told her just called us the n-word. The

Complainant's mother told DPS that she saw a male approach the Complainant and

try to look up her dress, but she told DPS she could not hear anything that was

"he"
said, and that it was the Complainant who told her just called us the n-word.

See, DPS Statements, attached as Exhibit C; UCB Opinions, attached as Exhibits B,

P and T.

15. Later that evening, John Doe #1, the Fraternity's former President,

was contacted by DPS and asked to come to the DPS office, at which time John Doe

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#1 was first told that a complaint had been made about their group. John Doe #1

voluntarily gave a statement wherein he indicated he did not hear any racist or

derogatory comments made by anyone in their group. The next morning, John

Does #2-4 all voluntarily gave statements to DPS, all of which consistently

indicated that they did not participate in any racist or sexist conduct, nor have any

knowledge of any racist or sexist behavior exhibited by anyone in the group. See,

Voluntary Affidavits of John Does #1-4, attached as Exhibit A.

16. K.F. also gave a statement to DPS the next morning denying that he

made any racist or sexist comments. See, Voluntary Affidavit, attached, as Exhibit

D.

17. In the days leading up to November 16, 2019, there were reports of

numerous incidents throughout the University involving racist graffiti targeting

Asian and Jewish students, and allegations that racial epithets had been directed at

black students. On November 17, 2019, still reeling from these incidents, and from

the intense reaction and protests by campus groups, including #NotAgainSU, which

were highly critical of the University's tepid response, Syracuse University

Chancellor Ken Syverud, issued the following statement:

Last night, one of our African American students reported being subjected to
a verbal racial epithet from a group of students and visitors to our
an affront to our student's - and our whole
campus...This report of
community's - and is the latest incident of several against
safety well-being
Jews, Asians and African Americans. I am deeply angered by these events,
including the latest incident.

Department of Public Safety (DPS) Chief Bobby Maldonado and his team
have assembled substantial evidence, including security camera video,
eyewitness accounts and interviews. The individuals involved have been
identified and will be held appropriately accountable to the Code of Student
Conduct and to the full extent of the law. We are working with the Syracuse
Police Department, and we intend to bring this investigation to a swift and
successful conclusion.

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Some of the individuals involved are members and guests of a Syracuse

University fraternity. That fraternity has been suspended pending the

outcome of the investigation.

Syverud,"
See, Syracuse University News, "Statement from Chancellor Kent

attached, as Exhibit E.

18. The protests, however, continued, with students demanding the

resignation of several high-ranking University officials, including not only the

Chancellor, but also VP Evanovich who, as noted above, is the University official

responsible for the overall supervision of the entire University Student Conduct

Resignation,"
System. See, New York News, "#NotAgainSU Calls for SU Chancellor

attached as Exhibit F; Syracuse University Student Conduct System Procedures

(Student Conduct System Procedures) §1.3 and §3.9, set forth in the Student

Conduct System Handbook (Handbook), attached, as Exhibit H, pp. 11, 12.

Conduct Proceedings Against Individual John Does

19. Within days of the November 16, 2019, incident, John Does #1-4 all

were referred to the Office of Student Rights and Responsibilities (OSSR) and

(CSC).1
charged with violations of the Code of Student Conduct

20. On November 19, 2019, Attorney Melissa K. Swartz, Esq., sent a letter

to OSRR Associate Director Eric Nestor (Nestor) requesting that she be permitted to

act as the procedural advisor for John Does #1-4, given that not only had the

Chancellor indicated he was referring the matter to law enforcement, but that

allegations of sexual harassment had been made against them. Pursuant to

Student Conduct System Procedures §6.3 and §6.4, an attorney can act as a

1The University's Trustees and Chancellor delegated authority to the University Conduct System to adjudicate
cases alleging violations of the CSC by University students. See, Student Conduct System Procedures §1.1,
Handbook, attached as Exhibit H, p. 11.

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advisor"
"procedural if a case "involves allegations of sex-based discrimination or

harassment."
harassment, such as...sexual See, Letter from Attorney Swartz to

Nestor, attached, as Exhibit G; Handbook, attached as Exhibit H, p. 15.

21. Notwithstanding the above University policy and procedure, Nestor

denied Attorney Swartz's request. See, Letter from Nestor to Attorney Swartz,

attached, as Exhibit I.

22. On November 20, 2019, Chancellor Syverud issued yet another public

statement, just four days after what was now being referred to as the "College

incident."
Place The Chancellor announced that on the previous Saturday night

"there was a verbal assault...directed at one of our female African American

students."
Highlighting his quick action, the Chancellor further announced: that he

Sunday;"
had suspended the Fraternity "[b]efore dawn on that the four University

"involved" "incident" suspension;"

students who were in the are "now on interim

that the "entire case has also been referred to the Onondaga County District

Attorney;"
and that the University was partnering with the New York State Police's

Hate Crimes Task Force and the New York State Division of Human Rights on the

matter. See, Syracuse University News, "Chancellor Syverud Addresses University

Senate,"
attached, as Exhibit J.

23. On November 21, 2019, John Does #1-4 had their individual informal

resolution meeting with Nestor, after which Nestor scheduled a formal conduct

hearing on December 6, 2019. They were all charged with violating CSC §2 and §3

which prohibits

(2) Harassment, whether physical, digital , oral, written or video, or any other
violation of the Syracuse University Anti-Harassment Policy or Sexual

Harassment, Abuse and Assault Prevention Policy.

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(3) Conduct, whether physical, electronic, oral, written or video, which

threatens the mental health, physical health or safety of anyone.

John Doe #1, as former President of the Fraternity, was also charged with violating

CSC §17, which states that it is a violation of the Code

For student leaders, failure to intervene or notify the university when a

student knows of a situation that threatens the health and safety of another
individual or the campus community.

See, Handbook, attached as Exhibit H, p. 4.

24. By letter, dated December 1, 2019, John Doe #1 wrote to the OSRR

and repeated Attorney Swartz's prior request that she be allowed to act as John

Does'
#1-4 procedural advisor, as set forth in the Student Conduct System

Procedures. See, Letter from John Does #1-4 to OSRR, attached, as Exhibit K.

The request again was denied.

25. The formal hearing before the UCB was held on December 6, 2019,

and, by agreement, the cases of John Does #1-4 were heard together. All four

testified that they did not say the n-word, nor did they hear any other member of

the group who walked by the Complainant say or chant the n-word or make any

other harassing remark. The UCB also heard testimony from several DPS officers

and investigators who interviewed the Complainant, her family, John Does #1-4,

and other witnesses. The video showing John Does #1-4 and the others in their

group walking past the Complainant was also introduced into evidence. See, UCB

Opinion, attached as Exhibit B.

26. On December 19, 2019, OSRR Director Sheriah N. Dixon (Dixon) sent

to John Does #1-4 the UCB's Opinion finding all four not responsible for violating

the CSC. As part of its finding, the UCB determined that K.F., a non-student, was

walking ahead of the group, which included John Does #1-4, approached the

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him,"
Complainant "before the rest of the group caught up to and was in close

most."
proximity to the Complainant for "a few seconds at Citing the evidence of

video footage, the UCB found that

with the exception of [K.F.], the group did not stop or change their pace as

they walked past [the Complainant] and the vehicle. A review of the video
footage also indicates that with the exception of [K.F.], the group did not
turn their heads, point, or gesture towards [the Complainant] or the vehicle.
As indicated by other CCTV cameras, the group continued walking and
traveled across campus in a north-northeasterly direction. The demeanor
and pace of the group did not change after they passed [the Complainant]
for the several minutes during which their travel was recorded.

See, UCB Opinion attached as Exhibit B.

27. Agreeing with the assessment of the DPS investigators who reported

"forthcoming"
that John Does #1-4 were all and that they "did not detect any effort

deception," Does'
at the UCB found John #1-4 all credible and that their

weeks."
"explanation of events has been consistent over the course of several See,

UCB Opinion, attached, as Exhibit B.

28. Notably, the UCB further found conflicting evidence with respect to

what K.F. might have said to the Complainant. The UCB noted that while the

Complainant alleged several members of the group were chanting the n-word, none

of her family members who were present heard such chanting. The DPS

investigators testified that when the Complainant's family members talked about

someone in the group saying the n-word, they were only "repeating [the

it."
Complainant's] assertion that she had heard See, UCB Opinion, attached, as

Exhibit B.

29. Accordingly, the UCB held that it could not "determine, more likely

information"
than not, what, if anything was said, and therefore finds insufficient

CSC.2
that John Does #1-4 violated the See, UCB Opinion, attached, as Exhibit B.

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30. VP Evanovich who, as noted above, has ultimate supervisory authority

over the entire University Student Conduct System, chose not to intervene in the

proceedings.

Conduct Proceedings Against the Fraternity

31. Despite the exoneration of John Does #1-4, the only members of the

Fraternity who were charged with any CSC violations, the University continued with

Fraternity.3
disciplinary proceedings against the

32. By letter, dated January 10, 2020, the Fraternity was given notice that

a formal hearing before the UCB was scheduled for January 17, 2020. The letter

notified the Fraternity that they were being charged with violating CSC §2 and §3.

The only specific reference in the letter to any alleged conduct was that,

this complaint arises from an incident occurring on or about November 17,

2019, when it is alleged that members and guests of your fraternity were
"N-word"
verbally harassing a female student by calling her the as she
walked by College Place.

See, Letter from Annie Weese, OSRR Coordinator, to the Fraternity, attached

as Exhibit L

33. By letter, dated January 10, 2020, Fraternity President Jonathan Kimel

wrote to the OSRR and asked that the Fraternity's attorney be permitted to act as

its procedural advisor. As noted above, Student Conduct System Procedures §6.3

advisor"
and §6.4 specifically provides that an attorney can act as a "procedural if a

case "involves allegations of sex-based discrimination or harassment, such

as...sexual harassment". While the January 10, 2020, notice failed to include any

2 For similar intervene"

reasons, John Doe #1 was also found not responsible for violating CSC §17 (the "failure to
charge).
3
By letter dated January 7, 2020, an interim suspension hearing was scheduled for January 15, 2020 before the
University Appeal Board, which ultimately affirmed the interim suspension by letter dated January 28, 2020.

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allegations of sex-based harassment, the Complainant and witnesses had

previously given statements to DPS claiming such harassment. See, Letter from

Kimel to OSRR, attached, as Exhibit M; DPS Statements, attached as Exhibit C

34. By letter, dated January 14, 2020, Nestor denied the Fraternity's

request for a procedural advisor. Nestor wrote that "although the female who

reported the incident may have alleged on Instagram that she was the subject of

harassment",4
both racial and gender-based she had not filed a formal complaint

under the University's Sexual Harassment, Abuse, and Assault Prevention Policy.

See, Letter from Nestor to the Fraternity, attached, as Exhibit N.

35. This violated the University's own policies and procedures in two

critical respects. First, there is nothing in the Handbook, including the Student

Conduct System Procedures, that limits the right of a student or student

organization to have an attorney act as a procedural advisor only where a formal

complaint is made under the University's Sexual Harassment, Abuse, and Assault

Prevention Policy, which policy is set forth in Article 9 of the Student Conduct

System Procedures. Rather, the right to an attorney as a procedural advisor in

sexual harassment cases is set forth in Article 6 of the Student Conduct System

Procedures, without any such limitation. See, Handbook, attached, as Exhibit H, pp.

15, 18-20.

36. Second, by using this rationale for denying the Fraternity's request for

an advisor of its choice, Nestor implicitly recognized that allegations of sexual

harassment were not to be included in the disciplinary proceedings against the

4 Whether "incident"
the Complainant anything about the
posted on Instagram, or any other social media
platform, is not part of any record before any administrative body which heard this matter. However, as set forth
above, the Complainant and her mother both gave statements to DPS making allegations of sex-based harassment.

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Fraternity. However, as set forth more fully below, the UCB considered , and

ultimately made findings with respect to, such claims.

37. The formal hearing against the Fraternity with respect to the CSC

violations was held on January 17, 2020. John Does #1-4 all voluntarily testified at

the hearing and John Doe #4 submitted a sworn affidavit for consideration. All four

released their confidential hearing decisions from the UCB, and they all repeated

the testimony they had provided at the prior proceeding, to wit: that K.F., who is

not a University student, was the only member of the group to approach the

Complainant; that no one heard any racial slurs; that no one in the group would

have condoned such language; and that they, and the Fraternity, have been

cooperative at every stage of these proceedings. They also noted that that they

were all found not responsible at their own conduct hearing. See, UCB Opinion,

attached, as Exhibit P.

38. The video footage of the evening in question was admitted into the

record and DPS investigators testified, again confirming that John Does #1-4 were

testimony."
all "cooperative and consistent in their See, UCB Opinion, attached, as

Exhibit P.

39. Notwithstanding that the January 10, 2020, notice made no mention of

any sexual harassment claims, the UCB heard evidence of such claims.

40. On January 22, 2020, a University alumnus and Fraternity brother

wrote to the Director of Gift Planning at the University, and asked about the status

of the conduct hearing. On January 24, 2020, the Director responded by email

stating that, pursuant to a recent conversation she had with the Associate Director

of Fraternity and Sorority Affairs (FASA), OSRR was finalizing the outcome and that

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a formal Interfraternity Council meeting was scheduled for February 7, 2020,

AXP."
"where they will vote to reinstate See, Emails between Jerry Grandey and

April Mazza, attached, as Exhibit O.

41. On January 28, 2020, OSRR Coordinator La'Kesa Allen (Allen) sent to

the Fraternity the UCB Opinion: The Fraternity was found not responsible for any

CSC.5
violations of the See, UCB Opinion, attached, as Exhibit P.

42. Similar to the findings it made following the hearing involving the

individual John Does #1-4, the UCB determined, based on the evidence before it:

that a non-University student was the only member of the group, which included

the four Fraternity members, to approach the Complainant, and that the encounter

lasted for a few seconds; that the non-student said something that "startled or

her"
offended and appeared to try to look up the Complainant's dress; that the rest

of the group did not stop at the vehicle and appeared not to have interacted with

the Complainant; and that the video footage did not contain any audio material that

Does'
contradicted John #1-4 version of the events. See, UCB Opinion, attached, as

Exhibit P.

43. The UCB found it was "not able to determine what exactly was said to

person"
the impacted but that it was more likely than not that K.F. did say

offended"
something that "startled or the Complainant, and that it was more likely

than not that he tried to look up her dress. See, UCB Opinion, attached, as Exhibit

P.

44. Significantly, however, the UCB found that not only was K.F. not a

University student, but that he was not a member of the Fraternity; that he was not

5 The received the Opinion from the UCB finding it not responsible for any CSC violations on the same
Fraternity
day it received the decision upholding the interim suspension.

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a formally recognized guest of the Fraternity; and that he was not acting as a

representative of the Fraternity at the time of the incident. "Therefore, the Board

3."
determined that Respondent is not responsible for violating CSC 2 and See, UCB

Opinion, attached, as Exhibit P.

45. Upon receipt of the Opinion, Mr. Kimel spoke with Allen after he

noticed that the cover letter accompanying the UCB Opinion referenced the interim

suspension decision and not the UCB Opinion.

46. As set forth in Mr. Kimel's Affidavit, attached as Exhibit Q, Allen told

him that while the letter regarding the formal conduct hearing was sent in error,

she assured him that the "verdict finding [the Fraternity] not responsible was

correct, but that the formal letter would be sent out later that day or the following

day."

47. When no such letter was sent that day or the next, Attorney Swartz

contacted OSRR on January 29, 2020, and relayed the conversation between Mr.

Kimel and Allen. Dixon responded later that day claiming that the Opinion sent by

draft"
OSRR was actually a "working that should not have been sent; that Allen

information,"
"was not privy to this and that the UCB was "still deliberating the

case."
hearing and the outcome of the See, Emails between Attorney Swartz and

Dixon, attached as Exhibit R.

48. On February 6, 2020, while the UCB was, presumably, still

deliberating , #NotAgainSU issued a post highly critical of the University's handling

of bias-related incidents on campus. In a specific reference to this matter, the post

falsely claimed that the Fraternity "remains active on this campus even after more

than a dozen of their fraternity members verbally assaulted a Black female student

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in clear sight of the DPS office". See, Post, attached as Exhibit S. There was, of

course, never any evidence that any member of the Fraternity approached the

Complainant, nor made any derogatory remarks to or about her or anyone else that

evening; and all four Fraternity members were exonerated of any wrongdoing.

49. Just five days later, on February 11, 20206, Dixon informed the

Fraternity that the UCB had issued another opinion which now found the Fraternity

responsible for violating CSC §2 and §3. There was nothing in the letter or Opinion

to explain this complete reversal of the UCB determination made just fourteen days

earlier. See, UCB Opinion, attached, as Exhibit T.

50. While the Fraternity was certainly shocked by this sudden and

unexplained reversal, it was even more shocked to learn that the findings made in

the Opinion now holding it responsible for CSC violations were identical to those

made in the Opinion, rendered just two weeks prior, finding it not responsible.

51. Similar to the first Opinion, as well as the decision reached with

respect to the case against the individual John Does #1-4, the UCB again found:

that a non-University student was the only member of the group, which included

John Does #1-4, to approach the Complainant; that the encounter lasted only a few

seconds; and that the non-University student said something that "startled or

her"
offended and appeared to look up her dress, while the rest of group continued

to walk past without anyone else interacting with the Complainant. See, UCB

Opinion, attached as Exhibit T.

6 Pursuant to the Handbook, a decision is to be rendered within five days after the hearing and associated
deliberations are completed. Student Conduct System Procedures §8.13. The February 11, 2020 letter, issued 25
days after the hearing, does not give any indication as to when deliberations were actually made or completed, a
criticalpoint given the utter confusion generated by the UCB issuing two opinions with identical findings, yet
opposite results.

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52. Significantly, the UCB again found it was "not able to determine what

person"
exactly was said to the impacted but that it was more likely than not that

offended"
K.F. did say something that "startled or the Complainant, and that it was

more likely than not that he tried to look up her dress. See, UCB Opinion, attached,

as Exhibit T.

53. However, while the second Opinion confirmed the first Opinion's

finding that K.F. was not a University student, nor a formally recognized guest of

the Fraternity, the UCB now found that because K.F. was brought to the Fraternity

house by four Fraternity members, stayed at the Fraternity house for almost three

hours, consumed alcohol in the Fraternity house with Fraternity members, and then

guest"
left the Fraternity house with Fraternity members, K.F. was an "informal

which "makes the organization responsible for his actions and the impact they had

Community."
on the Syracuse University The Fraternity was suspended for an

entire year, lost all recognition and privileges, and given explicit instructions on how

to petition to return to the University. See, UCB Opinion, attached, as Exhibit T.

54. The Fraternity timely filed an appeal of the second UCB Opinion to the

University Appeal Board (UAB) which heard the matter on February 21, 2020. The

Fraternity submitted a written argument by Mr. Kimel in suppoit of the appeal. See,

Appeal, attached, as Exhibit U.

55. Upon a review of the entire record, the UAB overturned the second

UCB decision and vacated the sanctions imposed upon the Fraternity. The UAB

found that "university policy does not provide a basis on which to find the

respondent responsible for the conduct that the lower Board found to have

occurred."
While noting that the Office of Student Living's residential policies hold

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students residing in University housing responsible for the actions of their guests,

the UAB could find no similar policies applicable to those living off-campus or to

organizations, nor could it find anything in FASA's policies which would make an

organization responsible for the actions of its guests during any type of event or

gathering. See, UAB Opinion, attached, as Exhibit V.

56. The UAB further indicated that it was "troubled by the lack of notice to

the respondent of the allegation that [K.F.] allegedly attempted to look up the

dress."
impacted individual's However, the UAB did not deem it necessary to take

any action with respect to the lack of notice issue given its "conclusion that there is

no basis in University policy on which to hold AXP responsible for the alleged

conduct."
See, UAB Opinion, attached, as Exhibit V.

57. protests the University's response to bias-

Meanwhile, challenging

related incidents on campus continued, with students occupying administration

buildings and, again, issuing demands for the resignation of University officials. On

February 25, 2020, these demands included the resignation of VP Evanovich. See,

The Nation, "Syracuse Students Are Still Occupying Their Campus Administration

Building,", attached as Exhibit W.

58. One week later, on March 3, 2020, VP Evanovich announced that he

was rejecting the UAB's decision and finding the Fraternity responsible for violating

CSC §2 and §3. See, Letter from Evanovich to the Fraternity, attached, as Exhibit

X.

59. While VP Evanovich stated he was adopting the UCB's findings of fact,

which specifically found that it was "unable to determine what exactly was said to

person,"
the impacted he still somehow found, without any additional evidence or

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further investigation, that "it was more likely than not that the guest used a racial

slur."
See, Letter from Evanovich to the Fraternity, attached, as Exhibit X.

60. VP Evanovich found K.F.'s conduct constituted a violation of CSC §2

and §3 and that the Fraternity was responsible for that conduct, stating

Although it is true the Code does not expressly cover guests of organizations,
such an expectation is present throughout the University's Fraternity and

Sorority Affairs policies.

Recognition"
As an example, VP Evanovich cited FASA's "Revocation of policy, which

allows the University to suspend an organization if it determines an invitee or guest

poses a risk of harm. He also found that "in all social event procedures, chapters

are responsible for the conduct of their guests", but he cited no such specific "social

procedures."
event See, Letter from Evanovich to the Fraternity attached, as

Exhibit X.

61. Such a determination is contrary to the University's policies and

procedures and exceeds VP Evanovich's jurisdiction.

62. It is true that under FASA's Community Policies and Expectations, a

fraternity or sorority may have its recognition suspended for incidents of

misconduct by "an invitee or guest of the organization...which poses an

property."
unacceptable risk of harm to persons or However, FASA's policies set

forth that any such suspension of recognition is to be made by the Assistant Dean

of FASA, and whether the misconduct of a guest or invitee poses an unacceptable

Dean."
risk of harm under the policy is within "the judgment of the Assistant See,

FASA's Community Policies and Expectations, attached as Exhibit Y , p. 7.

63. The University's own conduct policies and procedures further

demonstrate the distinction between the respective policies and procedures of FASA

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and the University Conduct System. Pursuant to Student Conduct System

Procedures §3.9(e),

The Assistant Dean of Fraternity and Sorority Affairs, or a designee, is

authorized to respond to alleged violations of policies of the Office of

Fraternity and Sorority Affairs consistent with published policies and

procedures. These policies and procedures are independent of the University
Conduct System. (emphasis added).

See, Handbook, attached, as Exhibit H, p. 13.

Moreover, pursuant to Student Conduct System Procedures § 2.1,

The University Conduct System has jurisdiction over aii alleged violations of
the Code of Student Conduct by any student or recognized student
organization that may be brought to its attention. (emphasis added).

See, Handbook, attached, as Exhibit H, p. 11.

Thus, while FASA may have adopted certain policies with respect to a student

organization's responsibility for guests or invitees, this matter was brought

pursuant to alleged violations of the CSC, which contains no reference to such a

responsibility.

procedures"
64. With respect to VP Evanovich's claim that "all social event

hold fraternities responsible for their guests, FASA Community Policies and

Policies"
Expectations dedicates an entire section to "Social Event and there is no

reference at all in such policies to support VP Evanovich's claims. See, FASA's

Community Policies and Expectations, attached as Exhibit Y, pp. 16-23.

65. Notably, VP Evanovich, in a footnote, agreed with the UAB's finding

that the University failed to follow proper notice procedures to be able to make any

findings of sexual harassment, but that "even without this fact, the rest of the

conduct at issue serves as an adequate basis for finding violations of the Code of

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Conduct."
Student See, Letter from Evanovich to the Fraternity attached, as Exhibit

X.

66. However, absent the allegations of sexual harassment, the only other

issue"
"conduct at was what K.F. may have said to the Complainant; and as the

UCB specifically found, it was "unable to determine what exactly was said to the

person."
impacted Accordingly, VP Evanovich, who explicitly adopted those

findings, had no basis to make any determination to the contrary on this issue.

67. Thus, VP Evanovich issued an utterly contradictory decision: he

adopted the findings of the UCB that it could not determine what K.F. may have

said to the Complainant, while conversely concluding that not only had K.F. made a

racist slur, but that the entire Fraternity was responsible for that comment. Given

that VP Evanovich rejected the sexual harassment finding because of the violations

of University policies and procedures with respect to providing sufficient notice of

those allegations, the unfounded allegation that K.F. made a racial slur ultimately

served as the sole basis for holding the entire Fraternity responsible for violating

the CSC. Such a determination was arbitrary, capricious and an abuse of discretion.

CLAIMS

68. Each and every allegation set forth above is incorporated herein by

reference.

69. By reason of the foregoing, the determination, dated March 3, 2020,

by Respondent's Senior Vice President M. Dolan Evanovich which found Petitioner

responsible for violations of the University Student Code of Conduct was and is a

final determination, and all administrative remedies with respect thereto have been

exhausted.

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70. By reason of the foregoing, the determination and actions of the

Respondent were and are being made in violation of lawful procedure.

71. By reason of the foregoirig, the determination and actions of the

Respondent were and are arbitrary and capricious.

72. By reason of the foregoing, the determination of Respondent was and

is an abuse of discretion.

73. By reason of the foregoing, Respondent is proceeding or is about to

proceed without or in excess of jurisdiction.

74. By reason of the foregoing, the sanction imposed upon Petitioner is so

excessive that it shocks one's sense of fairness.

75. By reason of the foregoing, Petitioner has been denied due process

under Respondent's own policies and procedures.

76. By reason of the foregoing, Petitioner is entitled to judicial review of

the determinations and actions of Respondent as aforesaid, and judicial intervention

to mandate that Respondent comply with its own internal processes and policies in

conformity with the circumstances at bar, including an immediate reversal of

Respondent's determination and a finding that Petitioner is not responsible for any

violations of the Student Code of Conduct, a vacatur of all sanctions imposed upon

Petitioner by Respondent, and expungement from any and all records of the parties

of any reference to a finding of responsibility herein and of any sanctions imposed

herein, and to prohibit Respondent from making determinations and from pursuing

disciplinary proceedings against Petitioner henceforth, and from conducting itself

otherwise than in conformity with legal standards, procedures and rules, both at

law and within the internal policies and procedures of Responden t.

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77. No previous application for the relief requested herein has been made

to this Court or to any other Court at any other time.

WHEREFORE, Petitioner respectfully requests that judgment be granted: (a)

directing Respondent immediately to reverse its decision finding Petitioner

responsible for violating any provision of the University Student Code of Conduct,

and to vacate any sanctions imposed; (b) expunging any and all references to the

within finding of responsibility and to the sanctions from any and all records of the

parties; (c) prohibiting Respondent from pursuing any disciplinary charges against

Petitioner arising out of any of the underlying alleged conduct at bar, or otherwise

acting contrary to Respondent's own internal policies and procedures and University

Student Code of Conduct; and (d) granting such other and further relief which to

the Court is just and proper under the circumstances, including costs.

DATED: Ithaca, New York

May Ab, 2020

SCOTT A. CARLSON
CEO/ National Secretary, Alpha Chi Rho

RAYMO . SCHLATHER, ESQ.

MARK . SCHLECHTER, ESQ.

SCHLATHER, STUMBAR, PARKS & SALK, LLP

Attorneys for Petitioner
200 East Buffalo Street
P. 0. Box 353

Ithaca, NY 14851-0353

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VERIFICATION

STATE OF Al 3 _)
COUNTY OF _ D LEAd____)

SCOTT A. CARLSON, being duly sworn, deposes and says: I am CEO and
National Secretary of Petitioner herein; I have read the foregoing Petition and know
the contents thereof; that the same are true to my own knowledge, except as to
those matters to be alleged on information and belief, and as to those matters, I
believe them to be true.

SCOTT A. CARLSON

Sworn to before me this

f44 day of May, 2020

LINDA F MAYEUX
Commission#60008322
Notary Public, Sisteof NewJersey
My Commission E xpires
Februar 06,2024

--
Notary Public

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