Georgia Tech Reverses Suspension of Phi Delta Theta

Tim Burke, Manley Burke, tburke@manleyburke.com

Last month, the President of the Georgia Institute of Technology (Georgia Tech) lifted a “suspension held in abeyance until August 9, 2016” that had been imposed on the Phi Delta Theta Chapter on campus, after an appeal reviewed by the retired Chief Justice of the Georgia Supreme Court.

The unusual appeal grew out of two racial incidents that were alleged to have occurred in the summer of 2015.  The first, in July, involved a claim that members of the Phi Delta Theta Chapter refused to allow admission to the Chapter House to a group of 20-30 students who were a part of Georgia Tech’s Summer Challenge Program.  It was alleged that multiple individuals at the house yelled racial slurs at the Challenge Program students.  In a second incident, in August, a University employee alleged that three individuals were sticking their heads out of a chapter house window yelling racial invectives at her as she got into her car and drove away.

The University’s Office of Student Integrity (“OSI”) brought charges against the Chapter; never against any individuals.

The Chapter vigorously denied the allegation in a hearing in front of the University’s Undergraduate Judiciary Cabinet (UJC).  The UJC held that both incidents had occurred but that the Phi Delta leadership was not complicit in the events.  That last determination proved to be crucial in the appeal.

Following the hearing, the University formally notified the Chapter of its responsibility only for the second incident.  Curiously, it was that incident for which the chapter offered the strongest defense, producing, among other things, photos of the windows from which the complainant said the yelling occurred.  In one case, there was an air-conditioner in the window, so it couldn’t be opened.  In another case, there was a bunk bed against the window, so people couldn’t stick their heads out of the window.

The Chapter’s appeal of the determination was based on numerous factors.  The Chapter argued that the hearing was not conducted fairly or in conformity with the University’s own published procedures; insufficient evidence to support the decision; new information that had not previously been available and the sanctions were not appropriate.  Worth particular consideration is how the former Chief Justice reviewed the “fairness and conformity of the hearing.”

The Chapter underscored, with significant support from a report by the Working Group commissioned by the University President that was given the responsibility to review the processes for investigating, charging and resolving violations, that the University official who filed the charges and provided a summary of his investigation did so without ever speaking with Phi Delta Theta.  The President’s “Working Group” noted that the “pre-charge investigation was one-sided” and “based only on one side of the story,” and yet that investigation was submitted as evidence in the hearing, compounding problems by the fact that it contained “information from undisclosed and unidentified witnesses whom the fraternity was unable to cross-examine.”

In addition, the Chapter established that it did not receive notice of the hearing five business days in advance of the hearing as the University code required.  Nor was the Chapter provided with the identity of all witnesses who would testify against the Fraternity in advance, as also was required by the Code.

The former Chief Justice’s report agrees that there were problems with the proceedings.  The report states:

“We agree with the working group that where a pre-charge investigation is conducted, OSI should ‘talk with all parties and even-handedly consider evidence submitted by all parties’ prior to making a determination as to whether to bring charges.  We also concur with the working group that ‘pre-charge investigation reports should not be used as evidence in student panel hearings where facts are in dispute’.”

The Chief Justice’s Report also agrees with the argument made by the Chapter that the two charges should not have been aggregated and brought together before the panel because doing so “may ‘alter the perception of the fact-finder’” and “increase the likelihood of a guilty finding.”

The Report also acknowledges that procedural safeguards provided by the University’s regulations concerning pre-hearing notice, exhibit submission, witness testimony and deliberations “were not adhered to precisely.”

In spite of all those problems with the process, the Report concludes with regard to the procedural issues that “we do not believe that Phi Delta Theta was deprived of due process in this matter.”  The justification for reaching that conclusion, in spite of all of the problems with the process, is that the Chief Justices observes “that due process rights in higher education proceedings are not identical to those in a court of law.”  That is certainly true, yet as we’ve reported in previously in Fraternal Law, when due process rights are violated by failing to conduct a fair hearing or allowing the opportunity to cross-examine witnesses, courts will overturn a university’s decision.

The Chapter also argued the insufficiency of evidence.  Some of the evidence presented by the Chapter with regard to the second incident, the allegation that three people stuck their heads out of a window in the house and yelled racial epithets, was impressive.  Even the Justice’s Report notes that “It is true that the volume of the evidence presented by Phi Delta Theta was greater than that offered by complainant.”

The report accurately describes the role of the fact finder in a situation in which there is a conflict of evidence.  While in a criminal proceeding, the standard of proof is, beyond a reasonable doubt, in the university setting, the typical standard of proof is referred to as preponderance of the evidence.  The Chief Justice’s Report describes it this way:

“Under a preponderance of the evidence standard, all that is required is that the panel find that ‘it is more likely than not’ that the fraternity was responsible.  In a ‘he said-she said’ situation such as this, finding one party to be more credible than the other satisfies this standard….”

Even though the appellant review did not overturn the finding that the second incident had occurred, the only incident for which the Chapter had been held responsible, it did conclude that the Chapter was not responsible.  Georgia Tech’s Code specifically provides that a student organizations may be held responsible only “when violations of the Code by those associated with the organization, have received the consent or encouragement of the organization, or of the organization’s leaders or officers.”  As the appellate Report stated, “that is to say, there must be some evidence that the fraternity itself was culpable, not just individual members.”  The hearing by the UJC panel had specifically concluded that “Phi Delta Theta leadership was not complicit” and “was unaware of the events in question.”  The UJC panel held “that it ‘did not find substantial evidence that the leadership of Phi Delta Theta condoned, encouraged or whitewashed a culture of exclusion.”

The acts which the panel had concluded had in fact occurred were described by the panel as “undertaken by individuals ‘under their own will’.”  As a result, the Report concludes that “we find that based on the evidence in the record, there is no sufficient evidence to find Phi Delta Theta responsible as an organization.”  The appellate review recommended that the original determination by the UJC panel be reversed and the sanctions be lifted.

On February 24, 2016, G.P. “Bud” Peterson, the President of Georgia Tech, issued a letter vacating effective immediately the sanctions against Phi Delta Theta.  In many ways, this was a curious proceeding.  While the failure to comply with the University’s own published procedures and the failure to provide minimal due process rights such as the right to confront and cross-examine witnesses, might have been viewed far more negatively by a Court than the University’s appellate review viewed it, given the ultimate decision which lifted the sanctions, there will be no court review of this determination.

Equally curious is the fact that the 30-page report and recommendation signed by retired Chief Justice Leah Ward Sears, authored with the assistance of her appellate team, including three other lawyers from the Atlanta law firm of Schiff Hardin, LLP, went out of its way to include in its report a lengthy footnote detailing allegations of other racially-motivated incidents alleged to have involved Phi Delta Theta at other universities, which began by noting that these incidents were “obviously not a factor in our determination.”  If so, why include them at all?  In spite of that, both the Report and its two-page summary conclude with a recognition of both the importance and responsibility of fraternities:

“We believe it is crucial to call attention to the importance of fraternities policing the behavior of its members.  Fraternity men have made up eighty-five percent (85%) of U.S. Supreme Court Justices since 1910; sixty-three percent (63%) of all U.S. Presidential Cabinet members since 1900, and, historically, seventy-six percent (76%) of U.S. Senators and eighty-five percent (85%) of Fortune 500 executives.  And there is no indication that this trend will change anytime soon.  With this great power comes great responsibility:  To ensure that all brothers are good and fair people, willing to go beyond that which is required of them, desirous of treating others the way they want to be treated, and willing to learn from their mistakes.”

This decision is particularly valuable in its recognition that even if there were three members of the chapter whose conduct was improper – something very much in dispute-it does not make the chapter responsible.  Unfortunately too many other schools would rather blame and punish an entire chapter rather than identify and punish those individuals who actually engaged in improper conduct.