Subjective justice: Delta Chi members, supporters blame Student Conduct for abuse of powers
Within the last year, the Central Michigan University community has been divided into two camps: Those who believe Delta Chi did nothing to deserve a four-year suspension, and those who believe they did.
Surrounding the controversy is the notion that the process the university uses to discipline students is ambiguous to the student body, the groups that are disciplined and the administrators who oversee the proceedings.
The Office of Student Conduct and university officials have offered extensive explanations on why and how they were procedurally allowed to issue the suspension. Members of Delta Chi and their supporters are convinced the board hearing the case and subsequent appeals breached their scope of powers throughout the entire process.
The most vocal among them is Todd Levitt, a Mount Pleasant litigator, CMU instructor and Delta Chi's academic adviser. Levitt said he served in the role as Delta Chi’s legal adviser during the initial hearing, and served as an attorney for Delta Chi members individually.
“The university is at fault here, not Delta Chi," he said. "The (Office of Student Conduct) has tarnished reputations of these young men, and they don't care."
Levitt’s chief complaint was that the college levied allegations against Delta Chi that were unfounded. These charges include an allegation of a sexual assault and the use of a 15-year portion of Delta Chi’s checkered disciplinary record as evidence against them in a case regarding the April 19, 2013 party.
Levitt said the fraternity did not receive the necessary notice that the university would use this history when appealing for a more severe sanction. Delta Chi members said not knowing the appeal was coming affected their ability to defend the fraternity.
“In the appeal process, the student code states that you cannot present any new evidence or information into this case but, it's a fact, on the record, that Tom Idema presented evidence dating back 15 years,” Levitt said. “So my question is this: What happens to them? Who holds them accountable?”
Levitt added that Student Conduct officials did everything they could to prevent him from interacting with his clients during their initial hearing.
However, Tom Idema, director of student conduct, said such claims are preposterous. Idema said his office, the Office of Greek Life and the student disciplinary board, did everything they reasonably could to notify Delta Chi and its members of the charges stemming from the events at the party – particularly in regards to its right to appeal – and the processes involved.
“We had submitted our own appeal, too. The code says that any group or any party can appeal that,” Idema said. “The decision comes out, and they can appeal their side of it, and we can appeal our side of it.”
Since the code states the university can appeal its own charge at any time, the decision to seek a higher charge should have come as no surprise to the member of Delta Chi present in the appeal.
A Freedom of Information Act request filed by Central Michigan Life contained the letter notifying Delta Chi of their right to an appeal, as well as a second letter acknowledging their request for an appeal hearing. The latter included a notice informing the fraternity that the university could simultaneously appeal its own sanction.
“The Code of Conduct is our only playbook,” Idema said regarding accusations from Levitt and the Delta Chi camp that the student conduct director modified the existing rules subjectively. “Between formal and informal investigations, there's really no distinction. Ultimately, we look at do we have a violation of the code, or do we not have a violation of the code.”
According to Levitt and Delta Chi President Zachary Ernat, former Delta Chi president Andrew Clark was the only fraternity brother present during the appeal.
Clark refused to comment on or share details regarding the events of the appeal. Clark directed CM Life reporters to Ernat and the national Delta Chi office for any information regarding the appeal.
Ernat also declined comment on the appeals process, though he insists the group's rights were violated.
In late April 2013, Delta Chi held a social function with its paired sorority, Phi Mu, at the end of the annual Greek Week.
During the party, the group was alleged to have violated the CMU Student Code of Conduct, including violations of policies pertaining to alcohol, theft, sexual assault, disorderly conduct and controlled substances, according the office’s first notice of a hearing to the group on July 22.
Out of these allegations, the university charged the group as a whole with three complaints: the alcohol violation (3.2.13), a violation by a registered student organization (3.2.25) and a violation of the fraternity system’s risk management policies (3.2.31), according to a letter sent to Delta Chi on August 8.
Files regarding the violations, the investigations and the appeal process were obtained by CM Life from the university via a FOIA request.
When considering the evidence against Delta Chi, including the alleged sexual assault, Idema said his office looked at the preponderance of the evidence, unlike a criminal investigation using hard evidence gathered by a police department.
All investigations involving Delta Chi and its members were university-led, though one also involved the Mount Pleasant Police Department and Central Michigan Police.
“With the scales being all equal, if it tips to one side, what is more likely to have occurred?” Idema said. “Is it more likely that (a) sexual assault occurred or is it more likely that it didn't? So the standard of evidence is a lot different. What it comes down to, if we have two students, which one do we believe more?
“And that can be pretty tough to make a determination of those types of things.”
In the case of sexual assault in particular, Idema said the university can investigate the matter to its final conclusion if it has neither the consent of the survivor nor the cooperation of the accused, if it finds the evidence of a crime to be strong enough.
For the members of Delta Chi and Levitt, the fact that no physical evidence was brought forward, and that they could not bring forward any evidence, was discouraging.
“You can be there as an adviser, but again, it's interesting because the entire time when I was there as an adviser, they still did everything they could to interfere with (advising),” he said. “At any time they didn't like what I was doing as an adviser, they would change the rules. I wanted to stop the preceding and go speak with my client outside about something, and they said no, you can't do that. We wanted to confront one of the accusers, and they said no, you can’t do that.”
Idema said an adviser can be present in the room during a hearing or an appeal. However, the adviser, whether that person be a parent, a friend or an attorney, cannot speak on behalf of the student.
The hearing and appeal
When charges were brought against Delta Chi, and after a formal hearing took place, the university’s disciplinary board found the fraternity guilty of the three violations.
The initial sanction imposed on Delta Chi was the enforcement of a dry house, a suspension on their recruitment activities and a requirement that Delta Chi would host a Sexual Aggression Peer Advocates event with a mandatory 85 percent of Delta Chi members in attendance.
These sanctions were imposed on August 9, 2013, and failure to recognize the sanctions could have resulted in a 10-year suspension.
Delta Chi appealed the decision on August 15.
“We feel that our chapter house being dry is definitely not only too loosely defined, but is also too severe as a punishment,” wrote a member of Delta Chi whose name had been redacted from the appeal letter. “As for the sanction on the suspension of recruitment, I believe that is not a suitable punishment for any Greek organization.”
On August 28, Clark appeared in front of the disciplinary board without Levitt. Clark and Ernat stated Levitt had a prior engagement that day. Both Levitt and Clark did not make requests to move the appeal hearing.
According to university documents, the only request made to move the date was in regards to the first hearing. That hearing was rescheduled.
It was during the appeal hearing that Clark learned of Idema’s decision to ask for a four-year suspension.
The student code states that any party can appeal the sanction at any time, thus Idema said it was his office’s right to appeal. This notice was also sent in a letter to Delta Chi regarding their appeal. He added that the group’s history did factor into the decision to increase the penalty, but focused instead on the way they handled the first sanction as evidence that they needed a stricter reprimand.
Idema observed the way Delta Chi snubbed the punishment in the same way they had with past sanctions. In 2002, Delta Chi was charged with a hazing violation, ending in one of the pledges being sent to the hospital for alcohol poisoning after they were arrested by police and charged as minors in possession of alcohol. The pledges were taken to a field and told it would be wise if they consumed a certain amount of alcohol before they returned back to the house.
A recruiting ban was placed on the 2002 Delta Chi group, not a suspension, which Idema viewed as extreme at the time.
“Looking back, I think we missed the ball on that one,” he said. “As you work in the Greek Life field, you can pretty much sanction a group any way, but one of the things you don't do is you don't take away their right to recruit. That's just like the lifeline for the group.
“It was really the first time we have come across one of those sorts of things. If I had to do it all over again, I would have done it much differently. I would have come down much harder because that was a pretty bad situation.”
The appeals board upheld the disciplinary board’s decision and announced the finding in a letter dated August 30, 2013.
Delta Chi members told CM Life they felt bombarded by the appeal, especially since Levitt was not there to counsel them.
Levitt said he doesn’t think his presence could have made a difference – He said he knows this because he was once a member of the disciplinary board when he was a student in 1984-88, as well as a member of the Sigma Phi Epsilon fraternity, which also was kicked off of campus for four years during his time as a student.
“If the university wants to boot you, they're going to boot you,” he said. “They're going to kick you out regardless. They’re not lawyers, they’re not judges. Their job is to discipline the Greek system, and in order for them to justify their position, they have to go after students. I liken them to mall cops. It’s wrong.”
For Idema, the procedures his office follows don’t claim to be anything they aren’t, and the rules of the process were simple enough to understand.
“When you go into an appeal, we tell you there are four options: The sanction can stand, it can be reduced, it can be increased, or the appeals board can send it back to another hearing,” Idema said.
“They might not like the outcome, but the process is there and it’s the same for everybody. Whether you're a student group or not, a student group is treated the same way as a student in the Code of Conduct.”