I am a law professor and the long-time advisor to the Judicial Code Counselors.

Proposed Section 2.2 is a misguided attemopt to neuter the JCCs. In a sea of terrible proposals, this one stands out as particularly uninformed.

First, it is essential that the JCCs have law training. Any disciplinary code, no matter how “educational” it is meant to be, will present an endless flow of legal questions. The general populace may not appreciate this unavoidable fact, but I do. I stand in utter admiration of how well these upperclass law students use their legal education and research skills. Nonetheless, many questions prompt them to consult with me. Their questions are truly hard. I have to research them too. And then discuss the questions with people who can understand what I am advising. The job of the JCCs, which they pursue with wondrous dedication and effort, is a very hard job.

The JCCs also work collaboratively. They must do so, because of the extraordinary demands of the position. They operate out of an office provided by the Law School. We would lose a lot more than esprit de corps by spreading the JCCs across the campus.

The JCCs do a lot more that help with the Code. For instance, they advise respondents under Policy 6.4. That is a job, which under the government's new regs will include cross-examionation, strictly for the law-trained. The issues there are very legalistic, and respondents’ whole futures are at stake. Advising them is certainly not a task suited to the fair-minded and well-meaning lay person.

Second, it is essential that the JCC office remain independent. A good part of the job involves standing up to the Day Hall machine. I hope the reader is never charged under the Code, but if you are, I promise you that you will want an advisor from outside the bureaucracy.

I can say that in all my years at this University I have never encountered a group more impressive in carrying out their function that the JCCs. They rise to the challenges and perform them with ardor, skill, energy, knowledge, and devotion that I could never describe. I am in awe. Do not mess with this singular success.

My name is Professor Laura Underkuffler.  I am a faculty member at the Law School and the faculty advisor for the Complainants' Advisors (CAs), provided by the University for complainants in Title IX and related proceedings.

As I read the proposal, it is intended to rewrite procedures under the "Judicial Code" (Cornell Student Code of Conduct).   Because our office advises complainants (undergraduate, graduate, employees) under Title IX and related provisions, the proposed rewrite does not directly affect our office.  However, there are several deep, foundational flaws in the proposal that are evident from the experience of our office and that need to be pointed out.

Informal support might well be offered by undergraduate students to complaining or responding undergraduate students in Judicial Code proceedings, just as it might be offered by any compassionate person.  However, beyond that line, the hazards are immense -- for the individuals being counseled, the students doing the counseling, and the University.  Beyond the comfort of informal counseling, whether we like it or not, the processes under the Judicial Code -- as in all similar proceedings -- are inherently confrontational and adversarial, with the clear potential for career damage on both sides.  When the mental health and academic careers of complainants and respondents are on the line, we wish that it could be some kind of positive learning experience, but there are many utterly stark realities involved before we get there (if ever we do). 

Consider, for instance, the webs of conflicting interests and need for extraordinary confidentiality that they generate: complainants vs. respondents, complainants and respondents vs. witnesses, complainants and respondents vs. university administrators (who attempt to maintain a neutral role), as well as in and among the advisors to all of the above.  There is no way that these complexities can be navigated by well-meaning undergraduates with no legal training; nor do they (or should they) want the responsibilities and liabilities involved.  The proposal's model fails to consider all of this.  Section 2.2 combines, in one office, "representation to both Complainants and Respondents within the Student Code of Conduct process."  This is impossible.  The same office -- with the same staff and the same physical location -- cannot function to represent both sides.  The same office and staff would be talking to adverse parties, adverse witnesses, and university officials.  Allegiances would be impossible to sort out and prohibitions on leaks of confidences impossible to guarantee.  It would be assumed by both parties that guarantees of confidences kept would be a sieve, with good reason.  The proposal's suggestion that student counselors with no legal training could be assigned to cases and be assumed to never breathe a word about what is told to them by anyone is both unrealistic and unwise.  It is unrealistic because someone has to understand what "confidences" are, and what "conflicts of interest" are, before they can be trusted not to breach them.  It is unwise because a critical part of an office of advising is the fact that counselors to seek help and advice from those around them.  Under the proposal's model, undergraduate counselors --  advising about potentially career-damaging or career-ending allegations -- would be entirely isolated, depending only on their own inexperience and lack of acquired judgement. 

In addition, as mentioned above, there are the serious problems of liability when a University-sanctioned program places untrained undergraduate students in a maelstrom such as this -- liability for the volunteers in these counseling positions,,   as well as for the University itself.  With no legal training, these counselors -- by definition -- will have no idea of the difficulties and contradictions that these cases involve.  Interpreting what violations are, advising on evidence to adduce at hearings, talking to (and advising?) witnesses, dealing with contraditions (including from the clients themselves), understanding the often ambiguously defined roles of university staff and administrators, and more, are all involved in these cases.  If any concrete advice is really given, and accepted by the client, to the client's later detriment, the issue of liability looms.  Indeed, this overwhelming problem is recognized by the proposal's "Disclaimer", and left unresolved.  The "Disclaimer" states that "The Office of the Student Advocate is available as a point of contact to help students navigate Cornell bureaucracy and provide advice but does not gurarantee any results."  That parts of that statement are entirely contradictory.  The description of the office as "a point of contact" -- presumably for referrals -- deliberately invokes no substantive liability.  "To help students navigate Cornell bureaucracy" is, however, a potentially different animal.  What does this mean?  To tell them which office handles what?  That would be no problem.  To tell them what to say, or to whom to give statements, or how to prepare, or what witnesses to contact (risking poisoning the well), or other strategic advice?  Suddenly, we are in the realm of serious advice, with serious harmful consequences and serious potential liability.  The statement that the counselors "do not gurarantee any results" has no bearing on the problem.  Obviously, no lawyer or advisor or counselor ever guarantees results.  That would be extraordinarily unwise. The problem is that the substance of advice and the substance of reliance (by the client) and the substance of liability exist totally apart from that issue.

Unfortunately, the proposal's substitution of undergraduate students for legally trained JCCs and others who currently handle Judicial Code proceedings is ill-advised for all parties involved.    

I am a third-year law student and currently serve as the Judicial Codes Counselor. The Judicial Codes Counselors (JCCs) are tasked with advising and advocating on behalf of respondents accused of misconduct in the campus misconduct systems governed by the Campus Code of Conduct, Academic Integrity, and Policy 6.4. We advise students, faculty, and staff members. For the last year, we have been involved in the conversations about the campus code of conduct amendments, drafting new sections, commenting on other people’s work, and advocating for respondents’ rights in the process during the CJC meetings. No one from the Student Assembly or the Student Advocates group presented these ideas or comments at a CJC meeting. No one from the Student Advocates group has reached out to me about their “concerns.” It is disheartening to me that after a year of meaningful conversations in the CJC, no one—including the people who supported this resolution and sit on the CJC—expressed these opinions during CJC meeting. However, at the eleventh hour, this proposal appears. I’ve seen this proposal before though. This is a combination of almost exactly the same proposals that the Office of the University Counsel proposed to the CJC in the fall and the spring this year. The CJC voted unanimously (confusingly, this includes members who serve on the SA and who sponsored this) voted to move in a different direction. Here is a link to my comments in regard to this draft from March 2020. Except for minor differences in the numbering, these criticisms and questions (that the CJC agreed with) still apply to this draft.

As the comments on CJC’s Campus Code of Conduct Proposal page demonstrate, the SA’s proposal is completely out of touch with what non-SA members of the Cornell community support. Overall, this proposal is a mirror image of what the administration has tried to push onto the Cornell community all year—a code that the Cornell community has consistently rejected. But not to worry, if the Student Advocates quietly endorse this and push it through the Student Assembly as its own, it looks like the students support it. We should just rename the Student Advocates the Office of the Administration Advocate.

One of the biggest problems with this SA proposal is that the Student Advocates have taken the best and most important aspects of the JCCs and the Complainant’s Advisor’s Office (CA), destroyed it, and combined it into an unworkable mega-office. The student “advocates” have completely disregarded how to best protect the interests of complainants and respondents. Both the JCCs and the CAs advise faculty and staff under Policy 6.4. This proposal fails to address whether that will change and if these Student Advocates are equipped to deal with the conflicts of interests that will arise from combining both offices into one. The most recent Title IX regs require face-to-face cross examination. This is not mock trial. Findings of responsibility under Title IX and some violations of the Campus Code of Conduct will have academic and professional consequences that may be life changing. Where is that reflected in this draft? If the SA’s main goal was to open the JCC Office up to undergraduates, then that would be a minor change to the CJC’s proposal. The SA’s draft does so much more: it fundamentally abolishes independence between respondents’ advocates and the University’s administration. To say that this will all be “ok” because the code is “educational” ignores the University’s power to suspend and expel students.

Thus, section 2.2, creating the “Student Code Counselor” is a significant step in the wrong direction for both complainants and respondents.

Advisors need to have a legal background to adequately advocate for the interests of their clients even in a campus misconduct system. While the JCCs recognize and are humbled by the intellect and abilities of our undergraduate and graduate student colleagues, having specialized training in the skills most pertinent to the JCC position is essential. This frequently boosts our clients’ confidence and trust in our abilities. For example, every Cornell Law student is required to fulfill a certain number of credits through experiential learning. Through the Law School’s clinical programs, students receive invaluable client representation experience. Students are taught how to perform interviews, gather information about a client, make effective arguments, and comfort people who are coping with severe trauma. JCCs (or “student codes counselors” or whatever you want to call them) must be armed with all of these skills.

Similarly, having professional training in ethical issues lawyers face, such as conflicts of interests (which is taught in a required law school course) is vital to maintain a professional and functioning office. This proposal completely disregards these principles. For example, imagine that you, a “student codes counselor” advocates for the interests of a complainant who was traumatically hazed. Once you help that student make a complainant, the fraternity member responsible for that hazing will also be walking into your office to seek support, guidance, and advocacy. Even if a co-counselor works with that student directly, will you be able to adequately maintain confidentiality? Will you be able to adequately advance the interest of your client (complainant or respondent) after hearing from and working with the complainant? Probably not. This problem is exacerbated in this SA draft because the complainant must bring the complaint from beginning to end. This means that even an RA or police officer who files a complaint will be the “complainant.” I struggle to see the purpose and value of shifting this burden to community members.

JCCs must also be able to understand and explain the nuanced difference between confidentiality and attorney-client privilege and be ready to research issues related to these concepts as they arise. Note that nothing in this draft even signals that these two concepts are different. When JCCs begin, they must hit the ground running. JCCs spend most of their time training by learning the different codes and policies. It would place respondents at a serious disadvantage—and potentially risk their future academic and professional goals—if a student did not have the basic understanding of how to advise and advocate on these complicated issues.

Importantly, this provision impacts more than just the Campus Code because JCCs also advise on Policy 6.4 and advocate on behalf of student, faculty, and staff members accused of sexual misconduct. These proceedings, whether the respondent is found responsible or not, will have life-changing consequences. Because these circumstances are so high stakes, having some legal training and an advisor in the Law School who we can turn to for help is crucial. And given that most individuals in the OJA (or again, whatever you want to call this future office) have a law degree and that the student advocates for Policy 6.4 complainants are law students, having law students be JCCs ensures that all community members are provided with an equivalent advisor.

The JCC traces its roots back to 1971 and by fall of 1975, the JCC (called the “Judicial Advisor” then) was a law student. Since 1981, the position required legal training. Do not ruin this successful tradition. This position calls for independence from the administration and a legal background.  

My name is Morgan Anastasio and I am a third-year law student at Cornell. For the last two years, I have also served as a Complainants’ Advisor, a position through which I advise and counsel complainants at all stages of investigation and adjudication under Policy 6.4. I write to voice my strong opposition to this proposal, which, although well-meaning, is fundamentally flawed and dangerous for complainants, respondents, the Student Advocates, and the University.

Although this proposal applies directly to the Campus Code of Conduct, changing the JCC Office will have serious implications for Policy 6.4. Cornell’s disciplinary systems, while non-legal, have grave legal implications. This is especially true for Policy 6.4. JCCs advise respondents under Cornell Policy 6.4 (Title IX) who have been accused of committing serious misconduct. The prohibited conduct under Policy 6.4 is often a criminal offense, for example, rape. Title IX complainants can and do bring civil or criminal charges against respondents concurrently with or consecutively to their Title IX complaints. While a non-law student may learn the intricacies of the Title IX process, law students are better served to advise respondents in a way that appreciates and considers possible legal consequences. There is simply a huge difference between “explain[ing] how the student conduct system works” or “support[ing] Complainants and Respondents,” and crafting procedural-based arguments that have legal consequences for a client. Moreover, law students, while knowledgeable of common legal implications of Policy 6.4, understand the limits of their role and when to refer a client to a licensed attorney. 

This proposal demonstrates that the Student Advocates do not understand the legal implications of Policy 6.4. Their website states that “All assistance is . . . confidential.” But that can't be true. The Title IX process is not privileged. This means that anything uncovered in the investigation or hearing -- including the respondents’ submissions and statements -- can and will be used against them in subsequent legal proceedings. This is something JCCs make sure to discuss with each and every client at the start of a case. If the Student Advocates are not doing that and advertising fully confidential services, it is not only legally incorrect, it is unethical and opens them and the school up to liability. 

Even more concerning are the blatant conflicts of interest that exist on the face of this proposal. The same office should not seek to advise both respondents and complainants. At the heart of every conflict of interest rule -- whether it be for attorneys, financial advisors, or boards of directors -- is the principle that it is impossible to sit on both sides of the negotiation table. And yet, by advising both respondents and complainants that is exactly what the Student Advocates seek to do. Clients have to be able to share sensitive and personal information with their advisors and there should be absolutely no risk that that information could be shared with the advisor of the person accusing you of misconduct (or vice versa). JCCs need to work collaboratively, and even with the best screening, there is no way to perfectly insulate advisors from information learned by other advisors. Given the fact these conflicts are apparent on the face of these proposals, one wonders the harm that would be done if they were actually implemented.

Advisors to both complainants and respondents also must remain independent. An advisors’ duty is to her clients, and it is imperative that parties have an advisor who will fight for what is best for them, not the school.

In essence, these proposals signal that the authors do not understand the breadth of the work that the JCCs do or the implications of Cornell’s disciplinary systems. So are they really prepared to undertake that responsibility should this proposal be accepted? 

I am writing to voice my opposition to the Office of the Student Advocate Recommendations, most notably recommendation 2.2 creating an Office of the Student Code Counselors. As a third-year law student and the Senior Complainants’ Advisor at Cornell University, I found these recommendations untenable. The inherent misunderstandings of these life-changing proceedings in the proposal itself is evidence of their inadvisability.

First, the proposals conflate the role of the advisor to Complainant and to Respondent and suggest one office can conceivably do both.  This is simply untrue. Even in a less adversarial system it is important for the interests of the parties to be well represented. Negotiating a common ground does not imply that the interests of both parties align. The risk to any one party of being advised by an individual with clear ties to the other is real. For example, I would be concerned that the advisors seek a compromise that works for their office but fails to meaningfully capture the desires of the parties. Additionally, the proposal fails to consider the collaborative nature of the JCC office. Very real and complicated circumstances arise during the course of these proceedings that are best handled as a team when possible. This possibility is eliminated in the proposed office. These are just a few of the risks that will arise were both parties to be represented by the same office.

Second, the proposal fails to account for the very serious repercussions of these proceedings. The magnitude of the consequences not only plays against the possibility of a less adversarial system, but requires that anyone going through these proceedings feels confident in their advisor.  In some cases, the JCCs may be advising individuals senior to them in age, experience, and positionality at Cornell. The lack of confidence this inherently engenders is cushioned by the JCCs expertise and legal training. They are advising as professionals, which allows other characteristics to mean less. This is lost when the advisors have no legal training.

Third, the need for legally trained advisors extends to the need for professionalism in these proceedings. The nature of the proceedings under the Judicial Codes, and most profoundly under Policy 6.4, are incredibly personal, emotional, and sensitive.  This implicates concern for confidentiality and clear boundaries. Individuals with legal training understand the need for confidentiality, notwithstanding other legal actions. In fact, we are trained in legal ethics and maintain a professional responsibility we are obligated to uphold. Despite good intentions, students with no connection to a profession requiring similar discretion are not bound by this professional obligation.  Relatedly, legally trained advisors understand the need to ensure we do not advise on a case where we know the parties or witnesses unless there are no other options.

Finally, the sensitive nature of these proceedings often means the JCCs will serve as both procedural advisors and emotional support persons. It is pivotal that these roles, as far as possible, remain separate. The JCCs must maintain clear boundaries with their advisees in order to be effective procedural advocates. This involves recognizing when the advisee needs more emotional support than is appropriate from a procedural advisor and referring them to the appropriate resources. It is difficult to draw this line, and it is not at all clear that the Office of the Student Advocate recognizes it or has the training to maneuver it.  

This is made abundantly clear on the Student Advocate’s website. Though the office purports to help students navigate the complicated bureaucracy of Cornell’s procedures they do not even reference all of the available resources for students, including any mention of the JCC or CA offices. Most concerning to me as a Complainants’ Advisor is their failure to include any resources connected with mental and emotional well-being, such as the CAPS programming or the Victims’ Advocates. In fact, the Victims’ Advocates often help survivors of sexual misconduct navigate these very bureaucratic processes in requesting accommodations while offering emotional support.  In my work, and in the JCCs work, these resources are vital both to ensuring well-being and to enabling us to maintain appropriate boundaries.

For these reasons, I oppose the recommended changes and hope the consequences they would have are taken seriously.

Thank you for posting these procedures for public comment.  Since 1970, Cornell has operated on a shared governance model. with students, faculty and staff participating on governance isisues including judicial procedures.  This guarantees "buy-in" and broad campus support as to the fairness of procedures.  At first this was delegated to the University Senate and later the University Assembly.  In my opinion, having the Student Assembly or the "Office of Student Advocate" take on this role unilaterally cannot be a suitable substitute.

The proposal does not provide the Judicial Administrator or the Judicial Codes Councilor with the necessary independence that those offices have at present.

For the reasons outlined in alumni coments on the current proposal from the Codes and Judicial Committee, this draft also fails to offer the necessary procedural fairness and fundamental due process rights that every member of the Cornell community should expect.

Perhaps the best approach would be to start a new draft based upon the current Campus Code of Conduct and procedures and make those changes the Office of Student Advocate deems necessary.  Circulating additional alternative proposals at this time is just confusing the public comment process.

I salute any effort by elected student representative to become more engaged in improving the quality of Cornell's judicial system.  Perhaps interested students should retain competent legal assistance to formulate their proposals in light of the large body of case law that provides important substantive and procedural rights to students.

I would recomment deferring this draft because it has many of the same flaws as does the CJC draft.

Respectfully submitted,

Robert C Platt, AB '73 JD '76