Spring 2020 Proposed Amendments to the Campus Code of Conduct
PUBLIC FORUM VIDEO AND TRANSCRIPTS (5/7/2020)
Reworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone.
Significantly simplifying the Code and having it use “plain English”.
Narrowing its focus to students.
Separating standards of behavior from administrative procedures for managing misconduct.
Simplifying the administrative procedures.
Expanding the treatment of Harassment.
Permitting enhanced penalties for Harassment or Assault that are motivated by bias.
Considering moving less serious types of misconduct to the Office of the Dean of Students for resolution.
Do you agree or disagree with these changes?
Do you think the CJC incorporated these changes well into its proposals or did it not go far enough with incorporating some of these changes?
Are there changes that aren't part of that list that you think we should consider as well?
All of your comments will help the Codes and Judicial Committee in its efforts to create a better Code for our community. Review and public comment by the Cornell community are welcomed and encouraged through 5:00 PM on Friday, May 8, 2020.
Downloadable PDF of consolidated public comments
- Section 1: Principles and Values
- Section 2: Definitions
- Section 3: Scope and General Provisions
- Section 4: Prohibited Conduct
- Section 5: Other Applicable Procedures & Policies
The items below are related to the procedural section of the Code revision. Please note that a * denotes a section that has corresponding CJC comments that the committee wishes the public to review.
- Section 1: Participants in the Process*
- Section 2: The University’s Response to a Complaint of Prohibited Conduct*
- Section 3: Investigation
- Section 4: Resolution of a Formal Complaint Following an Investigation*
- Section 5: Administrative Panel Procedures*
- Section 6: Hearing Panel Procedures*
- Section 7: Appeal Panel Procedures*
- Section 8: General Panel Procedures Applicable to All Types of Hearings Under These Procedures*
This page contains comments posted by members of the Cornell community pertaining to General Comments in the current and proposed Campus Code and judicial system. Before posting to this forum, please read the comments below to make sure that the information you are providing is pertinent to the discussion and has not already been addressed before. Comments containing inappropriate language, including but not limited to offensive, profane, vulgar, threatening, harassing, or abusive language, are subject to removal.
Review and public comment by the Cornell community are welcomed and encouraged through 5:00 PM on Friday, May 8, 2020.
Comments** Please Login to add Comments.
Public Hearings/Clear and Convincing StandardSubmitted by Anonymous Committee Member on Thu, 2020-05-07 19:45 (user name hidden)
I am opposed to making all hearings private. There are times when greater transparency is appropriate and that should be an option in some situations.
I also oppose lowering the burden of proof. If disciplinary consequences could result, a clear and convincing standard is appropriate in this context. I disagree that lowering the standard of proof will accomplish the objective proferred or have a more educational impact for the student involved.
Concerns about Due Process and TransparencySubmitted by Miranda Rose Herzog on Thu, 2020-05-07 17:45
Dear Codes and Judicial Committee and University Assembly,
I write to express my serious concerns with the proposed amendments, both in terms of content and in terms of the process by which the CJC has distributed these amendments for public comment. With respect, the CJC's communications with the Cornell community about these proposals have been appallingly sparse and misleading, and the proposed amendments are offensive to basic notions of due process and fairness. I can only imagine what the comments on this page would look like if the majority of the Cornell community was actually aware of what is contained in these proposals.
First, I will briefly address the alarming nature of the proposals themselves. As many commenters before me have noted, the amendment to Section 8.4 lowering the burden of proof is at best misguided and at worse disastrous. Given the serious penalties that are possible under the Code of Conduct, along with the enormous power disparity between the University, the OJA, and associated professional attorneys on one hand, and individual college students on the other hand, it is shocking for the CJC to suggest that this standard "[is] the best standard to balance interests of the community, rights of the accused student, and due process." The student in a disciplinary hearing will always be at a disadvantage compared to the University. Recognizing this inherent disparity is crucial to delivering on the promise of due process.
I am further concerned by the amendments to Sections 5.4 and 6.5 making all hearings private without exception. While I don't doubt that many students would prefer a private hearing, giving students the option of requesting a public hearing constitutes an important check on the power of the University. The Cornell community has an interest in ensuring that disciplinary actions are being conducted fairly. If a student wishes to open their disciplinary hearing to the public, they should be allowed to do so. The combined effect of lowering the burden of proof and eliminating the possibility of public hearings is to give the University virtually unchecked discretion in disciplinary matters.
Quite apart from the major substantive issues with the amendments, I am deeply troubled by the notice and comment procedure that has been used by the CJC with respect to these amendments. As has already been extensively noted, we are all in the midst of a one-in-a-lifetime crisis situation, and students are additionally in the midst of attempting to prepare for remote final exams. The timing of these amendments would be less than ideal even if the amendments themselves were fairly minor and routine. Given that they are neither, the choice to release the amendments to the public at this time is insupportable. I don't claim to know the CJC's intentions, but the optics of this situation are that the CJC and the UA are using the cover of a global pandemic to ram through major changes to the Code of Conduct at a time when hardly any community members have the ability to properly consider those changes.
Furthermore, in addition to the timing of the communications with the public, the communications themselves reveal a severe lack of transparency. Hiding the change to Section 8.4 under the vague goal of "[r]eworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone" cannot be rationalized as anything short of deliberate obfuscation. The initial commenting period was only two weeks long and included no provision for a public forum for discussion. When a public forum was scheduled, it was scheduled the day before the (new) deadline for comments, and students received only a two-day warning of the meeting. And what's more, the Zoom link sent for the "public forum" was incorrect, and no correction was issued to the community. Thus, the supposed "public forum" actually occurred in a Zoom meeting that was completely inaccessible to the majority of the community.
I strongly believe that these amendments are misguided and inappropriate. They should not be adopted. More than that, they should not have been proposed at a time when the community is extremely limited in their ability to evaluate and comment on them. And finally, the CJC should have at least made an honest attempt to communicate the actual content of the amendments to the community. I respectfully urge the CJC and UA to reconsider these proposals.
J.D. Candidate, Class of 2020
Absolutely ridiculous.Submitted by Samuel Jacob Chessler on Thu, 2020-05-07 16:42
Absolutely ridiculous. Students should have the right to freedom of assembly
AgainstSubmitted by Samuel Jacob Chessler on Thu, 2020-05-07 16:39
I am against any policy change that attacks judicial process. We have always lived in a nation with innocent until proven guilty without a reasonable doubt. Any policy that does away with this I would oppose
Response to “Clear and Convincing/Preponderance”Submitted by Anonymous Committee Member on Thu, 2020-05-07 16:36 (user name hidden)
As a previous commenter mentioned, this is for code of conduct violations, not sexual assault which falls under policy 6.4. The preponderance of the evidence standard is already in use. Nonetheless, I strongly oppose this position. First off, I have no clue where you got those numbers like "about 100." Using the preponderance of the evidence standard errs on the side of the accuser, meaning somebody could be falsely accused and then found responsible for something they did not do. Sexual assault is a crime, and our criminal justice system is centered around the presumption of innocence to not convict people of crimes they did not commit. By using the preponderance of the evidence standard, schools can take action against students because they are 50.1% sure that an assault occurred, which is not clear enough to make a guided decision on whether to find somebody responsible since there's essentially a 50/50 chance that it occurred. It's true that forensic evidence and witnesses are not always available in these cases, but that doesn't mean we should reduce the burden of proof so that more people can be falsely found responsible. There have already been many cases of people who have been falsely accused, and these cases harm the innocent's reputations and their academic careers. For that reason, there has been a push for due process and against the preponderance of the evidence standard. The current presidential administration has made a push for the clear and convincing standard to be implemented in schools, and though I personally do not agree with nearly all views of the administration, I am glad that this push for due process is occurring. I am sad that many sexual assault victims do not find justice, but opening up the doors to allow false allegations to lead to convictions of innocent people is not a solution. Imagine somebody accusing you of a crime, say robbery or even murder, and you had no way to prove that you didn't do it, but you're still convicted for it because a group of people were just over 50% sure it happened. It's unacceptable in the example I gave above, and it's unacceptable in all cases including sexual crimes.
Statement of the Undersigned Greek AlumniSubmitted by Robert C. Platt, Esq on Thu, 2020-05-07 14:56
A formated PDF has been emailed to the Assemblies Office.
STATEMENT BY THE UNDERSIGNED GREEK ALUMNI
ON CODES AND JUDICIARY PROPOSED DRAFT
The undersigned are offering comments on the draft code and judicial procedures posted by the Codes and Judicial Committee (CJC). We thank the CJC for their hard work on a project that involves many difficult issues. This project is important because it brings together all elements of the Cornell community to forge a set of widely-accepted conduct rules and procedures that will bring fairness and justice to students as those standards are enforced.
Since Cornell admitted its first students in 1868, Cornell fraternities have provided values-based education and opportunities for self-governance to generations of Cornellians. Fraternities are also valuable inter-generational organizations that promote mentoring and career advising for undergraduates and recent graduates. Fraternities offer skills training and education resources from both Cornell alumni and from each fraternity’s national organization. In general, most fraternities operate under the Trustee “recognition policy.” Most fraternities are single-gender organizations, but some are co-ed. Fraternity alumni have a long history of contributing to Cornell in many ways that further the university’s goals of allowing “any person” to get a quality education. Fraternity alumni welcome improvements to the campus judicial system as long as the changes continue to protect student rights and support fairness and objectivity in the adjudication process.
- Burden of Proof
If Cornell students were before the criminal justice system, they would face the standard of “proof beyond a reasonable doubt,” which was put into Cornell’s Campus Code of Conduct in 1970. Later, the Code has required a lower standard of “clear and convincing evidence”. It would be a huge mistake to further reduce this standard to a “preponderance of the evidence”, as recommended by a 6-4 CJC vote. Society recognizes the importance of the burden of proof protecting the innocent from mistaken identity, erroneous claims and potential bias. A “preponderance of the evidence” or 51% likelihood does not offer adequate protection to students, families and alumni who have invested time and money in a Cornell degree that can be so easily devalued by a finding that does not require clear and convincing evidence. The consequences for a student found mistakenly “responsible” are severe and can damage chances for graduate school acceptance or finding a good job. In essence, Cornell Judicial decisions can be both career- and life-changing. Thus, before putting such a consequential mark on a student’s record Cornell has an obligation to be very sure indeed that the sanction is thoroughly examined to a high standard of proof. Cornell should not be advocating reduced standards for due process and fairness.
2. Freedom of Association
Since Cornell first opened, it has recognized the right of students to form groups. Conduct is best regulated on an individual-by-individual basis rather than a group level by weighing the freedom of association and expression against the deterrence of group misconduct. In the criminal law, corporations make official decisions through required formalities and leave paper trails. But student groups are usually unincorporated and tend not to leave paper trails documenting their misconduct. The proposed document is too vague on when the misconduct of individuals warrants a complaint and potential sanctions against the organization(s) of which they are members. The same criteria should apply regardless of the type of organization(s) involved.
Section 3(A) on jurisdiction would be clearer if there were a consolidated registration process for all student groups, and then have the Code apply only to those student groups who register. In this manner, any disagreements on jurisdiction would be resolved through enforcement of the registration process rather than during an after-the-fact adjudication of Code violations. This would further your goal of “decriminalizing” disputes surrounding the benefits and burdens of registration. Registration would make clear who to notify if a group were to become a party to a proceeding. Notification should be to both the undergraduate leader and to the alumni/faculty advisor. Even if a group is not registered, the conduct of individual students would remain subject to the Code. Proposed Section 4.2 would empower the hearing panels to abrogate contracts between Cornell and respondent groups found “responsible” that should be beyond the scope of a student Code conduct proceeding.
This approach would also allow Section 4.1 to be simplified. To protect freedom of speech and association, Cornell has not required groups to file their membership lists. We encourage Cornell to continue that important tradition of organizational privacy.
The second bullet of Section 4.1 should be replaced with:
To use knowingly, when acting as an agent of the university, ethnicity, gender, national origin, political persuasion, race, religion, or sexual orientation or affectional preference as a basis for exclusion from university-funded programs. Nothing in this Code shall be interpreted as preventing single-gender groups or activities.
The goal should be to put students in the same obligation as faculty and staff in ensuring that Cornell-funded programs comply with various civil rights legislation. The current CJC draft is so broad that it could be misinterpreted as prohibiting single-gender groups or club sports.
3. Right to Counsel
Cornell’s current Code protects a student’s “right to be advised and accompanied at every stage by an individual of the accused’s choice”. Restricting the participation or role of counsel violates the student’s rights to due process and fairness. Counsel could be the Judicial Codes Counselor, a private attorney, or a parent or alumnus. “Section 1 Participants in the Process” should be revised to guarantee these rights. “Section 3 Investigations” should be amended to guarantee participation of counsel in the meeting between the Judicial Administrator and the student. Section 6.6 should be amended to give counsel the right to question witnesses.
4. Off-Campus Conduct
First, the Code should carefully define the “campus” and include a map to make it clear. The phrase in Section 3(A) “the property of a University-related residential organization” needs to be defined. The definition of campus in proposed Section 2(1) is too vague. How long a distance is meant by “immediate vicinity”? Students need a clear line regarding the jurisdictional scope. We assume that privately owned houses or apartments are not a part of the campus, even if all the residents of a building are Cornell students. We also understand that “space owned, leased, used, or controlled by” a student organization or student-alumni group residence is not part of the campus, because only Cornell controlled spaces are. An official “campus boundary” map should be published and distributed with the Code so that there are no after-the-fact surprises. This same map should be used to determine when campus protests are subject to Cornell regulation or are subject to the permitting requirements of Cayuga Heights or the City of Ithaca.
On-campus conduct and off-campus conduct have different impacts. Extending the “campus” definition to cover the academic campus, university-related housing, and other locations makes it impossible to draw any distinctions based on the context. However, Section 3(A) contemplates extending jurisdiction to off-campus if the conduct poses a “substantial threat.” This exception should be rare and applied in a non-political manner. We believe that the Judicial Administrator should make the initial decision to charge off-campus action subject to the hearing panel finding the student “responsible” for the off-campus conduct. University administrators should not participate in the decision. The basic approach adopted by CJC is to limit the Code to on-campus conduct, unless off-campus conduct poses a “substantial threat.” Yet, the proposal as drafted then attempts to put residential organizations entirely within the scope of the Code regardless of whether the conduct fits the substantial threat test. The Code should treat all student groups equally.
5. Transparent Enforcement Focused on Fairness for All
When the Campus Code of Conduct and the judicial procedures were instituted in the early 1970s, the Office of the Judicial Administrator and the Judicial Advisor (now the JCC) were established separate from the Central Administration. There was a concern that Cornell’s conduct regulation would be influenced by the political impact of news coverage or following the Kirkpatrick Sale case that the Trustees or the President might put a thumb on the scales of Cornell justice. Hence, the present structure has these offices function independently of the Administration. The JA needs more continuity of guidance and an experienced professional to give the office proper focus. We strongly endorse the decision to have the JA report directly to the Vice President and thus become part of the formal administration structure of Cornell.
Although the draft would have the Judicial Administrator as directly under the Vice President on the organization chart, the draft would also give certain roles to the Dean of Students. This is confusing. We suggest that the roles given to the Dean of Students in the current CJC draft be eliminated and that all discipline be consolidated under the JA who in turn will report to the normal administration channels.
Many thanks for your consideration of these comments.
Gene Kim Arts ’82, JGSM ’97, Kappa Sigma, Acting Vice President
David Ayers '80, Cornell Association of Phi Gamma Delta, Vice President
Kevin R. Baradet '81, AVC President for NY Beta Chapter of Sigma Phi Epsilon, Inc.
Randy Barbarash, Chairman, Alumni Board, Sigma Alpha Mu - Beta
Nicholas J. Carino BS '69, MS '71, PhD '74, Secretary, Sigma Nu Property Association
Anthony B. Cashen ’57, MBA ’58, Alumni Director, Delta Upsilon Fraternity
Mark Clemente ’73, Alumni Director and General Counsel, Delta Upsilon Fraternity
Norman “Lin” Davidson ’71, Delta Chi Association (DKE), Immediate Past President
John S Dyson ’65, Former President of Alpha Delta Phi, Emeritus Trustee
Derek Edinger ’94, President, Cornell Delta Phi Association
Bob Forness, Chair, FSAC, AIFC, former Chapter Advisor, Pi Kappa Alpha
Thomas Foster ALS ’81, Kappa Sigma, Chapter Advisor / Acting Co-Treasurer
Mike Furman ’79, Alumni Advisor, Delta Kappa Epsilon
Tristan Hemphill '12, President of Zeta Psi Alumni Association for the Cornell Chapter
Mark Kamon ‘75, President, Cornell Delta Upsilon Alumni Association
Rich Kauffeld '80, President, Alpha Psi of Chi Psi Corporation
R. Alexander Latella, B.S. ’10, Alumni Treasurer, Cornell Delta Phi Association
Bob Linden BA '71, MD '75, President Gamma Theta Property Association, Sigma Nu Undergraduate Brotherhood Chapter Advisor
Thomas McCune ’15, Kappa Sigma, Chapter Advisor / Acting Co- Treasurer
Rick Meigs ChemE ’80, President Cornell Lambda Chi Alpha Alumni Association
James Munroe '90, President, Alumni Corporation Board of Trustees Zeta Chapter, Alpha Gamma Rho
Peter A. Muth ‘74, Sigma Pi, Alumni Board Member
Chris Nieves ‘11, Beta Charge of Theta Delta Chi Inc, President
Donald A. Noveau, ’70, President, Theta Delta Chi Educational Foundation, Inc., President, Spectemur Agendo Foundation, Inc.
Fred Pape ’99, Kappa Sigma, President
Dennis Paese ‘73, Chapter Advisor, Sigma Alpha Mu Fraternity
Jeff Perry, President, Alpha Zeta Corporation Board
Robert C. Platt AB ’73, JD ’76, President, Delta Chi Association (DKE)
Alex Pruce ’13, Treasurer of CUAIFC and Chair of Greek Growth Committee
Matt Roberts ’98, President, Gamma Chapter House Association (Phi Sigma Kappa)
Howie Schaffer '90, Alumni President, Alpha Delta Phi at Cornell University
William R. Shaw ‘69, '73, AB, MPA, JD, Delta Upsilon
Len Shapiro ’74, Theta Delta Chi
Rob Shuck ‘98, President, Chi Phi Chapter House Association
David Weber '68, Advisor for the Cornell chapter of Delta Chi
John Yerger ‘82, President, Alumni IFC
 However, some local fraternities, such as Seal and Serpent, continue to operate after Cornell changed its recognition policies to require affiliation with a national fraternity.
 We use “Judicial Administrator”, “Student Judicial Administrator” and “Office of Student Conduct & Community Standards (OSCCS)” interchangeably, although we think that the proposed new name is too wordy to be useable.
Trustee Minutes 1957-58 pages 3316, 3327 and 3330.
Some concernsSubmitted by Anonymous Committee Member on Thu, 2020-05-07 12:43 (user name hidden)
I agree that the Code should not be as punitive. A more educational and less punitive experience will equip students with tools for making better decisions.
The JA should not recommend the same blanket sanctions solely based on what code was violated. Rather, there must be greater consideration of each cases’ mitigating and aggravating circumstances.
Prohibited conduct should be more specifically broken down into subsections rather than grouped together in a code section. That is, there should be subsections to appropriately reflect degrees of severity so that, for example, possession of alcohol is not under the same section as selling alcohol or operating a motor vehicle under the influence. It is unjust that a student who committed a less severe alcohol-related behavior violation has the same violation code on their record as a student who committed a more severe alcohol-related behavior violation, or that a student who possessed marijuana have the same code violation as a student who sold a lethal controlled substance. While students may have an opportunity to explain their misconduct to a future employer or admissions office who may interpret the code violation in the most severe sense, the prejudicial effect may not be overcome. Additionally, the added stress to a student of having a code violation on their record that could be interpreted in the most severe sense is unncessarily punitive.
Plenty has been said in the comments about the burden of proof so I will just add my very strong support for the “clear and convincing” standard.
Response to the comment below this oneSubmitted by Anonymous Committee Member on Thu, 2020-05-07 12:09 (user name hidden)
These code changes DO NOT apply to sexual harrasment or assault. Title 9 is a completely different campus code and system. These changes only deal with the campus code.
Clear and Convincing/PreponderanceSubmitted by Anonymous Committee Member on Thu, 2020-05-07 12:01 (user name hidden)
I believe the amount of sexual assaults that are reported, and actually followed through with at Cornell is about 100. It's clear that clear and convincing evidence is not working. Most people are not going to have 7 bystander eyewitnesses or a text message saying "I apologize for assaulting you" and forensic evidence is not applicable to a lot of cases. We need to start addressing what kind of proof we actually want and create the standard of something attainable to achieve.
Comments on proposed Campus Code of ConductSubmitted by Arthur B. Spitzer on Thu, 2020-05-07 20:42
As invited by the Codes and Judicial Committee of the University Assembly, I am submitting the following comments on the 2020 Proposed Amendments to the Campus Code of Conduct.
Before turning to my comments, I will briefly state my background, which I think is relevant to my qualifications to comment on these proposals.
I am a loyal and active Cornell alumnus, Class of 1971. During the 1968-69 academic year, I was one of two student members of the Faculty Committee on Student Affairs, which at that time was the final review authority for student conduct matters. After the Willard Straight Hall takeover in April 1969, I became an elected member of the Cornell Constituent Assembly, which was formed to consider and propose changes in university governance. I spent the summer of 1969 researching student codes of conduct across the country, to inform the Constituent Assembly’s consideration of that topic.
The Constituent Assembly’s major recommendation was the creation of a Cornell University Senate, which would include students, faculty, and staff, and which would have broad authority over non-academic campus affairs, including student conduct. The Board of Trustees approved the creation of the University Senate in early 1970, and the Senate convened that spring. I was elected to the Senate, and the Senate elected me as its Speaker for the 1970-71 academic year.
After graduating, I went to law school; after several years of private practice, in 1980 I became the Legal Director of the American Civil Liberties Union (ACLU) of the District of Columbia, a position I occupied for 40 years. A few weeks ago, I became Senior Counsel at ACLU-DC. Among the ACLU’s current and historical concerns is due process—the guarantee of fairness when the government takes action involving persons (whether individuals or groups). Due process includes fair notice of what conduct is prohibited, and fair procedures for determining whether violations have occurred. Because Cornell is in part a governmental institution, the legal requirements of due process apply to many of its actions. And presumably Cornell wishes to apply the same standards when it acts with respect to individuals or groups connected to the private side of the university, rather than treating them as second-class citizens.
• • •
My main reaction as I read the Proposed Amendments was embarrassment on behalf of Cornell. They are just not ready for prime time. They are filled with inconsistencies, with provisions that are too unclear for a reasonable person to understand (contradicting the stated goal of “simplifying the Code and having it use ‘plain English,’” and with errors that any proofreading would have corrected. I believe that the adoption of these rules in anything like their current form will inevitably result in litigation that Cornell will assuredly lose. In addition to those problems, many proposed provisions raise serious questions of fairness, not to mention common sense.
I present my section-by-section comments below.
• • •
Section 1: Principles and Values
Comment 1. The preamble states that “The expectations and standards in this Code of Conduct should be applied in a non-punitive educational objectives including opportunities to demonstrate growth from mistakes, and to implement restorative justice, and sanctions imposed should, to the greatest extent possible, advance Cornell’s educational goals.”
Right from the beginning, the proposal includes a sentence that makes no sense. What does “applied in a non-punitive educational objectives” mean? It is impossible to tell. Did no one proofread these proposed amendments before they were published?
I agree, of course, that any student code of conduct should pursue educational objectives; to the extent the code can be applied in an educational and non-punitive way, that is to the good. But this code, like any such code, does include punishment for prohibited conduct, and I think the preamble should recognize as much, and should also recognize that when punishment is involved, fairness to all parties is essential.
Comment 2. The preamble notes that “Authority over and administration of the Code and associated Procedures are vested with the Vice President for Student and Campus Life (VP SCL), in consultation with the elected Assemblies of the University. Student conduct matters are delegated to the Office of Student Judicial Administrator, overseen by the Dean of Students.”
What does “authority over … the Code” mean? Can the Vice President amend the Code? Can he or she overrule any of the other actors involved in the process? Likewise, what does “overseen” mean? Can the Dean of Students overrule the Office of Student Judicial Administrator what that office makes a decision not to the Dean’s liking?
These statements are never clarified, and are potentially very dangerous. Even the most carefully-designed procedures will fail if they are subject to arbitrary outside control. Just imagine if the President were given “authority over” the U.S. judicial system, or if the courts were “overseen” by the Attorney General. We would soon have a judicial system like the ones in countries where charges and verdicts are dictated for political reasons.
I have no doubt that the current and future Vice Presidents and Deans of Students will make every effort to be fair. But it is inherent in the nature of their offices that concern for fairness to individual students is not the priority. They are—necessarily and properly—more concerned with the university’s public image, the wishes of the President and the Trustees, and the interests of various campus affinity groups. For example, the Dean of Students’ constituency includes the Asian and Asian American Center, the Lesbian, Gay, Bisexual, Transgender Resource Center, and the Women’s Resource Center. https://scl.cornell.edu/identity-resources/office-dean-students/office-dean-students. The current Dean states that “the core of [his] role is a commitment to work broadly on aspects of access, equity, and social justice at Cornell.” https://scl.cornell.edu/identity-resources/office-dean-students. That’s great. But it means that he cannot be a neutral adjudicator. If the constituencies that he serves are demanding what they view as “social justice” in some individual case, he (or a future dean) is in a poor position to resist.
I assume that the people who administer the campus judicial system need to report to someone for administrative purposes—budget, office space, and the like. But “authority over” and
“overs[ight]” sound like much more than that. In my view, it is very important to preserve the independence of the judicial administrators from outside control when it comes to individual case processing and adjudication, and this should be made clear in the Code.
In this regard, see also comment 23, below.
Section 2: Definitions
Comment 3. Section 2(1) of the proposal provides that the term “campus” “can also include streets, sidewalks, and pathways adjacent to or in the immediate vicinity of Cornell campus or property.”
“Can” is a very troubling word in this context. Does it, or doesn’t it, include such areas? If it includes them only sometimes, when? Likewise, “immediate vicinity” must mean something further away than “adjacent,” but how much further? A student is entitled to know whether he or she is on campus for purposes of the Code. The person deciding whether to press charges needs to know whether a prospective respondent was or was not on campus. In many cases, the members of a hearing board cannot know how to rule on the defense that certain conduct was not covered unless they know whether it occurred on or off campus. The definition in the proposal is too vague to be fair in any case involving non-electronic conduct that is not literally on Cornell property. (See comment 19, below, for an example of where such a clear definition would be essential.)
Section 3: Scope and General Provisions
Comment 4. Proposed Section 3(A) provides that “The Code covers behaviors by . . . University-recognized or University-registered student organizations and . . . generally applies to conduct . . . on the property of a University-related residential organization.” (Italics added.) I hope there are clear rules elsewhere regarding whether an organization is University-recognized or University-registered. But what is a “University-related” organization? If the phrase is supposed to mean University-recognized or University-registered, it would be best to repeat those terms. If “University-related” means something different, then its meaning is entirely unclear.
Again, students are entitled to know whether they are on the property of a “University-related” organization. Code administrators and hearing boards have to know whether or not a student was on the property of a “University-related” organization when he or she committed an alleged offense. The answers cannot be made up after the fact, to suit the desires of Code administrators or board members to punish, or not punish, particular respondents.
Comment 5. In addition to the vagueness of the term “University-related,” its use raises the question whether the proposed Code extends the university’s jurisdiction beyond where it can lawfully go. If some organization is neither University-recognized nor University-registered, by what authority does Cornell purport to regulate what the organization does on its own property?
For example, would an off-campus organization that incudes students and people who are not affiliated with the University (for example, an off-campus food co-op, or political organization, or film club) be a “University-related” organization? That would raise all kinds of problems for university jurisdiction over the organization. Similarly, if an off-campus organization includes both students and alumni, when (if ever) would such a group be considered “University-related”?
Comment 6. Also lacking from this proposed Code are any standards for determining when an organization is responsible, as an entity, for the conduct of some of its members (or the conduct of people on its property). An organization that has an official policy that is prohibited by the Code—for example, an official policy of discrimination based on gender identity—presents an easy case. But other cases are much harder. For example, it is not unusual for one or two people to commit acts of civil disobedience or minor vandalism at the fringes of a political demonstration. Is the organization that sponsored the demonstration responsible for their acts? Nothing in the proposed Code provides any guidance about that. But holding an organization responsible for the actions of individuals whose conduct the organization does not control is problematic. (See also comment 9, below, for the related problem of holding individuals responsible for the conduct of a group.)
Comment 7. The same proposed provision provides that “The Code applies to conduct that . . . poses a substantial threat to the University’s educational mission,” and defines “substantial threat” to include “unique violations which shall be left to discretion of the Dean of Students as requested.” Similarly, it provides that “The final determination as to whether off-campus conduct is subject to this Code will be made by the Dean of Students, or their designee.”
It is not easy to imagine provisions more prone to abuse (and legal challenge) than these. The U.S. Constitution contains a prohibition on ex post facto laws for a good reason: it would be grossly unfair to allow a prosecutor to decide, after a person has engaged in some conduct, that it should have been a crime, and to punish the person for it. While the off-campus legal system would probably allow the university to respond to unspecified conduct in an educational manner (e.g., with counseling or required reading), it would not likely allow the university to impose serious discipline on a student for conduct the student could not reasonably have known was prohibited by the Code.
Section 4: Prohibited Conduct
Comment 8. Section 4.1 provides that “This prohibited conduct [namely, “To knowingly affiliate with groups, teams, or organizations that have had their University recognition or registration withdrawn, suspended or permanently revoked by the University for disciplinary reasons”] does not apply to unrecognized student groups who have never had University recognition or who are currently not recognized by the University because of non-disciplinary disbandment.” That is fairly clear, and sensible. But the section goes on to provide, “However, known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.”
That sentence is ambiguous. If it means that “known members of unrecognized student groups may be held accountable for such prohibited conduct by these groups,” then it is self-contradictory, because section 4.1 does not prohibited any conduct by unrecognized student groups who have never had University recognition or who are currently not recognized by the University because of non-disciplinary disbandment. Because the prohibition “does not apply” to them, there is no such conduct for which a person could be held accountable.
On the other hand, if the final sentence means that “known members of unrecognized student groups may be held accountable for any prohibited conduct by these groups,” then it amounts to guilt by association, which should not be part of the Code for the reasons given in Comment 9, below.
Comment 9. It is far from clear that Cornell could hold a person accountable for conduct by a group (recognized or not) when the student did not personally engage in, assist, encourage, or otherwise support the conduct. “Guilt by association” has long been viewed in this country as an improper basis for punishment. A student can be held accountable for the student’s own conduct. But without some personal involvement, it is not right, and probably not legal, to punish a person for the conduct of others over whom he or she had no control. (See also comment 6, above, for the related problem of holding a group responsible for the conduct of some individuals.)
Comment 10. Section 4.1 also appears to sweep too broadly in seeking to assure that groups whose recognition or registration has been withdrawn, suspended or revoked do not continue to operate on campus. While that is a reasonable goal, and while formal activities such as rushing or pledging can certainly be prohibited on campus, prohibiting a student from “being involved in any activity that would normally be associated with being a member of such an organization” would seem to forbid students from continuing to be friends or roommates with other students, since living together, eating together, and socializing with each other are “activities” that members of organizations normally do. I certainly hope Cornell does not wish to tell students who were members of a group that has been punished that they cannot continue to be friends or roommates. Beyond that, freedom of association is a core American value, and is protected by the First Amendment. This prohibition should be significantly narrowed.
Comment 11. Section 4.1 also prohibits the use of “political persuasion” (among other things), “as a basis for exclusion from university or group activities on campus.” It is odd that the prohibition on excluding people from official university activities, or activities of registered or recognized group activities on campus, is under the heading "Affiliation with Unrecognized Student Organizations or Groups,” since it has nothing to do with affiliating with unrecognized groups. Perhaps this portion of Section 4.1 should be a separate section.
Regarding the substance of this proposal, the inclusion of “political persuasion” is questionable. Political persuasion is a valid and constitutionally protected basis on which people choose to associate or not associate. While it would be reasonable for Cornell to require students to allow those of any political persuasion to attend an open meeting or a debate on campus, it would make no sense to require the Cornell Republican Club to allow avowed Democrats to participate in its meetings to plan future activities, or to require the Cornell Social Democrats to allow Republicans to march in their parade with their MAGA signs. Indeed, the Constitution does not allow Cornell (to the extent to which it is a public university) to impose such a requirement. See Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). This prohibition should also be narrowed.
The committee should also think carefully about whether it makes sense to enact an across-the-board ban on the use of ethnicity, gender, national origin, race, religion, or sexual orientation or affectional preference as a basis for exclusion from university or group activities on campus. While such discrimination is often improper, it is not always so. Is it wrong to have a Native American club that excludes non-Native Americans? Or a Muslim organization for Muslims? Or a women’s support group for survivors of sexual assault that excludes men?
Comment 12. Section 4.1 covers athletic teams and, as written, would prohibit separate male and female sports teams. I presume that was unintentional, but if the Code is adopted as proposed, that would be the result.
Comment 13. I also note that the list of prohibited grounds for exclusion does not include “gender identity.” Unless that concept is intended to be included as part of “gender” (which is not the usual understanding of that term, and which would not provide fair notice), it is a surprising omission.
Comment 14. Section 4.7, on Disorderly Conduct, makes it a violation “To intentionally cause or recklessly create a risk of disruption to the University community or local community [by] . . . Ureasonably loud . . . behavior.” Causing a disruption is bad conduct. But to punish a student for creating a risk of disruption by being loud, when no disruption actually occurred, gives campus police a great deal of leeway to engage in discriminatory policing. It is well known that police across the country use disorderly conduct laws to arrest members of minority groups for conduct that is tolerated in others. College students are sometimes loud. If they cause no actual disruption, why should they be punished?
Comment 15. New York State has a medical marijuana program. But Section 4.9 makes it a Code violation to possess or use any controlled substance prohibited by state or federal law, and federal law continues to prohibit the possession or use of marijuana under any circumstances. It would therefore be a Code violation for a student holding a valid New York medical marijuana certificate to possess or use marijuana on campus, and perhaps off campus as well. Cornell is under no obligation to enforce the benighted federal law, and Section 4.9 should include an exception for the possession or use of medical marijuana that is lawful under New York law.
Likewise, New York State has a “Good Samaritan law,” which (with some exceptions) protects any person from prosecution if the person “seeks health care for someone who is experiencing a drug or alcohol overdose or other life threatening medical emergency.” McKinney's N.Y. Penal Law § 220.78.1. Such laws have been adopted in many states because lawmakers understand that it is more important to save a life than to prosecute someone for drug or alcohol possession. For the same reason, Cornell recently adopted a similar policy: “Under Cornell’s Good Samaritan Policy, individuals that call for help and those that receive help in an alcohol or drug related emergency are protected from individual judicial consequences.” Cornell University Sorority and Fraternity Life Risk Management and Social Event Policy (January 21, 2020), page 6, available at https://scl.cornell.edu/sites/scl/files/documents/Risk%20Management%20and%20Social%20Event%20Policy%202020%201.21.2020%20Final-VD.pdf. But proposed Section 4.9 of the Code contradicts that assurance. Section 4.9 should be amended to make clear that the University’s Good Samaritan Policy prohibits punishment under the Code, just as New York State’s Good Samaritan law prohibits punishment by the criminal justice system.
Comment 16. Section 4.12, on Harassment, makes it a violation to subject “another person or group” to certain “behaviors,” but it is entirely unclear what harassment of a group is supposed to mean. First, such behaviors become violations if they are made “a term or condition of an individual’s participation” in university activities (italics added). So that applies only to individuals. Second, such behaviors become violations if the conduct unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from university activities (italics added). So that also applies only to individuals. Those are the only two ways in which such behaviors become violations. The phrase “or group” should therefore be deleted, because the proposed Code does not actually create a violation of harassment of a group—nor should it.
Comment 17. Section 4.12 also provides, “The fact that the conduct targets a group that has historically experienced discrimination may be relevant to a determination of whether the conduct creates a hostile environment.” That would create an explicitly discriminatory standard for punishment. The very same words or conduct would be a violation when directed at student A, but not when directed at student B. The off-campus legal system would, at a minimum, be quite troubled by that double standard, and punishment based on such a standard might be successfully challenged. By contrast, I think a provision that took into account the particular characteristics of an individual victim, that were known to the harasser (for example, that the victim had PTSD and was easily terrorized by particular conduct), would be more legitimate.
Comment 18. Section 4.16 prohibits “Obstruction or interference with . . . Code of Conduct processes, including, but not limited to: . . . Falsification, distortion, or misrepresentation of information.” It is quite proper to prohibit obstruction or interference with the judicial system. But it is extremely common for anyone on one side of a disputed matter to believe that people on the other side are distorting or misrepresenting information. No one’s memory is perfect, and one person’s interpretation of a document or event is often very different from another’s. Putting students at risk of punishment because an adjudicator disagrees with the student’s understanding or characterization of certain information is not proper. Proof of deliberate falsification and an intention to obstruct or interfere should be required.
Comment 19. Section 4.24 makes it a violation to “possess, carry, or use any . . . object that can be used to cause physical harm.” That would include a cane, a pair of scissors, a baseball, or even a laptop computer, which could inflict serious injury if swung into a person’s face or neck. Under this provision, every student would be guilty every day. Even listing specific objects will not work; presumably Cornell does not really want to outlaw the possession of Swiss Army knives by students. The section should be revised to prohibit the use, or threatened use, of objects as weapons. If Cornell wishes to prohibit the possession or carrying of firearms (including replica firearms) on campus, it can so specify. Presumably there should be an exemption for members of ROTC. Such a prohibition would be an example of the importance of having a clear and careful definition of what counts as “on campus,” as noted in comment 3, above.
Section 1: Participants in the Process
Comment 20. The number of typographical errors in Section 1.1 is remarkable: “employee of hte University”; “filing a complaint witth the OSCCS”; “resolution of the complain”; “Cornell University is names as the complainant”; “Each names complainant”; “a personal advisor of that person’s choise”; “shall not partipate.” If this reflects a rush to publish—which seems likely—it also suggests that the thinking and reviewing process was rushed, as seems pretty clear. A code of conduct that may have very serious consequences for individuals should not be the product of such hasty and sloppy work.
Comment 21. Section 1.2 provides that “for a disciplinary probation, suspension or expulsion to be imposed, [a respondent’s] counsel or advisor must have had a reasonable opportunity to participate fully in the hearings.” It is impossible to know what a “reasonable opportunity” to “participate fully” means. Indeed, the sentence is self-contradictory, because “reasonable” necessarily means something less than “full.” The Code should specify what a counsel or advisor may or may not do. Otherwise, hearing panels will almost surely apply different standards in different cases, depending on a host of subjective feelings, which will open the door to subsequent legal challenges.
Comment 22. I agree with the CJC majority that advisors should be able to speak on behalf of student parties. Students have widely varying speaking abilities, and will have widely varying levels of emotion about the process they are in. A student is the best judge of whether he or she would be better off asking an advisor to speak.
Comment 23. Section 1.3 provides that “The Director of OSCCS shall be appointed by and reports to the Vice President for Student and Campus Life.” The CJS requested feedback on this section.
It is not clear (at least not to me) just what “reports to” means here. I think an annual review is unobjectionable; an employee who is not doing his or her job should not be immune from review. But “reports to” usually means “supervised by” and “takes direction from.” It would be a real problem if a Vice President (current or future) were able to dictate the manner in which a particular investigation or adjudication is handled. If reporting to the Vice President is retained, it should be clearly provided that the Vice President may not become involved in any particular case. In this regard, see also comment 1, above.
Comment 24. Regarding Section 1.4, the CJC requested comment on whether the Judicial Codes Counselors should be law school students, or whether the position should be open to any student who goes through an application process. While there are undoubtedly some non-law-students who would make good Judicial Codes Counselors, I find it hard to believe that an application process would do an adequate job of assessing that. Indeed, I think the job should be limited to second-year and third-year law students. Law school teaches a particular way of reading and thinking, and however much the student discipline process may aspire to be educational, imposing punishment on people is unavoidably legalistic. It isn’t a matter of interest or intelligence; few students who have had no legal training will understand how to give good advice and counsel about a legalistic process. Perhaps my comments in this document are a good illustration of the skills that are necessary, and of the unfortunate consequences that ensue when those skills are absent.
Comment 25. Likewise, I think the suggestion that the Judicial Codes Counselors should be moved into Student and Campus Life is an exceptionally bad idea. The very reasons for the suggested change demonstrate why: “to increase accountability, understanding other aspects of student life, and make the process less legalistic and more educational.” The job of the Judicial Codes Counselors is to provide assistance and representation to student respondents. Their only accountability should be to the students they are assisting. Making them accountable to others necessarily means that they will be less effective at their jobs—indeed, that must be the goal. Likewise, insisting that they be more understanding of “other aspects of student life” means that they should be less understanding of the needs of the students they are assigned to assist. And asking them to make the process “less legalistic” means asking them to fail to provide the students they are assisting with the best counsel and advice.
In the outside world, a core ethical mandate for a lawyer is to represent the client, and only the client. Being accountable to anyone else, or withholding “legalistic” advice or representation because they “understand” other interests, would get a lawyer disbarred. Forcing Judicial Codes Counselors to have divided loyalties will make it clear to students who can afford to hire lawyers that they should do so, and will mean that students who cannot afford to hire lawyers will have poor advice and counsel. The result will be discrimination against non-wealthy students—who may be just the students whose interests would supposedly be advanced by the proposal to make the process less legalistic.
Comment 26. Section 1.7 provides that “Copies of student conduct records shall not be released to outside sources without written consent of the subject of such record, except . . . when … necessary … to preserve the integrity of proceedings under this Code,” or (with respect to records of organizations) “when deemed necessary to educate the University community.” The proposal provides no clue about what sorts of circumstances might make it necessary to release student conduct records to outside sources, and none come to my mind. Have there been past situations where such release has been deemed necessary? And what sorts of “outside sources” are included? Parents or guardians? Treating medical providers? News media? Additionally, the section is silent about who makes these decisions, which is a key question. If the people involved in the judicial system do not believe release is necessary, can they be overruled by some administrator? Should they be?
Section 2: The University's Response to a Complaint of Prohibited Conduct
Comment 27. Section 2.1 provides that “If the OSCCS determines that an individual making the complaint of the alleged conduct in violation of the Code was directly harmed by the reported conduct … the OSCCS will designate the individual as the named complainant.” But how can anyone “determine” at the outset that a person was “directly harmed by the reported conduct.” The reported conduct is only an allegation; it may be unfounded. As written, this provision suggests that respondents are to be presumed guilty. The provision should say, “If the individual making the complaint alleges that he or she was directly harmed by the reported conduct … the OSCCS will designate the individual as the named complainant.”
Comment 28. Section 2.3 provides that an initial inquiry “may lead to … a determination that the complaint or report … should be administratively closed because, even if the behavior occurred, the behavior alleged would not violate the Code; a more comprehensive investigation by the OSCCS of the allegations may be appropriate.” This is very puzzling. If the behavior alleged would not violate the Code, then why would a “more comprehensive investigation” be appropriate, and why would OSCCS be the proper entity to pursue it? Students should not be subject to a “comprehensive investigation” about alleged conduct that, even if true, involves no violation. There is nothing to investigate.
Comment 29. Section 2.5.1 establishes the process for review of interim measures by the Vice President of Student and Campus Life. A minority of the CJC recommends a “less formalized,” “ad hoc” process. I agree with the majority. The process described in the draft gives both the respondent and the complainant the opportunity to be involved, and requires the Vice President to provide a written decision. That process is fair to both sides—and also creates a written record in the event the matter goes to court. An informal, ad hoc process invites abuse, with one party perhaps kept in the dark and no requirement that the Vice President be required to account for his decision. Indeed, I suggest that the provision be modified to specify that “The VPSCL will provide a written decision explaining his or her reasons to the parties and the OSCCS” (adding the words in italics), so that a written decision simply saying “request accepted” or “request rejected” is not adequate.
Comment 30. Section 2.5.3 deals with a request to the Appeal Panel to lift a Temporary Suspension. I cannot tell from the draft whether this would take place before or after a request to the VPSCL to do the same thing. Who has the final word?
Section 4: Resolution of a Formal Complaint Following an Investigation
Comment 31. Section 4.1 includes an Educational Conference or Alternative Dispute Resolution as potential avenues for resolving complaints. It is good to make these options available. It should be made clear that the statements of parties during such proceedings are confidential and off the record. If a party’s statement during such proceedings could later be used against him or her (whether as a confession of guilt or an admission of uncertainty about an allegation), the free give-and-take that is an essential part of such proceedings would disappear, and a party’s advisors or representatives would need to have a right to be present.
Comment 32. Section 4.2 lists factors that OSCCS will consider in recommending sanctions and remedies. That list does not include doubt about what actually happened. Yet if the burden of proof is anything less than proof beyond a reasonable doubt, many cases will involve doubt—perhaps great doubt—about what happened. It seems to me that the existence of such doubt is a legitimate and important consideration when recommending sanctions and remedies, and it ought to be added to the list. To analogize: If I asked you to bet on whether James Buchanan or Franklin Pierce was the fifteenth President of the United States, you might be willing to bet serious money if you were totally sure which it was, but you might be willing to bet only a token amount if you had little confidence in your answer. Similarly, while an educational response might be justified in a case where there is real doubt about whether a respondent committed the alleged violation, serious punishment, such as suspension or expulsion, would probably not be appropriate in such a case.
Section 5: Administrative Panel Procedures
Comment 33. Section 5.2 indicates that there is an “Administrative, Hearing, and Appeal Panels pool” from which panel members are drawn. But I don’t think there is anything in the draft Code about how individuals get into that pool—what are the qualifications (if any), what training (if any) do they receive, are they volunteers or are they selected involuntarily? These are all very important questions, and there must be answers, but I don’t believe they are in the proposed Code.
Comment 34. Section 5.2 also provides that in any case referred to the Administrative Panel for a hearing, “OSCCS shall make a good faith effort to give notice of the hearing at least ten (10) business days prior to the hearing.” But a good faith effort does not require any particular result, so notice could be given two or three days in advance, which would not be fair to parties preparing for a hearing, or to witnesses who may need to arrange their schedules. I think a minimum time should be specified, perhaps 7 business days. Such a flexible requirement for notice by OSCCS also conflicts with the inflexible time limits imposed upon respondents. See comment 39 and 53, below.
Comment 35. Section 5.4 provides that all hearings shall be private. I agree with the minority that there should not be a prohibition on public hearings. There are good reasons why the Sixth Amendment to the U.S. Constitution requires public trials: members of the community who did not realize they had relevant information may come forward. Unfair conduct by panel members would be exposed. Flaws in the process could become public. A party may be less willing to lie in public. There may be good reasons to close some hearings, but closure should not be the rule, at least not if the respondent requests an open hearing.
Comment 36. Section 5.7 provides that a respondent can appear in person at a sanctions hearing only with the permission of the Administrative Panel Chair and the Administrative Panel. It seems to me that a person facing punishment ought to have the opportunity to address the panel in person before the panel makes a decision. If the respondent wishes to speak and the complainant (or complaining witness) also wishes to speak, both should be allowed to speak.
Section 6: Hearing Panel Procedures
Comment 37. Section 6.1 provides that “OSCCS shall make a good faith effort to give notice of the hearing within ten (10) business days prior to the hearing” of a Hearing Panel.” But one day would be “within 10 days.” The word “within” should be deleted. And, as in comment 28, a minimum should be specified.
Comment 38. Section 6.2 deals with recusal, and provides that a panel member should be excused only if the member “has first-hand knowledge of the events at issue, has been directly involved in those events, or is personally interested with regard to the outcome.” That is too narrow. A panel member who has second-hand knowledge—in other words, who heard one party’s story directly from that party—should certainly be excused. And a panel member who has any personal connection to a party—a fraternity brother or sorority sister, a roommate, a faculty advisor, a member of the same sports team—should also be excused. This is much broader than being “personally interested with regard to the outcome.”
Comment 39. Section 6.3 provides that “Names and written statements of any witnesses to be called at the hearing by the OSCCS or by the respondent, shall be exchanged no later than five business days prior to the hearing.” This may be reasonable if ten business days’ notice was provided. But it would not be reasonable if six business days’ notice was provided (see comment 34, above). It is not fair to give OSCCS only a “good faith” obligation while imposing strict deadlines on parties.
Comment 40. Section 6.5 provides that all hearings shall be private. Please see my comment 29.
Comment 41. Section 6.6 provides that “The respondent’s counsel or advisor must have a reasonable opportunity to participate fully in the hearings. See my comment 26 on that point.
Comment 42. Section 6.6 also provides that “when the Hearing Panel Chair believes that direct questioning of a witness would result in undue intimidation, the Chair and the Panelists will ask questions instead of the respondent, in which case the respondent may submit proposed questions to the Chair.” The proposal contains no requirement that the Chair of the panel actually ask any question proposed by the respondent. But it is very unfair to allow a witness to testify without challenge. The Code should provide that questions submitted by the respondent must be asked if they are relevant and not duplicative of questions already asked.
Comment 43. Likewise, Section 6.6 provides that “If an individual complainant does not testify, the Hearing Panel may proceed to decision only if it finds that the complainant’s interests in not testifying outweigh the respondent’s interests in questioning the complainant as a witness at the hearing.” Even if the respondent objects to the introduction of any earlier statement by the complainant, the complainant’s earlier statement can still form the basis for a decision if the “Hearing Panel Chair finds compelling circumstances of need for and reliability of such statement.” In other words, the panel can reach a decision relying only on the complainant’s previous, unchallenged statements. That is a recipe for having a university decision overturned by a court of law, and with Cornell owing attorneys’ fees to the respondent’s lawyer.
Comment 44. In Section 6.6, The CJC notes that a minority believes a Hearing Panel should never order relevant witnesses to testify, because this would be “punitive and would delay the hearing process.” I agree with the majority. The hearing is an attempt to find the truth. Not every reluctant witness should be ordered to testify, but a witness with important evidence—perhaps an eyewitness, or perhaps someone who heard a party tell a different story than the story the party told to the investigator—should not be excused simply because the witness finds it inconvenient to attend, or because the witness’s evidence would be harmful to the witness’s friend. These hearings are serious business.
Comment 45. Section 6.7 provides for oral and written closing statements. A minority of the CJC would eliminate them as time-consuming and adversarial. I agree with the majority. A student may not be able to organize his or her thoughts, or to remember every important point, extemporaneously at the end of a hearing. A reasonable opportunity to submit a written statement is important. The time need not be long, and of course the process is already adversarial.
Comment 46. Section 6.9 specifies that decisions shall be made based on the preponderance of the evidence. The proper burden of proof is a fairly debatable question. But it is easy to accuse, and difficult to defend. And I believe, in line with the traditional view in the United States, that it is better for a few guilty people to go unpunished than for an innocent person to be punished. I therefore support requiring clear and convincing evidence when serious sanctions are potentially involved. If only educational measures are contemplated, I think a preponderance of the evidence is not unreasonable.
Also, Section 6.9 properly provides that the “burden of proof on violation shall rest on the OSCCS.” To assure that all participants fully understand what this means, it would be useful to add that respondents are presumed to be innocent of the allegations against them. Thus, the section might read: “All decisions by the Hearing Panel shall be in writing, including a rationale and any dissenting opinions. A respondent is presumed to be innocent; therefore the burden of proof on violation shall rest on the OSCCS. The standard of proof on violation shall be clear and convincing evidence. Under a clear and convincing standard, the Hearing Panel must be persuaded that it is highly probable that the respondent violated the Code.”
Because the presumption of innocence should equally apply to respondents before administrative panels, language to that effect should also be included in Section 5.5, or, even better, in Section 8 regarding all types of hearings (see comment 49, below).
Section 7: Appeal Panel Procedures
Comment 47. In Section 7.3, the CJC seeks comment on whether the right to appeal should be the same or different for the complainant, respondent, and OSCCS. My view is that it should depend not on the identity of the party but on the ground for the appeal. An appeal based on a claim that University officials prejudicially violated the fair application of relevant University procedures, or committed an error in interpreting the Code of Conduct, or its procedures, should be available to any party, because such an error infects the reliability of the proceedings and should be corrected regardless of which party will benefit from a correction. Such corrections will also benefit OSCCS and future panels by clarifying the proper meaning of the Code and its procedures. On the other hand, I think the other limitations in Section 7.3 are reasonable; the prosecution shouldn’t get a second opportunity to put the respondent on trial.
I have the same view regarding appeals from an Administrative Panel (Section 7.4). I think appeals based on a misinterpretation of the Code or a failure to follow proper procedures should always be allowed.
Comment 48. Section 7.6 provides that the Review Panel “may, but is not required to, stay a sanction where the appealing party clearly demonstrates the need for a stay.” This is puzzling. If an appealing party clearly demonstrates the need for a stay, by what possible reasoning should it be denied? Denying something that is “clearly” justified seems like the definition of injustice.
More broadly, a stay should not be granted only if an appealing party “clearly demonstrates” the need for a stay. I suggest that section 7.6 be revised to provide that “The Review Panel shall stay (i.e. postpone implementation of) any sanctions pending a final decision on the appeal when the appealing party shows that that there was probably an error in the panel’s decision that affected the outcome, or that failing to stay the sanction would create a serious hardship for the appealing party while staying the sanction would not create a hardship for the complainant.”
Section 8: General Panel Procedures Applicable to All Types of Hearings Under These Procedures
Comment 49. My main comment on Section 8 is that it shouldn’t come at the end. It should come before the sections specifying separate procedures for different types of hearings, and the general procedures it provides should not be repeated in the sections specifying separate procedures for different types of hearings. As it is, much of Section 8 does repeat things that have already been said.
Comment 50. Section 8.3 lists the grounds on which a party may object to certain evidence, “unless otherwise provided by the Code.” But I didn’t see anything elsewhere in the Code about this. If it exists, it would be useful to specify where. If it doesn’t exist, it should be deleted.
Comment 51. Section 8.3 provides that “The Administrative, Hearing, or Appeal Chair will make a determination on objections and instruct the panelists accordingly.” This highlights the need for the Chair to be carefully selected and to understand sch concepts as relevance and prejudice (in its evidentiary sense). Yet nothing in the Code says anything about the qualifications, selection, or training of Chairs or panel members. See also comment 33, above.
Comment 52. Section 8.4 specifies the burden of proof. Please see my Comment 46, above. This is a good example of the repetition that should be avoided.
Comment 53. Section 8.5 deals with conflicts of interest. But this subject was already covered—but differently—in Section 6.2. So the proposed draft is now internally inconsistent.
It is not at all clear why the Vice President of Student and Campus Life is involved in this process, as his or her role seems to be limited to forwarding mail. And the requirement that notification of a possible conflict must be made within 5 business days after the party’s receipt of notice of the identity of the panel members may mean that notification is not due until after the hearing, as Section 5.2 (for example) provides that the names of panel members do not need to be provided with the notice of hearing, but may be provided “at a later time, prior to the hearing.” These various time requirements need to be coordinated with each other. Someone needs to read through the proposal with attention to detail (see related Comments 34 and 39).
Comment 54. Section 8.8 provides that “The OSCCS, respondent, and, if applicable, the named complainant may listen to the audio recording of the hearing.” Perhaps this is intended to include the advisor or representative of the respondent, and, if applicable, the named complainant; if not, it should be revised to make clear that they are included. The audio recording is a key part of the hearing record for any appeal (Section 7.2), and it is essential that a trained person assisting a party with an appeal—or for that matter a court case—have access to the recording. For that reason, it should also be made clear that a party and the party’s advisor or representative will have the opportunity to listen to the recording privately, so that they can freely discuss its contents while listening, and that they have the opportunity to take detailed notes (unless they are allowed to make a copy).
Comment 55. Section 8.9 is titled “Public Record of Hearing Decisions,” but all it provides is that decisions shall be kept on file in the OSCCS. It says nothing about public access to those files. A sentence should be added providing that any member of the University community may review these files (from which the names of individuals and other identifying information have been redacted) during regular business hours.
I hope the Codes and Judicial Committee finds these comments helpful.
Arthur B. Spitzer ’71