Why not post the old version with edits shown, if the document was lightly edited, or side by side versions of the old and new documents, if the document was heavily edited? 

Seeing both versions at once would make the reply and comment process much easier for readers.

The process under which the Revised Code was considered in the University Assembly last year was seriously flawed.  For example, the President of the University, along with the President of the University Assembly, endorsed a text that the Student Assembly had prepared at the last minute.  Although there was not enough time to thoroughly examine that text, we did discover that the vast majority of the text in fact came from a text submitted by the University Counsel at the beginning of the academic year.  In any event, the agenda under which the student text was brought before the University Assembly violated the Bylaws of the UA and should not have been the format for deliberations.  There were other violations of procedure during that session that raise serious doubts about the entire process.  In my opinion, the whole process should begin again, taking the draft submitted by the CJC last spring and resubmitting it to the CJC as a basis for their deliberations.  If the central administration wishes to resubmit (the now revised) text prepared by the University Counsel, that should be done as well. Any other way of proceeding has the effect of legitimating a very manipulative and heavy-handed process that cannot help but undermine the legitimacy of the Code.

Given 4.21 why is 4.7 included? Isn't it redundant? 

I'm hesitant to support the below two provisions.  While well-intentioned, clauses such as these can be enforced in a manner that is far more severe than intended with minimal evidence.  I would recommend deleting these clauses. 

• permitting enhanced penalties for harassment or assault violations that are motivated by bias;
• expanding the code’s treatment of harassment to include all categories protected under New York state’s Human Rights Law and aligning the code’s definitions of harassment with the way in which harassment is defined under Policy 6.4

Right above the Cornell Statement on Responsible Speech and Expression, you will now find the resolution passed by last year's UA asking the University Counsel to work within two drafts. These drafts, by the Codes and Judicial Committee and Office of the Student Advocate, are now posted as well.

Best,

Logan Kenney

Chair, University Assembly

Lrk74@cornell.edu

In section 20.2, there is a proposal to change the standard of proof to "preponderance of evidence" when in the past it has been "clear and convincing".  I strongly believe that our campus should operate under the principle "innocent unless proven guilty".  Stick with "clear and convincing"!  (Yes, "preponderance" should be applied to Policy 6.4/ Title IX issues especially because there is a real danger to survivors of sexual assault, but the Campus Code of Conduct hearing process doesn't handle that set of cases.)

I also want to say-- I am all for hearings that are open to the public with an opportunity for "cross-examination", and it's not clear whether this code revision is getting rid of that.  The more transparency the better.  Counselors should be able to talk about their cases with each other, the public should be able to know what's going on, etc. 

The university is supposed to be a space of intellectual freedom.  If we change the standard for all cases to "preponderance of evidence", I'm worried that members of the Cornell community with unusual viewpoints and/or marginalized identities will be more likely to be wrongfully convicted.  And the less transparent the hearing process is, the more likely it is that those wrongful convictions will be allowed to happen.  

This entire process has been distorted and shady from the beginning. Between the CJC controversy and then the University's push to adopt them without input/rushed through while students were off campus, the entire thing needs to be redone with students at the center.

why does the code apply only to students? And why has the university decided to lower the burden of proof while exempting itself from any consequences this lower burden of proof would cause? I fail to see any other reason for this rather then the current Administration wanting to crack down on students for what they know to be unsubstantiated claims and evidence-less infractions.

Am I missing something or did they remove the right to cross-examination? If true, that is deeply troubling. 

I think that the University is not drawing enough attention to this and purposefully making it very difficult to see what the changes are so that fewer students express their opinions. Under the guise of simplifying language, the code is being changed so that it can be more loosely interpreted. University Counsel did not sufficiently take into consideration the submissions by anyone that disagreed with the original text.

Understanding the need to maintain a safe and enriching Academic environment, it is disconcerting that the language in the text throughout maintains a tone of subjectivity vs. definitive and finite language.  If the intent is to preserve good order and discipline, then clearly stated actions and consequences must be outlined so there is zero misinterpretation.  

The language further makes so the the Law of Due process may potentially be skirted in support of a favored outcome, this in turn may result in litigation at multiple tiers causing a tarnished reputation to the institution, staff, and student body.  This is a very pernicious course of action which should be treaded carefully in that it does not cause undue harm out of fear of reprisal from unsubstantiated claims.  (In plain language: be clear, to the point with rules and punishment for all that break them.  Don't try to appeal to any specific group out of fear of protest, ensure all people have the opportunity to face their accusers (according to United States Constitutional Law), do not cause harm to the school, faculty, and students. All claims should/must be investigated properly with outcomes set out according to the violation, do not punish prior to outcome because of an accusation, doing so may lead to hefty lawsuits further harming the reputation of the school and those that are involved in it).

As a previous commenter expressed, the parts of the code that have been modified should be highlighted so that it is easier for community members to see what the changes are. In past requests for community comments, changes were clearly indicated -- it seems disingenuous not to clearly mark them in this case.

With the Code of conduct only applying to students, it leaves very little in the way of alternatives for employees.who are accused of violatioons of the law (code).  Law enforcement will only have the option of criminal referrals for faculy and employees..  That just doesn't seem right or fair.

I agree with the comment to get rid of the additional penalties for crimes committed concomitant with bias. It will be difficult to remain impartial.  As an example, last week's violent counter-protest in Ithaca appeared to involve students who clearly violated the COVID gathering restrictions.  Will these students be punished?  Should there be an additional penalty based on their anti-Trump protester animus?  How would that be adjudicated?

Please stick with the clear and convincing evidentiary standard.  FWIW, the Code of Academic integrity uses clear and convincing.  Based on my long experience as an Academic Integrity Hearing Board chair, I find that standard appropriate for both the AI Code and the Code of Conduct.

"...any weapon or other object that can be used to cause physical harm..." is absurdly vague.  Does this mean the baseball team is violating this policy?  Baseball bats could be considered dangerous since more people were killed by blunt objects like hammers and bats than rifles every year for the past 5 years.  And what about umbrellas? Some have handles designed to look like sword handles, does this make them "reasonably perceived to be a weapon"?  This section needs to be far more specific.

Please stick with the clear and convincing evidentiary standard for all desciplinary decisions; the university's decision in disciplinary cases is going to be considered the final word on the matter for students seeking employment afterwards, so there should be substantial evidence that they are truly guilty. 

The link on this page regarding other policies, specifically Academic Integrity, (http://theuniversityfaculty.cornell.edu/academic-integrity/) is yielding a server error. Has this page been updated with new policies, or is this a link to existing policies that the University does not intend to change?

The Office of the Judicial Administrator (OJA) supports the Fall 2020 Proposed Amendments to the Campus Code of Conduct as a whole. This post offers context for the OJA’s position, as well as a few general comments, specific suggestions, and one lingering concern.

The OJA believes that a student conduct code exists to promote a supportive educational environment for all Cornell students. This fundamental purpose underlies the existing Campus Code of Conduct and is reflected in the Principles and Values section of the proposed Code.  Among other reasons, the OJA supports the proposed comprehensive Code revision because it better balances the rights of complainants, respondents, and the campus community as a whole; is less adversarial and procedurally more coherent; and is firmly centered in the work of the Division of Student and Campus Life, so that responses to student conduct concerns can be better integrated into the student experience.

The OJA appreciates all those who have been working since September of 2018 to address President Pollack’s charge to revise the Code.  That charge followed upon the recommendations of the 2017 Presidential Task Force on Campus Climate and has resulted in two years of effort by the University Assembly, the UA’s Codes and Judicial Committee (CJC), and others across campus.  The OJA expresses its appreciation to all of those who have carefully considered and debated potential changes to the Code.  The OJA especially appreciates the Office of University Counsel’s most recent work, which has drawn from two documents submitted to the UA in spring 2020 – one from the CJC and one from the Office of the Student Advocate – to create the Fall 2020 proposal now available for public comment. 

As stated above, the OJA supports the Fall 2020 Proposed Amendments to the Code as a whole. (Unless specifically stated otherwise, references in these comments to the “Code” refer to the group of three documents that comprise the Fall 2020 Proposed Amendments: the Cornell Statement on Responsible Speech and Expression, the substantive section of the Code, and the procedural section of the Code.) Without attempting to summarize for present purposes arguments that have been made and considered previously, the OJA simply notes here a number of changes the OJA believes are fundamentally important: 

• Most significantly, the proposed Code moves student conduct under the umbrella of Student and Campus Life. 
• The proposed Code applies to students only, removing provisions relating to faculty and staff that have rarely led to referrals.
• The proposed Code applies to all University-recognized and registered student organizations and living groups, including sororities and fraternities.
• The proposed Code requires that all persons involved in its implementation must receive training focused on diversity, equity, and inclusion.
• The proposed Code procedures, overall, are more coherent, less procedurally burdensome, and less adversarial than the current Code.
• The proposed Code procedures explicitly favor alternative dispute resolution and summary resolution over more formal hearing options.

The OJA believes that the features above will fundamentally re-cast and improve Cornell’s approach to student conduct in a way that benefits complainants, respondents, and the Cornell community more broadly. In addition to supporting the Fall 2020 Proposed Amendments to the Code as a whole, the OJA offers the following comments and suggestions, each of which will be addressed more fully below:

• On the key question of what standard of proof should apply, the OJA strongly favors the “preponderance of evidence” standard.
• The OJA proposes a substitute definition of hazing, which we strongly urge be at least as broad as the current Code definition. 
• The OJA continues to have significant concerns about the proposed structure of Student Codes Counselors.

OJA’s strong preference for “preponderance of evidence” standard

The Office of the Judicial Administrator strongly urges adoption of the “preponderance of the evidence” standard for student conduct matters, because it best balances the rights of accused students (respondents), the rights of the complainant or victim, and the rights of Cornell’s educational community as a whole. 

The preponderance standard puts complainants and respondents on equal footing and allows disciplinary action to be taken when evidence establishes that it is “more likely than not” that an alleged violation occurred. The “clear and convincing” standard, on the other hand, puts respondents in a considerably more favorable position compared to complainants or victims, who must meet a significantly higher threshold of evidence in order to achieve the secure and nourishing educational environment which the Code exists to protect. 

Use of the preponderance standard in higher education student conduct processes is favored by the Association for Student Conduct Administration (ASCA), the leading national organization devoted to developing and supporting student conduct professionals. See C. Loschiavo and J. Waller, The Preponderance of Evidence Standard: Use in Higher Education Campus Conduct Processes (November 2015), which can be found at this link.  Moreover, other Cornell student conduct procedures currently use the preponderance standard, including adjudications of alleged fraternity and sorority organizational misconduct and adjudications under Policy 6.4 (Prohibited Bias, Discrimination, Harassment, and Sexual and Related Misconduct).  The OJA believes that the same standard of evidence should apply in all types of behavioral conduct matters.

The OJA acknowledges that disciplinary action against a student, especially when it creates a disciplinary record, is a great concern for students.  Respectfully, based on its experience reporting out student conduct records, the OJA believes that student concern on this point generally does not reflect the reality of repercussions for having a student conduct record.  In any event, the OJA believes more fundamentally that membership in the Cornell community is a privilege rather than a right, and the community should be able to enforce its standards of behavior based on an evidentiary standard that is balanced toward all members of the campus community and the community itself.

OJA’s proposal for a revised definition of “hazing”

Cornell, like other colleges and universities across the country, has recognized hazing as a public health issue.  President Pollack has consistently taken a firm stance against hazing and has demonstrated her commitment to achieving a culture change on our campus.  The Fall 2020 Proposed Code’s definition of hazing, however, is narrower than the definition in the current Code.  The OJA believes it is absolutely critical to define hazing broadly, in order to educate students about harmful behaviors and to eliminate them from our campus. Accordingly, the OJA proposes the following definition of hazing (2020 Proposed Code [substantive section], Section 4.11):  

Hazing is any act that, as an explicit or implicit condition of recruitment, admission, or initiation into, affiliation with, or new or continued membership status within a group, team, organization, living group, or academic group or cohort, does one or more of the following: 

1.     Causes, encourages, or compels another person to engage in any activity that could reasonably be perceived as likely to create a risk of mental, physical or emotional distress or harm; examples include but are not limited to: 

a. Undertake acts of servitude or menial tasks 

b. Undergo undue financial expenditures 

c. Engage in acts relevant to those of the group (for example practice or training activities), but in a manner that a reasonable person would consider excessive or dangerous 

d. Abuse, humiliate, degrade, or taunt another person or persons 

2.     Involves any of the following: 

a. Consumption of alcohol or drugs 

b. Consumption of unpalatable substances, or palatable substances to excess 

c. Damage to or theft of property, or any other illegal act 

d. Violation of any University policy 

3.     Subjects any other person (including an existing member or cohort of existing members of the group) to any of the above activities 

Hazing can occur on or off campus, and in person or in virtual settings. The individual subjected to hazing does not need to regard or identify the act as hazing. The fact that an individual does not object to and/or appears willing to participate in the activity, does not signify the conduct is not hazing.  

OJA’s continued concern about the proposed structure of Student Codes Counselors

The OJA acknowledges that the proposed structure of Student Codes Counselors (2020 Proposed Code Procedures, Section 2.2) represents a compromise of ideas proposed in the CJC and OSA versions of the Code submitted to the UA in the spring of 2020.  The OJA is prepared to accept that compromise, because it believes the positive changes reflected in the proposed procedures far outweigh these concerns.  The OJA, however, believes that even as re-worked, the structure of Student Codes Counselors is very problematic. Among other concerns:

• The benefit of independence of the Student Codes Counselors under the proposed structure is outweighed by the fact that the structure removes them from Student and Campus Life professionals and from broader conversations about Cornell’s philosophy and approach to student development – including the educational and restorative goals of the conduct process.
• The concept of separate offices for Complainants’ Codes Counselors and Respondents’ Codes Counselors unnecessarily perpetuates an adversarial approach in student conduct proceedings.
• The Student Codes Counselors are selected and can only be removed by the Student Assembly, the Graduate and Professional Student Assembly, and the Office of the Student Advocate. (The Director has only a consultative role in these functions.) It is unclear how these three large and independent shared governance bodies will fulfill what would otherwise be supervisory responsibilities of professional staff members. 
• The Student Codes Counselors are to receive administrative support from the University.  It is unclear, however, what office will provide that administrative support. 

As indicated above, the OJA accepts the proposed structure of Student Codes Counselors as a compromise in order to move forward with this long overdue comprehensive revision of Cornell’s conduct code. The OJA believes a better structure, however, would be to have these advisors located administratively within Student and Campus Life.

Nothing in this comment should be viewed in any way as a critique of those who have served as Judicial Codes Counselors under the current Code. The OJA has enjoyed good working relationships with JCCs and has great respect for the work they do. The OJA’s views on this point simply reflect a philosophical difference as to how student conduct concerns should be addressed on a college campus.

Conclusion

Subject to the suggestions and concerns expressed above, the OJA is pleased to support the Fall 2020 Proposed Amendments to the Campus Code of Conduct.  Specifically, the OJA urges adoption of the “preponderance” standard of evidence, adoption of the “hazing” definition proposed in the OJA’s comments, and reconsideration of the Codes Counselors structure.

Most importantly, the OJA urges compliance with the schedule requested by President Pollack so that a final proposal can be submitted for Board of Trustees’ approval as soon as possible. The issues under consideration now (including debate over what standard of evidence should apply) have been discussed within Cornell’s shared governance bodies for many years, including in the late 2000s following issuance of a comprehensive review of the Code in 2006 (archival materials available at this link); and, more significantly, since 2017 when President Pollack convened the Presidential Task Force on Campus Climate. It is time for a comprehensive restructuring of Cornell’s conduct process to better support all Cornell students and the campus community as a whole.

Barbara L. Krause

Cornell J.D. 1986

Interim Judicial Administrator

The community should be aware that a lot is at stake in this revision. It is the culmination of a long process by which the administration has worked to take over the community's Campus Code. The administration criticized the Code as too "rights-based" and said that we had to have a Code that was "educational rather than punitive" in purpose.  Do not let those slogans hide the fact that what the administration wants is to discipline without those pesky rights getting in the way. When the community last had a say on the administration's campaign, back in 2006-2008, it resoundingly rejected the administrations's position.

Title IX procedures (like its lowered standard of proof) can be justified because they are addressing a stubborn social problem. But the Campus Code addresses less fraught offenses.  Some are serious (like hazing), but these can be treated by substantive revisions (like those proposed by the OJA), without throwing out our procedural protections.

This time when the administration again did not get its way with its sought overhaul, it just took the Code away from the UA and its CJC. It did so on the basis of a completely false legal reason, but it changed nothing when it had to acknowledge its error. It is a power grab, plain and simple. Clearly, this whole project shoukld be given back to the community.  Clearly, the administration will not do so.

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 students accused of misconduct in the campus disciplinary systems governed by the Campus Code of Conduct, Academic Integrity, and Policy 6.4. In that capacity, I personally have advised over 60 undergraduate and graduate and professional students and care deeply about ensuring that all students at Cornell have access to a fair process when accused of violating campus policy. While I am heartened to see some additional flexibility provided in this new proposed Code that allows for the resolution of alleged violations through alternative dispute resolution and restorative justice models, this proposed Code doesn't go nearly far enough in that direction to justify the blatant stripping of students' fair process rights that we see throughout its text. Below I will elaborate on the ways that this proposed Code misses the mark in giving students access to a fair process.

Current Campus Code of Conduct

Proposed Campus Code of Conduct

1. Respondents’/Advisors’ Ability to Speak and to Question Witnesses (Current Code: (Title II Article II B); Proposed Code: Procedures at 11; 20.8.2)

• The JCC’s oppose these changes. Both complainants and respondents (both themselves and through advisors) should be afforded the opportunity to question witnesses directly.
  • Respondents’ Ability to Question Witnesses: Allowing respondents to ask questions themselves is important for the following three reasons: (1) The parties know the facts of the case best and are best positioned to ask questions; (2) It’s the parties’ interests that are at stake. Allowing them to ask questions at their own hearing is a necessary component to ensuring the campus community can have confidence in the fairness of this process; and (3) Requiring the Chair to ask all questions will likely slow down the process and lead to unnecessary confusion. Further, if a Hearing Chair is the only person allowed to verbally ask questions, parties would need to submit written questions to the Chair well before knowing what a witness’s testimony would be. Parties would also be unable to immediately ask follow-up questions directly relevant to the witness’ testimony without continuously stopping the Hearing to submit additional questions to the Chair. This is neither efficient nor practicable. Finally, while witness intimidation is a legitimate concern, language in the current Code is cognizant of that and provides a safeguard to prevent any potential witness intimidation: “the Hearing Board Chair may require certain questioning to be conducted by written questions read aloud to the witness by the Hearing Board Chair.” Outside of these rare situations, however, parties should be afforded the right to question witnesses to ensure that their testimony is subjected to appropriate scrutiny before any violations are imposed on a student respondent.
  • Advisors’ Ability to Speak and to Question Witnesses: At hearings, the Complainant, in the overwhelming majority of cases, will be the University, and the University will be represented by University staff members who have the resources of the University available to them. It is inherently unfair to allow full-time professionals with the authority of the University to oppose an inexperienced, student-respondent without the active involvement of their advisor during a hearing. It can be incredibly difficult and intimidating for a student-respondent to tell their story clearly and concisely using their evidence and witnesses. Students’ oral presentation skills should not affect whether they are found responsible or not responsible. Likewise, students who may have a harder time with spoken or written English may be at an unfair disadvantage. In addition, forcing a respondent to lead and speak in the hearing without the assistance of an advisor in the name of making the process an “educational experience” overlooks the anxiety, stress, and fear a student experiences during campus disciplinary proceedings, as well as what is at stake for the student in this process. Silencing advisors exacerbates that emotional toll and makes the process more intimidating and likely less educational for the student. Allowing advisors to continue to speak at hearings would not make hearings more “litigious” either. Attorneys and outside advisors may only speak during limited circumstances. And as JCCs, we always encourage students to make statements on their own behalf during the hearing when they feel comfortable. To prevent the process from becoming unfair and needlessly daunting, advisors must continue to be allowed to speak during proceedings.

2. Oversight and Accountability (Current Code: (Title II Article II B 5); Proposed Code: Procedures at 2.2.1)

• The JCC’s oppose these changes and believe that the JCC (now Respondents’ Code Counselor) Office should remain completely independent from the Office of Student Conduct and Community Standards. Specifically, the Office of Student Conduct and Community Standards should not play any role in the hiring or removal of the Respondents’ Code Counselor, even in a consulting capacity. This new proposed Code creates a fundamentally unfair imbalance by giving the Director a newfound ability to influence the hiring and removal of the RCC, thereby threatening the independence that leads students to trust their advisors in the first place. Some have also suggested that these changes should go even further and that moving the JCC under Student Conduct and Community Standards would “increase accountability, understanding of other aspects of student life, and make the process less legalistic and more educational”. First, it is completely inappropriate for the Director of that Office—the Office that investigates students charged with disciplinary violations in the first place—to play a role in the hiring, removal, or supervision process of a student’s trusted advisor, whether formally or informally. Second, the Respondents’ Codes Counselor should only be subject to removal by action of the Board of Trustees upon the recommendation by a ¾ vote of the Student and Graduate and Professional Student Assemblies. Third, the JCCs are already held accountable in three ways: (1) first, by the diverse body of University stakeholders who sit on our hiring committee; (2) second, through our law school faculty advisor—who has been responsible for revising Cornell’s codes for over 20 years; (3) and third and most importantly, by our clients, whose interests we proudly serve. Additionally, under these proposed procedures and Policy 6.4, administrators from the Office of Campus and Student Life (including the OJA and the Vice President of Student and Campus Life) pursue formal complaints against respondents, impose and uphold interim measures against respondents, and rule on appeals that affect the respondent. How (and why) would respondents trust their advisors if they too fall under the same umbrella as those administrators? Third, given that JCCs are students themselves and meet with and interact with students every day through their work, what else must the JCCs do to understand other aspects of student life? Many JCCs take on the position to become more involved in the greater Cornell community. This position frequently attracts law students who attended Cornell as undergrads—our current Office composition reflects this.

3. Evidentiary Standard (Current Code: Title Three Article III E(9)); Proposed Code: Procedures at 20.2)

• The JCC’s believe that the clear and convincing evidence standard best advances principles of fairness and due process, ensures accurate outcomes, and creates trust in the misconduct process. In a hearing, respondents, who are often still teenagers and frequently are first time offenders, face University employees and the resources available to them. If the University switches to a preponderance of the evidence standard, the Code would effectively be putting its thumb on the scale of justice against a side that is already systematically disadvantaged. This may be especially harmful to students from low-income backgrounds who are unable to afford an attorney. Some people have raised concerns that the University has had difficulty in meeting this burden. However, no evidence has been presented to support that argument, and clear and convincing evidence has been the longstanding standard used in non-sexual assault campus misconduct proceedings at Cornell. The clear and convincing evidence standard signals to the campus community that the University is committed to avoiding finding the innocent responsible, thereby giving the community the confidence that the campus adjudicatory system is operating fairly. Further, the entire justification for shifting to the preponderance of the evidence standard—that the new Title IX regulations were expected to require that the standard of evidence for Title IX cases be the same as the standard applied to other student conduct cases—is no longer applicable as the new Title IX regulations were released and explicitly do not require that evidentiary standards be uniform across campus codes. Finally, it makes sense to have different evidentiary standards for the Title IX process and the Campus Code of Conduct process given that Title IX cases rarely have witnesses other than the Complainant and the Respondent and it is much more difficult to obtain evidence in those cases. That is not the case in Campus Code of Conduct proceedings. The evidentiary standard should, accordingly, remain different in these two very different administrative processes.

4. Right of Accused to be Informed in Writing of their Right to an Advisor (Current Code: Title Three Article III A(2)); Proposed Code: None)

• The right of the accused to be “afforded the assistance of an advisor provided through the Offices of the Complainants’ Code Counselor and Respondents’ Code Counselor to assist and advise...  at all stages under these Procedures” (Procedures at 11) can only be realistically protected if students are aware of that right in the first place. Under the current Code, students must be informed in writing of their right to be afforded the assistance of an advisor prior to the beginning of conduct proceedings, and yet still, countless students contact the JCC and report after proceedings have ended that they were not sufficiently aware of this right. If anything, the Code should implement additional measures to ensure awareness of this right. It is quite difficult to understand why the University would remove this provision and hide this right from students unless its desire is for them not to exercise it in the first place.

5. Confidentiality  (Current Code: Title II Article II B); Proposed Code: Procedures at 2.2)

• The JCC’s oppose this change. The JCCs understand the importance of confidentiality and always keep confidential information within the Office unless otherwise required by law. However, for years, the JCCs have been effective, in large part, because we have been able to share confidential information within our Office and thereby, collaborate and work together. We remain in essentially constant communication with each other to discuss questions as they arise. We meet on a regular basis to help each other prepare, answer each other’s questions, and solve problems. This allows the more experienced JCCs (now Respondents’ Code Counselors) to have the ability to take the lead and answer questions on harder cases and train the newer JCCs, creating an environment where a few people always feel qualified to answer a question or know which campus resource to ask for more information. Students deserve to benefit from the institutional knowledge and wisdom that this collaborative environment helps create.

6. Temporary Suspensions (Current Code: Title III Article III 3(B)(c)(1)); Proposed Code: Procedures at 8.1; 8.2)

• The JCC’s support the addition of the qualifiers of only “where immediate action is necessary to protect the Complainant or the University community” and only “when less restrictive measures are deemed insufficient to protect the Complainant or the University Community” added to the standard for imposing a temporary suspension, but would recommend (1) that the phrase only “in extraordinary circumstances” from the current Campus Code of Conduct be added back in and (2) we oppose the shift to having temporary suspensions reviewed by the VP SCL instead of independent hearing panels composed of members of the University community. The qualifiers that were added are important because they impose an immediacy requirement and ensure that temporary suspensions are only used as an interim measure when other less burdensome options are unavailable to address the potential threat to campus safety. We believe that it’s important to explicitly indicate that this intrusive interim measure should not be used in ordinary circumstances because temporary suspensions are imposed before an individual has had an opportunity to have their case adjudicated on the merits. That means they haven’t had an opportunity to provide evidence or share their side of the story. It is a very serious measure which forces students to vacate campus and deprives them of the opportunity to access their education. Accordingly, it should only be imposed in serious and unusual circumstances. Second, having an independent panel consisting of a combination of student, faculty, and staff perspectives functions as a critical check on the unilateral decision of the Director of Student Conduct and Community Standards and maintains campus-wide trust and faith in the integrity of the disciplinary process.

7. Public Hearings  (Current Code: (Title III Article III E(3)(b)(7)); Proposed Code: Procedures at 20.8.1)

• The JCC’s oppose this change. Allowing respondents the option of having a public hearing serves as an important check on the University administration. To understand why, consider the OJA’s decision to charge Mitch McBride with violations under the Campus Code of Conduct in 2017 for leaking documents from a University working group. After he asked to have a public hearing, the OJA objected. However, the hearing chair allowed the public hearing to occur and the hearing was streamed to a packed room of concerned members of our community. The hearing panel found McBride not responsible. The way to appropriately balance the privacy interests of complainants and other members involved in the hearing process is not to eliminate this right entirely—but to give the hearing chair discretion to determine whether a public hearing is appropriate in circumstances given the competing interests

8. Statute of Limitations (Time Within Which a Complaint Must be Brought)  (Current Code: (Title III Article III D(4)); Proposed Code: Procedures at 5)

• The JCC’s oppose these changes. It is important that if a student respondent is found responsible for a violation of the Campus Code of Conduct that that finding is based on evidence that has not deteriorated or become less reliable due to the passage of time. We believe that one year affords a generous amount of time within which to bring a complaint, and extending that time window any further threatens the fairness of the process for students respondents. The proposed Code itself seems to recognize this, in that it says: “A delay may affect the Director’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly and respond meaningfully, and may also affect the imposition of appropriate discipline upon a Respondent who has engaged in prohibited conduct.” We would also recommend that the second provision, which refers to Cornell graduates, be re-drafted to read: “If the Respondent is no longer a student at the time of the Formal Complaint, and the Director is unable to pursue resolution, the Director will assess whether any remedial steps outside of the Code can be taken to address any prohibited conduct or its effects on the Complainant or others.” It’s completely inappropriate and without justification to subject former students to Campus Code of Conduct proceedings. If any remedial action needs to be taken to address the effects of former students’ conduct, it should be taken outside of the Code and not at the direction of the Director of the Office of Student Conduct and Community Standards. For example, perhaps a student Complainant has suffered academically because of an incident involving a former student and needs to have an assignment deadline extended or an exam re-scheduled. The ability to seek these types of accommodations is important, but the Code should be clear that that is what this provision is referring to, as opposed to taking disciplinary action against former students.

9. Jurisdiction (Current Code: (Article III E3(b)9(a); Article II C 2(b)); Proposed Code: Code of Conduct 3(A))

• The JCC’s are comfortable with the shift to granting the University jurisdiction over all registered student organizations and living groups, but do not think it is appropriate for the University to have jurisdiction over off-campus conduct except for as specified under the ‘Grave Misconduct’ provision in the current Code.

10.  Addition of the Office of the Complainants’ Code Counselor (Current Code: No applicable language; Proposed Code: (Procedures 2.2.3)

• The JCC’s support this change.

As many other members of our community have remarked, the 'clear and convincing' standard of evidence appears to be the most just option when the rights of the accused students are at stake. I can understand the desire to revise the code to make it less 'criminal' in tone, but we should not forget that we are dealing with proceedings in which the norms of a criminal process must still hold, and the majority of offenses covered here would be best served by a 'clear and convincing' standard that gives due protection to the rights of the accused. I am not a lawyer, but this seems to be the choice that best serves the rights of students. 

Furthermore, I oppose any change that would reduce the independence of the Judicial Codes Counselor, such as in Procedures 2.2.1. While it seems that the OSA may have a limited influence over the Respondents' Code Counselor, any university control over the hiring process seems to detrimentally affect the credibility of the counselor to be a fair and impartial representative for students.

Lastly, I would like to emphasize that the revised code, as shown here, does not make the changes entirely clear, with the notable exception of the Standard of Evidence. For those of us who were not knowledgeable about this process from the beginning, we need a way to realistically understand the differences of this code in a more detailed way. The overview is helpful, but as many others here have noted, there are other substantial changes that students must be aware of.

If the past few years have shown us, it does not matter how aspirational or well intentioned rules, laws, traditions, etc are, if there are no real consequences for failing ot meet them, then they may as well not exist.  It creates a system where the rules will ignored y the worst of us, and only have an impact on the folks who already were capable of remorse in the first place.

As for plane english, again needs to be backed up wiht concrete definitions and wording, otherwise it just leaves the door open for a lack of accountability as as folks weale their way around the wording.

Many parties want to shift towards a model of restorative justice, one that allows for an "educational component" and alternative conflict resolution when cases arise. If that is the case, more clarity needs to be provided in terms of that procedural structure as well. Two potential models could be used to ensure that most of the cases, specifically the minor ones, go through the alternative conflict resolution:

Model 1 involves the OSCCS referring minor cases to alternative conflict resolution prior to the formal proceedings mentioned in the Code of Conduct. 

Model 2 involves the OSCCS including minor cases into the formal proceedings and with the hope that alternative conflict resolution can arise during or at the end of the process. 

Currently, the Code Changes reads as both - however this becomes problematic when attempting to justify other aspects of the code such as the evidentiary standard. It may be best that if Model 1 is taken that the evidentiary standard is kept at "clear and convincing" to only allow for more severe cases to go through formal proceedings. With that said, the current reading of the Code Changes is also fully dependent on its environment and whether there are systems in place on campus for enacting restorative justice or educational programs. As of now, it is only maintained within the Scheinman Institute in ILR - it needs to be independently assessed (not in this code) whether that needs to be expanded. Yet without that insight, it remains difficult to interpret the current procedural code changes to fully support and align with its Principles and Values (in Section 1). 

I appreciated seeing that there would be diversity and inclusion training for hearing boards. This should include awareness of disability experience and when modifications or accommodations may be needed for either the complainant or respondent to participate in the process. Similarly, it would be important for the OJA to ask parties involved early on if they need any disability access accommodations or considerations in order to engage in the process. This may necessitate calling upon Student Disability Services for assistance or guidance to help ensure this importatnt part of the University procedures and protocols remains accessible to, inclusive of, and not inadvertently discriminatory against, community members with disabilities.  Thanks for your consideration, and for your hard work on this important effort! 

When the administration did not get its way, it manipulated the undergraduate students and threatened shared governance by taking control of the code. Literally by threatening bodies. The proposed changes are just ridiculous and even worse than the proposed changes spoken about years ago.

1. Stop calling punitive measures restorative justice

2. No one wants to move away from clear and convincing (except administration and the students that administration has targetted)

3. Clear and convincing for the campus code does NOT alter Title IX proceedings in any way (and administration wrongly stated those standards must be the same)

4. Stop saying a lower burden of proof is "educational" or "restorative." This is just a lie.

5. Do not take away individuals' rights to have representatives speak for them. They can opt against that. But they should deserve this right which is akin to the Constitutional protection.

6. Leave the JCCs alone. They should be an independent group.

7. Leave the OJA alone. They should be an independent group.

8. Lastly, stop interfering with shared governance. This administration is embarrassing us all. I wonder if the board knows about the threats or if they hear lies about the flawed system they have deeply contributed to. Notice how we have short comment periods YET AGAIN. Coincidental? I think not.

The administration has been trying to pass revisions, which continue to be rejected in the past. Let us not allow them to do this again under false promises of restorative justice which is a sad mask for more punitive procedures. Give shared governance back its role. This power grab is shameful.

The JCC comment below (11/02/2020 post, Item 2) states that their Law School faculty advisor provides an important level of accountability to JCCs (Respondents' Codes Counselor in the proposed revision).  Will a law school faculty member also mentor and advise Complainants' Codes Counselors?

I actually hate to ask this question, because I think it continues to emphasize a legalistic structure that we should move away from.  But if Respondents' advisors are going to have support from Law School faculty, do the JCCs think it would be important for Complainants' advisors to have support from Law School faculty, too?  Would JCCs advocate for that support?

By narrowing its focus to student only, the Code of Conduct strips away a vital protection against harrassment, retailation, and sexual exploitation by employees, faculty, administration, and other non-student members of the Cornell community. This will make graduate student workers still more vulnerable to exploitation.

It seems like these revisions preclude cross-examination of witnesses. Student's charged with code violations need the opportunity to cross examine witnesses for these hearings to be fair and accurate. It would be strange for a right enshrined in the Bill of Rights to be entirely unavailable here. If I am reading the amendments incorrectly, please clarify the Code to make the opportunity to cross examine more apparent.

In the October 28 meeting of the Faculty Senate, the JCC's made a wonderfully clear and powerful presentation in which they proposed very important changes to the University Counsel draft of the Campus Code of Conduct.  In the recent past, the most serious violations of student rights have, in fact, been committed by the University (e.g. the Daniel Marshall and Mitch McBride cases).  The text written by the University Counsel would make such violations even easier to commit.  The JCC's are absolutely right that their changes are extremely important in order to protect student rights.

Richard Bensel

While there are some good changes proposed in this set of revisions, as a third-year law student I am still very troubled by some key revisions that the University has reintroduced. For the second time in a calendar year, revisions to the Code have been proposed to make the Code “more educational,” and according to the new changes, less “punitive,” and less “quasi-criminal.” But that is simply not an accurate description of what the changes to the Code would do. For brevity, I’ll only address a couple of select things.

First, I would begin by addressing the claim that the Code would be less “punitive” and less “quasi-criminal” in tone. This is the justification for trying to get rid of various rights enjoyed by students at the school. But what was true in the spring (when the school attempted to make drastic changes to the process rights of students) is true today: That the punishments and ramifications for those students still subject to the Code are (on the whole) certainly punitive. The University’s retention of pretty much all its sanctioning power (which I don’t write to dispute) requires that respondents have as many process rights available as possible, including, inter alia, the retention of a higher standard of proof (clear and convincing), the ability to question witnesses (both through a respondent themselves and their counselor), and the continued independence of the RCC (discussed infra).

So, it is strange to me that while the Code largely retains the criminal-like sanctions available to the authorities imposing them, those proposing the changes are once again attempting to get rid of the criminal-like process rights enjoyed by those who might be subject to the retained sanctions. The fact that we as a community are discussing some of these issues, such as the burden of proof, for the second time this calendar year is troubling. This is especially true because this reconsideration is occurring in the middle of a pandemic and just months after a large class of freshman, who will be subject to this revised Code for the next four years, have just begun their college careers.

Second, the University has still, after more than half of a year of claiming that these changes are “educational,” failed to define that term in any meaningful way. In both a written comment on the proposed revisions in the spring and during the forum to discuss those changes, I pointed out that this term does not appear to be used in any way that could traditionally be squared with the understanding of “educational.” Considering that this is the purported underlying premise of every revision, I find it troubling that after several months the University itself consistently does not define this term or provide any evidence that it accomplishes this goal. And the failure to use this term in a way that can be understood by an observer—and the inability to define it—cuts against the University’s goal of having the Code and process “use ‘plain English.’” If the community of this University is to truly understand the ramifications, and justifications, of these revisions, we are entitled to more transparency of the underlying policy justifications.

I’d also like to address the noneducational process that the University has used in proposing these revisions in the spring and now. In the spring, the University put out the proposed revisions while everyone in our community was grappling with the then-new COVID‑19 pandemic. Many people I know were extremely distracted and busy adapting to the situation, and they learned about the proposed revisions, not from the University, but from myself and other students who were concerned about the revisions. While the process does not feel quite as rushed this time, I find what the University has done now even worse: it has not highlighted any of the changes to the old Code for reference. In fact, while I hope I am mistaken, I don’t think the current Code is even linked on this proposal. This makes it extremely difficult for some people to understand the breadth and significance of these changes, and this is evidenced by at least one other comment noting the lack of clarity because of this omission. And, as I pointed out above, some members of our community just began college a couple of months ago, giving them less time to become familiar with the existing Code than some of us have enjoyed. I think this lack of clarity itself should justify deferring any change until a time when the student body is presented with this information in an easily digestible, educational way. The University’s educational interest, if it justifies anything, should justify changes and processes that allow our community to be educated, before adoption, on what the new Code will be and what rights we might lose compared to the existing Code. These last two rounds of proposals have not given us this opportunity.

Finally, I’d like to use the remainder of this comment to mention that it is also concerning that the University has made continual efforts to erode the independence of the now-Respondents’ Code Counselors. Independence of the counsel, counselors, and advisors to those accused of wrongdoing is one of the most fundamental values in our system of justice (both country and university-wide). I am unsure why, then, the University feels that the Director of the office charging students with disciplinary violations should play a role in the hiring or firing of a student’s advisor. Even if the changes do not actually erode the independence of the office (a questionable assumption I am making for the sake of argument), the appearance of impropriety and lack of independence alone would justify keeping the office independent. Knowing that the RCC Office is not a fully independent body (and, quite frankly, knowing that the University has made continual efforts to ensure that it is not one), will erode the trust that respondents and others have in the process. Speaking only for myself, my trust in the process would be eroded without this feature. The RCCs do amazing work for this University, ensuring that the process enjoyed by our accused students is fair and impartial, and nothing should be coded into the process that puts that work at risk. If students don’t feel safe speaking with their advisor, it is as if the right to an advisor does not exist at all.

In sum, I think that some of the new, more restorative proposals in the revisions are good. I do not contest those. But coupled with them are a group of revisions that the University has now continued to make that would erode the process rights of students at Cornell. I am not sure why the University is so dedicated to making some of these changes, but I believe its important for us as a community to continue to oppose these sorts of process changes. I thank the University for the opportunity to comment on these proposals.

Zachary Sizemore

J.D. Candidate, Cornell Law School, Class of 2021

It is rfeported in the Sun, “Advisors should be involved primarily to guide students through that process,” wrote Barbara Krause, the judicial administrator. “The OJA does not believe that positioning advisors as adversarial representatives for students supports that overarching goal.” Does the OJA also believe that the position of the University Council should be eliminated as it also participates in adversarial actions? A line of reasoning that is good for the goose is good for the gander.

Several public comments and other reporting have stated that cross examination is not allowed under the proposed Code revision.  To be clear, under the Fall 2020 proposal:

Procedures Section 20.8.2 (Testimony) states that a "question-and-answer format" will be used in hearings. Questioning is primarily conducted by hearing panel members but may be supplemented by the hearing panel chair.

Procedures Section 11 (Counselors/Advisors and Support Persons) states that in cases where suspension or expulsion might be imposed, counselors and advisors must have "a reasonable opportunity to participate fully in the hearings, including engaging in direct questioning of the parties if they choose to testify." (Emphasis added).

It is my understanding that the proposed Code does not use the term "cross examination," based on the recommendation to make the Code less legalistic and write it in "plain English."  That recommendation came from a subcommittee of the Presidential Task Force on Campus Climate whose final report was released in June of 2018. The dean of the Law School co-chaired that subcommittee. (To be clear: I don't mean to suggest that the subcommittee made a specific recommendation about cross examination or questioning during hearings; the recommendation I am referencing was more general: "Where possible, the code should be written in plain English....And, except where the most severe sanctions are at stake, adjudicative processes should be simpler and less formal." The quote appears on page 9 of the report that appears at this link.)

The purpose of conduct hearings is to provide respondents a fair opportunity to address the allegations against them.  Minimizing the amount of direct confrontation during questioning is not inconsistent with that goal - especially when direct questioning is specifically allowed in cases involving possible suspension or expulsion. Campus conduct proceedings on many other campuses require questions to be asked through the hearing board chair and/or panel members. The purpose of that structure - and the effect, on other campuses - is to minimize the confrontational nature of questioning during student conduct hearings. The OJA believes that this approach provides a fair process to respondents while also providing fairness to other students in the process, including, potentially, individual complainants and other witnesses. 

Barbara Krause, Interim Judicial Administrator

I am a second-year law student at Cornell, and I have only recently become aware of these changes to the Code. It seems like they are a large step toward restricting the rights of students, with little or no upside. A lower burden of proof and the proposed limitations imposed on student representatives are particularly concerning alterations. The system in place prior to these changes was designed to reflect the severity of a JA disciplinary action--students were able to enlist the aid of an advisor with legal knowledge to provide a meaningful defense and prevent wrongful prosecution. The recent changes will only serve to "load the deck" against students, while simultaneously compromising the reliability and legitimacy of any successful disciplinary actions. Apart from a harsher and more oppressive disciplinary process, I fail to see what Cornell or the students themselves serve to gain from these changes. 

To save the disciplinary process, it is crucial that the Cornell code retain the Clear and Convincing standard, allow students access to representation unaffiliated with the administration to speak on their behalf (ensuring candor and impartiality), give students the ability to freely call witnesses, and allow true cross-examination (the posited cross-examination is unlike anything I’ve seen in the legal field). I also fail to understand the school’s issue with public hearings, which diminish transparency and further erode the legitimacy of the disciplinary outcomes. These are integral aspects of our country's criminal justice system, yet the school believes it is acceptable to limit these rights, despite the weighty significance these hearings and their outcomes can have on individual students' lives and careers. The university can pretend the disciplinary process is nothing like the criminal justice system, but that is a weak argument considering the accusatorial nature of the proceedings. I believe we can have a strong restorative justice model, consistent with the criminal justice system, but the answer is not to lower the burden of proof and limit student rights in the process.

Why move toward the Title IX investigative model when it makes no sense in this context? Keep preponderance for Title IX, keep Clear and Convincing for Disciplinary Actions. This is how we can best protect our students and limit the possibility of false findings of responsibility.

As a student, my biggest concern about not allowing Codes Counsellor's to speak during hearings is primarily concerning because it inherently de-levels the playing field. Students' writing and speaking skills will play a much larger role in their hearing and may overshadow the facts of the situnation. Furthermore, by the point a referral reaches the UHRB, the involved parties have probably faced months of anxiety and stress which may further impair their ability to eloquently and properly deliver their facts, feelings, and ideas during the hearing process. Having to face five adults knowing that their future at Cornell could be determined in that meeting is a lot for anyone. I agree with the OJA that being a part of the Cornell community is in fact a privledge over anything else; nevertheless, students should be entitled to their due process to fairly determine the range of their sanctions. Reducing the role of the JCC makes the OJA process inherently more punitive than restorative, contradicting the goals of the new amendments. During these proceedings, students look to their Codes Counsellors as an advisor and a role of support as they take on a role of helping the student with the knowledge of the process. However, these new rules shrinks their ability to provide this support by limiting their involvement in hearings. As someone who struggles with anxiety and public speaking, I know that I am not alone. I know for a fact that my peers struggle with the same issues, and a JCC can serve to mitigate these concerns during a hearing which have been descirbed by these same peers as "downright scary." I hope that the university takes these conerns into consideration. 

I have done some research on standards of proof for colleges and universities, and spent some of my professional career doing conduct work. It is not suprising that the law school students and their advisors want a clear and convincing standard of proof, they are trained to think that way and believe that student conduct cases should be treated like courtroom battles where there is a winner and a loser. This just isn't the case in higher education. Nobody wins after a hearing, there is no victory, pay out or time in jail. Higher educational institutions don't have the authority to command wittnesses to participate or supeona documents for evidence. The standard of fairness is applied. This includes giving notice of the violation and an opportunity to be heard by a trained professional in student conduct, which again is a very different skill set than training for litigation in a courtroom. Conduct officers don't go into a hearing hoping to win, they want to talk about the violation, learn about what happened, and use developmentally appropriate training and sancioning to determine the outcome. There is not an us v. them or a University v. students. We all need each other to coexisit in a community where we feel proud and can be ourselves in a safe environment. Ultimately, the process is about student development!

The model code and the exemplar process written and supported by ASCA (Association for Student Conduct Administration) explains that the preponderance standard is the standard best suited for colleges and universities to navigate campus conduct violations. Students do not lose rights, students are adults and can speak for themselves in campus preceedings (and honestly they should want to), and students should not be guided by the fear that the university is taking somethign away from them with this revision, this is not the truth. 

At a moment when so many Americans are questioning the discipline and punishment model of American prisons, it is unclear why Cornell would move to lower the standard of evidence used to punish students for misconduct and to strip them of their rights. In addition to the substantive arguments offered by law students and others in this thread, it seems like an especially bad move from a public relations standpoint. Certainly, there will be students and professors who will not remain silent about these changes. 

These changes will fundamentally alter student rights if you are ever accused of violating the Code of Conduct.

The rights we will lose:

1. Cross-examination (in almost all circumstances)
2. Right to a public hearing
3. The "clear and convincing evidence" burden of proof
4. Participation of independent counselors

"your plain english" changes removes cross-examination & right to a public hearing, lowers burden of proof, and removes participation of independent counselors. Winnie the Pooh is applauding your efforts of making your procedures more "efficient". Also love the spin with the summary above. 

Historically, the Cornell judicial system (as well as the nation's criminal justice system) strives to attain “blind justice” that is without regard to the status of the complainant or respondent.  Indeed, Section 1 of the University Counsel’s draft states, “The Code is drafted to safeguard individual rights as well as those rights conferred by the University, reflecting its dedication to fairness in the treatment of all members of the university community.”  Section 1 also declares Cornell to be a place “where students, faculty, and staff with different backgrounds, perspectives, abilities, and experiences can …  feel empowered to engage in any community conversation.”  The University Counsel’s draft departs from goal at two points.  First, Section 4.10 definition of the elements of Harassment provides, “The fact that the conduct targets a group that has historically experienced discrimination may be relevant to a contextualized judgment about whether the conduct creates a hostile environment.”  This provision is being added to the current Code.  Second, the University Counsel’s draft is based upon the Presidential Task Force on Campus Climate Subcommittee on the Regulation of Speech and Harassment whose final report (at 8) recommended:

We believe that nondiscrimination is a core university value. As such, we believe the university should at least have the option of suspending or expelling from our community someone who violates the campus code when the violation was motivated by bias. 

To meet Cornell’s stated goals of fairness, the consideration of “bias” or the status of the parties must be separated from proving each element of the alleged offenses.  For this reason, The Spring CJC draft (at Section 6.8) provided for two hearing phases: first to establish responsibility and second to establish sanctions or remedies.  The University Counsel’s current draft (Section 20) does not contemplate a further sanction phase of the hearing and merely asks the parties to have written impact statements ready for the panel once responsibility has been determined.

By way of comparison, NYS Penal Law § 485.05 defines a hate crime in terms of a set of underlying crimes with the additional requirement that the accused selected the victim because of his characteristic  or committed the act in substantial part because of a belief that the victim had the characteristic.  The hate crime law adds an important limitation, “Proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying the people's burden.“  Section 20 of the General Counsel’s draft does not provide for the “bias” penalty enhancement.  However, should the UA decide to add one, it should also contain the caveat that proof of the complainant's and respondent’s characteristics alone is not sufficient to establish the bias penalty enhancement.

Finally, the elements in the definition of harassment in Section 4.10 should not include subjective evaluation of a “hostile environment.”  All elements of each offense should be based upon an objective standard.  If a complainant wishes to raise his status, the hearing panel should wait for the sanction and remedy phase to consider it.  Accordingly, the quoted sentence should be removed from Section 4.10 and relocated as a special case in Section 20.10:

“For a party found responsible for harassment (as defined in Section 4.10), the panel may consider the race, religion, gender, gender expression age, disability or national origin (etc) of the complainant in setting sanctions and remedies.  However, the complainant must prove that respondent’s acts were motivated in large part by his belief that the complainant had those characteristics for this to be relevant to the proceeding.” 

Do NOT make any changes that will:

1. Eliminate the right to cross-examination
2. Deny the right to a public hearing
3. Reduce the "clear and convincing evidence" burden of proof
4. Prohibit or inhibit the participation of independent counselors

Some of the language of Section 4.10 seems vague compared to other parts of the code. In particular, the use of the word "humiliating" is of concern. The section does not make clear what the definition of "humiliating" would be. Is "humiliating" someone something serious, like maliciously trying to embarass them or causing them to feel shame (in which case, it should be included in the Judicial Code revision)? Or, could it be something more innocent/simple like politely pointing out the broken promises made by someone running for office or highlighting the flaws in one's argument in the course of public debate (both of which could cause embarassment and, in turn humiliation)? In any case, before these changes are adopted to the Campus Code, the University should make the definition of the word "humiliating" more clear.

Now, if the University aspires to uphold academic freedom above all else, it would be wise to put forth a narrower, more serious definition for the word "humiliating". In my view, it seems as though the University intends to prevent harmful and unwanted harassment from occurring in the Cornell community, a goal which I fully support. Malicious harassment should be stopped and abolsutely has no place in a community like Cornell University.

However, there are moments in contentious and spirited debate in which one may feel embarassed or humiliated, due to the facts and arguments presented. In my experience, those who engage in controversial debate and campus discourse do not intend to embarass their peers. Rather, they intend to build them up, through the rigorous processes of formulating ideas, testing them, and rethinking them again and again. These moments, though they may cause temporary humiliation and embarassment, should not be punished. Rather, they are a critical part of the learning process and the free, provocative academic setting we find ourselves in today.

It is imperative that the University, before adopting these changes:

1) Explicitly defines what "humiliating" means.

2) Chooses a definition of "humiliating" that only covers situations in which someone intentionally and maliciously engages in this sort of conduct, not situations inherent in the learning process or academic debate/discourse.

Submitted by Risa Lieberwitz, Professor, ILR School, and President of the Cornell University Chapter of the AAUP:

The Cornell University Chapter of the American Association of University Professors (AAUP) endorses and recommends for adoption as Cornell policy the following proposed “Statement on Academic Freedom and Freedom of Speech and Expression” (amending the proposed “Cornell Statement on Responsible Speech and Expression”:

Fall 2020 - Cornell Statement on Academic Freedom and Freedom of Speech and Expression

General Principles

Cornell University is committed to fundamental principles of academic freedom and rights of free expression. Freedoms to engage in research and scholarship, to teach and to learn, to express oneself and to be heard, and to assemble and to protest peacefully and lawfully, are essential to the function of the University as an educational institution. As stated in the American Association of University Professors (AAUP) 1940 Statement of Principles of Academic Freedom and Tenure, “Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition.”

The University’s Statement of Core Values affirms the fundamental nature of Free and Open Inquiry and Expression:

We are a community whose very purpose is the pursuit of knowledge. We value free and open inquiry and expression—tenets that underlie academic freedom—even of ideas some may consider wrong or offensive. Inherent in this commitment is the corollary freedom to engage in reasoned opposition to messages to which one objects. https://president.cornell.edu/initiatives/university-core-values/

The University recognizes and affirms the importance of extending to all students and employees the core values of free and open inquiry and expression. The University further recognizes and affirms employees’ right to communicate freely outside of the scope of their Cornell employment in their capacity as a private citizen.

The University endorses the Faculty Statement on Academic Freedom and Responsibility adopted by the University Faculty on May 11, 1960, which provides:

Academic Freedom for the Faculty means: Freedom of expression in the classroom on matters relevant to the subject and the purpose of the course and of choice of methods in classroom teaching; from direction and restraint in scholarship, research, and creative expression and in the discussion and publication of the results thereof; to speak and write as a citizen without institutional censorship or discipline. . . .

Academic freedom is valued very highly at Cornell, and the University Faculty defends it tenaciously; nevertheless, the same University Faculty is disinclined to see the concept abused. Academic freedom does not imply immunity from prosecution for illegal acts of wrongdoing, nor does it provide license for faculty members to do whatever they choose.

The University recognizes and affirms that academic freedom also encompasses the freedom to address any matter of institutional policy or action whether or not as a member of any institutional governance body.

The University further affirms that “a faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve. Extramural utterances rarely bear upon the faculty member’s fitness for continuing service. Moreover, a final decision should take into account the faculty member’s entire record as a teacher and scholar.” [AAUP 1940 Statement of Principles of Academic Freedom and Tenure, with 1970 Interpretive Comments, n.6]

Responsibilities

The Cornell community, including the University Assembly and other elected governance bodies, have a responsibility for protecting freedom of speech and academic freedom. Towards that end, the President or the President’s designee shall consult with the University Assembly, Faculty Senate, Student Assembly, Graduate and Professional Student Assembly, Employee Assembly, and other elected campus governance bodies on a regular basis to ensure that the community’s fundamental commitments to free expression, academic freedom, and respect for others are safeguarded.

Responsible enjoyment and exercise of these rights includes respect for the rights of all. Infringement upon the rights of others, including the rights to speak and to be heard, or interference with the peaceful and lawful use and enjoyment of University premises, facilities, and programs, violate this principle.

The University is committed to protecting academic freedom and to creating a learning, living, and working environment free of discrimination, harassment, and sexual and related misconduct. Based on the protections afforded by academic freedom, speech and other expression will not be considered prohibited conduct unless this speech or expression meets the definition of discrimination, harassment, and sexual and related misconduct under Cornell policy and also meets one or both of the following criteria: a reasonable person in the setting would find it to be abusive or humiliating toward a specific person or persons; or it persists despite the reasonable objection of the person or persons targeted by the speech. [See, Cornell University Policy 6.4, Prohibited Bias, Discrimination, Harassment, and Sexual and Related Misconduct and Procedures http://titleix.cornell.edu/procedures/ ]

The University recognizes that outdoor picketing, marches, rallies, and other demonstrations are traditional and legitimate forms of self-expression and dissent on campus. In recognition of their importance to freedom of speech, no university permit is required for such outdoor activities for members of the Cornell community; however, consultation with the university is encouraged to ensure the safety and protection of rights for all those involved.

I believe that the Codes and Judicial Committee ("CJC") and University Assembly ("UA") must deeply discuss the impact that the Code revisions may have on the jurisdiction of the Code. It is imperative that the Code revisions process remain with the UA, primarily through the CJC bringing action to the UA and subsequent approval / consideration of such changes by the President. As such, there needs to be clarity in the proposed Code changes that maintains language found in the Preamble and Article IV of the current Code:

Preamble: “This Title is necessarily general. Its purpose is to inform the Cornell community of the general principles and policies upon which the Cornell judicial system operates, and to give general guidance to the judicial system as it handles specific cases arising under regulations authorized by the Board of Trustees, including legislation adopted by the University Assembly (or its successor) and approved by the President as representative of the Board.”

Article IV: “The Regulations for Maintenance of Public Order were adopted by the Board of Trustees and may be amended only by action of the Board of Trustees, upon the recommendation of or after consultation with the University Assembly”.

The proposed Code changes are silent or vague on whether this jurisdiction is maintained, as the only relevant wording is as follows:

Proposed Code Change: “Authority 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”.

The University Assembly encompasses each constituent group on campus and historically amendments have come through our body. This is a different situation altogether as rather than an amendment, or amendments, we were asked to revise an entire Code. I believe that amendments should still come through the UA, then to the CJC, back to the UA, and then to the President for approval.

Proposed Code Change: In addition to this, the University Assembly is not one of the designated groups that advises to the appointment of the OSCCS Director, the Complaint’s Codes Counselors, and the Respondent’s Codes Counselors under the proposed code. Under the current code, the appointment of Judicial Administrator and the Judicial Codes Counselor, the equivalent to the Complaint’s Code Counselor and Respondent’s Code Counselors respectively, are approved by the UA as stated in Section 3.2 of the University Assembly Charter. It is important for all relevant constituencies to be involved in this appointment process, not only the SA, GPSA, and the OSA but also the UA given its jurisdiction over the Code.

I am writing this here because comments are closing tomorrow and I believe this is pertinent for all community members to be aware of.  

Best, Logan Kenney, Chair of the UA

The comment filed on 11/15 at 20:48 makes an excellent point.  The definition of harassment has been expanded well beyond the current Campus Code of Conduct which defines the offense as:

"To harass another person (1) by following that person or (2) by acting toward that person in a manner that is by objective measure threatening, abusive, or severely annoying and that is beyond the scope of free speech."

This clear and precise definition is easy to understand and could be applied by any fact-finder on a hearing panel.  The proposed Section 4.10 would introduce the word "humiliation" at two points, which makes the violation far broader and more subjective.  

Aside from vagueness there is also the problem that Section 4.10 tries to describe the boundaries of free speech.  This is because most harassment incidents involve verbal, written or symbol speech.  The current definition expressly excludes "free speech" from the definition.  However, proposed Section 4.10 backpedals from this important protection:

 

Because of protections afforded by principles of free speech and academic freedom, expression will not be considered harassment unless the expression also meets one or both of the following criteria:

     - it is meant to be either abusive or humiliating toward a specific person or persons; or

     - it persists despite the reasonable objection of the person or person targeted by the speech.

This is not the correct boundary of free speech.  In 1999, the U.S. Supreme Court in Davis v. Monroe County Board of Education, interpreted Title IX to create a test that the conduct must be “so severe, pervasive, and objectively offensive” that it denies its victims equal access to education.  The Department of Education has incorporated the Davis test into its definition of sexual harassment, and logic would dictate that harassment outside the sexual context would be at least as protective of free speech.

The UC draft having gone from an express protection of free speech to the above quote, then appears to even strip that protection away.  It adds, "Offensive conduct that does not by itself amount to harassment as defined above may be the basis for educational or other non-punitive interventions to prevent such conduct from becoming harassment if it were repeated or intensified."  This sentence creates an impermissible chilling effect on campus free speech.  Either conduct is a prohibited violation or it is not.  If a complanant alleges conduct which does not violate Section 4.10, no complaint should be accepted and the respondent should not be subject to "non-punitive interventions."  There are many mechanisms on campus to mediate disputes from RAs in the dorms to the Ombudsman.  The stigma and burden of a Campus Judicial proceeding should not attach to a student offending another student while exercising free speech rights.  Accordingly, this sentence should be deleted from the definition of "harassment."

It bears repeating.  Unlike some other colleges, Cornell has never adopted a "speech code."  Cornell values free speech and academic freedom, as reflected in the current Campus Code.  Proposed Section 4.10 is a backdoor attempt to regulate free speech and should be rejected.  The current Campus Code definition should be retained.

Do not lower the burden of proof. Keep clear and convincing.

No student in their right mind would ever vote FOR this.  Why would they risk being found responsible for things they may not have committed?!