• Code of conduct must be applied consistently across all student groups. Clubs and sports teams (whether club or varsity level) should be held to the same requirements as fraternities and sororities. There is a perception that there is a set of rules for Greek members and a separate (lax) standard for varsity athletes.
• I would be more explicit on "public intoxication" to include "pre-gaming" which in addition to being physically dangerous to users, also has been an excuse to claim that an event is "dry" -- where no alcohol is being served but participants are intoxicated.
• Is there a way to place an emphasis on healthy or reasonable use of alcohol (regardless of age)? Seems to me not only would alcohol abuse be reduced but so would the behaviors linked to over-consumption of alcohol: sexual assault and harassment; hazing,...

I would hope that during this time of reviewing and amending the code that the University recognizes that the time of having a two tiered system of accountability must end. Currently there is a carve out that Fraternities & Sororities are not held to be accountable to the code of conduct as it relates to their activities. That means that for all intents and purpose approximately 20% of the student population is exempt from the code of conduct. The explanation has always been the IFC's self governance and judicial review are adequate. I can tell that after 32 years of seeing the disparity, it in fact does not work and that a protected class has been allowed to exist. It's time to end this carve out and make ALL students/staff/faculty held to the same standard.

In 4.1 I have no idea what "affectional preference" means and it isn't clarified elsewhere.  Does it mean gender presentation?  Racial/ethnic presentation?  Who you choose to be romantically/sexually involved with as opposed to sexual orientation? (e.g. a bi woman is romantically involved with another woman?)  If "affectational preference" could just be clarified that would be great. 

Also 4.1: I notice that disability is excluded from the list, which, again, is: "To use ethnicity, gender, national origin, political persuasion, race, religion, or sexual orientation or affectional preference as a basis for exclusion from university or group activities on campus." I realize that some groups can't have physically disabled members just for logistical reasons, e.g. an outdoor rock climbing club, but disability should be included in this list.  Maybe something like "disability status (except in cases where a physical disability is incompatible with an activity and no reasonable accommodations can be made)". 

Also 4.1: "political persuasion"... interesting... you have to let a Republican join the Cornell Democrats?  Not sure I would change this, but just noting that it does seem odd given how many campus groups are explicitly political. 

4.2: I think it's fine for graduate and professional students who are of legal drinking age to be publicly intoxicated on campus sometimes, e.g. at the BRB during TGIF.  Is there a way to make that clarification?

4.4: I really like that "unwelcome" is in there to clarify that e.g. BDSM in a campus dorm room is fine.  Keep that word in the final version!

4.7: Do protests violate the campus code of conduct?  I really think that there should be a way for students to protest without breaking the code of conduct. 

4.9: Might need to clarify that students with legal medical marijuana can be in possession of it on campus (as long as they also have their card with them) and can use it in their dorm rooms?  I guess the "unlawful" wording might already take care of that?  

4.10: Really?  If you fail to comply with any policy issued in an informal way by a departmental administrator, e.g. "Make sure to rinse out the coffee pot after you use it!" you're in violation of the code of conduct? Maybe clarify which types of policies this actually applies to.
 
4.12: Remove "Conduct must cause unreasonable interference from both a subjective and an objective perspective."  There is no "objective" perspective on sexual harassment and assault.  Ask Kate Manne, a famous scholar who works on sexual harassment and misogyny and is based at Cornell!

Also 4.12: In terms of needing to meet one or more of "- 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.":  Some assault isn't "intended" to be abusive or humiliating, but absolutely is.  And sometimes a person can't verbally say no, but it's abundantly clear from non-verbal cues that they mean no.  (Again, consult Kate Manne on this.)  Consider the example of a creepy graduate student instructor talking in detail about an undergraduate student's breasts in front of the whole class.  The graduate student "intends it as a compliment" and not as abuse or humiliation, but it is abusive and humiliating.  The undergraduate student doesn't speak up or say anything because they're shocked and humiliated, but they absolutely do not want for it to be happening.  A graduate student instructor talking about an undergraduate student's breasts in front of a class should violate the code of conduct but it doesn't under these criteria.  

4.16: Need to make an exception here for survivors of traumatic experiences (e.g. sexual assault) who have unclear memories of the experience or give slightly differing stories at different times as a result of trauma.  

General note: it may be better to lean more heavily on referring to Policy 6.4 than to effectively make new ideas about what constitutes harassment, etc. in this Campus Code of Conduct document.

Thanks for the ongoing good work!

I am a current student member of the University Hearing and Review Boards and have served in that capacity since 2018. I have comments on two major issues that I believe still must be resolved in the Code of Conduct.

**************

#1. University Policy 4.7 does not give any leeway to alter the reporting period for violations.

The text of the current proposed Code amendments includes the following passage in Section 3:

Disciplinary Record Reporting by the Student Conduct Office is based on the seriousness of the underlying violation, with recognition of the educational and rehabilitative purpose of this Code. Towards that end, the following guidelines shall generally apply to such reporting:
(1) minor offenses are not reported;
(2) probationary status may be reported until the student graduates; if the student departs the university prior to graduation, then at the point of departure if the student has incurred no further Code violations;
(3) suspension is reported until it has been fully served, the student has demonstrated one-year of good conduct without subsequent Code violations, and a request has been reviewed and approved by the Dean of Students;
(4) expulsion is reported permanently.

I want to emphasize that under Policy 4.7 in its current form, this proposed text is untenable. The reporting period for violations (e.g. the mandatory duration for retaining a record of the violation) is not set by the Code, ***it is set by Policy 4.7.***

Policy 4.7 currently mandates the following durations for record retention:

Expulsion: permanent (matches proposed new language)
Suspension: permanent (conflicts with proposed new language)
Disciplinary probation: retained at discretion of the OJA (may or may not conflict with new language depending on OJA practice)
Written reprimand: until graduation (conflicts with proposed new language)
Oral warning: not retained (matches proposed new language)

Proposed guideline (1) is particularly in conflict with the existing policy. It is the practice of the OJA to issue a written reprimand for ***essentially all violations*** no matter how minor. The OJA has explained to the UHRB that oral warnings are reserved for extremely rare circumstances, and the office is hesitant to issue them because they believe a lack of a written record fails to ensure accountability for students found responsible for code violations. The OJA’s default action is to issue a written reprimand for all violations. This means that, contrary to the intent of the new proposed language, Policy 4.7 currently makes minor violations reportable until graduation because these violations almost always carry a penalty of written reprimand.

Guidelines (2) and (3) are also problematic from the standpoint of Policy 4.7. The policy allows the OJA to retain records of disciplinary probation at their discretion, and my understanding is that the OJA’s current practice is to retain such records for some years after graduation. I do not know if the OJA would be obligated to follow the proposed new language in the revised Code, or if it could maintain its right to retain the records at its discretion pursuant to Policy 4.7. Clearly proposed guideline (3) is also in conflict with Policy 4.7, which states records of suspension will be maintained permanently.

It has been my long-standing belief that the UHRB should have discretion to alter the duration of the reportability of violations (though I have no problem with default durations being set by the Code). This is because reportability is itself a de-facto punishment, and the UHRB is supposed to have discretion to adjust the severity of sanctions based on the circumstances of each individual case. Reporting requirements are often “hidden sanctions” themselves, with the ability to severely impact a student’s future career and graduate school prospects. Inflexible reporting requirements force the UHRB into a very difficult position when determining sanctions. Increasing the “level” of sanction (from oral warning to written reprimand, probation, etc.) also increases the duration of reporting requirements in a way the board cannot control. For example, the UHRB may feel a violation would otherwise warrant probation, but be hesitant to impose this sanction because of the long reporting period and feel compelled to impose a written reprimand.

Moreover, this problem is compounded by the fact that most cases are resolved through Summary Decision Agreements (SDAs) and very few make it before a hearing board. Since the OJA’s practice is to propose a written reprimand by default, this means that potentially hundreds of students are agreeing to sanctions with reportability periods that they do not know can be challenged. In theory, it is possible for a student to reject a such proposed SDA with a written reprimand and argue to the UHRB that the sanction should be reduced to an oral warning so as to avoid the reporting requirement. But very few students are in a position to know about (much less opt for) this complex and arcane maneuver, especially those accused of low-level violations unlikely to be working with a JCC.

My understanding is that Policy 4.7 is the responsibility of the University Counsel. I would strongly recommend opening a discussion with the University Counsel on amending Policy 4.7 so that it supports the objectives outlined in the proposed amendments to the Code, which I believe are laudable. Numerous Cornell students have likely been saddled with inflexible reporting requirements for even the most minor of Code violations--requirements that can have a major negative impact on their futures in a way disproportionate to their violations. I also recommend adding language to the Code allowing the UHRB discretion to change reportability durations, so that the board retains its ability to set sanctions at a level appropriate for the offense.

******************

#2. The expansiveness of the “Obstruction” provision (4.16) risks exaggerating the seriousness of a respondent’s conduct if a disciplinary record Is created.

The text of the current proposed Code amendments includes the following passage in Section 4:

4.16 Obstruction with Code of Conduct Investigation and Adjudication Process
Obstruction or interference with, or failure to comply in, Code of Conduct processes, including, but not limited to:
Falsification, distortion, or misrepresentation of information;
Failure to provide, destroying or concealing information during an investigation of an alleged Code violation;
Attempting to discourage an individual’s proper participation in, or use of, the campus conduct system;
Harassment (verbal or physical) and/or intimidation of a member of a campus conduct body prior to, during, and/or following a campus conduct proceeding;
Influencing, or attempting to influence, another person to commit an abuse of the campus conduct system;
Refusing to participate, without a substantial reason, as a witness in an investigation of or proceeding brought to enforce potential violations of this Code;
Failure to comply with the sanction(s) imposed by the Code or other conduct policy, including Policy 6.4.
I have major concerns about how the Code (both present and proposed) treats students who fail to complete their sanctions in a timely manner. No matter whether a student intentionally refused to complete sanctions or just procrastinated, they are charged with obstruction of the Code. The proposed text of this section, like the OJA’s current practice of charging respondents who fail to complete sanctions with obstruction (Title Three, Article II, Section A(3)(g)) is problematic because the language of the Code can be read to exaggerate the seriousness of violations falling under the last bullet point.

The disciplinary record that will be created by a written reprimand for this Code violation under Policy 4.7 includes ***no context about the circumstances of the violation*** other than the language of the obstruction provision in the Code. Someone reading the disciplinary record of a student who was charged under this provision because of failure to complete sanctions could infer that the respondent also committed such serious violations as destroying evidence, lying to an investigator, or taking other active measures to hamper an investigation. There is an incredibly wide gap between the seriousness of these offenses and such actions as missing a deadline to complete sanctions. But this gap would not be perceptible to any individual (e.g. a graduate school admissions officer) reading the respondent’s disciplinary record with no additional context. It would be up to the respondent to provide the context that they were only charged under the last bullet point, which the OJA is under no obligation to corroborate.

There is a serious risk in this scenario that some students’ graduate school or job prospects could be unduly damaged by the omission of context from the disciplinary record created by a written reprimand. It is certainly reasonable for there to be a Code provision punishing failure to complete sanctions, but this should not be lumped in with the other extremely serious violations covered in 4.16, which would be felonies in the actual criminal justice system. There should be a separate, stand-alone provision for punishing students who fail to complete their sanctions.

I am a law professor and the advisor to the JCCs.

Proposed Section 4.3 of Section 5 on procedures is a very good provision. It should be adopted despite expressed concerns. It says: "If the OSCCS believes that the respondent may graduate or otherwise leave the university prior to the resolution of a Formal Complaint, the OSCCS must first attempt to enter into a separate agreement with the respondent to allow the University to maintain jurisdiction over the respondent if the respondent graduates prior to the resolution of the Formal Complaint, including the completion of sanctions/remedies agreed to or imposed. The University may not withhold awarding a degree otherwise earned until after the resolution of the Formal Complaint unless the respondent does not enter into a separate agreement with the University."

The current Code says this: “The University may withhold awarding a degree otherwise earned until the completion of proceedings, including compliance with a prescribed penalty or remedy.” The current practice is routinely to withhold degrees until the completion of proceedings under the Code (or under Policy 6.4). Additionally, there is no way for the would-be graduate to challenge the interim measure of withholding the degree.

Some last-minute-before-graduation filings have resulted in unjust results. Indeed, there have been trumped-up cases brought at the last minute just to victimize, and the degree was withheld. The lengthy adjudication process has then resulted in jobs and graduate admissions put in jeopardy, professional examinations precluded, and settlements accepted because the delay in getting the degree was unbearable. This practical penalty may be completely out of proportion to the offense, even if the respondent is found responsible.

Because there is none of the balancing used for all other interim measures and no consideration of the merits at all, as well as no possibility of appeal, it appears that the Code’s concern must be with preserving jurisdiction over the graduate.

A much fairer approach would follow from amending the Code to provide in effect for withholding the degree unless the OSCCS exercises discretion to enter into an agreement with the respondent to preserve the University’s jurisdiction over the respondent for the Formal Complaint and to provide revocation of the degree as an available final sanction or remedy.

I am a law professor and the long-time advisor to the JCCs.

Proposed Section 1.4 of Section 5 on procedures is also a very good provision. The proposal provides that the JCCs will be law students and that the Office is to be independent. It should be adopted despite the expressed concerns, which are particularly uninformed.

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

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

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

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

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

I would like to first like to thank the CJC for their hard work on this and for, as I read it, addressing a gap in the current code, namely, off-campus jurisdiction. As the Associate Director of International Travel Health and Safety, the current code language has led to concerns and practical applicability when it comes to Cornell-related international activities such as study abroad. A few colleagues and I have spent quite a lot of time working with the Judicial Administrator’s office (JA) and the Codes and Judicial Committee (CJC) this past year and a half to get clarifying language put into the Campus Code of Conduct. Our attention was on language that specifically addressed international activities from a jurisdiction/applicability standpoint. The current code reads, “This Title shall apply to conduct on any campus of the University, on any other property or facility used by it for educational purposes, or on the property of a University-related residential organization in the Ithaca or Geneva area.” (Title Three: Article I. Applicability). It is welcome to see Section 2: Definitions-2: “The term "University" means Cornell University, as well as any affiliated programs or virtual programs, computing, and spaces including, but not limited to, University programs in remote locations within or outside of New York or the United States" and, "Section 3: Scope and General Provisions: “The Code applies to conduct that involves the use of University computing and network resources from a remote location, and to online behavior. The Code will apply regardless of the location of the conduct when: (1) the behavior occurs in the context of a University program or activity; or (2) poses a substantial threat to the University’s educational mission, the health or safety of individuals (whether affiliated with the University or not), or the University community” in the revisions.

While these revisions still stand as a draft, I would like to encourage the CJC to maintain the awareness that instruction takes place off-campus and in unique situations where the Code is an essential component to enforcing behavior that represents Cornell well in the eyes of our partners and takes into account the cultural norms, geopolitical risks, and group safety that is inherent in education abroad activities. Justification for specifically calling out -perhaps even more so than the revisions already do -the Code's applicability in international settings has been identified as:

• Expanded Code jurisdiction will help enforce off-campus activity guidelines because it is part of a student’s permanent record.
• Expanded Code jurisdiction will elevate the authority of program-specific guidelines/rules because it is part of a student’s permanent record.
• Expanded Code jurisdiction will show institutional support of the authority of an Off-Campus Activity Leader who is responsible for the safety and education of a group of travelers in a short amount of time and unconventional environments.
• Off-campus activities are unique in the risks from and response to misconduct as they occur in settings that have limited resources and time but can impact vast amounts of people and the Cornell reputation in the public opinion.
• Off-campus activities are Cornell activities and carry weight, in terms of reputation, as such (ie., Prohibited drinking in a host family's home is not, reputationally, the same as drinking underage in one’s apartment off-campus).

For reference and suggestions on how to further clarify jurisdiction in the Code revisions, I list below examples from other institutions:

Duke:
The honor code at Duke is named the community standard because it expresses our institution’s core values and a concomitant set of expectations for behavior. Because behavior is derivative of fundamental values, the standard applies off-campus as well as on.
Students may be held accountable by the university for their behavior off-campus, from Durham to Dubai
The university reserves the right to respond to any report of alleged misconduct on or off-campus
Northwestern:
The University reserves the right to investigate and resolve any report or incident in which a student is alleged to violate any of the principles or policies published by the University or local, state, or federal laws or policies, regardless of the location where the incident occurs. Students are also expected to follow the policies and procedures of institutions that they may visit, including during international travel.
Georgetown:
When alleged violations of University regulations or local laws take place off-campus and come to the University’s attention, the university reserves the right to take appropriate action when, in the judgment of University officials, the alleged conduct has a negative impact on the University community, the pursuit of its mission, or the broader community in which we live.
Georgetown’s Code of Student Conduct and the procedures through which it is implemented apply to students studying abroad.
Students should also be aware that while studying abroad they will be subject to local laws of their host country and regulations of their host institution.
ASU:
Sanctions may be imposed for acts of misconduct that occur on university property or at any university-sponsored activity. As further prescribed in these rules, off-campus conduct may also be subject to educational interventions or discipline.
"University-sponsored activity" means any activity on or off campus authorized, supervised, or controlled by a university.
https://public.azregents.edu/Policy%20Manual/5-308-Student%20Code%20of%…
USF:
In the code, the jurisdiction and discipline extends to “conduct which occurs on University premises or which adversely affects the University community and/or the pursuit of its mission. Specifically, University officials may initiate disciplinary charges for conduct off-campus when the behavior relates to the good name of the University; the integrity of the educational process; or the safety and welfare of the University community, either in its public personality or in respect to individuals within it; or violates state or federal law.”
http://regulationspolicies.usf.edu/regulations/pdfs/regulation-usf6.002…
Uni of Illinois at Urbana-Champaign
(1) all actions that are violations of law or Board of Trustees’ action or any University rule of conduct and that occur on University premises or property
(2) all actions that violate any of the laws or regulations cited in section (a) above and that substantially affect the University community’s interest, even though such actions do not occur on University premises or property (for further information about the criteria used by the Senate Committee on Student Discipline in determining the kinds of conduct covered by this jurisdiction, see www.conflictresolution.illinois.edu or § 1-111 Student Code 9 contact the Office for Student Conflict Resolution)
Uni of Oklahoma
9.) Failure to comply with the direction of a University official who is performing his or her duties. This responsibility includes complying with faculty/staff requirements and directions of study abroad programs, including off-limits designations and other restrictions or instructions.

Arielle Rose Johnson raises some interesting points.

"There is no 'objective' perspective on sexual harassment and assault. Ask Kate Manne, a famous scholar who works on sexual harassment and misogyny and is based at Cornell!"

What Professor Manne is perhaps best known for is the concept of "himpathy" -- that powerful men overly sympathize with other powerful men.

In other words, a subjective perspective...and one that is wrong. How is it wrong? Because we know objectively that we need to look at the evidence, facts and logic when evaluating someone's behavior...not at their level of power, gender let alone race.

Without objective standards, we have either anarchy (or at least people harassing and worse at will, because their subjective standards are what matter) or totalitarianism (or at least punishing anyone and everyone accused, because the accusers' subjective standards are what matter).

"Some assault isn't 'intended' to be abusive or humiliating, but absolutely is."

In other words, Ms. Johnson wants an objective standard. I completely agree.

There's a middle ground between "intended harm" and "innocent". It's "reckless/negligent". Objectively, under the circumstances someone should have known something was abusive or humiliating but did it anyway. It could be simply negligent, when the person didn't know better, or just forgot or made a small mistake in judgement. Or it could be reckless, say when the person was so ticked off s/he didn't care about crossing the line.

Abuse doesn't have to be intentional to be culpable.

"And sometimes a person can't verbally say no, but it's abundantly clear from non-verbal cues that they mean no."

And yes, we do need objective standards of clarity here. Also keep in mind that different individuals have different levels of ability to read non-verbal cues -- especially gven how culturally bounded the cues must be.

As most of us know, a small number of people are on the autism spectrum and have a difficult time reading non-verbal cues. We should extend them at least a little mercy.

More broadly, in a diverse community like Cornell's, people will from time to time misread -- and just plain miss -- others non-verbal cues. Too strict an objective standard risks being culturally narrow.

Let's also keep in mind the classic knowledge curse: We all tend to assume others know what we know. The corollary is that all tend to overestimate how obvious our own signals are. In fact, snarling at or punishing people for missing them is something I call minefielding.

I think one value the Code of Conduct should encourage is directness: At least when reasonably safe, we should use our words and make clear what we mean so as to avoid ballooning misunderstandings. And when a complainant says s/he didn't spell out what s/he meant, sometimes the only thing the authorities can or should do is simply tell the respondent something like: "Sally [or John or whoever] didn't feel able to tell you to stop calling her, so we're telling you: Stop calling. And don't retaliate for reporting this, or you'll be severely punished."

All that having been said, I completely agree that an instructor talking about a student's breasts (presumably not in a clinical context, eg, an advanced biology class discussing breast cancer) in front of the whole class is way out of line. As in, I'd seriously consider firing the instructor over that.

"4.16: Need to make an exception here for survivors of traumatic experiences (e.g. sexual assault) who have unclear memories of the experience or give slightly differing stories at different times as a result of trauma."

In other words, Ms. Johnson wants people to be judged on their intent, not only or even mainly on the effects of their actions. I completely agree.

I for one think it should go without saying that Policy 4.16 should apply only to intentional behavior. By all means, specify that if it will help.

Finally, I completely agree with Professor Kevin M. Clermont: The JCC should have legal training and should be independent. That will help Cornell University maintain due process -- a value it's justly famous for.

Since my time as an undergraduate, a half-century ago, I have seen Cornell University become increasingly authoritarian, repressive and intrusive. The mantra of “diversity, inclusiveness and safety” has been used to shut down student organizations and stifle dissent. This is the expected course of any one-party leftist state, and Cornell is no exception.

Consider what is missing from the Campus Code of Conduct: a clear statement of the fundamental “natural” rights that Cornellians deserve, but do not have and will never have.

• The right of all Cornellians, faculty, staff and students, to speak about, to endorse or to oppose any state, faction, group or person, on any issue, political, social or moral, in a non-abusive manner is absolute and shall not be abridged, regardless of the claimed sensitivities of those criticized or offended.

• The right of all Cornellians to assemble in any body of their own choosing and, by mutual consent, to exclude others therefrom, and the right to conduct their affairs in said body as the members alone shall dictate, shall not be abridged.

• The right of all Cornellians to be secure in their persons against unreasonable searches, seizures and surveillance.

A good example of what is happening occurred last year when President Trump signed an executive order on 11 December that, according to the New York Times, essentially defines Judaism as a race or national origin, not just a religion, under the Civil Rights Act, expands the definition of anti-Semitism to include some anti-Israel sentiments, and compels the U.S. Government to withhold funds to any college or university that allows speech critical of the Jewish State. Inevitably, this will “stifle free speech and legitimate opposition to Israel’s policies toward Palestinians in the name of fighting anti-Semitism.”

Firstly, the Cornell Administration reacted with absolute silence to this affront. We conclude that Day Hall was satisfied that this policy provided cover for the University’s own efforts to suppress speech offensive to Cornell’s most powerful faction.

But that is not the end of the story. The Cornell Daily Sun refused to print an alumnus letter protesting the Trump policy, again out of fear that such “speech” would offend.

So, this amended Campus Code of Conduct will give Day Hall another hammer to use on those students and student organizations that do not buy into the uncompromising demands of “diversity, inclusiveness and safety.”

H. William Fogle, Jr. ’70 (Engineering)
25 April 2020, Mesa, AZ

As an engaged fraternity advisor for the past eight years, I appreciate Cornell’s need and the CJC’s efforts to enhance our Code of Conduct and judicial procedures. The Substantive Sections articulate aspirational principles and values with high standards for student conduct. Living-up to these values requires the CJC to address some fundamental flaws, primarily in the procedural sections:
1. The draft Code seeks to remove fairness protections in the current Code and violates students’ rights to due process. A Cornell student or organization can be suspended or expelled without “clear and convincing evidence” (the current standard), but by a “preponderance of evidence” standard that simply means the offense was more likely than not. The severe sanctions only require 3 of the 5 panelists, of which 3 are students, to decide that the offense was probable – at a Hearing that was called after the OSCSS “determined that it has met the burden of proof” and recommends sanctions of probation, suspension or expulsion (6.1). The procedures put an incredible amount of power in the hands of students who are seeking approval and recommendations from the university, with an unconscionably low burden of proof for the damage that they can inflict on other students’ lives. If the Administrative and Hearing Panels pull from a common pool, the OSCSS should ensure that those serving on a Hearing Panel have already demonstrated their capabilities and judgement on the lower panel, risks of errors or bias are not as high.)

2. As drafted, the Code appears discriminatory rather than applying to all students and all student organizations fairly. The Respondent (1.2) is described as a student, University-recognized organization, or University-registered organization (2.1 includes “group of students”, 3A “University-related residential organization”, and somewhere there is a reference to “living groups”). These organizations are not defined in the Code and it is not clear whether there are classes of non-recognized organizations that are exempt or somehow treated differently by the Code. There are no standards to determine when a group of students would be Respondents or the entire organization(s) to which they belong. If organizations are to be restricted or sanctioned for the misconduct of individuals or groups of members, the organizations must be broadly complicit and organizational accountability must apply not only to fraternities and sororities, but equally to all organizations, including sports teams and other clubs. Finally, the restrictions on Unrecognized Student Organizations (4.1) should not be construed to prohibit the freedom of recognized same-sex organizations, including gender-specific sports teams and non-coed fraternities and sororities.

3. The Administrative Procedures (5.2) lack guidelines or standards for determining “less severe” vs “most severe” offenses subject to Probation, Suspension or Expulsion. Such guidelines (perhaps as described as “Grave Misconduct” in the current Code”) should be clear and consistently apply across individuals and organizations.

4. The procedures for less severe misconduct with modest sanctions remain complex, cumbersome and legalistic. Procedures for conduct and sanctions that would not go on a student’s permanent record could be further streamlined.

5. The Code should use clear language and accurate descriptions. A Code that applies only to students and beyond campus is a Student Code of Conduct (not a Campus Code). Is OSCCS necessarily better than JA or just OSC? The Administrative and Hearing Panels both involve administrative hearings. Shouldn't we accurately call them the Misconduct Panel and the Severe Misconduct Panel?
The CJC and UA should address these issues and opportunities before moving ahead with this Code.
Rich Kauffeld '80

Hi I would just like to comment that attempting to make these changes during a pandemic when students are off campus dealing with a lot of issues feels inappropriate. Many students aren’t aware these changes are being made due to being off campus and thus a large portion of the people who might want to comment and express an opinion won’t be able to. I would suggest revisiting these changes at a later, better time.

I have previously worked in Student Affairs at James Madison University (JMU) and during my time there I volunteered to sit on on their Judicial Affairs “Accountability Board” which helped determine judicial decisions for student code violation cases. JMU’s Judicial Affairs office has since been renamed the Office of Student Accountability and Restorative Practices (OSARP). JMU's OSARP office is deeply grounded in Student Development Theory, and I believe there are some areas of this Cornell Campus Code of Conduct that could be improved upon to better align with JMU's best practices for Judicial Affairs. For example:
• Accused JMU students speak on their own behalf
• Witnesses to the JMU code violation case also speak on their own behalf (I don’t believe witnesses are required to participate, as enforcing this would cause more headaches)
• JMU Students are notified of their “alleged policy violation” through an email sent to the student’s official JMU e-mail address (as students are expected to check this email regularly)
• Accused JMU students first have to complete a 1 on 1 conversation (or “case review”) with an OSARP staff member, and that staff member makes an initial decision of “Responsible” or “Not Responsible”. If the student would like to appeal this decision, even minor cases would then be reviewed by an “Accountability Board” made up of faculty, staff, and student volunteers. I served as one of these volunteers during my time at JMU, and we all had to complete an in-person training in order to volunteer.
• During training to sit on the Accountability Board, volunteers are made aware that all repercussions (for students that are deemed “Responsible” for their accused code violation) are designed to be educational and restorative in nature. Students deemed “Responsible” might be sanctioned to attend an educational training that is related to their code violation, or they might be sanctioned meet with a faculty/staff mentor for a set number of hours/meetings, etc.
• Rather than looking for 100% certainty or “beyond a reasonable doubt” (as they look for in a court of law), Accountability Board volunteers were instead trained to look for “reasonable doubt” or a 51% chance that the student committed the code violation. During our training, the OSARP office explained that the reason we were being asked to make a decision based on only 51% certainty was because 1) this is not a court of law, and 2) the cases that we were being trained to review were minor, and the corresponding sanctions were educational, so there was no need for 100% certainty. I believe the 51% certainty benchmark was raised to a higher percentage for Title IX cases or cases that involved the possibility of Probation or Dismissal, but I personally was not trained to sit in on those cases.
• Here are some links with more information: https://www.jmu.edu/osarp/handbook/OSARP/accountability-process.shtml and https://www.jmu.edu/osarp/handbook/OSARP/standards-policies.shtml and https://www.jmu.edu/osarp/handbook/OSARP/ap-case-review-procedures.shtml

These are all areas in which I believe JMU's OSARP office sets an excellent example, and areas in which I believe Cornell's Campus Code of Conduct could improve, in order to better align with nation-wide standards for best practices in Judicial Affairs. Thank you for your time and consideration.

"The CJC voted 4-3 to keep the language above. The 3 members who voted against believed that the position of the JCC should be open to any graduate, professional, or undergraduate student who is interested and goes through the necessary application process. In addition, some members believed the Office of Judicial Codes Counselor’s should be moved into Student and Campus Life to increase accountability, understanding of other aspects of student life, and make the process less legalistic and more educational. In addition, the name might be subject to change."

I agree with the members who voted against this proposed change. Being a member of the Cornell community gives them a greater understanding of the various situations that students and faculty are facing, which gives them better context with which to make decisions.

"The CJC voted 5-3 to make all hearings private. The 3 who voted against believed that there should be some exceptions to allow for a public hearing. The existing code allows for public hearings in certain circumstances and believed those exceptions should be included."

This is somewhat concerning. As detailed in the current Code of Conduct, in cases where neither party is at risk of harm from a public trial, the accused should have the right to opt for a public hearing. This provides for greater accountability, and increases transparency in the hearing process.

I agree with the comments put forth by the Cornell University Alumni IFC ("CUAIFC") in regard to the proposed changes for the Campus Code of Conduct. The proposed changes, as they currently stand, overexert Cornell’s jurisdiction and inhibit an impartial judicial system. CUAIFC is raising these concerns with the best intentions to protect the rights of students and invested alumni in the campus judicial process. Additionally, these comments expose the flaws in the proposed changes which will deter future accepted (prospective) students from choosing a university where they are not provided judicial process.

The most concerning of these changes is in regard to burden of proof. Further reducing the standard of proof from “clear and convincing evidence” to a “preponderance of evidence” would be an egregious loss of due process. 51 percent likelihood is an undefendable threshold that will establish a guilty until proven innocent judicial system. With this standard, students’ entire futures rest on findings that are biased in favor of the Judicial Administrator (as prosecutor). As a Cornell student I feel especially unprotected by these proposed standards and would not consider becoming an involved alumnus if I knew my time, energy, and money were held to such judicial process standards. I encourage serious reconsideration of these proposed changes. 

Anthony Cicileo

Chi Phi Xi Chapter President

The proposed change to lower the burden of proof is a travesty and Cornell should be ashamed of itself for proposing to eliminate a fair process for students.

The higher burden of proof of "clear and convincing" signals to the entire campus community that students can trust they will be ensured a fair process. The punishment for certain violations can be as high as suspension or expulsion, so we as a community should want to err on the side of being more certain if we are punishing students in such a way that can have long-term ramifications for their education and career. The "clear and convincing" standard has been the long-time standard and there is no data offered suggesting that the clear and convincing standard is either no longer workable nor no longer beneficial.

On the other hand, I strongly support that the current changes include continuing to provide for students to have representation during their hearings by law student advisors, and I urge that the final version of the code maintain that commitment. This is especially important for students from low socio-economic backgrounds or for whom English is not a native language. This is an equity issue as not all students have had access to the same training to defend themselves in a hearing, or are able to speak in English with a comfort level that would provide themselves an adequate defense. Other students may suffer from anxiety and stress, compounded by having to face an employee of the JA's office (who is typically a barred attorney) and the serious ramifications that can result from being found in violation of the Code of Conduct. By not allowing advisors to speak on behalf of their clients during hearings, these rules strip fairness from the system and make a mockery of the values Cornell supposedly stands for.

I will not mince words, if you vote to lower the standard of proof or deprive students of the opportunity to have their law student advisors represent them in a hearing, you will be betraying the values of equity and fairness that Cornell has stood for since it opened its doors 1865. For the student unable to adequately unable to defend themselves who will be convicted of a charge that they did not commit because you voted for to change these rules, you will carry the weight of their ruins.

It is concerning to me that so many alumni (many of whom seem to be Greek and are a part of IFC chapters) fail to recognize that the current Greek Judicial System uses the prepondernace of the evidence standard. In addition, they do not seem to understand that greek organizations have always been subject to a seperate system, under a different lower standard than the Code. Therefore, what this seems to be is a blatant play to raise the standard of evidence for the greek system alone as they recognize that greek life might be incorporated into the Code and view this as a chance to change the system. I feel that moving greek life under the code and having a preponderance of the evidence standard is the only way to ensure that there is a balance between what it means to be a Cornell student, a greek, community interestes, and due process. I say that with experience in both the Code/JA and the greek judicial process.

Complainants’ Advisors Comments on Section 1.4 The Office of the Judicial Codes Counselor

Complainants’ Advisors (CAs) are law students who serve as procedural advisors, free of charge, to Complainants under Cornell’s Policy 6.4. Like the Judicial Codes Counselors (JCCs), CAs are housed in the law school and are advised by a Professor of Law. We write to voice our support for proposed Section 1.4 The Office of the Judicial Codes Counselor, Office Members and Office Independence. 

(1) Section 1.4 The Office of the Judicial Codes Counselor – Office Members 
We support the CJC’s vote in favor of ensuring that JCCs are law students. 

In addition to the JCCs’ work under the Campus Code of Conduct and Academic Integrity, the JCCs also serve as procedural advisors to Respondents under Cornell Policy 6.4 (Title IX). While Respondents are free to have an advisor of their choice, they are offered a JCC free of charge. Many Respondents cannot afford to hire outside counsel and so rely on JCCs to guide them through the complex Title IX process. JCCs should remain law students for the following reasons:

First, due process values would be better served by law-student advisors. It is imperative that Respondents and Complainants understand the external, legal implications of Policy 6.4. Specifically, many of the policy violations found in 6.4 are also criminal acts. Complainants can and do bring civil or criminal charges against Respondents concurrently with or consecutively to their Title IX Complaints. Importantly, because the Title IX process is not privileged, anything uncovered in the investigation or hearing can be used in subsequent legal action. While an undergraduate student may learn the intricacies of the Title IX process, law students are better served to advise Respondents in a way that appreciates and considers possible legal consequences. Moreover, law students, while knowledgeable of common legal implications of Policy 6.4, understand the limits of their role and when to refer a client to a licensed attorney. This is especially true regarding the new Procedures on Prohibited Discrimination, which have extensive civil legal implications. Law students are also likely to have more familiarity with applicable law that governs their actions, such as the requirements of the Family Educational Rights and Privacy Act (FERPA). 

Second, JCCs have a particularized skillset. Policy 6.4 is complex. The JCCs have years of institutional knowledge and experience not only guiding Respondents through the Title IX process, but also writing effective and creative procedure-based arguments. Non-law students often emphasize narratives that are not as relevant to the policies at hand and can miss effective procedural arguments. Given that Respondents face serious consequences under Policy 6.4, such as expulsion, it is important that their advisors have years of experience defending these cases and the necessary legal training to make effective procedural arguments.

Third, JCCs are better suited to maintain professional relationships. In addition to advising students, JCCs may represent faculty and staff in the Title IX process. A law school advocate will engender greater trust than an undergraduate student for other students, and in particular for faulty or staff. Moreover, mandatory ethics and experiential learning classes help  law students  navigate confidential relationships and conflicts of interest. Understanding the balance between being a procedural advocate and offering emotional support can be difficult. Law students have experience balancing these dynamics through ethics courses, clinical work, externships, and summer jobs. Lastly, CAs and JCCs have a close working relationship that would be better fostered with law-student JCCs. Specifically, we attend trainings together and collaborate when advocating for policy clarification or changes that impact our clients. As law students ourselves, CAs would have a better working relationship with law-student JCCs, made even easier by being housed in the same building.

Fourth, equitable representation. In the Campus Code of Conduct and Academic Integrity, the imbalance between student and University is sharpened when the student is represented by someone with no legal training and the University is represented by the OJA. The same is true for Title IX. Complainants under Policy 6.4 are often advised by a CA, who will remain a law student, or an attorney. Students advised by non-law students will thus be at a disadvantage. Additionally, JCCs will serve as better advocates to these students because law students have greater time and energy to dedicate to this work compared to undergraduates who often participate in multiple student groups while taking more credits per semester compared to law students. Moreover, many JCCs and CAs are pursuing careers directly related to the work they do for the school, and use their role as a JCC or CA to sharpen their advocacy skills. Thus, law-student JCCs are more likely to dedicate the time and energy it takes to successfully represent their clients through these complex procedures.

Section 1.4 The Office of the Judicial Codes Counselor – Office Independence 
We support the CJC’s vote to keep the JCC Office independent from the Office of Student and Campus Life. 

The JCC office should remain independent from the Office of Student and Campus Life. CAs share the JCCs’ concern that Respondents would not trust their advisors if they fell under the same umbrella as the entities investigating them. This concern is even greater when it comes to Policy 6.4. Respondents and Complainants have the right to file complaints against the University with the New York State Division of Human Rights (DHR) and federally through the Office of Civil Rights (OCR). When they do this (sometimes concurrently with a 6.4 investigation), New York or the federal government initiates an investigation into the Title IX office and process. Respondents who file a complaint with DHR or OCR will not trust an advisor that is part of the same entity they are complaining about. Moreover, this creates the potential for a conflict of interest, as JCCs may both advise Respondents through the DHR/OCR process but also become a subject of the investigation. Lastly, because CAs will remain an independent office supervised by law school faculty, like the JCCs are now, there would be an imbalance if Respondents are not granted independent advisors by those investigating them, but the complainants are. 

I submit the below comment on the Proposed Amendments to the Campus Code of Conduct on behalf of myself, Violet G. Nieves, and Emily Van Dyne.  We are J.D. Candidates for the Class of 2022, and we write as members of Cornell Law School.  Our comment is also available at the following link:  https://drive.google.com/file/d/1vWXYW3zb0DaWTCVVD2qKSG_iMYh_4zMC/view?usp=sharing.  ​

We write to express our support for Proposed Amendments to Procedural Sections 1.4 and 4.3 and our opposition to Proposed Amendments to Procedural Sections 6.9 and 8.4.

Section 1.4: The Judicial Codes Counselors should be law students.  We agree that the Counselors should remain law students.  As Professor Kevin M. Clermont writes in his comment, the position is legal in nature.  The Counselors provide fundamentally legal advice and therefore require legal training and supervision.  We believe that giving this responsibility to individuals with no legal training would not provide respondents with sufficient due process or adhere to normative standards of fairness.  We are not confident that students without legal training can properly advise respondents in administrative proceedings.  Indeed, we seriously question whether this would comport with basic standards of legal ethics.  Insofar as the administrative process is opaquely legalistic, law students are better situated to manage the proceeding’s legal aspects, and thereby reduce that burden for individuals who lack legal training. Furthermore, we balk at the insinuation that the educational value of this experience should rank in importance with the quality of counsel and due process concerns.  However, even considering potential educational value to Counselors, that education is most valuable to law students.  

Section 1.4: The Office of Judicial Codes Counselor should remain independent.  We agree that the OJCC should remain independent from the Office of Student and Campus Life.  As the Judicial Codes Counselors have written in their comment, we disagree with the suggestion that incorporating the OJCC into the OSCL will increase accountability or transparency.  Rather, we suspect that such a move would  create a perceived or actual conflict of interest.  The JCCs are accountable to their clients, not to the administration.  We question whether transparency in this context would not result in, at minimum, the perception of administrative interference in a confidential relationship.  The OJCC’s continued independence encourages participants to trust its guidance and advocacy, and thereby preserves their trust in the administrative process.  Additionally, we worry that moving the OJCC to the OCSL would further intimidate and confuse participants who are already uncomfortable or lack experience with administrative proceedings.   

Section 4.3: Transcript notations should not be permitted prior to a final finding.  We support the Proposed Amendment prohibiting transcript notations prior to a final finding.  Preliminary notations to respondents’ transcripts will unfairly harm respondents who are ultimately found not responsible.  These notations may damage respondents’ professional and academic prospects, precluding them from jobs, internships, grants, or scholarships while a complaint is pending.  Respondents who miss such opportunities may in turn need to explain gaps in their work or academic history, irrespective of whether they are ultimately found responsible.  These errors are particularly burdensome to respondents who lack access to finance or professional connections.  The Proposed Amendment will reduce these errors and their consequences, and provide more robust due process.  Even respondents who are ultimately found responsible should not preemptively bear those consequences.

Sections 6.9 and 8.4: The burden of proof regarding violations should be clear and convincing evidence.  We disagree with the Proposed Amendments to lower the burden of proof.  The preponderance of evidence standard of proof is not high enough to guarantee respondents due process.  These administrative proceedings often adjudicate conduct that, were it prosecuted outside of the University, would require a finding beyond reasonable doubt.  See generally Substantive Section 4.  Furthermore, lowering the burden of proof may exacerbate existing inequities between the parties. Students with the resources to obtain external advocates and guidance may be advantaged, while students who lack such resources will lack choices about how to present their case, while operating under a burden of proof that may favor their well-resourced University and peers.  Finally, we fail to see that the University has a compelling interest in lowering the burden of proof.

Feedback from a team of professional student services academic advisors

Section 1.2   The JCC or other advisors should not speak for students in a hearing.  While they should seek advice and support, students should speak for themselves as part of the educational process to talk about their behavior and learn from the choices made and impact on the community.

Section 1.4:  JCCs should at least have a dotted line of supervision to Student and Campus Life

Section 2.4: Formal notification should be sent by Secure Drop Box or Maxient in addition to mailing a letter

Section 4.2:  We suggest three years for suspension as sufficient because that is a lifetime developmentally for students in their early 20s, and in three years curriculum changes can make completion of degree challenging.  For reasons including possibly rapidly changing curriculums, many college withdraw student who have been gone longer than five years.

Section 4.3:  There should be no notation made on a transcript while a Formal Complaint or investigation is pending.  This is consistent with Academic Integrity procedures because charges can be false or inaccurate.  We agree that The University should not withhold awarding a degree otherwise earned until after the resolution of the Formal Complaint unless the respondent does not enter into a separate agreement with the University.  The student would likely be motivated to enter an agreement in order to receive their degree to help them secure employment or graduate school.

Section 5.1: Disciplinary probation can and should be administrative decisions hearing.  Full hearing boards are typically used for suspension or dismissal and reviewing lower level cases is extreme and time consuming.

Section 5.4:  We believe that all hearings should be private, consistent with Academic Integrity hearings.  The respondent question a witness seems inappropriate in all circumstances and the chair should moderate questions.

Section 6.5:  We believe that all hearings should be private, consistent with Academic Integrity hearings.

Section 6.6:  We have no power to enforce relevant witnesses to participate in a hearing unless they are charged with a code violation, making the process longer.  If someone files a complaint and gives a report to a trained Cornell investigator, the report or representative should suffice.   

Section 6.7:  10 minutes for oral closing statements seems unnecessary and time consuming.  More appropriately the Chair could ask if either party has something they’d like to add at the end of the hearing.

Section 6.9: Preponderance of evidence is the best practice in higher education as endorsed by professional associations such as ASCA (Association of Student Conduct Administrators) and other student affairs/services organizations. There are years of precedence and research to support this approach.  Preponderance of evidence is used in Title IX, hazing and academic integrity cases.  Additionally, clear and convincing evidence is extremely difficult to prove in a college environment.  As this process is deemed an education process and to support our community’s wellbeing, it would be detrimental to only sanction/educate when there was a clear and convincing burden.

Attn:  JCC Members and UA members:

               First, extend the deadline for comments. Past delays do not excuse a limited time for comments during an unprecedented absence from campus by all students, some faculty and staff.  Their ability to review, digest, discuss among their peer groups was severely compromised by the short notice to leave, pack, travel, then learn a new era of on line learning during April.  A two month extension is minimal.  (Note:  At present (4/30/20), I see less than two dozen comments, and only one from a student.

               Second, after 45 years of experience with the Code, I am greatly troubled by the depth and breadth of these proposed “amendments.”  I reported to Pres. Dale Corson in 1972-73 on the drafting of the Code, a “noble experiment.”  I have represented hundreds of students before the JAO (and Title IX Coordinator) for over 30 years.  While I appreciate the opportunity comment, the complexity of the changes in contrast with the rush to judgment fail to make the time for providing comments justified. 

               Third, the comments suggesting a lower standard of proof is justified are wholly mistaken.  The sanctions provided are equal or greater than criminal sanctions.  (I had one client commit to 90 days jail, in hopes Cornell’s JA would not suspend or expel him.  That at similar experiences demonstrate that Cornell’s degree represents who students expect to be after years earning admission, then four years of committed academic achievement.  In that one instance, he lost a full scholarship at prominent law school.)  A goal in our country and at Cornell should be to accept a guilty person may be found not responsible, rather than an innocent one be suspended/expelled.  In one documented case, among many others, the respondent attempted suicide twice upon being temporarily suspended.  He ultimately prevailed in Federal Court (John Doe v. Cornell, NDNY), but only after years in therapy and hundreds of thousands of dollars in legal and professional fees.)  The inequity between the burden of proof within Policy 6.4 and the Code of Conduct needs correction. But by having both require “clear and convincing” evidence, akin to 75% probability, not the proposed “preponderance” standard of proof; commonly known as “50% plus a feather.”  The potential for bias for the complainant is demonstrable.  

               Fourth, Due Process is refuted by University Counsel at Cornell, claiming it is a private institution, thus not subject to the 4th or 14th Amendment protections.  However, Cornell has four “statutory colleges.”  The students in those “state schools” will find due process protection one day in federal court.  Moreover, federal judges across the nation are holding other “private” universities to a due process standard.  Citations omitted due to shortness of time.  Cornell should lead not follow in assuring due process.

               Fifth, the tilt toward “educational” objectives is attractive and sound, but the “devil is in the details,” as comments to date note.  The proposed process further limits rights to trained and competent “advisors.”  JCC’s (2nd and 3rd year law students) are committed and hard-working and independent.  They should not be put under the thumb of the very bureaucracy which they must challenge on behalf of their students.  The sanctions imposed under the Code include tens of thousands of dollars (lost tuition, room, board, fees for a student suspended mid-semester) and career threatening records and transcripts. Students need and should have advisors or attorneys of their choice.  Students charged under the Code are not trained, nor able to self-represent themselves.  Some are impaired with emotional difficulties that preclude representing themselves (anxiety, depression, bi-polar, etc.).  The JAO can be intimidating, and the entire process and hearing panels overwhelming.  Independent representation is a must to ensure “fundamental fairness.”

               With more time, detailed questions and criticisms can be submitted to the expanded claim of jurisdiction and the increased use of vague misconduct standards.  They need to be redressed before imposed, not after a successful court challenge.

               The comments and CJC discussion to date have apparently also lost sight of the myriad of other Codes and Polices Cornell students are subject to:  Academic Integrity, Athletic Conduct Codes, and Regulations for Maintenance of Educational Environment, to name a few. They have different standards and procedures.

               My time is up.  Extend the Deadline.

Respectfully submitted, William R. Shaw ’69, ’73, BA, MPA, JD

The Judicial Codes Counselor should be legally trained, should be independent and should be allowed to actively participate as appropriate (not just be a "potted plant"). This institution helps bolster Cornell's assurance of due process -- especially for those who due to cultural differences, socioeconomic status, background, etc., have trouble organizing their own defenses or speaking for themselves.

The standard of proof should be clear and convincing evidence -- especially for Policy 6.4 matters (and also including the Greek system). Due to the strong emotions, subjectivity and ambiguity of many if not most Policy 6.4 cases, we want to be sure we're making the right decision. Preponderance of the evidence -- "50% + a feather" -- offers too much leeway. Especially when probation, let alone suspension or expulsion, is on the table.

I believe cross-examination can do much good or much evil, and obviously the panel chairs need to control questioning in hearings. Since panel chairs will therefore sometimes ask questions themselves, of their own choosing, they should get some training in good cross-examination including (but not limited to!) good follow up questions and arranging lines of questioning. (If the Judicial Codes Counselor's office does not already get that training too, they should!)

Due process and education go together.

When deciding whether someone is guilty or innocent (college officials like to call them "responsible" and "not responsible"), Cornell still leads the way in due process -- that is, in educating the community on how to protect the innocent while punishing the guilty. It requires not only institutions and procedures like hearing panels, dissenting opinions and judicial codes counselors but also a certain attitude. That attitude is: We're going to work hard and apply the law/rules, logic and safeguards to find the facts and make a fair decision -- even if it goes against our millennia-evolved emotions.

In theory, decision makers can do a good job with preponderance of the evidence. In practice -- precisely especially because these are not strict courtroom proceedings -- clear and convincing evidence provides a stronger check and makes the decision makers do more of the hard work needed. That's how it's not only fair but educational too. It teaches us all the importance of fairness and objectivity.

We should focus on education when considering whether and when to let a suspended student rejoin the community -- for the last time, since suspension is usually the final stop before expulsion. It seems to me that while fixed-term suspensions may have a place, they seem to me a bit arbitrary. How can we know (1) from the outset that So and So needs exactly, say, three years away from Cornell and (2) at the end of those three years whether or not So and So has in fact learned enough to come back?

Several universities take a somewhat different approach. They specify, not a definite period after which the student is commonly automatically welcome back, but rather a definite period after which the student is free to try to prove that s/he has learned his/her lessons. The Office of Student Conduct & Community Services (OSCCS), or possibly the dean of students, can read the student's petition and perhaps even speak with him or her and then make an informed decision in the particular case. That can give the student a stronger incentive to learn the most from his/her suspension, because s/he's not guaranteed another chance at the end.

(In fact, a discussion of the process, and of the student's criteria for readmission, given at the beginning of the suspension, can help start the learning. And when Cornell has to tell a suspended student to try again in a year or two, a bit of dialogue can help the student figure out where s/he still needs to improve.)

Finally, educational conferences are a great idea. Among other things, I suspect many if not a majority of students who get into trouble need a little -- and some quite a bit -- of education in social skills, conflict resolution and other aspects of emotional intelligence (such as "reading the room"). Having taught social skills myself (at Northern Virginia Community College), I think Cornell could get a great return from a small investment of reading lists (not to mention the books and online pieces themselves) and ongoing classes -- in overall social skills and also things like roommate situations, socializing with peers (especially those you might want to date), dating and intimate relationships, workplace relations and the like. (My own fondest Cornell memories have included attending a few of these classes.)

As I'm sure we all know, different people have very different susceptibility to subtlety. More bluntly, some people can take a hint and some need a clue by four (wrapped in flannel so as not to actually hurt). More than a few people need to learn how to take hints via clue by fours -- I've been one of them. Yes, taking and giving hints can be explicitly taught. Calibrate the messaging accordingly.

Keep up the great work!

We all deserve a voice.

At the origin of this process, we were tasked with making the code more readable and eliminating ambiguities and redundancies. The revision has expanded to encompass fundamental issues involving the governance of the Cornell community. A substantial amount of people are raising the following issues which need more open and public discussion: 1) the lower and more punitive burden of proof (there is no regulation stating that there must be a universal standard of proof), 2) the importance of public hearings, and 3) suspensions being up to five years. These discussions would best be carried out in open and public meetings—something we cannot properly accomplish at the moment (nor has the CJC attempted to accomplish).

It is irresponsible to push through an entirely new code which will radically alter the student judicial experience during a global crisis. Furthermore, it is both unrealistic and unfair to expect students to read these documents while the semester is ending and/or finals are starting. We, as a community, are not being given adequate time to read the suggested changes. I ask you—what is the rush? Where is our compassion?

Here is an article written by The Cornell Daily Sun discussing Tuesday’s meeting of the University Assembly: https://cornellsun.com/2020/04/29/university-assembly-considers-lowering-evidentiary-standard-in-j-a-proceedings/?fbclid=IwAR1GaTomyRuOF1bfpXQ07M58CI6nECRMZBBxjTxxTsuBnaMzawnN9kzLFCk

Sincerely, Logan R. Kenney J.D. (expected) '21, B.S. '15

Former Chair of the CJC, Current voting member of the UA

Perhaps someone can help alleviate my troubles by suggesting how I should interpret the proposed changes. If I am to evaluate these proceedings in my own mind with the standard of a preponderance of evidence, then I am led to conclude that a potentially controversial Code of Conduct featuring sweeping changes which take away basic rights from students, such as the right to a public hearing, is being pushed through at a time when students are focused on the end of the academic semester and the current pandemic. The preponderance of evidence certainly suggests that this process has been oriented to avoid much real public comment on this matter. However, I genuinely respect all of the work that the administration and the UA do for us. I have long believed that they held my best interests as a student at heart... So perhaps I should use a clear and convincing standard instead and provide them the benefit of the doubt? It's a difficult decision when it seems the administration and the UA ask for a benefit of the doubt which they currently seek to eliminate in us, students, through the lowering of the evidentiary standards.

I understand the importance of reforming the Code, and I respect that there are legitimate arguments to be made on both sides of many of these issues... But we need to have a full and vibrant public discourse on this matter before making such impactful changes. This level of discourse is not available in our current chaotic times, so for the sake of a process which matches the integrity of our great school, I would respectfully request that we do not reform the Code of Conduct prior to Cornell resuming in-person classes.

I would invite those of you interested in this process to attend the final meeting of the Codes & Judicial Committee:

https://cornell.zoom.us/j/985442729

I write today in opposition to the proposed amendments. While there are many issues with the proposed amendments, I will only discuss what I view to be the most important issue: that the administration seeks to rush through these amendments despite the COVID-19 pandemic obscuring the amendments' passage from public debate.

The proposed amendments have many flaws, yet students inevitably will not have a chance to comment on them because the administration seeks to rush through these changes during what is perhaps the greatest global health crisis in 100 years. The attempt to scurry these amendments through under the cover of night offends the very notion of community involvement and representation.

The COVID-19 virus needs no introduction. It has thrown the world into an unprecedented lockdown. Cornell has taken the drastic step of closing its doors and sending students home for their own protection. It extended Spring Break for undergraduate students to approximately three weeks. It has radically altered its grading policy as a result of the crisis. In many ways, the school's response to the pandemic has been sensible and responsive to the fact that students' lives have been upended and many are facing extraordinary hardship. Yet, the administration believes now is the best time to pass a radical overhaul to the campus code of conduct. Students do not have the bandwidth right now to be concerned about changes to the code of conduct. Many are worried for their own health and safety, and that of their loved ones. Many are worried with providing full time childcare now. Many are worried about their summer jobs or entering the workforce during a recession. Many are worried about how they will pay rent or feed themselves. One thing they're not worried about? Changes to Cornell's code of conduct. It is an affront to the idea of public notice and comment to pass these changes during a time of crisis while so few people are watching. Yet the administration—over much objection and request to delay—continues to try and push these changes through under the darkness the COVID-19 pandemic has brought over this world. The administration's proposal can only benefit from public comment, as it can only demonstrate public sentiment towards these changes and raise concerns the administration may not have thought of. As Justice Brandeis once said, "[s]unlight is said to be the best of disinfectants." Yet the administration seems content using a lamp with a shoddy bulb.

I urge the administration to take my comments, and the other thoughtful comments submitted during these troubling times, into account before rushing these amendments through.

Respectfully,

Michael Mills

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

Such sweeping changes cannot be made without extending the period for comments until at least June. It would be a disgrace to the integrity of Cornell University if such changes that affect the rights of students are made during exam period and a pandemic. As a law student and a future alumni, I condemn any changes that are made without adequately extending the commenting period.  Specifically, the standard of proof of clear and convincing evidence cannot be changed without more time for students to engage in discourse with the university. Again, if such changes are made, any claim that Cornell Univeristy is an institution that looks out for its students is shallow and false. Moreover, if changes are made without extending the commenting period,  I will explicitly express to prospective Cornell student my believe that Cornell took an underhanded approach to undermine the right of students without sufficient dialogue when students were already struggling to finish the semester during a pandemic.  I will also never donate to Cornell University if such changes are made without extending the commenting period. 

I agree with preceding comments regarding the poor decision not to extend this notice and comment period. The current law students are sitting exams and facing uncertainty about their future employment in the face of a global pandemic.

With the time I can spare, I find myself disagreeing with the amendment to 8.4. Section 8.4's proposed amendment to lower the burden of proof seems short-sighted. The amendment notes state that proponents of a preponderance of the evidence standard argue it balances the interests of the community, rights of the students, and due process. Frankly, I don't see how that's possible, unless it's in the interest of the community to simply discipline more Cornell students. Surely the community's interest would be better served by disciplining the right students - those who are shown to have actually committed a violation through clear and convincing evidence. 

Hello everyone.  I really don't see the argument for switching to preponderance of evidence for accusations that could lead to suspension or termination (outside of sexual assault charges).  While these aren't criminal charges, the consequences can be very severe.  Suspension or expulsion for some people might not be a big deal: they may have a strong social network, their parents might be able to support them, they could study elsewhere.  But for some students, they have worked very hard to attend Cornell and expulsion would seriously damage their economic and social prospects.  And the evidence tells us that students in these situations, of lower SES, are exactly the kinds of students who face biases in judicial proceedings.  We should not be lowering the standard and risking irreperable damage to the wrongly accused.

Thank you,
Fil Eden, '10

You've got to be fucking kidding me.

you want to make a decision that involves students, in the midst of god damn global pandemic, while students are trying to figure out what the heck their going to do about online classes, finals, cancelled summer internships, a dying job market, and a crashing economy. Many of these students may have family members who are sick with Covid 19 or who have already died, and some students themselves may be sick with the virus- this is particularly salient for lower SES students who may not even have adequate access to computers and Internet (let alone food, healthcare, or other basic services) now that they are home.
 

Honestly you should be ashamed of yourselves, and if I had the money I would file a lawsuit over this madness. This is a decision that needs to wait until students are back in session and student representatives can actually be a part of the process face to face.

Further, the idea that we would lower the standard of burden of proof is ludicrous. I agree with what so many commenters have already said- except in cases of sexual assault, the burden of proof must be as high as possible. This is not only to reduce 'bias' as many have correctly pointed out, but to reduce the opportunity for mistakes and errors in judgment by the JAO. In a world where hundreds of thousands of members of black and brown communities all over this fucking country are thrown behind bars because they cannot afford proper representation, because the system is biased against them, and because the subsystems which develop such as plea deals etc make it so that it is often easier to accept a plea deal for something you are INNOCENT OF than attempt to go through the legal process which is stacked against minorities and against the poor. I would reiterate what one commentator so eloquently said, that I would rather 10 guilty students be found to be not responsible that for one single innocent student to have their academic life (and in large part their future financial and professional lives) ruined or halted because they were unjustly found responsible due to the lower standard. In a University which prides itself on requiring its students to meet the highest of academic standards, and who accepts only the top 10% of applicants based largely on that criteria- it is obsurd to me that the JAO would like to lower the standards for themselves. 
 

As a formerly active duty US Marine I swore to uphold and defend the ideals of freedom, democracy, and justice for this country. As a Cornellian, I will not stand by and watch those ideals be degraded by the very institution which is supposed to shape and develop young minds toward those lofty aims.

I DO NOT support lowering the evidentiary standard for the JAO, I DO NOT support expanding their power and jurisdiction in any way, and I DO NOT support the name change which would reflect, support, and reinforce that expansion of power in the minds of students and faculty.

Fuck your power grab.

-Joshua

MPS Cornell University '19

BA University of Pennsylvania '18

Defense Language Institute '09

As many commenters have already observed, Cornell students are living through an unprecedented public health crisis. The effects of this crisis have been profound: on short notice, students were asked to leave their friends and classmates; "going to class" suddenly meant clicking a Zoom link; a cloud uncertainty hangs over summer internships, and for those graduating, post-grad employment. The University has shown an admirable degree of flexibility in its repsonse to the COVID-19 pandemic. Yet, for some reason, we are told that there can be no such flexibility with regards to sweeping changes to the Campus Code of Conduct. The explanations for this lack of flexibility, as described in The Cornell Daily Sun, fail to adequately grapple with the challenges we are all facing as a result of the COVID-19 pandemic in favor of pointing the finger at others.

This is unacceptable, particularly in light of the signifiance of the proposed changes. Take, for example, the proposed revision to Section 8.4 (Burden of Proof). A move to a preponderance of the evidence ("more likely than not") standard as opposed to a more demanding clear and convincing betrays a misguided perception of what serves the interests of the Cornell community. As several commenters have noted, making it easier to mete out punishment is not what serves the interests of the community -- ensuring that the right students are punished does. The clear and convincing standard better serves this interest by ensuring that students are found responsible based on sufficiently strong proof. Pointing to the use of the preponderance of evidence standard in the context of civil litigation is similarly misguided. The sanctions available under the Code, including suspension and expulsion, can have devasating consequences that will follow a student for the rest of their lives. They go far beyond what we see in a typical civil proceeding, where one party may be found liable and pay monetary damges to the other. If we want code of conduct proceedings to have any resemblance to a fair process, we should expect that those seeking to impose such significant sanctions be able to build a sufficiently strong case as to meet something more demanding than the standard proposed here.

Adopting ths proposal at any time would be a major failure on the part of the administration. Adopting it now, in the midst of a global pandemic, without giving those most affected adequate time to make their voices heard, would be truly inexcusable.

Respectfully,

Robert Ward

J.D. Candidate, Class of 2021

Please do not lower the standard of evidence in cases governed unde the proposed rule changes. It endangers the right to due process of all students and poses a severe threat to marginalized students.

A  concerned alum. 

As colleagues have already expressed in their comments, the proposed changes by the CJC, if passed, will have significant consequences for those subject to hearings. All students who potentially face sanctions due to misconduct deserve a fair process. The "clear and convincing" standard for the burden of proof better protects innocent students while compelling investigation and complaint procedures to examine allegations of misconduct thoroughly. For misconduct other than sexual assault (where, for reasons specific to evidence in such cases, the "preponderance" standard already applies), lowering the burden of proof serves no real benefit and only makes it easier to subject students to discipline for something they may or may not have done. In light of the disciplinary measures and what is at stake, the current system should at least be able to prove that the conduct in question is substantially likely to have occurred. This is not a demanding standard; it places a reasonable duty on the adjudicatory system to ensure fair proceedings and minimize the risk of bias.

Finally, I share the concerns in previous comments that this is far from an ideal time to be introducing such changes. I am glad that the deadline for comments has been extended for another week, but it is still unrealistic to expect members of the community to be able to review proposals during a pandemic and an already stressful time of the semester. If at all possible, please consider alternative timelines to ensure input regarding Section 8.4 in particular.

I share the concern about the system which Cornell University seems to be moving toward that many of my fellow students have expressed in their well-reasoned comments. In some of these proposals, Cornell University has gotten dangerously close to adopting a system which violates the due process of respondents. I completely respect the need to make sure the process is as “educational” as possible, but there is nothing educational about a process which the respondent, and the entire student body, perceives to be fundamentally unfair. With that in mind, I make the below specific comments.

Section 1.2

I support allowing respondents to have an advisor speak on their behalf at the hearing.

I do not see the “educational” value in forcing an untrained, scared respondent to speak on their own behalf. This is especially compounded by the fact that the University puts a full-time, trained professional against this student. I could never say it as well nor with as much experience as they did, but to reiterate a point made by the JCCs themselves: The stress and anxiety which is already inherent in this process will just be made worse if the student is forced to make all of their own statements. As informed as I must assume the Committee is on the process, no one can be more informed than those who have experienced it from the respondent’s side time and again. Given that, I urge the Committee to give a particular deference to the JCCs viewpoint.

Section 8.4

I oppose the Committee’s proposal to lower the burden of proof.

In providing the justification for this change, the Committee only noted that this would make the process “more educational” in the eyes of those who voted in favor of it. Once again, I see nothing educational about this change. The Committee talks in a very abstract way about the process, as if it does not have very real consequences on the accused, providing them with a mere educational experience. But its not just an educational experience for the accused. The withholding of a degree, expulsion, and more is on the table at some hearings. The idea that a respondent would walk away from a trial where they are subject to a preponderance of the evidence standard and summarily expelled thinking about the educational value is simply unrealistic. 

While preponderance of the evidence is the standard traditionally used in a civil lawsuit, I would argue that a proceeding like this warrants a standard higher than preponderance. As stated above, some proceedings have grave consequences at stake. This is particularly significant given the younger age of some of the respondents. A preponderance standard risks erroneously subjecting some respondents at the beginning of their educational and professional careers to severe consequences. This is especially true because some other procedural safeguards which are used in a civil lawsuit are not present, such as the right to a jury trial in some cases. In the absence of these procedural safeguards, I believe the current clear and convincing standard serves to best protect the due process of the respondent.

In conclusion, I write the Committee today as not only a member of the Cornell community, but as a law student who is deeply concerned that a school that I am so proud to attend is moving in the direction of adopting a wholly unfair system where students, potentially representing themselves pro se against a trained professional, are tried in a private hearing and are subject to a dangerously low burden of proof. The adoption of any of these changes is troubling, but the idea that the Committee would propose all of these in concert quite frankly worries me. Adopting some of these procedures would turn Cornell Law School into a place that teaches the value of due process while the University at large shows people how easy it is to rob someone of it.

For those reasons, I ask the Committee to reconsider some of its more fundamental proposals, and to ensure that both the complainant and respondent receive a fair, just, and “educational” experience.

Respectfully,

Zachary Sizemore  

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

I have little specific suggestions for code revision, however after reading through the comments of fellow law students/professors, I would like to oppose lowering the standard of proof.

In general, I was surprised when joining the Cornell Community to see how differently their disciplinary system operates compared to my undergrad at the University of San Diego. After being involved extensivly with the Office of Ethical Conduct and Restorative Practices at USD, and dabbling as a campus mediator at Cornell, I can honestly say it's somewhat of a night and day difference. Cornell could really benefit to adopt more restorative practices when responding to violations of the code. Some of these proposed revisions are positive steps forward, but I still feel like the process is highly judicial in nature.

Cornell isn't here to punish us when we make a mistake, it's here to help us grow from those mistakes. This isn't the often-cold-and-uninterested punitive criminal justice system, and yet Cornell holds immense coercivse power with their ability to deal out sanctions. Let's work toward softening how the code is upheld. I think if the process is shifted toward an educational rather than punitive system, it will embolden other communities on campus such as IFC and Panhellenic to adopt similarly-focused models to improve Greek life culture.

There are many excellent professors and students who have a deep understanding and appreciation for Restorative Justice. I can't stress enough how many positive results can flow from an adoption of these practices.

Very Respectfully,

Zach Jagielski

Cornell, J.D. (here's hoping) '21

USD, BA '17

Because I do not want to needlessly reiterate opposition to lowering the standard of proof or stripping students of due process, I will mention something which has not been mentioned—Good Samaritan. Although it looks like Cornell has a policy of not charging students for alcohol related violations if they call or receive medical help, this is inexplicably left out of the code. This is not a policy which should be discretionary. I hope the administration makes this policy binding.

Respectfully,

Taji A. Hutchins

J. D. Candidate, Cornell Law '21

Hey, uh Cornell Uni?

Could you fuck off pls?

Thanks,

Cornell Students

Others have already detailed this at great lengths below, but as a quick summary, the proposed changes in Section 8.4 goes against the United States Constitution and even the United Nation's Universal Declaration of Human Rights. This blatant violation of rights by the university is inexcusable and indefensible in addition to this all being poorly timed given the current pandemic.

I wish to simply reiterate why my fellow students are saying, as I believe that it is important for as many students to bring this to light as possible, even if the responses are short and simple. 

Section 6.9 proposes that students are considered to be violating code if there is more evidence of a violation than evidence of not being in violation. This simply changes the status quo of judiciary process, proposing that students are considered guilty until proven innocent. This is a clear violation of due process, and has no place in the Cornell Code of Conduct. 

To reiterate what others have said below: I am confused about how the university treat students who are purported to have violated the Code. It seems that there is no necessity for sufficient evidence that the student violated the code - the only necessity is that there is enough evidence to make others suspect that the student did so. This is ambiguous and indicates that the student is guilty before proven innocent, rather than vice versa. I do not understand how the university could operate on such a principle and still ensure that accused students are treated justly. 

I have many problems with the substantive section of this code, which is all I had time to read.

Section 1 Respect for the Natural Environment

This section is b.s.; Cornell is not truly committed to "acting in ways to live and work sustainably" while the university continues to fund the fossil fuel industry which is destroying our planet. You should either remove this section and admit that this is not a real university value, or commit to a real plan to divest from fossil fuels and affirm that this is a real university value.

Section 3.A Jurisdiction

1) "'Substantial threat includes the following: (a) the selling of drugs; (b) physical contact exceeding a shove; (c) hazing; (d) property damage or theft valued over $500; and, (e) unique violations which shall be left to discretion of the Dean of Students as requested." First, please explain to me how selling of drugs is a substantial threat to "the University’s educational mission, the health or safety of individuals (whether affiliated with the University or not), or the University community." Second, part (e) gives the university unlimited juristiction making this entire section completly meaningless. 

2) "The final determination as to whether off-campus s conduct is subject to this Code will be made by the Dean of Students, or their designee." What does this mean? First, off-campus conduct in my view should certinly not be subject to the campus code of conduct. It's litterally the Campus code of conduct. Secondly, why should this decision not be included in the code, but subject to change at the whim of the Dean of Students?

Section 4.9 Drug-Related Behavior

It is well documented how marijuana prohibition leads to disproportion enforcement of these laws on black people, at alarming rates. Yet, this code explicitly enshrines marijuana (or even just the intent to use marijuana) as against the code of conduct. In my experience CUPD is extremely unprofessional and poorly trained, so I see no reason to believe the disproportionate outcomes for people of color would not happen on our campus, just as it has across the country. Further, with marijuana legalization spreading across the nation and likely to happen in NY soon, the inclusion of marijuana in this section is likely to soon have Cornell living in the past, continuing to enforce this racist agenda for no apparent reason.

I expect a response adressing these concerns.

- Jack Schluger, Cornell College of A&S '21

First of all, I agree with all those comments opposing the lowering of standards for burden of proof. I am not going to repeat their arguments.

I would like to go further and suggest that the goal of pursuing educational rather than punitive measures, and expanding the definition of harassment are contradictory. The definition of harassment, especially sexual but not limited to that, is already too expansive and too vague. Especially concerning is the use of the word "subjective perception" in the definition of a hostile work place. People's subjective experiences are not an appropriate criteria for punitive measures. Most importantly, we should strive to a more narrow the definition of harassment to limit ourselves to clear and legally acceptable cases, and try to deal with them through educational means, rather than punitively, as much as possible. Requiring community service or mandatory attendance in educational programs are commonly used in the legal system. We should rely on them even more as an educational institution.

-At the same time that Cornell is illegally extending their "power" further into the off-campus and un-Cornell related parts of  students lives, they are also lowering their own standards of proof. In order to ward off the outcry that would come from admins, staff and faulty due to this cleary faulty policy, they also decide to have it only apply to students and to pass it when theres not a single person on campus and half of our student body is in the most affected parts of the country. 

Is there any other instituion in the country that so clearly demostrates utter disregard for their own students, its frankly disgusting that just an esteemed university created on the basis of fairness and oppunitnity for all students would pull foolish stunts like this.  

I write to voice my opposition to the proposed changes to Section 8.4.  The standard of proof should remain clear and convincing evidence. The supposed rational of switching to preponderance of evidence to make the process more “educational” is a level of Orwellian doublespeak that even Mr. Orwell would not have considered possible. The possible consequences of disciplinary hearings for many Cornell students are significantly harsher than any civil proceeding and the standard of proof before taking such harsh measures should be correspondingly higher.

Furthermore, the decision to move ahead with this process during an unprecedented global crisis defies explanation. The failure of the CJC to complete the revisions on time is not an excuse to proceed with fundamental changes to the Campus Code of Conduct during such crisis. It reeks of impropriety and gives the appearance of using the crisis to duck opposition to changes that will be extremely unpopular with Cornell community.

I would have liked to review the entirety of the proposed changes, but under the circumstances it is simply not possible. I am extremely disappointed in Cornell.

Respectfully,

Conor P. Cathey

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

The language in section 4.12 leaves an opening for subjective "reasonable objection" and "my truth" arguments.

Because of protections afforded by principles of free speech and academic freedom, expression will not be considered harassment (up to here it is objective) unless
the expression also meets one or both of the following criteria (here is when it turn subjective):
- 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.
 

I can be easily shown how an ideology bent individual could easily wrap and use these subjective criteria as a hammer to silence free-speech as we have all witnessed in recent years with "cancel culture". NOTE: We have all witnessed in recent years, protesters shutting down campus conservative speakers because of opinion they deemed "humiliating" or "abusive" by their subjective perspective)

It is in my opinion that if Cornell wishes to be a place where free-speech presides, the subjective part of the wording of this section should be removed to protect freedom of speech. There are matters for courts of law.

This wording will enable ill-intended individuals to promote fascism and silence opinion, not their own.

Like many others who have posted comments here, I, too am concerned about the apparent lowering of the burden of proof.  In addition, some types of conduct might be construed as denying free speech.  For instance, blocking vehicular and pedestrian traffic could be the consequence of a student, faculty, or community rally, demonstration, or protest.  I hope there is some leeway here, but I don't seen it.  Furthermore, I do not see any aspects of the code that refer to despicable behaviours such as racism, anti-Semitism, or other hateful or bigoted acts or utterances. 

I am extremely discouraged by the vagueness of section 4.1 of the proposed changes, making a point to go after students who "knowingly affiliate with groups, teams, or organizations that have had their University recognition or registration withdrawn." This could imply that a previous friend, sibling or even new acquaintance could be punished for "being involved in any activity that would normally be associated with being a member of such an organization," like how more vague can you get? Are people of a disaffiliated organization supposed to just dissolve their friendships as to not have someone who was not a "member" potentially live with them, or even worse, share mutual interests? And besides the definition, how would you enforce it? Will you raid former frat houses and write up any sophomores? Or will you check Instagram for pictures of people hanging out with members of Mock Trial before they got the boot? Like what is the burden of proof to show someone has friends they're not supposed to have? Oh that's right, I guess we don't even need proof anymore either.

I am extremely discouraged by the vagueness of section 4.1 of the proposed changes, making a point to go after students who "knowingly affiliate with groups, teams, or organizations that have had their University recognition or registration withdrawn." This could imply that a previous friend, sibling or even new acquaintance could be punished for "being involved in any activity that would normally be associated with being a member of such an organization," like how more vague can you get? Are people of a disaffiliated organization supposed to just dissolve their friendships as to not have someone who was not a "member" potentially live with them, or even worse, share mutual interests? And besides the definition, how would you enforce it? Will you raid former frat houses and write up any sophomores? Or will you check Instagram for pictures of people hanging out with members of Mock Trial before they got the boot? Like what is the burden of proof to show someone has friends they're not supposed to have? Oh that's right, I guess we don't even need proof anymore either.

The proposed amendment has literally nothing to do with the 'summarized' bullet point list in the email that was sent. All this amendment is, is the University seeking to expand its power in Judiciary proceedings against students. I very strongly disagree with lowering the standard of proof, as "likely" just isn't enough. Due process requires the assumption of innocent until PROVEN guilty, and for that, you need clear and convincing evidence. I'm actually appaled, as I used to think the amendment was a good thing when I read the short list of the amendment's intended purpose, yet saw none of that reflected in the actual amendment itself. Literally, whoever wrote that summary is beyond biased, and clearly sees lowering the burden of proof as "educational," whatever that even means (I don't even see somewhat of a connection).

Also, I don't understand how a 3-year suspension isn't enough? And to almost double it? That's just kind of ridiculous. Seriously though, couldn't this wait until students are back in session, or are you guys just that power-hungry to try to push massive changes while you think that students won't notice. Something that I think had good intentions, but still disagree with, is making the rules easier to understand. While this may seem like it benefits the general public, having a list of rules in "plain English" could lead to a lot of gray areas. Keeping the vocabulary to be precise is more important in my opinion, so as to have a clear set of rules, rather than have 5th graders think they understand it. We're Cornell Students, so if you think we can't handle some advanced vocabulary, why did you even take us in? That's just insulting.

In regards to Section 6.5, I propose the following:

-Hearings should, by default, be made private, with the only exception being if both the complainant and the accused determine to have a public hearing.

In regards to Sections 6.6 and 6.9, I propose the following:

-Respondents should have the right to ask questions of the complainant, regardless of the situation, but may be stripped of that right only if the Hearing panel believes that the respondent is behaving inadequately (e.g. intimidating).

-Complainants should be required to testify (or have someone testify in their place), except for situations involving sexual harrassment and/or assault. I firmly believe that it is immoral to have sexual assault victims be question by their potential assailant. 

-Witnesses should not be required to testity. As is mentioned, this is indeed punitive and not "educational", as well as a delay tactic. 

-The rules of evidence shall be strict, and set in stone. Having the Hearing Panel decide on rules of evidence on a case-by-case basis is completely unfair and unjudicial. These rules, in order to uphold due process, should be clear and convincing. Then, after all admitted evidence is considered, the Panel shall have a written statement with its decision, rationale for that decision (including why they believe that the evidence is clear and convincing) and related opinions. If the burden of proof is changed to preponderance of evidence (more likely than not basis) then I believe that the current sanctions are unfair. I would hate to see students be expelled, for example, for something that was "more likely than not". As unlikely as it may be to win a lotery (and by unlikely, I mean really really really unlikely) people still do win it sometimes. 

With all this said, I do wish students were given more time to fully review the amendment. Not only am I busy now with class and upcoming finals, but we still are in the midst of this pandemic, and I know that not every family is as fortunate as mine to be going through this pandemic as smoothly as mine is. I would like to push for this comment period to be extended until end of June, which should be plenty of time for everyone to review the amendment fully, and not just blindly accept the University's power hungry request.

On the other hand, here is what I agree with:

-Literally nothing

Anonymous, '21

These rules completely bypass a students rights to due process.