05/07/2020 Campus Code of Conduct - Public Forum | Questions AND Answers

Of the questions asked during the Campus Code of Conduct Public Forum on 5/7/2020, the following were responded to by members of the University Assembly's Codes and Judicial Committee, as well as the current Judicial Code Counselor and a representative from the Office of the Judicial Administrator:

Several of us came into the webinar about 10 minutes late. Could you please explain the difference between the hearing panel and administrative panel?
JOE ANDERSON: Sure, so I think the broadest sense is if the administrative panel is dealing with sanctions, all sanctions except for its disciplinary probation, suspension, and expulsion. And so at the administrative panel, the other major difference is that the standard of evidence that is used at the administrative panel is preponderance of the evidence, which is a lower standard. While at the hearing panel, this is dealing with sanctions of disciplinary probation, suspension, and expulsion.
And the standard of evidence used is the clear and convincing standard, which is higher. So we have a question on the window of feedback being short. And so we can, because the CJC is a committee of the University Assembly, we were asked by the University Assembly for a tight timeline to get this done.

And so we tried our best to do that. The first we put up the code in multiple parts. The first part being the substantive version. So the violation section. And we put that up. That was up for, I believe, in its third or fourth week now.

The dates are starting to blur in my head. And the procedural section has been up for about two weeks now, or three weeks. Again, I'm sorry if. The dates are really difficult. And the forum is definitely, definitely very hard. And it's definitely hard using them. I can acknowledge that, as an individual.

What was the rationale for moving the administration from the Office of the Judicial Administrator from being an independent office to being until the Dean of Students?
JOE ANDERSON: That is a great question. I can take it, yeah. So I'll take it. So the rationale for that was that because a lot of the procedures, and a lot of what goes through the OJ currently-- a lot of it is based within Student Campus Life, it is student conduct. And so this would allow the OJA, or OSCCS, the new name of the unit, to be able to better collaborate with the other units under Student and Campus Life, to be able to recommend different courses of education for students.

Instead of just going through the same old, same old. So it provides a greater set of resources available to students. Whether they be responded to complainants, and really helps us emphasize the educational component that we've been wanting to get on. So it grants them more access to resources for educational conferences, alternative dispute resolution, but also allows them to evaluate cases on a better manner.

So if there is a case involving a Greek organization, there can be collaborate-- a better understanding of what that situation might be, by talking with the Office Of Sorority And Fraternity Life, which is also under Student and Campus Life. So I think there was just a recognition that the independence of the OJA was actually starting to hinder the functionality of the OJA.

And moving it under Student and Campus Life allows it to actually be able to receive the grand scope of what has been going on, on campus overall. So thank you.

Does this affect the University Hearing Review Boards and how they operate?
JOE ANDERSON: So it would, in a sense, yes, change the structure. So it would no longer be a university hearing or review board, it would be the administrative panel and hearing panel. The exact operations the procedures are detailed in the proposal that we put out.

And I believe that there might be some minor changes under the administrative panel is mostly done in paper, while the hearing panel is mostly done in person. So there is a bit of difference that happens in there.

And that's addressed in our in our full documented draft. But some of the more procedural aspects of how this progressed through hearing, a lot of it I believe has tried to maintain as much similarity as possible. But recognizing that there are still some differences based off the panel construction that we did.

What will be the future status of the Judicial Code Counselor office?
GABRIELLE KANTOR: I think others might need to jump in. But I would hope that the JCC stays the same as is written in this proposal, the JCC office still exists. The JCC's advised only respondents. So according to this draft, it maintains the integrity of the office. But that might be an incomplete answer, so others might want to jump in.
RISA LIEBERWITZ: All right, just to build on it, well I mean, I think the idea here in the code, as proposed by the CJC, is that the status of the JCC's office remains the same, that it's been a really successful office for advocating for and representing students.
And that it would remain the same, with the students who are trained to do this. For law students, and who have a history of doing an excellent job. So that's the proposal, is to maintain the independence of the JCC's office as it has been, and to maintain the membership and the training. And the work that they do

I'm curious if there's a difference between the clear and convincing standard and beyond a reasonable doubt standard, which is a term more people may have heard.
RISA LIEBERWITZ: OK, thanks for the question. Right, standards of proof in general are refer to the level of certainty that the decision maker, decision makers, need to decide that there's been a violation. So we'll just assume there's a panel, and they need a certain level of certainty.
So preponderance of evidence is more likely than not. That's the lowest standard. It's used in many civil, i.e. non-criminal cases. More likely than not has oftentimes been viewed as 50% plus one. So preponderance of evidence means that there can be a significant amount of information which that goes in favor of non-responsibility.

And a significant amount of information that goes in favor of responsibility. But that all you need is a 50% plus something else that says, yeah, we think this person is responsible for violating the code. Even if there is 49% of the information that says the person is not responsible. So it does make it easier to actually find a violation. Clear and convincing evidence is oftentimes described as highly probable.

So it's more than that 50% plus something. There can still be evidence on both sides, with regard to responsible for violation or not. But the decision makers should be convinced at the level of something is highly probable. The evidence shows it's highly probable that a violation was committed.

And as Joe explained, in the current proposal from the of the code from the CJC, clear and convincing is used for cases where this sanction is quite serious, in terms of the outcome, the potential outcome for somebody's life. So disciplinary probation, suspension, and expulsion are clear and convincing because that's commensurate with the potential really life-altering outcome that can occur to somebody who faces that kind of sanction.

Now, clear and convincing evidence is quite different from beyond any reasonable doubt. Beyond reasonable doubt is the criminal law standard. And it's one that says that where the state can use its power to remove somebody's liberty, that the decision maker, could be a bench trial, could be a jury.

The decision maker needs to be so convinced of guilt that it's beyond not just-- it's not beyond any doubt, but it's beyond any reasonable doubt. It's heavily weighted in favor of finding not guilty, which is quite different from clear and convincing, which is highly probable.

Which panel does sexual assault fall under? What impact will the change in evidentiary measures have on the accuser and accused?
JOE ANDERSON: The campus code of conduct does not deal with sexual assault. That it belongs in policy 6.4 realm. And that is not something that we have amended or touched in this process. That's a different policy entirely. So just want to make that clear, because I did see that pop up. 

It's unclear to me how a five-year expulsion for an undergraduate student could be viewed as anything other than de facto expulsion? I mean, you're setting up a situation where a 21-year-old, for example, could receive that and not be permitted to return and receive their bachelor's degree until they are 26 years old.
JOE ANDERSON: I think that is a concern. However, when considering what a suspension is, it's not saying you're automatically going up to the five-year process, it's allowing students who might be affected by that type of violation. And since suspension is one of the more intensive and more severe sanction, there has to be a substantial violation that would warrant a suspension up to that.
So this would be something that would be pretty severe, most likely. And so the suspension is really to make sure that the effective student would not have any fear of retaliation for that process. And so I think, yes, it is a substantial period of time. And someone might be getting their bachelor's degree at the age of 26. But that decision by the hearing panel would not be taken lightly, because the violation would match that severity, or at least is our hope to when drafting this procedure.

So I hope that we can acknowledge the impact, but we can also say that there is the rationale for it.

If sexual assault and stuff falls outside the jurisdiction of CJC, what kind of violation do you guys believe would warrant a five-year suspension?
JOE ANDERSON: I think that's a good question. I'll let-- I can answer it if my panelists want me to. Or if someone wants to jump in to do it real quick, because I'm sure people have been, but it's not. OK. So I think context really matters, and in these situations, not everything is so-- I think there's a lot of context around it.
So I could see a very substantial physical assault, of one student on another student. And a very substantial hazing on one student or another. So I think you really have to look at yes, a violation can occur. But what is the severity of that? What is the impact on that on someone who might be a complainant.

And so I think that's really-- I think that's important to recognize. We could run through a litany of hypotheticals and scenarios in which we show a lot of severity. But I think that's really-- but in determining, that that's really up to the hearing panel.

That's really up to the group of people who are sitting there deciding upon it. Because it is really important. It is really important. So I can't give you a clear cut, 100% definition of it, 100% answer to that, because I think that a lot of what student conduct is very contextual based off what has happened. So I apologize.

Following up on the last question, isn't that kid of part of the problem in giving that kind of authority, though? Wouldn't that be a good argument then for not extending that authority?
JOE ANDERSON: I think that it's not-- I think that there seems to be a definite in that. I think we have to provide an ability to do so in the most severe cases, recognizing that in the last two years, the number of suspension has only been 10. And so I think there's a lot of context around what has been previous practice that has been formed into allowing authority under this current code to still be there.
And ensuring that there is, at the most severe sanctions, a substantive amount of due process provided, to make sure that there is a process that recognizes the severity of it, like we've done with the hearing panel with a clear and convincing standard. I appreciate your comment and your question. Thank you so much.

When I say de facto expulsion, what I mean is that if you're giving the hearing panel the power to suspend someone for five years, isn't that a way to just give them the power to basically expel someone without having to say they're expelling them and keeping their expulsion numbers low? Is the likelihood of someone coming back after five years and finishing their degree at 26 really a possibility?
JOE ANDERSON: I think what's built into to that-- and I'm not a practitioner in the space. I'm someone who's sat with it. 26 years old, you're still given the ability to come back to Cornell. There's still a process of potentially petitioning the university to come back from a suspension.
I don't know what that process looks like. Well I mean, what the exact of that process is. But there is an ability to petition after a certain period of time, I believe. So I think you could say de facto. But you still have the possibility of coming back, I would say to that.

It would be great if you could expand acronyms.
JOE ANDERSON: The CJC is the Codes and Judicial Committee. It is a committee made up of undergraduate students, graduate and professional students, employees and faculty. It is a committee of the University Assembly, which is an assembly in shared governance that is made up of all four major constituencies.
The JCCs are the judicial code counselors, which are law students who are provided free to any respondent throughout this process, and provides them any support that they need. And helps them through the process. Gabriele can better explain what her office does.

But I think that's short and quick. And the OJA is the Office Of Judicial Administrator. Gabrielle, you can explain the JCCs, and I'll let Francesca explain the OJA.

GABRIELLE KANTOR: Yeah, I mean, you pretty much summed it up, that we work with any respondent who approaches our office. We advise students under this code, the Campus Code Of Conduct, as well as academic integrity and Policy 6.4. We work with them in a confidential way. We are currently comprised of five law students, and we have a faculty advisor in the law school.
FRANCHESKA ALERS-ROJAS: So the OJA is tasked with investigating any potential violations to our campus code of conduct. In doing that we conduct investigations. We also propose potential resolutions to cases. And if the case is going to a hearing, then we represent the complainant, whether that be an individual complainant, or the university as a complainant.

What is the role of the Ombudsman in all of this? Are you talking about violations only or not incidents that could benefit from mediation?
JOE ANDERSON: No, when we say violations, that is just the substantive part of the code. Any violation can go to some sort of educational conference, restorative justice approach, alternative dispute resolution.
The ombudsman could potentially be a resource in that. But a lot of it is-- these violations are not necessarily things that always go to administrative panel, or hearing panel.

They can potentially-- every violation, or any complaint given to the OJA that is properly investigated may be, if all parties agree that it's appropriate, can be resolved through an educational mediation, or restorative justice practice.

How will the JCC's intend to increase/recruit the number of people of color as JCC's seeing as there are none currently? What is the current recruitment process for JCCs?
GABRIELLE KANTOR: Sure, yeah. So I just want to mention first that our office is actually pretty diverse. So there has been-- so I head JCC this year. Marissa [? Ogura ?] will be taking over next year.
So that's two women in a row leading the office. Our office currently, next year I know it will be three-fifths people of color. And so I definitely disagree with the idea that our office is not diverse. But the way that the application process works-- so it's a pretty extensive process.

We recruit when students are in their first year of law school. Because the position is a two-year position, we view the first year as essentially a training position. So the older JCCs are much more involved in helping the students understand the process, learn how to work with clients, draft documents.

And then you maintain more of that role on your own, as a second-- as a third year law student, a second year as a JCC. So we recruit in that first year really beginning in January. And we start having interviews at that time with just our office. There's two rounds of interviews with our office.

And then there is a much larger interview with representatives from all over campus. So this year, I know the UA was represented. There was someone representing Academic Integrity. The Title IX coordinator was there. The OJA's office was there. Dean Minor, the dean of students at the law school was there.

Our faculty advisor, and then me and Marissa representing the JCC office. And then that person is recommended to the UA, or recommended to President Pollack, who then recommends a person to the UA. So it's a very extensive process that involves the entire community.

Has the committee considered defining codes regarding prohibited conduct in Section 4, which are quite often listed in the student's disciplinary record, such as Code 4.2 related to alcohol? Currently a student who is, for example, caught in possession of alcohol has a reportable offense on file that includes "To unlawfully manufacture, distribute, dispense, posses, use, or sell alcohol". How does that currently get reported on a student's transcript when there is a violation?
FRANCHESKA ALERS-ROJAS: So I am here on behalf of Barbara Krause, who is the interim JA. Unfortunately she couldn't be here because she has a conflict, pretty serious conflict in her time. But I will say that disciplinary records are separate from your academic transcripts. And so notations for disciplinary matters only appear on academic transcripts when they affect your academic standing. For example, in the case of suspension or dismissal.

Which burden of proof do you think is best to protect about unconscious bias that's able to enter? Whether that's a clear and convincing standard, or the preponderance of evidence standard?
GABRIELLE KANTOR: I mean, I would definitely support clear and convincing evidence for all of the violations, and not just if disciplinary probation, or above is on the table. Because I agree, I think it provides an important check on the system, particularly because of the way that this system is structured.

If you compare this to Policy 6.4 with Title IX, there's the-- Title IX office is kind of in the middle of the complainant and the respondent. Whereas in this system, the way that the OJA is not only investigating, but they're also making initial decisions about whether someone is responsible or not.

And so, the clear and convincing standard does provide a very important check on the front end of curbing that standard. I also think it's important to emphasize that when we are thinking about lowering the standard of proof, you should also be considering what the potential for sanctions are.

And so while I think that clear and convincing definitely is better for all potential violations, it is very important where you have something like disciplinary probation that can be on someone's misconduct record for a long time, up to six years right now and above.

Could someone with a little knowledge on the current proposal go a little into detail about how the term "educational" is being used? Could you give me an example of how lowering a standard of proof makes the process more education for somebody?
JOE ANDERSON: So I think when we say educational in this context a lot of that happens in that educational area, that educational conference, that alternative dispute section, the mediation. I think that, when we say education, we make a lot of it in that area of the world, I think by building in and codifying a lot of language around that, that wasn't already present in the procedures, of what is currently existing Campus Code Of Conduct, and by making sure that it's a defined option that can be utilized, it's allowing for more of those things to happen.

In addition, I think a lot of what the committee attempted to do was in recognizing what the full system was doing, so moving the Office Of Judicial Administrator into Student and Campus Life, and providing the resources to access potential areas or the diversity inclusion portfolio of the dean of students, to allow students to understand if there was an action motivated by bias, and ability to have in that process a built in area that allows that to be addressed.

And so I think, and that's in the context of the education. You asked specifically about standard of proof, and how preponderance the evidence fits into that. I think what a lot of proponents of preponderance of the evidence state on the committee is that it creates a balance between community interest, complainants and respondents, and that allows the community to really recognize when an action of a respondent has affected a full community.

Rather than just you know what single individual. And I think with the preponderance standard, it really about the community to participate on equal footing as a potentially impacted party, depending on the violation. And so I think that's what a lot of the proponents of preponderance of the evidence on the committee have stated.

And I think when we look at how we've placed preponderance of the evidence on the administrative panel, being a less severe sanction, it provides an opportunity to really say if there is a community harm, what's that? Let's not go through the intensive administrative panel process, if everyone agrees, if the respondent says no, I want the process, the respondent can have the process.

But it provides an opportunity for people to potentially step back and say we would just like to talk and talk this out. And so that has been really vocalized as to why that standard has been associated with it more. But a lot of our comments and education really came in the sense that we've built in educational modules before, and that's never really been done before.

Does the current draft of the code include codified ability for the office to summon or compel people to participate in hearings? How does the fact finding ability for this office related to the standard of proof?
RISA LIEBERWITZ: Well, I think it'd be useful. I'm looking now on my computer to find a section where we have that in there, and the procedures. If somebody can get that up, I think that'll be the most useful aspect of it.

JOE ANDERSON: I believe that in the hearing panel section of the procedures, I don't have it up right now with me, there is in that part an ability for the hearing panel to request that witnesses do testify if they're deemed extremely relevant to the case, to make sure that a full totality of information is available.

To make sure, and to provide the opportunity for both the complainant and responded to provide-- to ask questions to that witness, to make sure that it is appropriate. The exact language I don't have in front of me right now, so I do apologize.

RISA LIEBERWITZ: So this is in 6.6 of the Procedures On Witnesses And Evidence. And it states if a witness with information of importance to the case refuses to testify, the USCCS or the respondent may ask the hearing panel chair to order the witness to testify. The hearing panel chair shall, in the chair's sole discretion, grant or deny the request based on the balance of equities for the witness, the complainant, or victim, the respondent, and the university.

If a witness does not appear for a scheduled hearing, the hearing panel chair may decide whether to delay the hearing, pending the witness's testimony. So that's one part, but there is another part. And actually I just don't have that right in front of me, as Joe was referring, to that does on discuss the ability to compel somebody to testify.