Fall 2020 Proposed Amendments to the Campus Code of Conduct

PUBLIC FORUM VIDEO AND TRANSCRIPTS (11/12/2020)


The University Assembly was charged by the President to review the following recommended changes that were a result of the Presidential Task Force on Campus Climate:

  • Reworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone.
  • Significantly simplifying the Code and having it use “plain English”.
  • Narrowing its focus to students.
  • Separating standards of behavior from administrative procedures for managing misconduct.
  • Simplifying the administrative procedures.
  • Expanding the treatment of Harassment.
  • Permitting enhanced penalties for Harassment or Assault that are motivated by bias.
  • Considering moving less serious types of misconduct to the Office of the Dean of Students for resolution.

The Office of University Counsel has considered these recommendations into the proposals posted here for public comment. While reviewing these proposals, we ask that you keep these recommended changes in mind:

  • Do you agree or disagree with these changes?
  • Do you think the Office of University Counsel incorporated these changes well into its proposals or did it not go far enough with incorporating some of these changes?
  • Are there changes that aren't part of that list that you think we should consider as well?

All of your comments will help create a better Code for our community. Review and public comment by the Cornell community are welcomed and encouraged. The deadline for submitting feedback and comments is 5:00 PM EST on Tuesday, November 17, 2020.

**At its concluding meeting in the spring of 2020, the UA asked University Counsel to draft a new version of a Student Code of Conduct and associated procedures that would reflect input from several entities that had worked on versions over the past two years.  The newly posted documents reflect Counsel’s work reconciling these different versions and approaches and explicitly invite campus input on numerous issues, including what standard of evidence the community believes should be applied to cases arising under the Student Code of Conduct.


 
The items below are related to the substantive section of the Code revision. 

The items below are related to the procedural section of the Code revision.


This page contains comments posted by members of the Cornell community pertaining to General Comments in the current and proposed Campus Code and judicial system. Before posting to this forum, please read the comments below to make sure that the information you are providing is pertinent to the discussion and has not already been addressed before. Comments containing inappropriate language, including but not limited to offensive, profane, vulgar, threatening, harassing, or abusive language, are subject to removal.

Review and public comment by the Cornell community are welcomed and encouraged. The deadline for submitting feedback and comments is 5:00 PM EST on Tuesday, November 17, 2020.

Comments

** Commenting is closed.

Protecting Free Speech

Submitted by Joseph Israel Silverstein on Tue, 2020-11-17 16:59

It is essential to protect freedom of speech on campus. I am deeply concerned that the proposed changes will limit free speech and empower the university to punish individuals and organizations that espouse controversial positions. Ensuring the free exchange of ideas should be the priority of any and all institutions of higher education.

Detailed Comments of the Undersigned Greek Alumni

Submitted by Robert C. Platt, Esq on Tue, 2020-11-17 16:57

We thank the University Assembly and its Codes and Judicial Committee for providing the important opportunity to comment.  We favor the currently effective Campus Code of Conduct over the draft presented by the University Counsel (UC).

 

1.         Burden of Proof

 

The current code requires the charges to be proven with clear and convincing evidence.  If clear and convincing evidence does not exist, the complaint can be summarily dismissed in the respondent’s favor.  The UC proposal does not recommend either clear and convincing or the much weaker “preponderance of the evidence” standard, leaving the choice to the community.  We support the “clear and convincing” standard because 1) it discourages frivolous complaints, 2) it protects against wrongly convicting an innocent student and significantly impacting their future, and 3) it (or the higher “proof beyond a reasonable doubt” standard) has been used effectively since the early 1970s.

 

2.         The Judicial System Should Promote Freedom of Association and Not Overreach

 

The UC draft would drastically expand the scope of the Judicial System to its detriment.  At present, Cornell has several adjudicatory mechanisms to handle different types of disputes in a well-tailored manner.  First, the New York State-mandated Rules of the Maintenance of Public Order and associated serious violations are handled by the Campus Code of Conduct and the Judicial System managed by the University Assembly (UA).  The Campus Code applies equally to students, faculty and staff.  Second, sexual and certain other harassment of minority groups are handled under Policy 6.4.  Third, academic misconduct is handled under codes managed by the Faculty Senate and the Dean of the Faculty.  Fourth, low-level violations that stem from living together are handled by internal Judicial Boards enforcing the House Rules of living units and dorms.  (This category probably has the highest total case load.)  Fifth, since October 2019, registered student organizations, fraternities and sororities have a separate hearing board to address organizational misconduct and sanctions.  Finally, the IFC and PanHel have a Greek Judicial Board to adjudicate their self-imposed rules on recruitment, philanthropy and other standards.

 

By far, the greatest stigma is attached to being called before the Judicial Administrator for a violation of the Campus Code of Conduct.  Even if the transcript notation is later erased, employers, graduate schools, and state regulators of professions and security clearances ask if the applicant has ever been involved in such conduct cases, so for honest alumni, the stigma remains long past the notation.  That sort of stigma does not attach to adjudication of dorm House Rules.  The UC draft is a very hasty attempt to sweep a wider set of conduct under a single Student Code.  The expansion of scope is unsuitable for Cornell for several reasons:

a) An All-encompassing List of Offenses Overlap with Other Bodies

The UC’s proposed Section 4.21 would add as an offense, “Violation of any federal, state, or local law, regulation, or ordinance.”  The Campus Code of Conduct has worked successfully for 50 years without such an all-encompassing provision.  If the UA had noticed an offense that needed to be added, they could have added it to the current code expressly.  Of course, some of these laws and regulations are no longer being enforced.  For many years, advances in LGBTQ rights were made by judicial nullification of laws on the books, yet those laws stayed on the books unenforced for decades, and yet the UC proposal would have Cornell accept complaints based on laws courts will not enforce.  Other of these regulations are already covered by Policy 6.4.  Because the UC’s proposal does not define which organizations that are not registered student organizations are subject to the Code, it could be that Ithaca and Cayuga Heights zoning ordinances and building codes would become enforceable against Student Agencies as Student Code of Conduct violations.  Similarly, Section 4.21 could enforce federal financial and securities regulations against student investment clubs.  Graduate students seeking to organize a union would be subject to complaints under the Student Code in addition to direct regulation by the NLRB.  UA or SA rules on campaigning would be enforced under the Student Code in addition to the appropriate elections committees.  

 

This is an unworkable nightmare.  The Henderson Law, NYS Education Law § 6430, requires Cornell to adopt “written rules” and to provide a “copy of such rules” to each student.  If Cornell is serious about enforcing every single law (codified or unconsolidated), regulation and ordinance against every student, it would have to ship a full law library to each student. Every student would then have to be prepared to defend against formal complaints based on any law or regulation, and the UHB and URB would need greater expertise than the US Supreme Court to adjudicate those varied complaints.   For 50 years the UA has carefully crafted a list of violations in the Campus Code that Cornell has a legitimate interest in enforcing, particularly to maintain the public order.  Proposed Section 4.21 should be deleted.

 

b) The Student Codes Should Not Have Jurisdiction Over Fraternities and Sororities

As noted, since October 2019, fraternities and sororities have been regulated under a new judicial mechanism that appears to be functioning well without the need for duplicate regulation under the proposed UC draft.  So, there is no need for the UC’s draft to expand the Campus Code to cover all Greek Houses.  As with other living units, fraternities and sororities should continue to process low-level complaints through in-house judicial boards.  

 

c) Cornell Can’t Effectively Regulate Defunct Organizations

The current Campus Code does not have jurisdiction over disbanded or defunct organizations.

As a part of its proposal to widely expand jurisdiction, proposed Section 4.13 seeks to punish students who want to join organizations that a complainant believes are related to groups that have officially disbanded.  This may result from offenses that occurred years before the accused student came to Cornell.  The drafters realized the difficulty by adding the sentence, “This applies to organizations that were created by members of a de-recognized organization in an attempt to continue its presence on campus.” Of course, in almost every case there is no attempt to continue an “on campus” presence.  The problem is that in most cases, once a group gets into trouble, its leadership resigns and the group disbands, yet the students remain on campus and continue to associate at friends or on the same sports teams.  In the case of registered student organizations, the organization can dissolve and essentially the same group of people have the right to form a new organization under a new name the next day (without filing a full membership list with Cornell.)  In the case of fraternities, each member will remain a life-long member of the national organization (which is beyond Cornell’s jurisdiction.)  If a student group is incorporated, at any time new corporations can be created that are legally separate from the earlier group.  Well-recognized freedom of association limits Cornell’s ability to stop this or even to prove that the new groups are the same as the groups that were disbanded. It will also be rare that Cornell could prove that an accused student “knowingly affiliated” with the banned group when he or she joined the new group.  Since this unenforceable provision is of questionable legality, we recommend its deletion.

d) The Student Code Should Not Have Jurisdiction Over Long-Term Contracts

The last bullet of Section 4.13 states, “Student groups or organizations (including fraternities and sororities) that engage in prohibited activities as defined under this Code, or that breach their formal agreements with the university for registration or recognition, may be held accountable under this Code and associated procedures.”  Again, given that Section 4.21 makes any law or ordinance violation a “prohibited activity” under this code, this sentence is clearly an overreach.  The UC proposal fails to define “student groups or organizations” other than stating that fraternities and sororities are included.  The current Campus Code is clear -- if a student group registers, it gets the benefits of registration, but subjects itself to the Campus Code.  The UC proposal would leave each organization guessing until its jurisdiction is adjudicated by the UHB and URB.  There are millions of dollars at stake here.  Most fraternity housing contracts are with alumni groups, and many fraternity alumni also have entered into deferred giving agreements. Disputes under these contracts should be adjudicated in real courts and not subject to the whim of any person who wishes to file a complaint under the proposed Student Code.

 

e) Strict Vicarious Liability for Member Violations

 

The UC draft does not address when and to what extent an organization can be held responsible for the actions of individual members.  

 

Worse, the last sentence of the first bullet of proposed Section 4.13 provides, “known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.” This sentence imposes a strict vicarious liability upon any Cornell student for any Code violation of an “unrecognized student group” even if the accused student did not play a role in the violation. Such “guilt-by-association” serves no valid purpose.

 

f) Single Gender Organizations Should Remain Lawful

The second bullet of 4.13 would also prohibit, “To use age, race, ethnicity, creed, color, national origin, sexual orientation, military status, political affiliation, sex, gender identity or expression, disability, predisposing genetic characteristics, familial status, or marital status as a basis for exclusion from university or group activities on campus, except as permitted by University policy in accordance with federal law.” This is too vague.  We request that the Code specifically state that single gender organizations will remain lawful.

 

 3. Right to Counsel

Cornell’s current Code protects a student’s “right to be advised and accompanied at every stage by an individual of the accused’s choice”.  Restricting the participation or role of counsel violates the student’s rights to due process and fairness.  Counsel could be the Judicial Codes Counselor, a private attorney, or a parent or alumnus.  The procedures should require the respondent receive written notice of his right to counsel and that notice and the right to counsel should attach before the Respondent’s first interview with the Director or an Investigator.  Counsel should be allowed to question witnesses and to participate actively in the hearings.

4. Off-Campus Conduct

First, the Code should carefully define the “campus” and include a map to make it clear.  Section 2(1) of the UC draft defines the campus as “property and space owned, leased, used, or controlled by Cornell; it also includes streets, sidewalks, and pathways adjacent to or in the immediate vicinity of the Cornell campus or property.”  Section 3(A) then expands jurisdiction to include  “the property of a University-related residential organization” which needs to be defined.  The definition of campus in proposed Section 2(1) is also too vague.  How long a distance is meant by “immediate vicinity”?  Students need a clear line regarding the jurisdictional scope.  We assume that privately owned houses or apartments are not a part of the campus, even if all the residents of a building are Cornell students.  We also understand that “space owned, leased, used, or controlled by” a student organization or student-alumni group residence is not part of the campus, because only Cornell controlled spaces are. An official “campus boundary” map should be published and distributed with the Code so that there are no after-the-fact surprises.  This same map should be used to determine when campus protests are subject to Cornell regulation or are subject to the permitting requirements of Cayuga Heights or the City of Ithaca.

On-campus conduct and off-campus conduct have different impacts.  Extending the “campus” definition to cover the academic campus, university-related housing, and other locations makes it impossible to draw any distinctions based on the context.  Further, Section 3(A) contemplates extending jurisdiction to off-campus if the conduct poses a “substantial threat.”  This exception should be rare and applied in a non-political manner.  It should not be based upon potential harm to Cornell’s “reputation” (which was added in the UC draft.)  We believe that the Director should make the initial decision to charge off-campus action subject to the hearing panel finding the student “responsible” for the off-campus conduct.  University administrators should not participate in the decision to charge off-campus conduct.  To add to this confusion, the proposal as drafted then attempts to put residential organizations entirely within the scope of the Code regardless of whether the conduct fits the substantial threat test.  The Code should treat all student groups equally, whether they are a living unit or not.

5. Interim Suspensions of Organizations

The current Campus Code provides for a suspension of a registered organization while a case is pending “[i]n extraordinary circumstances and for the purpose of ensuring public order and safety….”  Organization suspensions are very problematic because even when the violations of individual members are easy to establish, the degree to which the violations can be attributed to an organization is difficult to prove.  For example, suppose a student assaults a second student.  If both students are in the same organization, what criteria should be used to impute the organization’s accountability?  UC’s proposed Section 8.1 lists a number of factors and privileges that can be removed on an interim basis, but only lists suspension of recognition or registration for organizations.  Again, given that undergraduates avoid trouble, the most common reaction of an organization to being JA’ed is to disband even before an interim suspension is ordered. 

To the extent that Proposed Section 8.1 takes a respondent’s prior record into account when issuing an interim suspension, there should be a time limit on the consideration of the organization’s record. For example, no record entries more than 3 years in the past should be relevant, because organization membership turns over approximately once every three years,

UC’s proposed Section 8.2 specifies that interim suspensions are reviewable by the Vice President for Student and Campus Life.  A better review avenue would be the University Review Board.

 

6. Transparent Enforcement Focused on Fairness for All

When the Campus Code of Conduct and the judicial procedures were instituted in the early 1970s, the Office of the Judicial Administrator and the Judicial Advisor (now the JCC) were established separate from the Central Administration.  There was a concern that Cornell’s conduct regulation would be influenced by the political impact of news coverage or following the Kirkpatrick Sale case[1] that the Trustees or the President might put a thumb on the scales of Cornell justice. Hence, the present structure has these offices function independently of the Administration.  The UA and its Codes and Judicial Committee are the non-Administration contact for the system.  These are mature groups that include a balance of students, faculty and staff.  It is a big mistake to shift this role to a combination of the SA, OSA and Graduate and Professional Student Assembly.

Although the draft would have the Director as directly under the Vice President on the organization chart, the draft would also give certain roles to the Dean of Students.  This is confusing.  We suggest that the roles given to the Dean of Students in the current UC draft be eliminated and that all discipline be consolidated under the Director who in turn will report to the normal administration channels.

The current Campus Code can be amended by the UA subject to a Presidential veto.  There is no amendment process in the UC’s draft.  We believe that the UA remains the best campus group to shepherd the Code over time.

7.         Harassment

Currently, the Campus Code defines harassment very narrowly in terms of the interaction of two individuals.  Policy 6.4 (as of August 14, 2020) has two different definitions of harassment, the first dealing with sexual harassment and the second with harassment based upon sex or gender.  The UC’s draft expands the Campus Code definition to include a “hostile environment” but without including the reforms that became effective on August 14.

 

We believe that Policy 6.4 should be the lead venue for processing complaints relating to sexual harassment or harassment based upon a characteristic or status.  Accordingly, just the current narrow definition in the Campus Code should be used.

Both New York State law and Department of Education regulations give important procedural protections to students in this area, and this area does not lend itself to the “one size fits all” approach that the UC’s draft takes toward every aspect of student misconduct.  The same conduct system cannot successfully handle both serious sexual harassment along with stealing a sandwich out of the dorm refrigerator.

 

8.         Statute of Limitations

The current Campus Code has a one-year statute of limitations, subject to an extension of the accused is on a leave of absence or if the violation was fraudulently concealed.  The UC’s proposed Section 5 allows complaints to be filed so long as the student remains a student and even the student graduates or leaves Cornell, if a remedy can be obtained.  For organizations, there is no limit, and if the organization dissolves, new charges can continue to be filed “is deemed to be operating, even without approval or recognition.”  Again, this is over-reaching.  After 12-months, the facts become more difficult to determine and witnesses are harder to locate.  We recommend the time limit in the current Campus Code for both individuals and organizations.

 

9.         Good Samaritan Policy

In 2011, New York State adopted a Good Samaritan law that prevents arrests, charging and prosecution for misdemeanor amounts of controlled substances. McKinney's N.Y. Penal Law § 220.78.1. The North American Interfraternity Conference (NIC) has adopted a requirement for a Good Samaritan Policy by each of its member organizations.[2] This policy has also been adopted by Cornell’s Greek life system: Cornell Health also publicizes a protocol.[3]

 

It is imperative that chapters call 911 immediately if any individual at the event appears severely intoxicated and/or impaired, is having an adverse reaction to drugs or alcohol, or has sustained an injury while drinking or using other drugs. Under Cornell’s Good Samaritan Policy, individuals that call for help and those that receive help in an alcohol or drug related emergency are protected from individual judicial consequences. Calling 911 in such circumstances may also be a consideration as a mitigating factor in an organizational misconduct case.[4]

 

Accordingly, “Section 3 Scope and Provisions” should be amended to add a new Section 3(D) stating the Good Samaritan policy as applicable to all Cornell students under the Code. Students involved in an on-campus emergency should be accorded at least the same Good Samaritan rights as New York law affords off-campus emergencies. For this to work, students must be confident that their 911 call will not affect their disciplinary records or any “scorecard” published by Cornell. Any doubt will make students hesitate to summon necessary medical help, with resulting avoidable harm. The handling of health emergencies is an excellent example of how the system can be made educational rather than punitive.

 

===Footnotes==

[1]Trustee Minutes 1957-58 pages 3316, 3327 and 3330.

2 https://nicfraternity.org/medical-good-samaritan-policy/

3  Good Samaritan Protocol  https://health.cornell.edu/resources/health-topics/alcohol-other-drugs/good-sam

4 Cornell University Sorority and Fraternity Life Risk Management and Social Event Policy (January 21, 2020), https://scl.cornell.edu/sites/scl/files/documents/Risk%20Management%20an...

 

/s/ signed

David Chipurnoi ’00, Alpha Epsilon Pi, Alumni Class of 2000 Council President 

Mark Clemente ’73, Alumni Director and General Counsel, Delta Upsilon Fraternity

H. William Fogle, Jr., ’70, ΔX of ΔKE

Michael Furman, ’79 President, Delta Chi Association, ΔKE

Glenn R. George, PhD, C’82 President, Epsilon Association, Inc. (on behalf of both the undergraduate and alumni chapters of Sigma Phi)

Rich Kauffeld, 80   Alpha Psi of Chi Psi Corporation President

Bob Linden '71 (A&S), '75 (Cornell Medical College), Sigma Nu

Richard Meigs ’80 Lambda Chi Alpha alumni president

Whinfield Melville  '63, Treasurer of the Corporation Board. Alpha Sigma Phi

Chris Nieves ’11 President, Beta Charge of Theta Delta Chi Inc

Dennis Paese ‘73, Chapter Advisor, Sigma Alpha Mu Fraternity

Jeff Perry '89 Alpha Zeta 

William Page CU ’85  and ’86, Pi Kappa Alpha President

Robert C Platt ’73, Immediate Past President, Delta Chi Association, ΔKE

Lee Reed '71, Delta Chi

Matt Roberts ’98, President, Gamma Chapter House Association (Phi Sigma Kappa) 

Mathew Tabacco, '09, '10 Seal and Serpent Alumni President

David Weber '68, Delta Chi

Bill Wickham '86, Alpha Gamma Rho - member, alumni board of trustees

 

 

 

Strongly oppose. Protect student rights.

Submitted by Anonymous authenticated user on Tue, 2020-11-17 16:56 (user name hidden)

I escaped my home country 6 years ago. I fought armed border guards with my bare hands (God rest their souls). I am seeing the same disrespect of rights at Cornell that I saw in my home country. Lowering the burden of proof is dangerous. The excuses the admin make are phony and are much like the arguments made in my country. But oh it will protect citizens...It is is good for the people. LIES! The new changes only benefit the administration. This is not the People's Court. There is a reason why real courts are are set up the way they are. We are on our way to a kangaroo court. Shame on these proposed changes!

Detailed Comments of the Undersigned Greek Alumni

Submitted by Robert C. Platt, Esq on Tue, 2020-11-17 16:52

We thank the University Assembly and its Codes and Judicial Committee for providing the important opportunity to comment.  We favor the currently effective Campus Code of Conduct over the draft presented by the University Counsel (UC).

1.         Burden of Proof

The current code requires the charges to be proven with clear and convincing evidence.  If clear and convincing evidence does not exist, the complaint can be summarily dismissed in the respondent’s favor.  The UC proposal does not recommend either clear and convincing or the much weaker “preponderance of the evidence” standard, leaving the choice to the community.  We support the “clear and convincing” standard because 1) it discourages frivolous complaints, 2) it protects against wrongly convicting an innocent student and significantly impacting their future, and 3) it (or the higher “proof beyond a reasonable doubt” standard) has been used effectively since the early 1970s.

2.         The Judicial System Should Promote Freedom of Association and Not Overreach

The UC draft would drastically expand the scope of the Judicial System to its detriment.  At present, Cornell has several adjudicatory mechanisms to handle different types of disputes in a well-tailored manner.  First, the New York State-mandated Rules of the Maintenance of Public Order and associated serious violations are handled by the Campus Code of Conduct and the Judicial System managed by the University Assembly (UA).  The Campus Code applies equally to students, faculty and staff.  Second, sexual and certain other harassment of minority groups are handled under Policy 6.4.  Third, academic misconduct is handled under codes managed by the Faculty Senate and the Dean of the Faculty.  Fourth, low-level violations that stem from living together are handled by internal Judicial Boards enforcing the House Rules of living units and dorms.  (This category probably has the highest total case load.)  Fifth, since October 2019, registered student organizations, fraternities and sororities have a separate hearing board to address organizational misconduct and sanctions.  Finally, the IFC and PanHel have a Greek Judicial Board to adjudicate their self-imposed rules on recruitment, philanthropy and other standards.

By far, the greatest stigma is attached to being called before the Judicial Administrator for a violation of the Campus Code of Conduct.  Even if the transcript notation is later erased, employers, graduate schools, and state regulators of professions and security clearances ask if the applicant has ever been involved in such conduct cases, so for honest alumni, the stigma remains long past the notation.  That sort of stigma does not attach to adjudication of dorm House Rules.  The UC draft is a very hasty attempt to sweep a wider set of conduct under a single Student Code.  The expansion of scope is unsuitable for Cornell for several reasons:

  1. An All-encompassing List of Offenses Overlap with Other Bodies

The UC’s proposed Section 4.21 would add as an offense, “Violation of any federal, state, or local law, regulation, or ordinance.”  The Campus Code of Conduct has worked successfully for 50 years without such an all-encompassing provision.  If the UA had noticed an offense that needed to be added, they could have added it to the current code expressly.  Of course, some of these laws and regulations are no longer being enforced.  For many years, advances in LGBTQ rights were made by judicial nullification of laws on the books, yet those laws stayed on the books unenforced for decades, and yet the UC proposal would have Cornell accept complaints based on laws courts will not enforce.  Other of these regulations are already covered by Policy 6.4.  Because the UC’s proposal does not define which organizations that are not registered student organizations are subject to the Code, it could be that Ithaca and Cayuga Heights zoning ordinances and building codes would become enforceable against Student Agencies as Student Code of Conduct violations.  Similarly, Section 4.21 could enforce federal financial and securities regulations against student investment clubs.  Graduate students seeking to organize a union would be subject to complaints under the Student Code in addition to direct regulation by the NLRB.  UA or SA rules on campaigning would be enforced under the Student Code in addition to the appropriate elections committees.  

This is an unworkable nightmare.  The Henderson Law, NYS Education Law § 6430, requires Cornell to adopt “written rules” and to provide a “copy of such rules” to each student.  If Cornell is serious about enforcing every single law (codified or unconsolidated), regulation and ordinance against every student, it would have to ship a full law library to each student. Every student would then have to be prepared to defend against formal complaints based on any law or regulation, and the UHB and URB would need greater expertise than the US Supreme Court to adjudicate those varied complaints.   For 50 years the UA has carefully crafted a list of violations in the Campus Code that Cornell has a legitimate interest in enforcing, particularly to maintain the public order.  Proposed Section 4.21 should be deleted.

  1. The Student Codes Should Not Have Jurisdiction Over Fraternities and Sororities

As noted, since October 2019, fraternities and sororities have been regulated under a new judicial mechanism that appears to be functioning well without the need for duplicate regulation under the proposed UC draft.  So, there is no need for the UC’s draft to expand the Campus Code to cover all Greek Houses.  As with other living units, fraternities and sororities should continue to process low-level complaints through in-house judicial boards.  

  1. Cornell Can’t Effectively Regulate Defunct Organizations

The current Campus Code does not have jurisdiction over disbanded or defunct organizations.

As a part of its proposal to widely expand jurisdiction, proposed Section 4.13 seeks to punish students who want to join organizations that a complainant believes are related to groups that have officially disbanded.  This may result from offenses that occurred years before the accused student came to Cornell.  The drafters realized the difficulty by adding the sentence, “This applies to organizations that were created by members of a de-recognized organization in an attempt to continue its presence on campus.” Of course, in almost every case there is no attempt to continue an “on campus” presence.  The problem is that in most cases, once a group gets into trouble, its leadership resigns and the group disbands, yet the students remain on campus and continue to associate at friends or on the same sports teams.  In the case of registered student organizations, the organization can dissolve and essentially the same group of people have the right to form a new organization under a new name the next day (without filing a full membership list with Cornell.)  In the case of fraternities, each member will remain a life-long member of the national organization (which is beyond Cornell’s jurisdiction.)  If a student group is incorporated, at any time new corporations can be created that are legally separate from the earlier group.  Well-recognized freedom of association limits Cornell’s ability to stop this or even to prove that the new groups are the same as the groups that were disbanded. It will also be rare that Cornell could prove that an accused student “knowingly affiliated” with the banned group when he or she joined the new group.  Since this unenforceable provision is of questionable legality, we recommend its deletion.

 

  1. The Student Code Should Not Have Jurisdiction Over Long-Term Contracts

The last bullet of Section 4.13 states, “Student groups or organizations (including fraternities and sororities) that engage in prohibited activities as defined under this Code, or that breach their formal agreements with the university for registration or recognition, may be held accountable under this Code and associated procedures.”  Again, given that Section 4.21 makes any law or ordinance violation a “prohibited activity” under this code, this sentence is clearly an overreach.  The UC proposal fails to define “student groups or organizations” other than stating that fraternities and sororities are included.  The current Campus Code is clear -- if a student group registers, it gets the benefits of registration, but subjects itself to the Campus Code.  The UC proposal would leave each organization guessing until its jurisdiction is adjudicated by the UHB and URB.  There are millions of dollars at stake here.  Most fraternity housing contracts are with alumni groups, and many fraternity alumni also have entered into deferred giving agreements. Disputes under these contracts should be adjudicated in real courts and not subject to the whim of any person who wishes to file a complaint under the proposed Student Code.

 

  1. Strict Vicarious Liability for Member Violations

The UC draft does not address when and to what extent an organization can be held responsible for the actions of individual members.  

Worse, the last sentence of the first bullet of proposed Section 4.13 provides, “known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.” This sentence imposes a strict vicarious liability upon any Cornell student for any Code violation of an “unrecognized student group” even if the accused student did not play a role in the violation. Such “guilt-by-association” serves no valid purpose.

f) Single Gender Organizations Should Remain Lawful

The second bullet of 4.13 would also prohibit, “To use age, race, ethnicity, creed, color, national origin, sexual orientation, military status, political affiliation, sex, gender identity or expression, disability, predisposing genetic characteristics, familial status, or marital status as a basis for exclusion from university or group activities on campus, except as permitted by University policy in accordance with federal law.” This is too vague.  We request that the Code specifically state that single gender organizations will remain lawful.

 3. Right to Counsel

Cornell’s current Code protects a student’s “right to be advised and accompanied at every stage by an individual of the accused’s choice”.  Restricting the participation or role of counsel violates the student’s rights to due process and fairness.  Counsel could be the Judicial Codes Counselor, a private attorney, or a parent or alumnus.  The procedures should require the respondent receive written notice of his right to counsel and that notice and the right to counsel should attach before the Respondent’s first interview with the Director or an Investigator.  Counsel should be allowed to question witnesses and to participate actively in the hearings.

4. Off-Campus Conduct

First, the Code should carefully define the “campus” and include a map to make it clear.  Section 2(1) of the UC draft defines the campus as “property and space owned, leased, used, or controlled by Cornell; it also includes streets, sidewalks, and pathways adjacent to or in the immediate vicinity of the Cornell campus or property.”  Section 3(A) then expands jurisdiction to include  “the property of a University-related residential organization” which needs to be defined.  The definition of campus in proposed Section 2(1) is also too vague.  How long a distance is meant by “immediate vicinity”?  Students need a clear line regarding the jurisdictional scope.  We assume that privately owned houses or apartments are not a part of the campus, even if all the residents of a building are Cornell students.  We also understand that “space owned, leased, used, or controlled by” a student organization or student-alumni group residence is not part of the campus, because only Cornell controlled spaces are. An official “campus boundary” map should be published and distributed with the Code so that there are no after-the-fact surprises.  This same map should be used to determine when campus protests are subject to Cornell regulation or are subject to the permitting requirements of Cayuga Heights or the City of Ithaca.

On-campus conduct and off-campus conduct have different impacts.  Extending the “campus” definition to cover the academic campus, university-related housing, and other locations makes it impossible to draw any distinctions based on the context.  Further, Section 3(A) contemplates extending jurisdiction to off-campus if the conduct poses a “substantial threat.”  This exception should be rare and applied in a non-political manner.  It should not be based upon potential harm to Cornell’s “reputation” (which was added in the UC draft.)  We believe that the Director should make the initial decision to charge off-campus action subject to the hearing panel finding the student “responsible” for the off-campus conduct.  University administrators should not participate in the decision to charge off-campus conduct.  To add to this confusion, the proposal as drafted then attempts to put residential organizations entirely within the scope of the Code regardless of whether the conduct fits the substantial threat test.  The Code should treat all student groups equally, whether they are a living unit or not.

5. Interim Suspensions of Organizations

The current Campus Code provides for a suspension of a registered organization while a case is pending “[i]n extraordinary circumstances and for the purpose of ensuring public order and safety….”  Organization suspensions are very problematic because even when the violations of individual members are easy to establish, the degree to which the violations can be attributed to an organization is difficult to prove.  For example, suppose a student assaults a second student.  If both students are in the same organization, what criteria should be used to impute the organization’s accountability?  UC’s proposed Section 8.1 lists a number of factors and privileges that can be removed on an interim basis, but only lists suspension of recognition or registration for organizations.  Again, given that undergraduates avoid trouble, the most common reaction of an organization to being JA’ed is to disband even before an interim suspension is ordered. 

To the extent that Proposed Section 8.1 takes a respondent’s prior record into account when issuing an interim suspension, there should be a time limit on the consideration of the organization’s record. For example, no record entries more than 3 years in the past should be relevant, because organization membership turns over approximately once every three years,

UC’s proposed Section 8.2 specifies that interim suspensions are reviewable by the Vice President for Student and Campus Life.  A better review avenue would be the University Review Board.

6. Transparent Enforcement Focused on Fairness for All

When the Campus Code of Conduct and the judicial procedures were instituted in the early 1970s, the Office of the Judicial Administrator and the Judicial Advisor (now the JCC) were established separate from the Central Administration.  There was a concern that Cornell’s conduct regulation would be influenced by the political impact of news coverage or following the Kirkpatrick Sale case[1] that the Trustees or the President might put a thumb on the scales of Cornell justice. Hence, the present structure has these offices function independently of the Administration.  The UA and its Codes and Judicial Committee are the non-Administration contact for the system.  These are mature groups that include a balance of students, faculty and staff.  It is a big mistake to shift this role to a combination of the SA, OSA and Graduate and Professional Student Assembly.

Although the draft would have the Director as directly under the Vice President on the organization chart, the draft would also give certain roles to the Dean of Students.  This is confusing.  We suggest that the roles given to the Dean of Students in the current UC draft be eliminated and that all discipline be consolidated under the Director who in turn will report to the normal administration channels.

The current Campus Code can be amended by the UA subject to a Presidential veto.  There is no amendment process in the UC’s draft.  We believe that the UA remains the best campus group to shepherd the Code over time.

7.         Harassment

Currently, the Campus Code defines harassment very narrowly in terms of the interaction of two individuals.  Policy 6.4 (as of August 14, 2020) has two different definitions of harassment, the first dealing with sexual harassment and the second with harassment based upon sex or gender.  The UC’s draft expands the Campus Code definition to include a “hostile environment” but without including the reforms that became effective on August 14.

We believe that Policy 6.4 should be the lead venue for processing complaints relating to sexual harassment or harassment based upon a characteristic or status.  Accordingly, just the current narrow definition in the Campus Code should be used.

Both New York State law and Department of Education regulations give important procedural protections to students in this area, and this area does not lend itself to the “one size fits all” approach that the UC’s draft takes toward every aspect of student misconduct.  The same conduct system cannot successfully handle both serious sexual harassment along with stealing a sandwich out of the dorm refrigerator.

8.         Statute of Limitations

The current Campus Code has a one-year statute of limitations, subject to an extension of the accused is on a leave of absence or if the violation was fraudulently concealed.  The UC’s proposed Section 5 allows complaints to be filed so long as the student remains a student and even the student graduates or leaves Cornell, if a remedy can be obtained.  For organizations, there is no limit, and if the organization dissolves, new charges can continue to be filed “is deemed to be operating, even without approval or recognition.”  Again, this is over-reaching.  After 12-months, the facts become more difficult to determine and witnesses are harder to locate.  We recommend the time limit in the current Campus Code for both individuals and organizations.

9.         Good Samaritan Policy

In 2011, New York State adopted a Good Samaritan law that prevents arrests, charging and prosecution for misdemeanor amounts of controlled substances. McKinney's N.Y. Penal Law § 220.78.1. The North American Interfraternity Conference (NIC) has adopted a requirement for a Good Samaritan Policy by each of its member organizations.[2] This policy has also been adopted by Cornell’s Greek life system: Cornell Health also publicizes a protocol.[3]

It is imperative that chapters call 911 immediately if any individual at the event appears severely intoxicated and/or impaired, is having an adverse reaction to drugs or alcohol, or has sustained an injury while drinking or using other drugs. Under Cornell’s Good Samaritan Policy, individuals that call for help and those that receive help in an alcohol or drug related emergency are protected from individual judicial consequences. Calling 911 in such circumstances may also be a consideration as a mitigating factor in an organizational misconduct case.[4]

Accordingly, “Section 3 Scope and Provisions” should be amended to add a new Section 3(D) stating the Good Samaritan policy as applicable to all Cornell students under the Code. Students involved in an on-campus emergency should be accorded at least the same Good Samaritan rights as New York law affords off-campus emergencies. For this to work, students must be confident that their 911 call will not affect their disciplinary records or any “scorecard” published by Cornell. Any doubt will make students hesitate to summon necessary medical help, with resulting avoidable harm. The handling of health emergencies is an excellent example of how the system can be made educational rather than punitive.

===Footnotes==

[1]Trustee Minutes 1957-58 pages 3316, 3327 and 3330.

2 https://nicfraternity.org/medical-good-samaritan-policy/

3  Good Samaritan Protocol  https://health.cornell.edu/resources/health-topics/alcohol-other-drugs/good-sam

4 Cornell University Sorority and Fraternity Life Risk Management and Social Event Policy (January 21, 2020), https://scl.cornell.edu/sites/scl/files/documents/Risk%20Management%20an...

 

/s/ signed

David Chipurnoi ’00, Alpha Epsilon Pi, Alumni Class of 2000 Council President 

Mark Clemente ’73, Alumni Director and General Counsel, Delta Upsilon Fraternity

H. William Fogle, Jr., ’70, ΔX of ΔKE

Michael Furman, ’79 President, Delta Chi Association, ΔKE

Glenn R. George, PhD, C’82 President, Epsilon Association, Inc. (on behalf of both the undergraduate and alumni chapters of Sigma Phi)

Rich Kauffeld, 80   Alpha Psi of Chi Psi Corporation President

Bob Linden '71 (A&S), '75 (Cornell Medical College), Sigma Nu

Richard Meigs ’80 Lambda Chi Alpha alumni president

Whinfield Melville  '63, Treasurer of the Corporation Board. Alpha Sigma Phi

Chris Nieves ’11 President, Beta Charge of Theta Delta Chi Inc

Dennis Paese ‘73, Chapter Advisor, Sigma Alpha Mu Fraternity

Jeff Perry '89 Alpha Zeta 

William Page CU ’85  and ’86, Pi Kappa Alpha President

Robert C Platt ’73, Immediate Past President, Delta Chi Association, ΔKE

Lee Reed '71, Delta Chi

Matt Roberts ’98, President, Gamma Chapter House Association (Phi Sigma Kappa) 

Mathew Tabacco, '09, '10 Seal and Serpent Alumni President

David Weber '68, Delta Chi

Bill Wickham '86, Alpha Gamma Rho - member, alumni board of trustees

Executive Summary Comments of Undersigned Greek Alumni

Submitted by Robert C. Platt, Esq on Tue, 2020-11-17 16:46

We thank the University Assembly and the Codes and Judicial Committee for providing this important opportunity to comment.  We are stating our main conclusions here with our full justification filed separately.  In general, we favor the currently effective Campus Code of Conduct over the draft presented by the University Counsel (UC).  We view the UC proposal as an incomplete solution which tries to impose a one-size-fits-all system upon the wide spectrum of student conduct while leaving unaddressed faculty and staff political activity.  Meanwhile, the UC draft over-reaches to extend potential jurisdiction over arbitrary off-campus conduct and over any law, regulation or local ordinance.

1 Standard of Proof: The "clear and convincing" standard in the current Code offers much better protection against false accusations than does the proposed "preponderance of the evidence," especially when a student’s entire future could be at stake.

2. Limit Scope to Registered Student Organizations. The current Code applies only to registered student organizations, but the UC proposal would also apply to living units (including fraternities and sororities) and unrecognized groups.  Jurisdiction should be clearly defined now rather than an after-the-fact surprise following an accusation of misconduct.  The current Code is much better and fairer.

3. The reason offered for wide expansion of the scope of the proposed Code is that it will have "educational value."  This "one size fits all" approach is inconsistent with Cornell's traditions and the best interests of its students.  Many residence halls and living units have their own in-house judicial systems which should not be subsumed under the proposed mechanism.  There is a terrible stigma attached to any student who is JA'ed.  People are asked about whether they were JA'ed when they apply for jobs, graduate school, and/or security clearances and must answer even if the notation is lifted from a transcript later.  By combining "educational" low-impact violations into the same system that handles serious misconduct, Cornell is needlessly labeling students whose violations should be handled by low-key in-house J-Boards.

4. Any system that is given the power to impose sanctions upon organizations must have clear criteria for when misconduct by individual members can be attributed to the entire organization.  The UC’s draft lacks clarity on this.  

5. One-year limit: The proposed Code is also unfair because it drops the one-year statute of limitations in the current Code.  Organizations should only be called into account for events within the past year or the date that the organization dissolves, whichever is earlier.  (Once an organization dissolves, there is no entity to defend against any charges.)

6. Under the UC proposal, individual respondents get very few due process and hearing rights unless suspension or expulsion are on the table.  The problem is that if a member of an organization is found responsible for minor violations, then Cornell can use that as a basis to punish the entire organization with a suspension.  Full due process rights should be available in every case, particularly when Cornell also plans to punish organizations based on that member's conduct.

7. Off-campus Scope: The UC’s proposal can be extended to off-campus events if "Cornell's reputation" is affected.  Instead, such extension should only happen rarely if there is an imminent threat to life and property.  In most off-campus cases, the local police should be called. 

8. Interim Suspension: The proposed Code would give VP Lombardi a non-reviewable right to suspend any person or organization until the investigation and hearing can be completed.  The University Review Board should be able to review and overturn such interim suspensions.

9. Membership:  Each campus organization whether registered or not should be allowed to select its own members and leaders.  The UC proposal leaves open the question whether single-gender organizations are barred by the Code.  The Code should reaffirm the right of single-gender organizations to continue at Cornell.  As for other membership criteria, limitations should be left to the student organization registration process rather than covered by the Code.

10. Good Samaritan Safe Harbor: New York law and most fraternity national organizations allow students to call 911 without fear of being prosecuted.  Cornell’s Code needs a similar provision.

In general, it is important for a campus code of conduct and judicial system to have wide-spread acceptance by those who must live under it.  Undertaking these major changes during a pandemic is not in keeping with Cornell's tradition of shared governance.

Respectfully submitted,

David Ayers '80 Phi Gamma Delta

Kevin Baradet, AVC President, NY Beta Chapter of Sigma Phi Epsilon, Inc.

David Chipurnoi ’00, Alpha Epsilon Pi, Alumni Class of 2000 Council President 

Mark Clemente ’73, Alumni Director and General Counsel, Delta Upsilon Fraternity

H. William Fogle, Jr., ’70 ΔX of ΔKE

John Howard Foote,

Michael Furman ’79 President, Delta Chi Association of DKE

Glenn R. George, PhD, C’82 President, Epsilon Association, Inc. (on behalf of both the undergraduate and alumni chapters of Sigma Phi)

John Horvatis ’99, Delta Phi Trustee and AIFC Representative

Rich Kauffeld, 80   Alpha Psi of Chi Psi Corporation President

Richard Meigs ’80 Lambda Chi Alpha alumni president

Whinfield Melville  '63, Treasurer of the Corporation Board. Alpha Sigma Phi

Chris Nieves ’11 President, Beta Charge of Theta Delta Chi Inc

William Page CU ’85  and ’86, Pi Kappa Alpha President

Dennis Paese ‘73, Chapter Advisor, Sigma Alpha Mu Fraternity

Jeff Perry '89 Alpha Zeta 

Robert C Platt ’73 Law ’76. Immediate Past President, Delta Chi Association of DKE

Lee Reed '71, Delta Chi

Matt Roberts ’98, President, Gamma Chapter House Association (Phi Sigma Kappa) 

Howie Schaffer ‘90 Alumni President, Alpha Delta Phi at Cornell University

Bob Straka

Mathew Tabacco, '09, '10 Seal and Serpent Alumni President

 

David Weber '68, Advisor for the Cornell chapter of Delta Chi

Bill Wickham '86, Alpha Gamma Rho - member, alumni board of trustees

 

Comments of the Cornell Daily Sun Alumni

Submitted by Robert C. Platt, Esq on Tue, 2020-11-17 16:43

In May 2020, a group of Sun Alumni signed on to the attached joint comments.  These comments are also applicable to the University Counsel’s draft. The references and quotations have been updated from the May 2020 CJC draft to the University Counsel’s draft.  In addition, the comments are even more on point because the University Counsel would add harm to the “University’s reputation” as a separate basis for asserting jurisdiction over off-campus conduct in Section 3(A).

COMMENTS OF UNDERSIGNED CORNELL DAILY SUN ALUMNI

The undersigned alumni of The Cornell Daily Sun file these comments on the University Counsel’s proposal.  Some of us have law degrees and others of us spent our careers as working journalists.  We all share a devotion to Cornell and to maintaining The Cornell Daily Sun as an independent journalistic voice and critic for the Cornell community, including alumni and Ithaca residents. 

­­

The Sun’s value stems from being the Cornell community’s independent newspaper since 1880.  It has always operated without University subsidies or control.  The Sun publishes the facts regardless of whether they cause embarrassment or consternation in Day Hall, including coverage of the Campus Code and the judicial system.  Similarly, The Sun publishes a wide variety of opinions, regardless of whether those viewpoints will be vexatious to individuals or groups of students, faculty, staff, administrators or local officials.  It has been that way since 1880, and so it should continue to be.

  1. Statement of Principles and Values Must Recognize Important First Amendment Rights

“Section 1: Principles and Values” does not fit with the start of a Campus Code of Conduct.  Certainly stating general principles and goals will be helpful in interpreting the Code, but this section does not adequately address fundamental rights such as freedom of speech, freedom of the press, freedom of religion, freedom of association and the right to petition for redress of grievances. Valuing these rights has served Cornell well for more than 150 years. 

However, recently these important rights have been under attack by people seeking to establish a “speech code” to ban or punish speech that some may find offensive.  The best way to avoid this proposed Code’s being misinterpreted, and from trampling on protected rights, is to include a strong statement in Section 1 reaffirming these bedrock First Amendment rights.

One would think that exercising protected First Amendment rights off campus would guarantee freedom from University interference and control. Not so, under the proposed Code. The Code asserts the right to regulate and punish non-registered groups as well as off-campus conduct, which would have a chilling effect on the entire Cornell community.  We know of no legal basis for this inadvisable over-reach.  The University must respect First Amendment rights as a matter of tradition, as a matter of educational policy as a world leader in academic thought, and as a matter of law. We urge that the improper assertion of jurisdiction over unregistered organizations and off-campus conduct be removed entirely from the Code.

2. Strict Vicarious Liability For Student Members of Unregistered Organizations

Proposed Section 4.13 provides, “known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.”  This sentence imposes a strict vicarious liability upon any Cornell student for any asserted Code violation by an “unrecognized student group.”  If any student group published a news story, opinion piece or tweet that offended someone, the offended person or group, armed with the Code, could file a complaint with the Director alleging “harassment.” Any student known to be a member of that student media group could then be prosecuted for a violation of the Campus Code, even if that student had no direct role in the writing or editing of the offending article or commentary.  Such “guilt-by-association” serves no educational purpose, but merely serves to chill free speech and freedom of the press.  It should be removed in its entirety from the Code, thereby avoiding a challenge likely to show its enforcement would violate applicable law.

3. Traditional Limitations Should Be Respected for Campus Conduct Regulation

Legalities aside, Cornell traditionally has limited its conduct regulation to on-campus activity.  While registered student organizations that seek funding from Student Activity fees or use campus facilities voluntarily submit to Campus Code jurisdiction, unregistered groups such as The Sun do not.  Unregistered organizations should not be regulated by Cornell.  Further, the Campus Code should regulate only on-campus conduct, and jurisdiction should not be expanded to off-campus locations such as the Cornell Daily Sun building (located in downtown Ithaca) or to “online behavior” (Section 3(A)).

We file these comments as individuals concerned about the free exchange of information and views on campus. They do not necessarily reflect the editorial views of The Cornell Daily Sun.  We urge the Committee to respect the rights of student journalists and the readers they interact with every day.

Signed:

Jay Branegan ‘72

Kathleen Frankovic ‘68

Andrew Kreig '70

Carl P. Leubsdorf '59

Robert C. Platt ‘73

Elaine S. Povich ‘75

Charles J. Sennet ‘74

Dineen Pashoukos Wasylik '94

John Schroeder ‘74

Rose Gutfeld ‘78

Erik Bierbauer ‘94

Zoe Ferguson ‘17

Dara Levy ‘16

Joshua Friedman ’96 JD ‘99

Nicholas De Tullio ‘15

Eric Sullender ‘99

Jonathan Panter ‘12

Elizabeth Sowers ‘15

Gabriella Lee ‘16

Katerina Athanasiou ‘13

Eliza LaJoie ‘13

Michelle Feldman ‘15

Saman Zia-Zarifi ’90 Law ‘93

Divyansha Sehgal ‘18

Kevin Milian ‘15

Anna Fasman ‘16

Maxine Bernstein ‘88

Heather Grantham Deutsch ‘06

Maggie Henry ‘14

Omar Harb ‘91

Claudine (Chamberlain) Benmar ‘91

Tyler Alicea ’16 MPS ‘17

Katy (Bishop) Torralbas ‘06

Christopher Mitchell ‘05

Erik Ferguson ‘99

Rachael Ellicott ‘15

Gwen Aviles ‘17

Hazing Definition

Submitted by Tim Marchell on Tue, 2020-11-17 16:43

Over the past two decades, higher education has increasingly recognized hazing as a serious threat to student health and safety. It is not an innocent rite of passage, nor is it necessary for groups to form strong bonds. The impact of hazing can range from mild to severe, and can significantly impact students’ mental as well as physical health. For students already struggling with mental health problems or who have a history of trauma, the effects of hazing can be magnified. The same activity that one student experiences as annoying can be re-traumatizing for another. The medical and mental health providers at Cornell Health see this impact first-hand. We also know from experience (at Cornell and other institutions of higher education) that hazing can be fatal. 

Cornell has been at the forefront of efforts to understand and prevent hazing. The university’s public health approach to hazing prevention is considered a national model. Two key elements of this model are education and accountability. The university’s Code definition of hazing has a vital educational function. Our ability to prevent hazing depends on establishing a shared understanding of what behaviors qualify as hazing. Research consistently finds that a high percentage of students do not accurately identify many hazing behaviors as constituting hazing. Therefore, this opportunity to revise the Code definition is an opportunity to better educate the campus community about what behaviors violate the University’s standards.

In addition to providing a basis for education, the Code definition of hazing plays a critical role in deterrence. The ability of the university to hold individuals and groups accountable for violations depends on a thorough definition that addresses the nuances of this complex phenomenon.

The current Code definition was developed in 2001 (with an additional clause added subsequently). While it has functioned generally well as an educational tool and judicial standard, our understanding of hazing has evolved based on research, clinical experience, and actual cases of hazing on campus. In short, the current wording no longer meets the needs of the community in terms of education and accountability. While the revised definition in the proposed Code addresses some of the limitations of the current Code definition, the wording is insufficient to address our educational needs and the range of hazing behaviors that have occurred among campus groups. 

The revised definition that we propose below reflects the current discourse about definitions in the field of hazing prevention. There is no single, universally-accepted definition of hazing. Our proposed definition is based on our review of hazing definitions on multiple campuses, the literature on hazing, and a review of the hazing violations that have occurred at Cornell since 2005 when we began our public archive at hazing.cornell.edu. We believe that this definition will serve the Cornell community by improving our ability to educate the campus about what constitutes hazing and enhance the university’s ability to hold individuals and groups accountable for violations.

Timothy Marchell ‘82, Ph.D., M.P.H., M.Div.

Director, Skorton Center for Health Initiatives at Cornell Health

 

Proposed definition:

Hazing is an act that, as an explicit or implicit condition of recruitment, admission, initiation, or affiliation with a group, club, team, organization, residential group, or academic group or cohort (whether University-recognized or unrecognized), meets any of ​the following criteria:

  1. It is not relevant to the purpose of the group and could reasonably be perceived to risk, whether mild to severe:
  • Mental distress or harm (e.g. humiliation, intimidation, fear)
  • Physical distress or harm (e.g. pain, exhaustion, injury, illness)
  • Sexual distress or harm (e.g. embarrassment, shame, trauma)
  • Loss of dignity

OR

  1. It is relevant to the purpose of the group, but conducted in a manner that could reasonably be perceived to be excessive or pose undue risk of harm, distress, or loss of dignity.

OR

3.    Includes (though not limited to) any of the following:

  • Servitude
  • Damaging or stealing property or engaging in other illegal acts
  • Consuming alcohol or other drugs (regardless of quantity)
  • Consuming unpalatable substances, or palatable substances to excess
  • Being forbidden to have social contact with others
  • Incurring undue financial expenditures
  • Having the ability to seek medical help for oneself or another restricted
  • Being required to engage in mistreatment of an existing member

The above acts constitute hazing regardless of a person’s willingness to participate. The fact that a person does not object to and/or appears willing to participate does not signify that the conduct is not hazing. The individual subjected to hazing does not need to identify the act as hazing.

The above constitutes hazing of an existing member or cohort of existing members when a reasonable person would view the actions to be a condition of continued group membership or status (e.g., hazing of a newly elevated group leader).

Hazing can occur on or off campus. It can be conducted by members of the group and/or others who have formal or informal affiliations with the group.

Please don't lower the burden

Submitted by Anonymous authenticated user on Tue, 2020-11-17 16:43 (user name hidden)

Please don't lower the burden of proof. To do so would be to lessen the fairness of the Cornell judicial system.

Office of the Complainants' Advisors' Comments

Submitted by Molly Huffaker on Tue, 2020-11-17 16:30

We are the Office of the Complainants’ Advisors, the Office that currently serves individuals bringing complaints under Policy 6.4 and through the Office of Institutional Equity and Title IX. As our Office would become the Office of the Complainants’ Codes Counselor, we have drafted the following comment after internal discussions, as well as discussions with the Judicial Codes Counselors and other relevant representatives. Looking to this future role of representing Individual Complainants, our Office suggests the following comments:

2.2: Student Codes Counselors Communication Restrictions

  • Our office relies on collaboration and internal feedback from counselors in order to develop skills and knowledge regarding the adjudication process. Limiting our ability to communicate with each other prevents the office from providing effective guidance to students. Language in this section should include exceptions for internal office discussions and meetings. As such, we oppose the change limiting this collaboration.

2.2.2: Office of the Complainants’ Codes CounselorRepresentation & Hiring Process

  • First, language included in this section should clarify that we only represent “Individual Complainants” as opposed to Complainants generally where this can constitute University Officials, University Offices, or Institutional Complainants. Especially in Policy 6.4 (Office of Institutional Equity & Title IX) cases, we are often advising individuals who feel harmed by the University or by another University process in some way. These individuals would feel less confident in our advice if they saw us as another arm of the University.
  • Second, the University’s role in hiring and removing Respondents’ Code Counselors and Complainants’ Code Counselors is overbroad and imposes unnecessary oversight. This is especially important in the case of the Complainants’ Code Counselors, where Code of Conduct cases would constitute the minority of the cases we take on as counselors. The University offers no justification as to why it should exercise disproportionate oversight on the basis of what is essentially a minor part of our Office’s operations. Additionally, this could impact the willingness of potential Title IX complainants to come forward, as our office would lose a degree of independence and potential complainants may come to see the office as an extension of the University and its particular interests.

Thus, we are willing to propose our choice of Lead Codes Counselor to the University Assembly, who can then approve or deny this hire. All other hiring would be internal. We agree with the JCCs that it is not appropriate to have the Director involved in our hiring, removal, or supervision processes. If the goal of these changes is to increase oversight and accountability over the Counselors, this should be accomplished through increased and more effective training, not by mandating our hiring practices.

2.8: Training Further Clarification

  • Please specify what training will be provided to each role under these Procedures (Hearing Chair, Hearing Panel, Counselors, etc.). If the goal of these Procedures is to ensure a fair and equitable process—including adequate oversight of all individuals serving an official capacity or role under these Procedures—training is the most effective way to achieve this. At the minimum, we request annual training for all roles.

3; 10: Notice to PartiesInforming of and Access to Counselors/Advisors

  • The language here should be more specific as to the notice granted to individual parties regarding their entitlement to free representation through the Respondents’ Code Counselors and the Complainants’ Code Counselors. Notice should include the fact that this is a free service, a short summary of the kind of support we offer to parties, and contact information for the respective office. This notice should be provided to parties before any meetings or investigative interviews are conducted. These specific requirements will make it less likely that the University will meet with parties before the parties have a chance to consult with advisors.

11; 20.8.2: Counselors’/Advisors’ RoleAbility of Counselors to Speak

  • Where a complaint is brought against the respondent by the University through its officials, Respondents’ Code Counselors should retain the ability to speak on the behalf of the Respondent. This is important in order to maintain fairness given the disparity between the parties’ representation.
  • In hearings adjudicating complaints brought by Individual Complainants, we support the proposed hearing process, with written submission of questions and questioning conducted by the Hearing Panel. Individual Complaints are most likely to be for serious interpersonal misconduct such as hazing and harassment, and cross-examination in these cases will discourage reporting.

20.2: Standard of proof

  • We feel that the standard of proof should be determined by community input.

20.8.1: Overview of Hearing Process and FormatPublic Hearings

  • Hearings should be kept private when Complaints are brought by Individual Complainants. Public hearings in these cases are likely to discourage reporting of misconduct.
  • We support allowing public hearing and amending the Code to reflect this under the following circumstances: For cases not involving Individual Complainants, hearings should be private unless (a) the Respondent notifies the Director of OSCCS no later than two (2) business days before the hearing indicating that they wish to have a public hearing and (b) the Hearing Board Chair determines that a public hearing would not result in the undue intimidation of any witnesses.

Protect Due Process and fair representation!

Submitted by Anonymous authenticated user on Tue, 2020-11-17 16:14 (user name hidden)

Devaluing student rights and lowering the bar for standards of evidence is a shameful thing to support and would forever erode trust in Student Assembly. Even entertaining the idea is very dangerous and disconcerting. What do you really stand for SA? 

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