Concerned Graduate Student

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

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Standard of Proof

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

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

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Response to comments about cross examination

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

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

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

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

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

Barbara Krause, Interim Judicial Administrator

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Comments from a concerned undergrad

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

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A Second Attempt to Reduce Students' Process Rights

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

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

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

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

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

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

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

Zachary Sizemore

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

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Concerning Developments in the Code

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

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

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

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What is good for the goose is good for the gander

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

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Recommendations of the Judicial Code Counselors

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

Richard Bensel

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Cross Examination Should be Allowed

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

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Re: Law School faculty advisor for Complainants' Codes Counselor

Yes, the Complainants' Codes Counselors are a pre-existing group and have a law school faculty advisor as well, and we (as JCCs) are, of course, supportive of them having that support.

Marisa O'Gara, Judicial Codes Counselor

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