Spring 2020 Proposed Amendments to the Campus Code of Conduct

PUBLIC FORUM VIDEO AND TRANSCRIPTS (5/7/2020)

The Codes and Judicial Committee of the University Assembly was charged by the President to review the following recommended changes that were a result of the Campus Climate Task Force:
  • 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 CJC 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 CJC 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 the Codes and Judicial Committee in its efforts to create a better Code for our community. Review and public comment by the Cornell community are welcomed and encouraged through 5:00 PM on Friday, May 8, 2020.

Downloadable PDF of consolidated public comments

 


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. Please note that a * denotes a section that has corresponding CJC comments that the committee wishes the public to review.


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 through 5:00 PM on Friday, May 8, 2020.

Comments

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Connection to other student affairs professionals critical

Submitted by Mary Beth Grant on Tue, 2020-11-17 16:36

Colleagues,

Thank you all for your work on the updated and modernized Student Code of Conduct.  I have a few thoughts to share.

I have had the honor of serving both in the Office of the Judicial Administrator and in Student and Campus Life (Office of the Dean of Students).  As a member of the OJA, one of the hardest things was the isolation.  I understood this even more after I left the office.  As a part of SCL, I am part of a broader team of student affairs professionals and am much more able to keep in touch with student life at Cornell.  Creating this opportunity for our colleagues in the OJA would benefit the students we all serve.

With respect, I have heard the expression "educational system"  misapprehended by some campus partners.   Student affairs professionals who work in conduct (yes, it is a distinct professional calling!) think from a developmental perspective.  Rather than just considering whether a student violated the Code and what the sanction should be, an educational approach considers a fair process to determining responsibility AND the social, emotional and ethical development of a student found responsible AND ways to heal the harm to a complaining witness and the community.  It is much more complex and nuanced than some folks portray it.  Understanding these complexities shifts the lens in which one views the entire system, but it does not imply that students are more likely to be found responsible of allegations.  So, as you all are weighing whether the standard should be "preponderance" or "clear and convincing" I think it is noteworthy that nationally "preponderance" is much more common in higher education.  The important pieces, though, are that the system is fair, developmental and considers those harmed.

Thank you for taking the time to receive community feedback.

My best,

Mary Beth Grant

Sr. Associate Dean of Students

 

Concern about why undergrads are not being heard in this process

Submitted by Anonymous Committee Member on Mon, 2020-11-16 15:59 (user name hidden)

It seems as if several comments here are completely not based in reality of what it is like to be an undergraduate student. Why are alumni and law students who are not undergraduates trying to push back against changes to the code that are intended to support undergraduate students, when the code and judicial processes have vastly changed since they were here on campus? It seems very out of touch and unfair for current undergraduates who are the ones actually experiencing and going through these changes and whose voices should be heard.

Was conflicted about changing

Submitted by Anonymous Committee Member on Mon, 2020-11-16 15:52 (user name hidden)

Was conflicted about changing the standard of evidence, but seeing as the Greek Life judicial system already uses preponderance of evidence as their standard, it makes sense to align all our judicial processes so some cases don’t have different standards than others.

Codes and Judicial Committee Comments

Submitted by Wendy Treat on Mon, 2020-05-11 11:18

**Posted on behalf of Robert C. Platt, Esq**

The undersigned alumni are submitting the following comments on the Codes and Judicial Committee (CJC) draft proposal. We have years of experience with the Campus Judicial system. We ask that you give our comments your careful consideration.

Since Cornell admitted its first students in 1868, Cornell fraternities have provided values-based education and opportunities for self-governance to generations of Cornell students. Fraternities are also valuable inter-generational organizations that promote mentoring and career advising for undergraduates and recent graduates. Fraternities offer skills training and education resources from both Cornell alumni and from their national organizations. In general, most fraternities operate under the Trustee “recognition policy.”1 Most fraternities are single-gender organizations, but some are co-ed. Fraternity alumni seek a campus judicial system that protects student rights and brings fairness and objectivity to the adjudication process.
 
In Fall 2019, the Greek judicial system was overhauled and a new office to handle group misconduct was created to report to the Assistant Vice President for Student and Campus Life. The Codes and Judicial Committee should consider whether the comments received in the 2017-2019 time frame have been addressed by this reorganization – individual misconduct is now referred to the Judicial Administrator, and group misconduct is currently handled by this new office.2
 
1.     Burden of Proof
When Cornell students are before the criminal justice system, they face the standard of “proof beyond a reasonable doubt”, which was put into Cornell’s Campus Code of Conduct in 1970. Later, the Code has required a lower standard of “clear and compelling evidence”. It would be a huge mistake to further reduce this standard to a “preponderance of the evidence”, as recommended by a 6-4 CJC vote. Society recognizes the importance of the burden of proof protecting the innocent from mistaken identify, erroneous claims and potential bias. A “preponderance of the evidence” or 51% likelihood does not offer adequate protection to students, families and alumni who have invested time and money in a Cornell degree that can be so easily devalued by a finding that does not require clear and compelling evidence. The consequences for a student from a mistaken finding of “responsible” are severe and can damage chances for graduate school or finding a good job. In essence, Cornell Judicial decisions can be both career- and life-changing. Thus, before putting such a mark on a student’s record Cornell has an obligation to be very sure indeed that the sanction is thoroughly examined to a high standard of proof. Cornell should not be advocating reduced standards for due process and fairness.
 
Some people worry that a high standard of proof will remove the ability of the Code to deter violations and others worry that a high standard will deter complainants from bringing weak cases. However, the criminal law functions with a “proof beyond a reasonable doubt” standard and the Judicial Administrator function under that standard for many years.
 
2.     The Campus Judicial System Should Not Report to the Dean of Students
As discussed in part 3 below, Proposed Section 3(a) proposes to give the Dean of Students or his designee a role in deciding extraterritorial jurisdiction. This proposal is a fundamental conflict with the counseling role of that office. The Dean of Student personal message on his official website states, “At the  core of my role is a commitment to work broadly on aspects of access, equity, and social justice at  C ornell.” Since the Code includes discrimination and harassment based upon identity group, there is an i nherent conflict of interest between advocating for identity groups and assuring fairness for students a ccused of violating Code provisions. Also, proposed Section 3(b) would give the Dean of Students a role in interim transcript notations. We also believe another office, akin to the Judicial Administrator,3 would be better suited for the transcript notation decision-making. The Judicial Administrator should not report to the Dean of Students.
 
3.     Extraterritorial Jurisdiction
Proposed Section 3(A) extends jurisdiction to “the property of a University-related residential organization”, but the drafting keeps such property outside the explicit definition of on-campus. The term “University-related” is not defined. How many students must live in a privately-owned facility for it to become “a University-related residential organization”? In our view, it should only include those privately-owned facilities that have contractually agreed to have events or membership selection on their property adjudicated under a student code of conduct. Non-Cornell owned residential organizations currently include: Llenroc, Seal & Serpent, Cornell Center for Jewish Living, Chabad House, Chesterton House and about two dozen fraternities and sororities. The owners of these facilities are currently free to decide at any time whether or not they wish to have the Code of Conduct apply to their facilities. Certainly, both the quality and fairness of the adjudication system as well as the meaning and impact of the Code will have to be considered. Conceptually, the Code drafters have assumed that compliance with the Code would be made a condition of student organization registration (and it appears that it would also be made a condition of student organization “recognition.”) But it does not follow that an unfair Code can be imposed on “University-related residential organizations” that may not be student organizations and may no longer seek “registration” or “recognition” if the Code and its administration becomes unjust. For example, if the proposed Code requires sororities to admit male residents, or fraternities to admit female residents, or Chabad House to admit Catholic residents very interesting legal problems will arise.
 
Proposed Section 3(A) proposes to give the Dean of Students discretion to expand upon the “on-campus” limitation of jurisdiction in two ways. First, “whether off-campus conduct is subject to this Code will be made by the Dean of Students, or their designee.” And second, in addition to enumerated circumstances where off-campus conduct is jurisdictional, there is “(e) unique violations which shall be left to discretion of the Dean of Students as requested.” Both are problematic. Students should be reasonably certain and understand the jurisdictional scope of the Campus Judicial system. There should be a reasonably clear line as to what conduct goes to the downtown criminal justice system and what is handled at Cornell.
 
The danger is that high profile political cases will test the system. Past historic examples include:
  • A Cornellian pours blood on the files of a Selective Service Office in Maryland.
  • Cornellians travel to Washington DC for a peaceful protest, get trapped when the police throw tear gas and end up being detained by police in RFK Stadium for theweekend.
  • A group of students marches to the then-President’s home in Cayuga Heights and throws an egg at him.
  • A student standing just outside the Cornell campus chants a provocative message directed at a campus living unit.
  • A group of students defy COVID social distancing orders and throws an off-campus party.
 
The problem is that the Dean of Students and his staff are oriented toward counseling students based on their special needs as members of identity groups. Those identity groups could put political pressure and expect the Dean of Students to make decisions assisting the group’s interests in the name of advancing “social justice.”. So, the Dean of Students will find it difficult to put the protection of students’ procedural rights ahead of these other considerations. We strongly oppose the Dean of Students having this role. We oppose off-campus conduct being brought before the campus judicial system. If an “emergency escape valve” is included, it should be the Judicial Administrator in the first instance, subject to a decision by the hearing panel also agreeing that justice is best served by the exercise of jurisdiction.
 
The definition of campus in proposed Section 2(1) is 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 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 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 the permitting requirements of Cayuga Heights or the City of Ithaca.
 
4.     Jurisdiction Over Groups
Most of the prescribed conduct is based on the actions of individuals rather than groups. The problem is that groups rarely document their agreement to officially undertake conduct that violates the code – so proving violations is very difficult. The criminal law handles this with the concept of accessory before the fact and accessory after the fact. It also focuses upon Board minutes or official corporate records to document corporate culpability. Student organizations (many of which are not incorporated) do not create paper trails. For example, with respect to a fraternity – if a subset of a fraternity engages in misconduct without using fraternity funds or facilities, how can the conduct of the subset be fairly imputed to the entire organization? An additional example would be a student organization planning a peaceful protest which gets out of hand and has some unplanned violence or property damage caused by some non- members who were invited to attend. Traditionally, club membership rosters have been kept private. How can group culpability be established with fairness to all concerned? The proposed document needs to be rethought in terms of how to distinguish between on-campus groups that use campus facilities and off- campus groups that are structured to retrain from using campus facilities. With respect to on-campus groups, clear criteria should be set to avoid “guilt by association” that punishes law abiding group members for the misconduct of other group members or imputes the misconduct of an individual to the various groups they have joined.
a.     Prosecution of people who later join the sanctioned organization is impermissibly vague and over-reaching
The flaws regarding group jurisdiction is at its zenith when proposed Section 4.1 prohibits, “To knowingly affiliate with groups, teams, or organizations that have had their University recognition or registration withdrawn, suspended or permanently revoked by the University for disciplinary reasons.” If there is any jurisdiction over a group, it ends when the group’s registration is terminated. To go beyond punishing the individual members of a group for misconduct and putting sanctions on the group to prosecute a set of future students who “affiliate” with the sanctioned group is a step too far. This violates the right to associate that all Cornellian respect. Proposed Section 4.1 is too vague and uses meaningless phrase  “any  activity  that  would normally be associated with being a member of such an organization.” For example, suppose a fraternity is suspended and their house is closed for misconduct. The displaced Cornell students will need a place to live in the following school year. If a large subset from the closed fraternity moves into another Cornell small living unit, can the other students living in that unit be prosecuted? After all, “living together under one roof” is an “activity that would normally be associated with being a member of such an organization.”
 
Proposed Section 4.1 requires, “This applies to organizations that were created by members of a de- recognized organization in an attempt to continue its presence on campus.” What if the de-recognized organization disavows a “presence on campus” and limits itself to off campus activities? Why is the word “attempt” in this sentence? Proposed Section 4.1 merely serves to drive student social or political groups further underground and exceeds the reasonable scope of a campus code of conduct.
 
Proposed Section 4.1 1 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.
 
b.     Single Gender Organizations Should Remain Lawful
Proposed Section 4.1 would also prohibit, “To use ethnicity, gender, national origin, political persuasion, race, religion, or sexual orientation or affectional preference as a basis for exclusion from university or group activities on campus.” Even Title IX contains an exception for single gender organizations, but this provision would outlaw such groups. It would also require women’s club sports to admit men. First, the phrase “university or group activities on campus” is too vague to understand the scope of this prohibition. As discussed above, even though this clause is expressly limited to “on campus” the Dean of Students has the power to extend it beyond the campus. Second, “affectional preference” is not a well-defined or well understood term. Third, and perhaps this was intended by the drafters, but this provision is so broad as to end hundreds of special interest groups whose membership is limited to a single identity group, such as a recently formed group for black students interested in finance.5 Third, this provision would prohibit “political persuasion” as a basis for selecting members. However, the First Amendment gives groups the right to use that as a membership criteria. Finally, violations of this section would be impossible to prove. Cornell does not have access to the membership records of registered student organizations or their demographic membership data. Even if data becomes available, what inferences of intentional conduct can be drawn? Recently, the Cornell Law Review (a recognized organization) filled all its elected editor positions with women.6 Has that group violated proposed Section 4.1?
 
c.     Sanctions and Remedies for Groups
Currently, individual misconduct and registered student organizations are subject to the Campus Code. The CJC would expand this to a vague set of groups that are not registered student organizations. The list of group sanctions in Section 4.2 include:
  • Restrictions or loss of specific or all privileges at the University for a specified period of time;
  • Disciplinary probation (imposed or deferred);
  • Suspension from the University for a state period not to exceed five (5) years (imposed or deferred);
  • Rescission of permission to operate on University property and/or termination of the organization’s agreement and relationship with the university.
Sanctions of this magnitude involve more than the student(s) accused of misconduct – they involve the rights and property interests of other group members who were not involved in the misconduct as well as the future students who may join after the date of the misconduct. Accordingly, such sanctions should not be within the scope of what a Hearing Panel can impose by majority vote. If the misconduct is so grave and pervasive within an organization, the Hearing Panel should make a recommendation to the Vice President for further action. Abrogating a contract between Cornell and other corporations is a serious step that may harm its credibility with donors.
 
As for restrictions for “a specified period of time”, there should be an upward limit on the duration of the restriction. We would propose one year, because after a year, the membership would have significantly changed.
 
As for probation, the CJC does not specify who will serve as the “Probation Officer” in monitoring the terms of the probation. Will it duplicate the role of the Office of Sorority and Fraternity Life when the Sorority and Fraternity Organization Misconduct Hearing Board orders probation regarding a group misconduct?
 
d.     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.7 This policy has also been adopted by Cornell’s Greek life system: Cornell Health also publicizes a protocol.8
 
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.9
 
Accordingly, “Section 3 Scope and General Principles” 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.
 
Harassment
 
The Campus Climate task force proposed to introduce a “speech code” into the Campus Code by redefining “harassment.” Proposed Section 4.12 is too vague. It requires the activity to be directed to “another person or group.” This makes the section so broad as to sweep in protected political speech and activity. We recommend deleting “or group.” The word “knowingly” should be inserted at the start of Section 4.12. The phrase “uninvited or unwelcome” should be changed to “uninvited and unwelcome”. Change the phrase “The conduct creates a hostile environment” to “The conduct knowingly creates a hostile environment for the targeted person”. “Hostile environment” is too subjective, and is being dropped in the new Title IX rule to be replaced with “unwelcome conduct on the basis of sex that is so severe, pervasive, and objectively offensive that it effectively denies a person equal access to education.” 34 C.F.R. Section 106.30 (effective Aug. 14, 2020). Since the Campus Climate Task Force based its definition of harassment on the soon to be replaced Title IX definition, it should be rethought.
 
In contrast, the existing Campus Code provision on harassment is simple and easy to understand (Article II A 1 d):
To harass another person (1) by following that person or (2) by acting toward that person in a manner that is by objective measure threatening, abusive, or severely annoying and that is beyond the scope of free speech.
 
Section 4.12 should also be limited to conduct or communications that the target has received or is aware of the conduct. For example, suppose that two students have a confidential discussion about a third student and the content of that conversation would be vexatious to that third student. So long as the content is not intended to be communicated to the third student there should be no harassment under Section 4.12.
 
The current draft would make membership in a “group that has historically experienced discrimination” an aggravating factor. We would prefer that the Code be written and enforced in a way that treats all Cornellians equally irrespective of their identity groups. However, if that recommendation is not adopted, the requirement should be that the accused knew that the targeted person was a member of a group that has complained of discrimination on the Cornell campus within the past five years. We should not operate based on stereo-types or historic misconceptions.
 
We would strengthen the free speech carveout to read:
Because of protections afforded by principles of free speech, freedom of assembly and academic freedom, expression will not be considered harassment unless the expression also meets all of the following criteria:
  • it is meant to be either abusive or humiliating toward a specific person or persons; or
  • it persists despite the reasonable objection of the person or persons targeted by the speech.
  • an objective person would not view the expression as raising a policy issue that is under public discussion.
Issues that are under public discussion should be explicitly protected as free speech even if discussed in a pungent manner. Cornell cannot and should not wall itself off from the ideas being discussed in the rest of society.
 
5.     Alcohol
 
Proposed Section 4.2 address alcohol-related violations. Please change “Selling alcohol without a license;” to “Selling or serving alcohol without a license;” New York State requires a liquor license to serve alcohol at a public gathering. This section should also contain a reference to the Good Samaritan Policy. Please consider changing “Knowingly possessing alcohol in unauthorized University spaces regardless of age;” to “Knowingly possessing alcohol in violation of University policies that restrict alcohol in various spaces (based upon alcohol content) regardless of age;” Please note should note that currently Cornell prohibits hard alcohol in Greek houses but does not apply the same rule to other Cornell-owned living facilities.
 
6.     Remedies for Group Misconduct
a.Interim Suspension
Proposed Section 2.5.2 gives the Judicial Administrator discretion to suspend the group’s “recognition by the University” on an interim basis pending the panel hearing. This seems inappropriate before establishing that the group was culpable for the misconduct of individual(s). “Recognition” and “registration” mean different things and it is not clear what is intended here. Assuming that temporary suspensions have been imposed on all of the individual Code violators, what is to be gained by an interim measure against a group?
 
b.     Final Remedies and Penalties
Proposed Section 4.2 specifies Sanctions and Remedies applicable to both individuals and groups. It is exceedingly difficult to evaluate the appropriate magnitude of a remedy or sanction when the group size is highly varied. It is also unclear how fines or remedies can be enforced. For example, if students register an organization called “The Campus Tirade for the Holy Rutabaga”10 which is then fined and ordered to make restitution, there is nothing to prevent the organization from dissolving and then registering an organization called “People for Rutabaga Worship.” Registration is free, and membership lists are private, so how can anyone tell whether or not they are distinct organizations? Decades of experience have shown that students quickly run away from organizations that get into conduct problems.
 
Proposed Section 4.2 contemplates that there may be contracts between Cornell and the accused entity. It provides, “termination of the organization’s agreement and relationship with the university.” The campus judicial system’s powers cannot and should not extend to renouncing private contracts, even if those contracts are between the complainant and respondent in a proceeding.
 
In the criminal law, a person is given reasonable notice of both the charges against him and the range of penalties that he faces. The current procedure implies that every organization could potentially be suspended or abolished even for the most minor violation by an individual member. One solution is to modify Section 2.4 from “the possible sanctions if a violation is found;” to “the maximum of the range of sanctions and remedies applicable to a violation of this nature;” in this manner, the Judicial Administrator can take some severe sanctions “off the table” in offenses of a minor nature.
 
7.     Appeal Rights 
The draft should make clear that if the hearing panel finds the accused “not responsible” neither the complainant nor the Judicial Administrator can appeal that determination to the Review Board.
 
8.     Record Keeping
Campus Code proceedings can be very harmful to students who are engaged in job hunting or finding a graduate program of study. This is important because cases can drag on for months.
a.     Initial notice of proceedings
To the extent that a Greek Judicial system will continue after this system is adopted (a decision that will be made by the Greek community), there needs to be a system to make plain to the accused what conduct is being adjudicated under the Student Code and what conduct is being adjudicated under the Greek rules. To the extent that proceedings under the proposed Student Code put millions of dollars of facilities and hundreds of thousands of dollars of annual revenues at risk, at the outset of any proceeding involving an organization, both the organization’s leaders as well as its faculty or alumni advisors must receive prompt notice.
 
b.     Interim notations
The document must contain clear rules regarding interim notations on a student’s record. Section 3(B) incorporates by reference the University Registrar’s transcript notation policies. However, this is a University Assembly document and should not be allowed to be amended unilaterally in the future by the Registrar. The rules should be stated in this document and should maximize protection of students. We recommend that no notations be visible outside the process until the case reaches a final adjudication. The Judicial Administrator, rather than the Dean of Students, should make “good conduct” determinations regarding the removal of interim notations.
 
c.      Graduation dates
We agree with Prof. Kevin Clermont’s comments regarding whether pending judicial proceedings should delay a student’s graduation if he has completed all other requirements for graduation. An agreement to preserve jurisdiction should be enough.
 
d.     OSFL Scorecard
In May 2018, President Pollack announced a series of Greek Life Reforms including the publishing of a scorecard of each chapter, including judicial histories.11 She also agreed to pool this data with other colleges to form a national scorecard.12 It is not clear how data will continued to be collected under the privacy procedures suggested in the draft procedures. To the extent that the scorecard goes forward, it provides a powerful incentive for chapter members to fight each proposed violation vigorously even if the breach of conduct is small, because all judicial incidents will count on the scorecard.
 
There is a tension between proposed Section 1.7 Confidentiality and the current Scorecard format. That section provides, “With respect to the conduct records of University-registered and University- recognized organizations only, when deemed necessary to educate the University community or to provide information to the University community about the organization’s conduct.” So Section 1.7 would release information about organizations that are found “responsible” but would not release information about individual students accused or found “responsible.” In contrast, the Scorecard appears to report on instances of individual misconduct. Section 1.7 does not explain who decides “when deemed necessary”
– is it the President, the University Assembly, the Judicial Administrator or the hearing panel?
 
9.     Coordination with Other Systems
a. Restorative Justice
There have been proposals from the Dean of Students to take minor cases and handle them under an informal system of “restorative justice.” The problem with such an approach is that ultimately the stakes are too high in even “minor cases” because the student looses his “clean record” status and the Office of Sorority and Fraternity Life might add the episode to its roster of conduct violations for the group. The proposed carve out does not provide students with their full rights, and the offers to divert cases involve inherent coercion. Most advocates of “restorative justice” believe that participation must be voluntary by both sides, so a minor case diversion program should not be implemented at this time.
 
In contrast, in-house adjudication within living units where there is a pre-existing context of trust and respect have proven to be effect and should be continued.
 
b.     Criminal Justice System
Although the Campus Code of Conduct and its predecessors started out to provide a benefit to the accused students, there have been so many procedural problems, particularly with Title IX complaints, that Cornell might be better off allowing the criminal justice system to handle serious allegations of misconduct such as rape or armed robbery.
 
c.      Title IX
There have been so many botched cases under Cornell Policy 6.4, that many alumni have lost faith in Cornell’s Title IX process. The U.S. Department of Education issued its new regulations on May 6,13 and the new regulations does a better job of protecting student’s rights. Cornell should implement the changes as soon as possible, and because the Campus Climate Task Force based its recommendations in part on the Title IX “guidance” then in effect, the University Assembly should recognize that the Campus Climate Task Force’s recommendations have been overtaken by subsequent events. In many cases, Cornell would be better off having sexual misconduct matters adjudicated in criminal court.
 
d.     Greek Judicial Boards
The Greek system has self-imposed rules regarding recruitment, philanthropy, and interaction between chapters. It is quite possible that the Greek system as a whole or its components will want to retain their own internal adjudication mechanism to enforce their own rules. Provisions should be added to this proposed document to facilitate coordination between the two systems and to avoid double jeopardy for the same conduct. For example, the Sorority and Fraternity Organization Misconduct Hearing Board14 may consider cases whether the “derecognition” of a fraternity is sought. The Office of Judicial Code Councilor should be available for cases in the Greek venues such as the Greek Hearing Board and the Sorority and Fraternity Organization Miscount Hearing Board.
 
e.      Regulations for the Maintenance of Public Order
The portion of the Campus Code of Conduct adopted under the Henderson Law has always been interpreted consistently regardless of whether the accused was a student, faculty or staff. Cornell is losing a lot of case law and is making consistency of interpretation very difficult by adopting a student-only code. Under this approach, if students, faculty and staff jointly violate a provision, what guarantee that they will receive equal treatment, or at least the benefit of equal interpretation of the rules of conduct?
 
The University must file its Regulations for the Maintenance of Public Order with New York State. Under your proposal, what portions of the final document will you file?
 
Thank you for your consideration.
 
Signed:
Kevin Baradet, AVC President, NY Beta Chapter of Sigma Phi Epsilon, Inc.
Norman “Lin” Davidson ’71, Delta Chi Association (DKE), Immediate Past President Michael Furman ’79, Alumni Advisor, Delta Kappa Epsilon
Paul S. Leo '81, President of Beta Theta Pi Alumni Corp.
Fred Pape '99, Kappa Sigma Alumni Association
Dennis Paese ‘73, Chapter Advisor, Sigma Alpha Mu Fraternity Jeff Perry, President, Alpha Zeta Corporation Board
Robert C. Platt, AB ’73 Law ’76, President Delta Chi Association (DKE) Howie Schaffer '90, Alumni President, Alpha Delta Phi at Cornell University William R. Shaw ‘69, '73, AB, MPA, JD, Delta Upsilon
David Weber '68, Advisor for the Cornell chapter of Delta Chi
 
 
=====Footnotes=====
 
1 However, some local fraternities, such as Seal and Serpent, continue to operate after Cornell changed its recognition policies to require affiliation with a national fraternity.
2 Sorority/Fraternity Organizational Misconduct Procedures
3 We use “Judicial Administrator”, “Student Judicial Administrator” and “Office of Student Conduct & Community Standards (OSCCS)” interchangeably, although we think that the proposed new name is too wordy to be useable.
4 Trustee Minutes 1957-58 pages 3316, 3327 and 3330.
5 Cornell Sun, h ttps://cornellsun.com/2020/03/22/cornell-sophomores-co-found-campuss-first-black-investment-  f und/ March 3, 2020.
6 New York Law Journal, h ttps://www.law.com/newyorklawjournal/2019/02/06/cornell-law-reviews-new-all- w omen-board-speaks-volumes-editor-says/ February 6, 2019.
9 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... 02020%201.21.2020%20Final-VD.pdf
10 The Cornell Daily Sun, Volume 90, Number 35, 17 October 1973 p. 4
12 Penn State Scorecard Submissions, https://scl.cornell.edu/get-involved/sorority-fraternity- life/community/organization-scorecard/penn-state-scorecard-submissions
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COMMENTS OF UNDERSIGNED CORNELL DAILY SUN ALUMNI

Submitted by Robert C. Platt, Esq on Fri, 2020-05-08 16:11

COMMENTS OF UNDERSIGNED CORNELL DAILY SUN ALUMNI

The undersigned alumni of The Cornell Daily Sun file these comments on the Codes and Judicial Committee 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 4.1 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 Judicial Administrator 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 ‘71

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

Judicial Codes Counselors' Comments

Submitted by Gabrielle Kanter on Fri, 2020-05-08 15:42

I am a third-year law student and currently serve as the Judicial Codes Counselor. The Judicial Codes Counselors (JCCs) are tasked with advising and advocating on behalf of respondents accused of misconduct in the campus misconduct systems governed by the Campus Code of Conduct, Academic Integrity, and Policy 6.4. We advise students, faculty, and staff members. For the last year, we have been involved in the conversations about the campus code of conduct amendments, drafting new sections, commenting on other people’s work, and advocating for respondents’ rights in the process during the CJC meetings. I would like to share some of my observations from these meetings. Additionally, given that the JCCs were asked not to speak at the most recent UA meeting when the CJC Chair presented information about this proposal and another competing proposal—this appeared at the eleventh hour (you can read my comments regarding that proposal here)—I wanted to ensure that the JCC Office had an opportunity to voice our opinion.

While I am generally accepting of the direction the CJC took in this draft, that is only because I’ve seen how much worse the campus misconduct system could become for students. This draft is a compromise. Earlier drafts and other proposals even more substantially deprived students of due process. However, I still greatly respect and prefer the existing campus code to this watered-down version. Regardless, because of the constraints imposed by the administration and the UA, the CJC did not have adequate time to thoughtfully consider public comments made here. These “amendments” (aka a complete overhaul of the existing code) were rushed throughout this academic school year. For example, I agree with Mr. Spitzer’s and Professor Garvey’s comments about the ambiguities in the substantive/violations section. These problems are a result of the UA constantly pushing unrealistic deadlines—not a reflection of the lack of effort by the members of the CJC. And because of these deadlines, the wonderful suggestions and comments made on this public comment page will not make it into the draft that the UA votes on this coming Tuesday. This process appears to be built on “shared governance” and democratic principles when in fact it is not.

 

Below are some of the substantive comments on behalf of the JCC Office:

Section 1.2 Respondent’s Right to Have an Advisor Speak

We support the CJC’s vote in favor of allowing advisors to speak during proceedings. At hearings, the University is represented by the Office of the Judicial Administrator (OJA), full-time professionals with an abundance of experience and resources. Meanwhile, respondents typically have a law student advisor (a JCC) if the respondent cannot afford an attorney. It is inherently unfair to allow full-time professionals with the authority of the University to oppose an inexperienced, student-respondent without the active involvement of their advisor during a hearing. It can be incredibly difficult and intimidating for a student-respondent to tell their story clearly and concisely using their evidence and witnesses. Students’ oral presentation skills should not affect whether they are found responsible or not responsible. Likewise, students who may have a harder time with spoken or written English may be at an unfair disadvantage. In addition, forcing a respondent to lead and speak in the hearing without the assistance of an advisor in the name of making the process an “educational experience” overlooks the anxiety, stress, and fear a student experiences during campus misconduct proceedings. Silencing advisors exacerbates that emotional toll and makes the process more intimidating and likely less educational for the student. The proposed code does not make the hearing more “litigious” either. Attorneys and outside advisors may only speak during limited circumstances. And as JCCs, we always encourage students to make statements on their own behalf during the hearing when they feel comfortable. To prevent the process from becoming unfair and needlessly daunting, the proposed provision allowing advisors to speak during proceedings must be adopted.

Section 1.4 The Office of the Judicial Codes Counselor – Office Members

We support the CJC’s vote in favor of ensuring that JCCs are law students. While we recognize and are humbled by the intellect and abilities of our undergraduate and graduate student colleagues, having specialized training in the skills most pertinent to the JCC position is essential. This frequently boosts our clients’ confidence and trust in our abilities. For example, every Cornell Law student is required to fulfill a certain number of credits through experiential learning. Through the Law School’s clinical programs, students receive invaluable client representation experience. Students are taught how to perform interviews, gather information about a client, make effective arguments, and comfort people who are coping with severe trauma. JCCs must be armed with all of these skills. Similarly, having professional training in ethical issues lawyers face, such as conflicts of interests (which is taught in a required law school course) is vital to maintain a professional and functioning office. JCCs must also be able to understand and explain the nuanced difference between confidentiality and attorney-client privilege and be ready to research issues related to these concepts as they arise. Importantly, this provision impacts more than just the Campus Code because JCCs also advise on Policy 6.4 and advocate on behalf of faculty and staff members accused of sexual misconduct. These proceedings can have life-changing consequences. Because these circumstances are so high stakes, having some legal training and an advisor in the Law School who we can turn to for help is crucial. And given that most individuals in the OJA have a law degree and that the student advocates for Policy 6.4 complainants are law students, having law students be JCCs ensures that all community members are provided with an equivalent advisor. Finally, when JCCs begin, they must hit the ground running. JCCs spend most of their time training by learning the different codes and policies. It would place respondents at a serious disadvantage—and potentially risk their future academic and professional goals—if a student did not have the basic understanding of how to advise and advocate on these complicated issues.

Section 1.4 The Office of the Judicial Codes Counselor – Office Independence

We support the CJC’s vote to keep the JCC Office independent from the Office of Student and Campus Life. Some members of the CJC suggested that moving the JCC under Student and Campus Life will “increase accountability, understanding of other aspects of student life, and make the process less legalistic and more educational.” First, the JCCs are held accountable through our law school advisor and by our clients. Some CJC members believe that more accountability by the University administration would be a good thing. However, separation from the University administration is important to ensure that respondents trust their JCC advisor. Additionally, under these proposed procedures and Policy 6.4, administrators from the Office of Campus and Student Life (including the OJA and the Vice President of Student and Campus Life) determine when a student is responsible, uphold interim measures, and rule on appeals. How (and why) would respondents trust their advisors if they too fall under the same umbrella as those administrators? Second, given that JCCs meet with and interact with students every day through their job, what else must the JCCs do to understand other aspects of student life? Many JCCs take on the position to become more involved in the greater Cornell community. This position frequently attracts law students who attended Cornell as undergrads—currently, one JCC was an undergrad at Cornell.  Finally, JCCs do not make the process more legalistic. JCCs make arguments, advise, and advocate for students. Making persuasive arguments, advancing student interests, and protecting the fairness of the campus misconduct system is not legalistic.

Section 4.3 Recordkeeping –Transcript Notations and Withholding Degrees

The CJC voted 5-3 against the proposed language (but retained the language in the draft because the CJC did not create an alternative). The proposal disallows the use of transcript notations during the pendency of a complaint. The proposed language also disallows withholding degrees when a student may graduate during the pendency of the complaint so long as the student enters into an agreement with the OJA granting the OJA jurisdiction over the student until the final resolution of the complaint (including the completion of sanctions). We disagree with the CJC’s vote and urge the CJC to adopt the proposed language. First, these notations are frequently imposed before a student is actually found responsible. These notations may cause damage to a student’s academic and professional career; this is especially concerning because the student may ultimately be found not responsible. Noting a student’s academic transcript prior to a finding of responsibility prevents that student from applying to academic and professional programs such as summer internships. Second, the OJA has encouraged the CJC to move the new code in an “educational” direction. It is difficult to imagine a bigger threat to a student’s ability to attain her “educational objectives” than withholding her degree—especially when a less restrictive and less punitive mechanism (an agreement) may be used.

Section 5.1 Disciplinary Probation and Hearings

The proposed procedures create less extensive hearings (Administrative Panels) for lower violation cases and more involved hearings (Hearing Panels) for higher violations cases. We support the CJC’s vote in favor of having disciplinary probation fall under the Hearing Panel process as opposed to the Administrative Panel process. Disciplinary probation is a higher sanction and is usually proposed where the respondent is charged with more serious violations of the code. A serious violation of the code may create lasting consequences on a student’s disciplinary record. In these circumstances, respondents should be given the opportunity to fully present their narrative before a hearing panel. In particular, respondents should have their opportunity to present all evidence they would like to present without the filtering mechanisms included in the Administrative Panels. When a disciplinary probation is imposed, a respondent may be required to meet with members of the Office of the Judicial Administrator for several semesters, which makes this sanction very different from (and more serious than) a written reprimand, oral warning, or educational sanctions.

Section 5.4 & 6.5 Public Hearings

Disallowing public hearings is a departure from the existing Campus Code of Conduct, which allows respondents to ask to have a public hearing. The University should maintain the public hearing option. Consider the OJA’s decision to charge Mitch McBride with violations of the Campus Code of Conduct in 2017 for leaking documents from a University working group. After he asked to have a public hearing, the OJA objected. However, the hearing chair allowed the public hearing to occur and the hearing was streamed to a packed room of observers. The hearing panel found McBride not responsible. Allowing respondents the option of having a public hearing serves as an important check on the University administration. The way to appropriately balance the privacy interests of complainants and other members involved in the hearing process is not to eliminate this right entirely—but to give the hearing chair discretion to determine whether a public hearing is appropriate in circumstances given the competing interests.

8.4 Burden of Proof

We disagree with the CJC’s vote to adopt a preponderance of the evidence standard because the clear and convincing evidence standard better advances principles of fairness and due process, ensures accurate outcomes, and creates trust in the misconduct process. In a hearing, respondents, who are often still teenagers and frequently are first-time offenders, face the employees of Office of the Judicial Administrator (many of whom are attorneys), the University, and the resources available to both. If the University switches to a preponderance of the evidence standard, the code would effectively be putting its thumb on the scale of justice against a side that is already systematically disadvantaged. This may be especially harmful to students from low-income backgrounds who are unable to afford an attorney. During CJC meetings, some people raised concerns that the University has had difficulty in meeting this burden. However, clear and convincing evidence has been the longstanding standard used in non-sexual assault campus misconduct proceedings at Cornell and no evidence has been presented that would suggest a need to alter that standard. The clear and convincing evidence standard signals to the campus community that the University is committed to avoiding finding the innocent responsible, thereby giving the community the confidence that the campus adjudicatory system is operating fairly.

Views from a JCC

Submitted by Jialin Yang on Fri, 2020-05-08 14:37

I currently serve as assistant Judicial Codes Counselor and I am a third-year law student. I work one-on-one with students, faculty and staff to advocate on their behalf when they are accused of misconduct under the campus. 

Before I delve into substantive issues, I first want to critique the fact that the so-called “Public Forum” held on May 7th was hardly public at all. The wrong link  was sent to the entire Cornell community and participants were left in a Zoom meeting unaware that the panelists were in a different meeting. By the time we were able to access this other meeting, the “Public Forum” was underway. Mistake or not, this is unacceptable when this is purported to be an opportunity “for the entire community to discuss the issues” of the proposed changes. 

Secondly, the CJC requested feedback on section 1.4 on the Judicial Codes Counselors. Specifically, the CJC requested feedback about whether the JCCs should be independent from administrative oversight. Requiring oversight from the very administrative bodies that the JCCs seek to hold accountable completely disregards the potential conflicts of interest that would arise. It is important for our office, the advocates for respondents, to remain independent from the University’s administration. We are here to zealously advocate for respondents and we are able to do that because of our independence. I’m at a loss for how moving our office under the Student and Campus Life and essentially dismantling us will “increase accountability, understanding other aspects of student life, and make the process less legalistic and more educational.” 

Third, the lowering of the burden of proof is wrong. I have witnessed the devastation when respondents are expelled or dismissed. While it may seem like a vague concept to some CJC members, I would like to remind them that these are real peoples’ lives at stake. These are students, like you or me. There is already a structural power difference between students and the University. By lowering the burden of proof to preponderance of the evidence, the Code will be exacerbating the negative consequences of this power dynamic. A student standing in front of a Hearing Panel is already at a disadvantage given the Judicial Administrator’s authority and perceived credibility. The CJC should not downplay the consequences for a student found mistakenly “responsible”. A finding of responsibility can be severe and can destroy students’ chances at graduate school or finding a good job, not to mention students who are suspended or expelled. With such high stakes, Cornell should not lower the burden of proof at all—the proposed change to a preponderance of the evidence standard blatantly erodes the due process and fairness in our campus misconduct system.

Additionally, the campus misconduct system, as with any judicial system, is rife with unconscious bias and disparate outcomes based off of race, class, sexual orientation, gender, and other factors. The proposed changes would only serve to exacerbate these inequalities and do nothing to alleviate them.

 

 

Strong concerns about proposed changes

Submitted by Anonymous Committee Member on Thu, 2020-05-07 23:52 (user name hidden)

I would like to reiterate below some concerns about the proposed changes, and the importance an overall system that is protective of student’s rights. Being a JCC requires so much more than being a supportive presence to a student during a disciplinary process. It requires commitment, sacrifice of personal time, and, above all, unwavering advocacy on behalf of your client. A client whose future could hang in the balance whether they be student, professor, or staff member. The presence of the JCCs and their law student status is not what makes the process under the code legalistic. Systems with codes and rules and punishment will always, by default, feel at least a little legalistic. Any time you have a team of professionals employed by the university on one side, whose primary solution is the distribution of punishment, you are going to end up with a process that requires advocacy on behalf of the student facing said punishment. That’s just how systems of punishment work.

It’s great to suggest a movement toward more restorative justice practices. I applaud it, and hope you’ve consulted people who make implementing restorative justice practices their life’s work in deciding what you will do. But the changes being made or thought about are not restorative justice. Making punishment easier to pass out, suggesting that the people assigned to protect the rights and interests of the students (the JCCs) be supervised under the same administration they are representing students in front of—this is not restorative justice. This is granting more power to the administration, and creating vast conflicts of interest.

The OJA, while student focused, is still an administrative office of a large university. This can create many concerns beyond the interests of students: universities do not like facing the possibility of bad press or lawsuits; universities (and the offices within them) are constantly forced to justify how they spend the exorbitant tuition money they take in; universities have internal politics always occurring that the student or general public can only imagine. I believe in a restorative and educational process, and I believe the OJA has good intentions. But in our current system of education, working at a university means balancing many competing interests with the interests of students. Granting any administrative office more power without considering this may not achieve the educational goals envisioned.

While the current proposal separates potential sanctions based on their severity, any sanction could impact a student for years to come. I hope that during this process a diversity of people who have gone before the OJA under different charges and faced different sanctions have been spoken to and heard. For an 18-year-old from any background, but especially from backgrounds underrepresented in the Cornell community, it can be terrifying. Having independent, well trained, disciplined advocates committed to students’ rights benefits both those students and the university community as a whole.

Burdens Undue and Due Process Undone

Submitted by Brianna J Weaver on Thu, 2020-05-07 23:49

To:      Codes and Judicial Committee & University Assembly

From: Brianna Weaver, J.D. candidate 2020

Date:  May 7, 2020

Re:     Notice and Comment Procedure and Sections 5.4, 6.5, and 8.4 Proposals

I. Notice and Comment

I am frustrated. I am frustrated because I should be writing a seminar paper right now. Because we are in the midst of finals, but I am here, writing this comment. I am frustrated because I am commenting during a global pandemic while some of my peers lack the internet access, emotional energy, or time to comment. I am frustrated because the link to the public forum was broken. Because if it were not for law students posting on their private social media accounts, I would not have known about the proposal to lower the burden of proof. Because "[r]eworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone" is indefensibly nondescript. Understand this: when I say I am frustrated, I do not mean to say that I am emotional. I mean that I am aware there has been an effort to frustrate the efforts of students like myself to take note of the changes to the Code and to voice our opinions. That frustration has come in the form of insufficient communication, useless - if not misleading - characterizations of the proposals, and suspect timing. The fundamental unfairness of these proposals is not limited to their substance; whether intentional or not, it began with improper notice and comment procedures.

II. Burden of Proof

Preponderance of the evidence is a standard lifted from civil law. Preponderance of the evidence is often thought of as 50%+ certainty. It is when one side is more likely than not correct. Civil law does not generally serve to discipline,* but to set the parties right. The harm of a potential error is, therefore, equal in either direction. If the court decides incorrectly, one party will be erroneously deprived of a certain award to which they are entitled or the other party will be deprived of that same award to which they are entitled. Because the risk is equal to the parties, preponderance (50/50) is a fitting standard of proof.

The same can not be said when we take the preponderance standard out of the context of civil law. For example, in criminal law, the harm arising from an error is not equal. Either a guilty defendant is erroneously acquitted or an innocent defendant is erroneously found guilty. In criminal law we use the beyond a reasonable doubt standard. There are a variety of articulations of the standard, but it is a much higher standard than preponderance. The principle underlying the use of beyond a reasonable doubt in criminal trials was articluated by William Blackstone: "better that ten guilty persons escape, than that one innocent suffer."

The clear and convincing standard falls between preponderance and beyond a reasonable doubt. This makes perfect sense in the context of a university code of conduct. The stakes are not as low as a typical civil suit nor as high as a typical criminal case. The parties would not experience equal harm in the event of error, yet the harm would not be as disproportionate as an innocent defendant going to jail.

What's more is that there is a significatly higher risk of discrimination with a preponderance standard for Code of Coduct violations. Because the preponderance standard asks what is more likely than not to have occurred, implicit biases are more likely to change the outcome of a case. Take, for example, a case where the evidence is perfectly even (50/50). If there were a perfect factfinder without any prejudice or bias, there would be no preponderance of the evidence. If, however, there is any implicit bias in the factfinder whatsoever, it will necessarily determine the outcome of that case. Now this is not just true when a factfinder is consciusly biased; this is what happens when a factfinder has implicit bias, which everyone does. Although it's still possible, implicit bias is much less likely to determine the outcome of a case when there is a higher standard of proof like clear and convincing evdence. In today's political climate, we have to be especially mindful of these biases. Willing away bias is not sufficient; we need systematic protections to protect targetted groups. 

III. Privae Hearings

Rather than propose edits to the existing exceptions that allow for a public hearing, this proposal eliminates them in one fell swoop. The proposal does not include any descretion which could  allow claimants or respondents to have a say. The proposal does not entertain the possability that a claimant and a respondant may both favor a public hearing. A claimant who fears that their claim will be burried may favor a public hearing. A respondant who wishes to clear their name may favor a public hearing. The preferences of neither matter in the proposal. This alone makes the proposal breathtakingly overbroad. Even without consensus, there are reasons to have public hearings in certain situations. The public has an interest in monitering the carriage of justice. Here, the Cornell community has an interest in monitering the enforcement of the code of conduct. The interests of the public and the various players may conflict and often do conflict. That alone does not justify a blanket rule. A rebuttable presumption against public hearnings would be more appropriate than an outright ban.

*There are, of course, limited situations where a party is dettered or punished in civil law, such as cases where punitive dmages are sought; however, such situations are the exception and not the rule. 

Timing of the public comment period

Submitted by Anonymous Committee Member on Thu, 2020-05-07 22:18 (user name hidden)

I share GSGIC's concerns with the duration and timing of the public comment period for the Campus Code of Conduct. Three days is not enough time to give everyone a chance to comment on the proposed amendments. Also, many of us are busy with classes (and finals) and don't have much time to participate in this process, especially because it is near the end of the school term.

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