Comment on Proposed Change to Burden of Proof

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

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

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Do not lower the standard of evidence

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

A  concerned alum. 

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Extend the Comment Period; Don't Lower the Standard of Proof

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

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

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

Respectfully,

Robert Ward

J.D. Candidate, Class of 2021

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More time needed, Higher standard better

You've got to be fucking kidding me.

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

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

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

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

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

Fuck your power grab.

-Joshua

MPS Cornell University '19

BA University of Pennsylvania '18

Defense Language Institute '09

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Preponderance of Evidence Not Strong Enough

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

Thank you,
Fil Eden, '10

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I don't have enough time to write a more thorough comment

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

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

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Extend commenting period

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

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Public Notice and Comment is Important

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

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

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

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

Respectfully,

Michael Mills

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

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The CJC Meets Tomorrow at 9AM (EST)

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

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

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Which standard should I use?

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

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

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