Please Do Not Rush This Process

We all deserve a voice.

At the origin of this process, we were tasked with making the code more readable and eliminating ambiguities and redundancies. The revision has expanded to encompass fundamental issues involving the governance of the Cornell community. A substantial amount of people are raising the following issues which need more open and public discussion: 1) the lower and more punitive burden of proof (there is no regulation stating that there must be a universal standard of proof), 2) the importance of public hearings, and 3) suspensions being up to five years. These discussions would best be carried out in open and public meetings—something we cannot properly accomplish at the moment (nor has the CJC attempted to accomplish).

It is irresponsible to push through an entirely new code which will radically alter the student judicial experience during a global crisis. Furthermore, it is both unrealistic and unfair to expect students to read these documents while the semester is ending and/or finals are starting. We, as a community, are not being given adequate time to read the suggested changes. I ask you—what is the rush? Where is our compassion?

Here is an article written by The Cornell Daily Sun discussing Tuesday’s meeting of the University Assembly: https://cornellsun.com/2020/04/29/university-assembly-considers-lowering-evidentiary-standard-in-j-a-proceedings/?fbclid=IwAR1GaTomyRuOF1bfpXQ07M58CI6nECRMZBBxjTxxTsuBnaMzawnN9kzLFCk

Sincerely, Logan R. Kenney J.D. (expected) '21, B.S. '15

Former Chair of the CJC, Current voting member of the UA

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Due Process and Education

Due process and education go together.

When deciding whether someone is guilty or innocent (college officials like to call them "responsible" and "not responsible"), Cornell still leads the way in due process -- that is, in educating the community on how to protect the innocent while punishing the guilty. It requires not only institutions and procedures like hearing panels, dissenting opinions and judicial codes counselors but also a certain attitude. That attitude is: We're going to work hard and apply the law/rules, logic and safeguards to find the facts and make a fair decision -- even if it goes against our millennia-evolved emotions.

In theory, decision makers can do a good job with preponderance of the evidence. In practice -- precisely especially because these are not strict courtroom proceedings -- clear and convincing evidence provides a stronger check and makes the decision makers do more of the hard work needed. That's how it's not only fair but educational too. It teaches us all the importance of fairness and objectivity.

We should focus on education when considering whether and when to let a suspended student rejoin the community -- for the last time, since suspension is usually the final stop before expulsion. It seems to me that while fixed-term suspensions may have a place, they seem to me a bit arbitrary. How can we know (1) from the outset that So and So needs exactly, say, three years away from Cornell and (2) at the end of those three years whether or not So and So has in fact learned enough to come back?

Several universities take a somewhat different approach. They specify, not a definite period after which the student is commonly automatically welcome back, but rather a definite period after which the student is free to try to prove that s/he has learned his/her lessons. The Office of Student Conduct & Community Services (OSCCS), or possibly the dean of students, can read the student's petition and perhaps even speak with him or her and then make an informed decision in the particular case. That can give the student a stronger incentive to learn the most from his/her suspension, because s/he's not guaranteed another chance at the end.

(In fact, a discussion of the process, and of the student's criteria for readmission, given at the beginning of the suspension, can help start the learning. And when Cornell has to tell a suspended student to try again in a year or two, a bit of dialogue can help the student figure out where s/he still needs to improve.)

Finally, educational conferences are a great idea. Among other things, I suspect many if not a majority of students who get into trouble need a little -- and some quite a bit -- of education in social skills, conflict resolution and other aspects of emotional intelligence (such as "reading the room"). Having taught social skills myself (at Northern Virginia Community College), I think Cornell could get a great return from a small investment of reading lists (not to mention the books and online pieces themselves) and ongoing classes -- in overall social skills and also things like roommate situations, socializing with peers (especially those you might want to date), dating and intimate relationships, workplace relations and the like. (My own fondest Cornell memories have included attending a few of these classes.)

As I'm sure we all know, different people have very different susceptibility to subtlety. More bluntly, some people can take a hint and some need a clue by four (wrapped in flannel so as not to actually hurt). More than a few people need to learn how to take hints via clue by fours -- I've been one of them. Yes, taking and giving hints can be explicitly taught. Calibrate the messaging accordingly.

Keep up the great work!

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A Few Thoughts on Due Process

The Judicial Codes Counselor should be legally trained, should be independent and should be allowed to actively participate as appropriate (not just be a "potted plant"). This institution helps bolster Cornell's assurance of due process -- especially for those who due to cultural differences, socioeconomic status, background, etc., have trouble organizing their own defenses or speaking for themselves.

The standard of proof should be clear and convincing evidence -- especially for Policy 6.4 matters (and also including the Greek system). Due to the strong emotions, subjectivity and ambiguity of many if not most Policy 6.4 cases, we want to be sure we're making the right decision. Preponderance of the evidence -- "50% + a feather" -- offers too much leeway. Especially when probation, let alone suspension or expulsion, is on the table.

I believe cross-examination can do much good or much evil, and obviously the panel chairs need to control questioning in hearings. Since panel chairs will therefore sometimes ask questions themselves, of their own choosing, they should get some training in good cross-examination including (but not limited to!) good follow up questions and arranging lines of questioning. (If the Judicial Codes Counselor's office does not already get that training too, they should!)

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Proposed Amendments to Code of Conduct

Attn:  JCC Members and UA members:

               First, extend the deadline for comments. Past delays do not excuse a limited time for comments during an unprecedented absence from campus by all students, some faculty and staff.  Their ability to review, digest, discuss among their peer groups was severely compromised by the short notice to leave, pack, travel, then learn a new era of on line learning during April.  A two month extension is minimal.  (Note:  At present (4/30/20), I see less than two dozen comments, and only one from a student.

               Second, after 45 years of experience with the Code, I am greatly troubled by the depth and breadth of these proposed “amendments.”  I reported to Pres. Dale Corson in 1972-73 on the drafting of the Code, a “noble experiment.”  I have represented hundreds of students before the JAO (and Title IX Coordinator) for over 30 years.  While I appreciate the opportunity comment, the complexity of the changes in contrast with the rush to judgment fail to make the time for providing comments justified. 

               Third, the comments suggesting a lower standard of proof is justified are wholly mistaken.  The sanctions provided are equal or greater than criminal sanctions.  (I had one client commit to 90 days jail, in hopes Cornell’s JA would not suspend or expel him.  That at similar experiences demonstrate that Cornell’s degree represents who students expect to be after years earning admission, then four years of committed academic achievement.  In that one instance, he lost a full scholarship at prominent law school.)  A goal in our country and at Cornell should be to accept a guilty person may be found not responsible, rather than an innocent one be suspended/expelled.  In one documented case, among many others, the respondent attempted suicide twice upon being temporarily suspended.  He ultimately prevailed in Federal Court (John Doe v. Cornell, NDNY), but only after years in therapy and hundreds of thousands of dollars in legal and professional fees.)  The inequity between the burden of proof within Policy 6.4 and the Code of Conduct needs correction. But by having both require “clear and convincing” evidence, akin to 75% probability, not the proposed “preponderance” standard of proof; commonly known as “50% plus a feather.”  The potential for bias for the complainant is demonstrable.  

               Fourth, Due Process is refuted by University Counsel at Cornell, claiming it is a private institution, thus not subject to the 4th or 14th Amendment protections.  However, Cornell has four “statutory colleges.”  The students in those “state schools” will find due process protection one day in federal court.  Moreover, federal judges across the nation are holding other “private” universities to a due process standard.  Citations omitted due to shortness of time.  Cornell should lead not follow in assuring due process.

               Fifth, the tilt toward “educational” objectives is attractive and sound, but the “devil is in the details,” as comments to date note.  The proposed process further limits rights to trained and competent “advisors.”  JCC’s (2nd and 3rd year law students) are committed and hard-working and independent.  They should not be put under the thumb of the very bureaucracy which they must challenge on behalf of their students.  The sanctions imposed under the Code include tens of thousands of dollars (lost tuition, room, board, fees for a student suspended mid-semester) and career threatening records and transcripts. Students need and should have advisors or attorneys of their choice.  Students charged under the Code are not trained, nor able to self-represent themselves.  Some are impaired with emotional difficulties that preclude representing themselves (anxiety, depression, bi-polar, etc.).  The JAO can be intimidating, and the entire process and hearing panels overwhelming.  Independent representation is a must to ensure “fundamental fairness.”

               With more time, detailed questions and criticisms can be submitted to the expanded claim of jurisdiction and the increased use of vague misconduct standards.  They need to be redressed before imposed, not after a successful court challenge.

               The comments and CJC discussion to date have apparently also lost sight of the myriad of other Codes and Polices Cornell students are subject to:  Academic Integrity, Athletic Conduct Codes, and Regulations for Maintenance of Educational Environment, to name a few. They have different standards and procedures.

               My time is up.  Extend the Deadline.

Respectfully submitted, William R. Shaw ’69, ’73, BA, MPA, JD

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Feedback from a team of professional academic advisors

Feedback from a team of professional student services academic advisors

Section 1.2   The JCC or other advisors should not speak for students in a hearing.  While they should seek advice and support, students should speak for themselves as part of the educational process to talk about their behavior and learn from the choices made and impact on the community.

Section 1.4:  JCCs should at least have a dotted line of supervision to Student and Campus Life

Section 2.4: Formal notification should be sent by Secure Drop Box or Maxient in addition to mailing a letter

Section 4.2:  We suggest three years for suspension as sufficient because that is a lifetime developmentally for students in their early 20s, and in three years curriculum changes can make completion of degree challenging.  For reasons including possibly rapidly changing curriculums, many college withdraw student who have been gone longer than five years.

Section 4.3:  There should be no notation made on a transcript while a Formal Complaint or investigation is pending.  This is consistent with Academic Integrity procedures because charges can be false or inaccurate.  We agree that The University should not withhold awarding a degree otherwise earned until after the resolution of the Formal Complaint unless the respondent does not enter into a separate agreement with the University.  The student would likely be motivated to enter an agreement in order to receive their degree to help them secure employment or graduate school.

Section 5.1: Disciplinary probation can and should be administrative decisions hearing.  Full hearing boards are typically used for suspension or dismissal and reviewing lower level cases is extreme and time consuming.

Section 5.4:  We believe that all hearings should be private, consistent with Academic Integrity hearings.  The respondent question a witness seems inappropriate in all circumstances and the chair should moderate questions.

Section 6.5:  We believe that all hearings should be private, consistent with Academic Integrity hearings.

Section 6.6:  We have no power to enforce relevant witnesses to participate in a hearing unless they are charged with a code violation, making the process longer.  If someone files a complaint and gives a report to a trained Cornell investigator, the report or representative should suffice.   

Section 6.7:  10 minutes for oral closing statements seems unnecessary and time consuming.  More appropriately the Chair could ask if either party has something they’d like to add at the end of the hearing.

Section 6.9: Preponderance of evidence is the best practice in higher education as endorsed by professional associations such as ASCA (Association of Student Conduct Administrators) and other student affairs/services organizations. There are years of precedence and research to support this approach.  Preponderance of evidence is used in Title IX, hazing and academic integrity cases.  Additionally, clear and convincing evidence is extremely difficult to prove in a college environment.  As this process is deemed an education process and to support our community’s wellbeing, it would be detrimental to only sanction/educate when there was a clear and convincing burden.

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Re: Proposed Procedural Amendments 1.4, 4.3, 6.9, and 8.4

I submit the below comment on the Proposed Amendments to the Campus Code of Conduct on behalf of myself, Violet G. Nieves, and Emily Van Dyne.  We are J.D. Candidates for the Class of 2022, and we write as members of Cornell Law School.  Our comment is also available at the following link:  https://drive.google.com/file/d/1vWXYW3zb0DaWTCVVD2qKSG_iMYh_4zMC/view?usp=sharing.  ​

We write to express our support for Proposed Amendments to Procedural Sections 1.4 and 4.3 and our opposition to Proposed Amendments to Procedural Sections 6.9 and 8.4.

Section 1.4: The Judicial Codes Counselors should be law students.  We agree that the Counselors should remain law students.  As Professor Kevin M. Clermont writes in his comment, the position is legal in nature.  The Counselors provide fundamentally legal advice and therefore require legal training and supervision.  We believe that giving this responsibility to individuals with no legal training would not provide respondents with sufficient due process or adhere to normative standards of fairness.  We are not confident that students without legal training can properly advise respondents in administrative proceedings.  Indeed, we seriously question whether this would comport with basic standards of legal ethics.  Insofar as the administrative process is opaquely legalistic, law students are better situated to manage the proceeding’s legal aspects, and thereby reduce that burden for individuals who lack legal training. Furthermore, we balk at the insinuation that the educational value of this experience should rank in importance with the quality of counsel and due process concerns.  However, even considering potential educational value to Counselors, that education is most valuable to law students.  

Section 1.4: The Office of Judicial Codes Counselor should remain independent.  We agree that the OJCC should remain independent from the Office of Student and Campus Life.  As the Judicial Codes Counselors have written in their comment, we disagree with the suggestion that incorporating the OJCC into the OSCL will increase accountability or transparency.  Rather, we suspect that such a move would  create a perceived or actual conflict of interest.  The JCCs are accountable to their clients, not to the administration.  We question whether transparency in this context would not result in, at minimum, the perception of administrative interference in a confidential relationship.  The OJCC’s continued independence encourages participants to trust its guidance and advocacy, and thereby preserves their trust in the administrative process.  Additionally, we worry that moving the OJCC to the OCSL would further intimidate and confuse participants who are already uncomfortable or lack experience with administrative proceedings.   

Section 4.3: Transcript notations should not be permitted prior to a final finding.  We support the Proposed Amendment prohibiting transcript notations prior to a final finding.  Preliminary notations to respondents’ transcripts will unfairly harm respondents who are ultimately found not responsible.  These notations may damage respondents’ professional and academic prospects, precluding them from jobs, internships, grants, or scholarships while a complaint is pending.  Respondents who miss such opportunities may in turn need to explain gaps in their work or academic history, irrespective of whether they are ultimately found responsible.  These errors are particularly burdensome to respondents who lack access to finance or professional connections.  The Proposed Amendment will reduce these errors and their consequences, and provide more robust due process.  Even respondents who are ultimately found responsible should not preemptively bear those consequences.

Sections 6.9 and 8.4: The burden of proof regarding violations should be clear and convincing evidence.  We disagree with the Proposed Amendments to lower the burden of proof.  The preponderance of evidence standard of proof is not high enough to guarantee respondents due process.  These administrative proceedings often adjudicate conduct that, were it prosecuted outside of the University, would require a finding beyond reasonable doubt.  See generally Substantive Section 4.  Furthermore, lowering the burden of proof may exacerbate existing inequities between the parties. Students with the resources to obtain external advocates and guidance may be advantaged, while students who lack such resources will lack choices about how to present their case, while operating under a burden of proof that may favor their well-resourced University and peers.  Finally, we fail to see that the University has a compelling interest in lowering the burden of proof.

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Complainants’ Advisors Comments on Section 1.4

Complainants’ Advisors Comments on Section 1.4 The Office of the Judicial Codes Counselor

Complainants’ Advisors (CAs) are law students who serve as procedural advisors, free of charge, to Complainants under Cornell’s Policy 6.4. Like the Judicial Codes Counselors (JCCs), CAs are housed in the law school and are advised by a Professor of Law. We write to voice our support for proposed Section 1.4 The Office of the Judicial Codes Counselor, Office Members and Office Independence. 

(1) 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. 

In addition to the JCCs’ work under the Campus Code of Conduct and Academic Integrity, the JCCs also serve as procedural advisors to Respondents under Cornell Policy 6.4 (Title IX). While Respondents are free to have an advisor of their choice, they are offered a JCC free of charge. Many Respondents cannot afford to hire outside counsel and so rely on JCCs to guide them through the complex Title IX process. JCCs should remain law students for the following reasons:

First, due process values would be better served by law-student advisors. It is imperative that Respondents and Complainants understand the external, legal implications of Policy 6.4. Specifically, many of the policy violations found in 6.4 are also criminal acts. Complainants can and do bring civil or criminal charges against Respondents concurrently with or consecutively to their Title IX Complaints. Importantly, because the Title IX process is not privileged, anything uncovered in the investigation or hearing can be used in subsequent legal action. While an undergraduate student may learn the intricacies of the Title IX process, law students are better served to advise Respondents in a way that appreciates and considers possible legal consequences. Moreover, law students, while knowledgeable of common legal implications of Policy 6.4, understand the limits of their role and when to refer a client to a licensed attorney. This is especially true regarding the new Procedures on Prohibited Discrimination, which have extensive civil legal implications. Law students are also likely to have more familiarity with applicable law that governs their actions, such as the requirements of the Family Educational Rights and Privacy Act (FERPA). 

Second, JCCs have a particularized skillset. Policy 6.4 is complex. The JCCs have years of institutional knowledge and experience not only guiding Respondents through the Title IX process, but also writing effective and creative procedure-based arguments. Non-law students often emphasize narratives that are not as relevant to the policies at hand and can miss effective procedural arguments. Given that Respondents face serious consequences under Policy 6.4, such as expulsion, it is important that their advisors have years of experience defending these cases and the necessary legal training to make effective procedural arguments.

Third, JCCs are better suited to maintain professional relationships. In addition to advising students, JCCs may represent faculty and staff in the Title IX process. A law school advocate will engender greater trust than an undergraduate student for other students, and in particular for faulty or staff. Moreover, mandatory ethics and experiential learning classes help  law students  navigate confidential relationships and conflicts of interest. Understanding the balance between being a procedural advocate and offering emotional support can be difficult. Law students have experience balancing these dynamics through ethics courses, clinical work, externships, and summer jobs. Lastly, CAs and JCCs have a close working relationship that would be better fostered with law-student JCCs. Specifically, we attend trainings together and collaborate when advocating for policy clarification or changes that impact our clients. As law students ourselves, CAs would have a better working relationship with law-student JCCs, made even easier by being housed in the same building.

Fourth, equitable representation. In the Campus Code of Conduct and Academic Integrity, the imbalance between student and University is sharpened when the student is represented by someone with no legal training and the University is represented by the OJA. The same is true for Title IX. Complainants under Policy 6.4 are often advised by a CA, who will remain a law student, or an attorney. Students advised by non-law students will thus be at a disadvantage. Additionally, JCCs will serve as better advocates to these students because law students have greater time and energy to dedicate to this work compared to undergraduates who often participate in multiple student groups while taking more credits per semester compared to law students. Moreover, many JCCs and CAs are pursuing careers directly related to the work they do for the school, and use their role as a JCC or CA to sharpen their advocacy skills. Thus, law-student JCCs are more likely to dedicate the time and energy it takes to successfully represent their clients through these complex procedures.

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. 

The JCC office should remain independent from the Office of Student and Campus Life. CAs share the JCCs’ concern that Respondents would not trust their advisors if they fell under the same umbrella as the entities investigating them. This concern is even greater when it comes to Policy 6.4. Respondents and Complainants have the right to file complaints against the University with the New York State Division of Human Rights (DHR) and federally through the Office of Civil Rights (OCR). When they do this (sometimes concurrently with a 6.4 investigation), New York or the federal government initiates an investigation into the Title IX office and process. Respondents who file a complaint with DHR or OCR will not trust an advisor that is part of the same entity they are complaining about. Moreover, this creates the potential for a conflict of interest, as JCCs may both advise Respondents through the DHR/OCR process but also become a subject of the investigation. Lastly, because CAs will remain an independent office supervised by law school faculty, like the JCCs are now, there would be an imbalance if Respondents are not granted independent advisors by those investigating them, but the complainants are. 

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Standard of Evidence

It is concerning to me that so many alumni (many of whom seem to be Greek and are a part of IFC chapters) fail to recognize that the current Greek Judicial System uses the prepondernace of the evidence standard. In addition, they do not seem to understand that greek organizations have always been subject to a seperate system, under a different lower standard than the Code. Therefore, what this seems to be is a blatant play to raise the standard of evidence for the greek system alone as they recognize that greek life might be incorporated into the Code and view this as a chance to change the system. I feel that moving greek life under the code and having a preponderance of the evidence standard is the only way to ensure that there is a balance between what it means to be a Cornell student, a greek, community interestes, and due process. I say that with experience in both the Code/JA and the greek judicial process.

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These Changes Will Eliminate Fair Process for Students

The proposed change to lower the burden of proof is a travesty and Cornell should be ashamed of itself for proposing to eliminate a fair process for students.

The higher burden of proof of "clear and convincing" signals to the entire campus community that students can trust they will be ensured a fair process. The punishment for certain violations can be as high as suspension or expulsion, so we as a community should want to err on the side of being more certain if we are punishing students in such a way that can have long-term ramifications for their education and career. The "clear and convincing" standard has been the long-time standard and there is no data offered suggesting that the clear and convincing standard is either no longer workable nor no longer beneficial.

On the other hand, I strongly support that the current changes include continuing to provide for students to have representation during their hearings by law student advisors, and I urge that the final version of the code maintain that commitment. This is especially important for students from low socio-economic backgrounds or for whom English is not a native language. This is an equity issue as not all students have had access to the same training to defend themselves in a hearing, or are able to speak in English with a comfort level that would provide themselves an adequate defense. Other students may suffer from anxiety and stress, compounded by having to face an employee of the JA's office (who is typically a barred attorney) and the serious ramifications that can result from being found in violation of the Code of Conduct. By not allowing advisors to speak on behalf of their clients during hearings, these rules strip fairness from the system and make a mockery of the values Cornell supposedly stands for.

I will not mince words, if you vote to lower the standard of proof or deprive students of the opportunity to have their law student advisors represent them in a hearing, you will be betraying the values of equity and fairness that Cornell has stood for since it opened its doors 1865. For the student unable to adequately unable to defend themselves who will be convicted of a charge that they did not commit because you voted for to change these rules, you will carry the weight of their ruins.

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Student Perspective

I agree with the comments put forth by the Cornell University Alumni IFC ("CUAIFC") in regard to the proposed changes for the Campus Code of Conduct. The proposed changes, as they currently stand, overexert Cornell’s jurisdiction and inhibit an impartial judicial system. CUAIFC is raising these concerns with the best intentions to protect the rights of students and invested alumni in the campus judicial process. Additionally, these comments expose the flaws in the proposed changes which will deter future accepted (prospective) students from choosing a university where they are not provided judicial process.

The most concerning of these changes is in regard to burden of proof. Further reducing the standard of proof from “clear and convincing evidence” to a “preponderance of evidence” would be an egregious loss of due process. 51 percent likelihood is an undefendable threshold that will establish a guilty until proven innocent judicial system. With this standard, students’ entire futures rest on findings that are biased in favor of the Judicial Administrator (as prosecutor). As a Cornell student I feel especially unprotected by these proposed standards and would not consider becoming an involved alumnus if I knew my time, energy, and money were held to such judicial process standards. I encourage serious reconsideration of these proposed changes. 

Anthony Cicileo

Chi Phi Xi Chapter President

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