Spring 2020 Proposed Amendments to the Campus Code of Conduct
PUBLIC FORUM VIDEO AND TRANSCRIPTS (5/7/2020)
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.
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
- Section 1: Principles and Values
- Section 2: Definitions
- Section 3: Scope and General Provisions
- Section 4: Prohibited Conduct
- Section 5: Other Applicable Procedures & Policies
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.
- Section 1: Participants in the Process*
- Section 2: The University’s Response to a Complaint of Prohibited Conduct*
- Section 3: Investigation
- Section 4: Resolution of a Formal Complaint Following an Investigation*
- Section 5: Administrative Panel Procedures*
- Section 6: Hearing Panel Procedures*
- Section 7: Appeal Panel Procedures*
- Section 8: General Panel Procedures Applicable to All Types of Hearings Under These Procedures*
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.
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Best Practices for Judicial AffairsSubmitted by Anonymous Committee Member on Wed, 2020-04-29 13:36 (user name hidden)
I have previously worked in Student Affairs at James Madison University (JMU) and during my time there I volunteered to sit on on their Judicial Affairs “Accountability Board” which helped determine judicial decisions for student code violation cases. JMU’s Judicial Affairs office has since been renamed the Office of Student Accountability and Restorative Practices (OSARP). JMU's OSARP office is deeply grounded in Student Development Theory, and I believe there are some areas of this Cornell Campus Code of Conduct that could be improved upon to better align with JMU's best practices for Judicial Affairs. For example:
• Accused JMU students speak on their own behalf
• Witnesses to the JMU code violation case also speak on their own behalf (I don’t believe witnesses are required to participate, as enforcing this would cause more headaches)
• JMU Students are notified of their “alleged policy violation” through an email sent to the student’s official JMU e-mail address (as students are expected to check this email regularly)
• Accused JMU students first have to complete a 1 on 1 conversation (or “case review”) with an OSARP staff member, and that staff member makes an initial decision of “Responsible” or “Not Responsible”. If the student would like to appeal this decision, even minor cases would then be reviewed by an “Accountability Board” made up of faculty, staff, and student volunteers. I served as one of these volunteers during my time at JMU, and we all had to complete an in-person training in order to volunteer.
• During training to sit on the Accountability Board, volunteers are made aware that all repercussions (for students that are deemed “Responsible” for their accused code violation) are designed to be educational and restorative in nature. Students deemed “Responsible” might be sanctioned to attend an educational training that is related to their code violation, or they might be sanctioned meet with a faculty/staff mentor for a set number of hours/meetings, etc.
• Rather than looking for 100% certainty or “beyond a reasonable doubt” (as they look for in a court of law), Accountability Board volunteers were instead trained to look for “reasonable doubt” or a 51% chance that the student committed the code violation. During our training, the OSARP office explained that the reason we were being asked to make a decision based on only 51% certainty was because 1) this is not a court of law, and 2) the cases that we were being trained to review were minor, and the corresponding sanctions were educational, so there was no need for 100% certainty. I believe the 51% certainty benchmark was raised to a higher percentage for Title IX cases or cases that involved the possibility of Probation or Dismissal, but I personally was not trained to sit in on those cases.
• Here are some links with more information: https://www.jmu.edu/osarp/handbook/OSARP/accountability-process.shtml and https://www.jmu.edu/osarp/handbook/OSARP/standards-policies.shtml and https://www.jmu.edu/osarp/handbook/OSARP/ap-case-review-procedures.shtml
These are all areas in which I believe JMU's OSARP office sets an excellent example, and areas in which I believe Cornell's Campus Code of Conduct could improve, in order to better align with nation-wide standards for best practices in Judicial Affairs. Thank you for your time and consideration.
Timing of These ChangesSubmitted by Anonymous Committee Member on Wed, 2020-04-29 09:31 (user name hidden)
Hi I would just like to comment that attempting to make these changes during a pandemic when students are off campus dealing with a lot of issues feels inappropriate. Many students aren’t aware these changes are being made due to being off campus and thus a large portion of the people who might want to comment and express an opinion won’t be able to. I would suggest revisiting these changes at a later, better time.
Fundamental Flaws and Improvement Opportunities to AddressSubmitted by Richard W. Kauffeld Jr on Sun, 2020-04-26 20:23
As an engaged fraternity advisor for the past eight years, I appreciate Cornell’s need and the CJC’s efforts to enhance our Code of Conduct and judicial procedures. The Substantive Sections articulate aspirational principles and values with high standards for student conduct. Living-up to these values requires the CJC to address some fundamental flaws, primarily in the procedural sections:
1. The draft Code seeks to remove fairness protections in the current Code and violates students’ rights to due process. A Cornell student or organization can be suspended or expelled without “clear and convincing evidence” (the current standard), but by a “preponderance of evidence” standard that simply means the offense was more likely than not. The severe sanctions only require 3 of the 5 panelists, of which 3 are students, to decide that the offense was probable – at a Hearing that was called after the OSCSS “determined that it has met the burden of proof” and recommends sanctions of probation, suspension or expulsion (6.1). The procedures put an incredible amount of power in the hands of students who are seeking approval and recommendations from the university, with an unconscionably low burden of proof for the damage that they can inflict on other students’ lives. If the Administrative and Hearing Panels pull from a common pool, the OSCSS should ensure that those serving on a Hearing Panel have already demonstrated their capabilities and judgement on the lower panel, risks of errors or bias are not as high.)
2. As drafted, the Code appears discriminatory rather than applying to all students and all student organizations fairly. The Respondent (1.2) is described as a student, University-recognized organization, or University-registered organization (2.1 includes “group of students”, 3A “University-related residential organization”, and somewhere there is a reference to “living groups”). These organizations are not defined in the Code and it is not clear whether there are classes of non-recognized organizations that are exempt or somehow treated differently by the Code. There are no standards to determine when a group of students would be Respondents or the entire organization(s) to which they belong. If organizations are to be restricted or sanctioned for the misconduct of individuals or groups of members, the organizations must be broadly complicit and organizational accountability must apply not only to fraternities and sororities, but equally to all organizations, including sports teams and other clubs. Finally, the restrictions on Unrecognized Student Organizations (4.1) should not be construed to prohibit the freedom of recognized same-sex organizations, including gender-specific sports teams and non-coed fraternities and sororities.
3. The Administrative Procedures (5.2) lack guidelines or standards for determining “less severe” vs “most severe” offenses subject to Probation, Suspension or Expulsion. Such guidelines (perhaps as described as “Grave Misconduct” in the current Code”) should be clear and consistently apply across individuals and organizations.
4. The procedures for less severe misconduct with modest sanctions remain complex, cumbersome and legalistic. Procedures for conduct and sanctions that would not go on a student’s permanent record could be further streamlined.
5. The Code should use clear language and accurate descriptions. A Code that applies only to students and beyond campus is a Student Code of Conduct (not a Campus Code). Is OSCCS necessarily better than JA or just OSC? The Administrative and Hearing Panels both involve administrative hearings. Shouldn't we accurately call them the Misconduct Panel and the Severe Misconduct Panel?
The CJC and UA should address these issues and opportunities before moving ahead with this Code.
Rich Kauffeld '80
Rights of Cornell Community MembersSubmitted by Homer William Fogle, Jr on Sat, 2020-04-25 12:17
Since my time as an undergraduate, a half-century ago, I have seen Cornell University become increasingly authoritarian, repressive and intrusive. The mantra of “diversity, inclusiveness and safety” has been used to shut down student organizations and stifle dissent. This is the expected course of any one-party leftist state, and Cornell is no exception.
Consider what is missing from the Campus Code of Conduct: a clear statement of the fundamental “natural” rights that Cornellians deserve, but do not have and will never have.
• The right of all Cornellians, faculty, staff and students, to speak about, to endorse or to oppose any state, faction, group or person, on any issue, political, social or moral, in a non-abusive manner is absolute and shall not be abridged, regardless of the claimed sensitivities of those criticized or offended.
• The right of all Cornellians to assemble in any body of their own choosing and, by mutual consent, to exclude others therefrom, and the right to conduct their affairs in said body as the members alone shall dictate, shall not be abridged.
• The right of all Cornellians to be secure in their persons against unreasonable searches, seizures and surveillance.
A good example of what is happening occurred last year when President Trump signed an executive order on 11 December that, according to the New York Times, essentially defines Judaism as a race or national origin, not just a religion, under the Civil Rights Act, expands the definition of anti-Semitism to include some anti-Israel sentiments, and compels the U.S. Government to withhold funds to any college or university that allows speech critical of the Jewish State. Inevitably, this will “stifle free speech and legitimate opposition to Israel’s policies toward Palestinians in the name of fighting anti-Semitism.”
Firstly, the Cornell Administration reacted with absolute silence to this affront. We conclude that Day Hall was satisfied that this policy provided cover for the University’s own efforts to suppress speech offensive to Cornell’s most powerful faction.
But that is not the end of the story. The Cornell Daily Sun refused to print an alumnus letter protesting the Trump policy, again out of fear that such “speech” would offend.
So, this amended Campus Code of Conduct will give Day Hall another hammer to use on those students and student organizations that do not buy into the uncompromising demands of “diversity, inclusiveness and safety.”
H. William Fogle, Jr. ’70 (Engineering)
25 April 2020, Mesa, AZ
Some Thoughts on ProposalsSubmitted by Jeffrey B. Deutsch on Sat, 2020-04-25 11:39
Arielle Rose Johnson raises some interesting points.
"There is no 'objective' perspective on sexual harassment and assault. Ask Kate Manne, a famous scholar who works on sexual harassment and misogyny and is based at Cornell!"
What Professor Manne is perhaps best known for is the concept of "himpathy" -- that powerful men overly sympathize with other powerful men.
In other words, a subjective perspective...and one that is wrong. How is it wrong? Because we know objectively that we need to look at the evidence, facts and logic when evaluating someone's behavior...not at their level of power, gender let alone race.
Without objective standards, we have either anarchy (or at least people harassing and worse at will, because their subjective standards are what matter) or totalitarianism (or at least punishing anyone and everyone accused, because the accusers' subjective standards are what matter).
"Some assault isn't 'intended' to be abusive or humiliating, but absolutely is."
In other words, Ms. Johnson wants an objective standard. I completely agree.
There's a middle ground between "intended harm" and "innocent". It's "reckless/negligent". Objectively, under the circumstances someone should have known something was abusive or humiliating but did it anyway. It could be simply negligent, when the person didn't know better, or just forgot or made a small mistake in judgement. Or it could be reckless, say when the person was so ticked off s/he didn't care about crossing the line.
Abuse doesn't have to be intentional to be culpable.
"And sometimes a person can't verbally say no, but it's abundantly clear from non-verbal cues that they mean no."
And yes, we do need objective standards of clarity here. Also keep in mind that different individuals have different levels of ability to read non-verbal cues -- especially gven how culturally bounded the cues must be.
As most of us know, a small number of people are on the autism spectrum and have a difficult time reading non-verbal cues. We should extend them at least a little mercy.
More broadly, in a diverse community like Cornell's, people will from time to time misread -- and just plain miss -- others non-verbal cues. Too strict an objective standard risks being culturally narrow.
Let's also keep in mind the classic knowledge curse: We all tend to assume others know what we know. The corollary is that all tend to overestimate how obvious our own signals are. In fact, snarling at or punishing people for missing them is something I call minefielding.
I think one value the Code of Conduct should encourage is directness: At least when reasonably safe, we should use our words and make clear what we mean so as to avoid ballooning misunderstandings. And when a complainant says s/he didn't spell out what s/he meant, sometimes the only thing the authorities can or should do is simply tell the respondent something like: "Sally [or John or whoever] didn't feel able to tell you to stop calling her, so we're telling you: Stop calling. And don't retaliate for reporting this, or you'll be severely punished."
All that having been said, I completely agree that an instructor talking about a student's breasts (presumably not in a clinical context, eg, an advanced biology class discussing breast cancer) in front of the whole class is way out of line. As in, I'd seriously consider firing the instructor over that.
"4.16: Need to make an exception here for survivors of traumatic experiences (e.g. sexual assault) who have unclear memories of the experience or give slightly differing stories at different times as a result of trauma."
In other words, Ms. Johnson wants people to be judged on their intent, not only or even mainly on the effects of their actions. I completely agree.
I for one think it should go without saying that Policy 4.16 should apply only to intentional behavior. By all means, specify that if it will help.
Finally, I completely agree with Professor Kevin M. Clermont: The JCC should have legal training and should be independent. That will help Cornell University maintain due process -- a value it's justly famous for.
Off-campus activities (International)Submitted by Chris Cook on Fri, 2020-04-24 11:56
I would like to first like to thank the CJC for their hard work on this and for, as I read it, addressing a gap in the current code, namely, off-campus jurisdiction. As the Associate Director of International Travel Health and Safety, the current code language has led to concerns and practical applicability when it comes to Cornell-related international activities such as study abroad. A few colleagues and I have spent quite a lot of time working with the Judicial Administrator’s office (JA) and the Codes and Judicial Committee (CJC) this past year and a half to get clarifying language put into the Campus Code of Conduct. Our attention was on language that specifically addressed international activities from a jurisdiction/applicability standpoint. The current code reads, “This Title shall apply to conduct on any campus of the University, on any other property or facility used by it for educational purposes, or on the property of a University-related residential organization in the Ithaca or Geneva area.” (Title Three: Article I. Applicability). It is welcome to see Section 2: Definitions-2: “The term "University" means Cornell University, as well as any affiliated programs or virtual programs, computing, and spaces including, but not limited to, University programs in remote locations within or outside of New York or the United States" and, "Section 3: Scope and General Provisions: “The Code applies to conduct that involves the use of University computing and network resources from a remote location, and to online behavior. The Code will apply regardless of the location of the conduct when: (1) the behavior occurs in the context of a University program or activity; or (2) poses a substantial threat to the University’s educational mission, the health or safety of individuals (whether affiliated with the University or not), or the University community” in the revisions.
While these revisions still stand as a draft, I would like to encourage the CJC to maintain the awareness that instruction takes place off-campus and in unique situations where the Code is an essential component to enforcing behavior that represents Cornell well in the eyes of our partners and takes into account the cultural norms, geopolitical risks, and group safety that is inherent in education abroad activities. Justification for specifically calling out -perhaps even more so than the revisions already do -the Code's applicability in international settings has been identified as:
• Expanded Code jurisdiction will help enforce off-campus activity guidelines because it is part of a student’s permanent record.
• Expanded Code jurisdiction will elevate the authority of program-specific guidelines/rules because it is part of a student’s permanent record.
• Expanded Code jurisdiction will show institutional support of the authority of an Off-Campus Activity Leader who is responsible for the safety and education of a group of travelers in a short amount of time and unconventional environments.
• Off-campus activities are unique in the risks from and response to misconduct as they occur in settings that have limited resources and time but can impact vast amounts of people and the Cornell reputation in the public opinion.
• Off-campus activities are Cornell activities and carry weight, in terms of reputation, as such (ie., Prohibited drinking in a host family's home is not, reputationally, the same as drinking underage in one’s apartment off-campus).
For reference and suggestions on how to further clarify jurisdiction in the Code revisions, I list below examples from other institutions:
The honor code at Duke is named the community standard because it expresses our institution’s core values and a concomitant set of expectations for behavior. Because behavior is derivative of fundamental values, the standard applies off-campus as well as on.
Students may be held accountable by the university for their behavior off-campus, from Durham to Dubai
The university reserves the right to respond to any report of alleged misconduct on or off-campus
The University reserves the right to investigate and resolve any report or incident in which a student is alleged to violate any of the principles or policies published by the University or local, state, or federal laws or policies, regardless of the location where the incident occurs. Students are also expected to follow the policies and procedures of institutions that they may visit, including during international travel.
When alleged violations of University regulations or local laws take place off-campus and come to the University’s attention, the university reserves the right to take appropriate action when, in the judgment of University officials, the alleged conduct has a negative impact on the University community, the pursuit of its mission, or the broader community in which we live.
Georgetown’s Code of Student Conduct and the procedures through which it is implemented apply to students studying abroad.
Students should also be aware that while studying abroad they will be subject to local laws of their host country and regulations of their host institution.
Sanctions may be imposed for acts of misconduct that occur on university property or at any university-sponsored activity. As further prescribed in these rules, off-campus conduct may also be subject to educational interventions or discipline.
"University-sponsored activity" means any activity on or off campus authorized, supervised, or controlled by a university.
In the code, the jurisdiction and discipline extends to “conduct which occurs on University premises or which adversely affects the University community and/or the pursuit of its mission. Specifically, University officials may initiate disciplinary charges for conduct off-campus when the behavior relates to the good name of the University; the integrity of the educational process; or the safety and welfare of the University community, either in its public personality or in respect to individuals within it; or violates state or federal law.”
Uni of Illinois at Urbana-Champaign
(1) all actions that are violations of law or Board of Trustees’ action or any University rule of conduct and that occur on University premises or property
(2) all actions that violate any of the laws or regulations cited in section (a) above and that substantially affect the University community’s interest, even though such actions do not occur on University premises or property (for further information about the criteria used by the Senate Committee on Student Discipline in determining the kinds of conduct covered by this jurisdiction, see www.conflictresolution.illinois.edu or § 1-111 Student Code 9 contact the Office for Student Conflict Resolution)
Uni of Oklahoma
9.) Failure to comply with the direction of a University official who is performing his or her duties. This responsibility includes complying with faculty/staff requirements and directions of study abroad programs, including off-limits designations and other restrictions or instructions.
OFFICE OF THE JCCSubmitted by Kevin M. Clermont on Tue, 2020-04-21 16:36
I am a law professor and the long-time advisor to the JCCs.
Proposed Section 1.4 of Section 5 on procedures is also a very good provision. The proposal provides that the JCCs will be law students and that the Office is to be independent. It should be adopted despite the expressed concerns, which are particularly uninformed.
First, it is essential that the JCCs have law training. Any disciplinary code, no matter how “educational” it is meant to be, will present an endless flow of legal questions. The general populace may not appreciate this unavoidable fact, but I do. I stand in utter admiration of how well these upperclass law students use their legal education and research skills. Nonetheless, many questions prompt them to consult with me. Their questions are truly hard. I have to research them too. And then discuss the questions with people who can understand them. The job of the JCCs, which they pursue with wondrous dedication and effort, is a very hard job.
The JCCs also work collaboratively. They must do so, because of the extraordinary demands of the position. They operate out of an office provided by the Law School. We would lose a lot more than esprit de corps by spreading the JCCs across the campus.
The JCCs do a lot more that help with the Code. For instance, they advise respondents under Policy 6.4. That is a job strictly for the law-trained. The issues there are very legalistic, and respondents’ whole futures are at stake. Advising them is certainly not a task suited to the fair-minded and well-meaning lay person.
Second, it is essential that the JCC office remain independent. A good part of the job involves standing up to the Day Hall machine. I hope the reader is never charged under the Code, but if you are, I promise you that you will want an advisor from outside the bureaucracy.
I can say that in all my years at this University I have never encountered a group more impressive in carrying out their function that the JCCs. They rise to the challenges and perform them with ardor, skill, energy, knowledge, and devotion that I could never describe. I am in awe. Do not mess with this singular success.
WITHHOLDING DEGREESSubmitted by Kevin M. Clermont on Tue, 2020-04-21 15:59
I am a law professor and the advisor to the JCCs.
Proposed Section 4.3 of Section 5 on procedures is a very good provision. It should be adopted despite expressed concerns. It says: "If the OSCCS believes that the respondent may graduate or otherwise leave the university prior to the resolution of a Formal Complaint, the OSCCS must first attempt to enter into a separate agreement with the respondent to allow the University to maintain jurisdiction over the respondent if the respondent graduates prior to the resolution of the Formal Complaint, including the completion of sanctions/remedies agreed to or imposed. The University may 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 current Code says this: “The University may withhold awarding a degree otherwise earned until the completion of proceedings, including compliance with a prescribed penalty or remedy.” The current practice is routinely to withhold degrees until the completion of proceedings under the Code (or under Policy 6.4). Additionally, there is no way for the would-be graduate to challenge the interim measure of withholding the degree.
Some last-minute-before-graduation filings have resulted in unjust results. Indeed, there have been trumped-up cases brought at the last minute just to victimize, and the degree was withheld. The lengthy adjudication process has then resulted in jobs and graduate admissions put in jeopardy, professional examinations precluded, and settlements accepted because the delay in getting the degree was unbearable. This practical penalty may be completely out of proportion to the offense, even if the respondent is found responsible.
Because there is none of the balancing used for all other interim measures and no consideration of the merits at all, as well as no possibility of appeal, it appears that the Code’s concern must be with preserving jurisdiction over the graduate.
A much fairer approach would follow from amending the Code to provide in effect for withholding the degree unless the OSCCS exercises discretion to enter into an agreement with the respondent to preserve the University’s jurisdiction over the respondent for the Formal Complaint and to provide revocation of the degree as an available final sanction or remedy.
Two Major IssuesSubmitted by Keenan Thomas Ashbrook on Mon, 2020-04-20 16:19
I am a current student member of the University Hearing and Review Boards and have served in that capacity since 2018. I have comments on two major issues that I believe still must be resolved in the Code of Conduct.
#1. University Policy 4.7 does not give any leeway to alter the reporting period for violations.
The text of the current proposed Code amendments includes the following passage in Section 3:
Disciplinary Record Reporting by the Student Conduct Office is based on the seriousness of the underlying violation, with recognition of the educational and rehabilitative purpose of this Code. Towards that end, the following guidelines shall generally apply to such reporting:
(1) minor offenses are not reported;
(2) probationary status may be reported until the student graduates; if the student departs the university prior to graduation, then at the point of departure if the student has incurred no further Code violations;
(3) suspension is reported until it has been fully served, the student has demonstrated one-year of good conduct without subsequent Code violations, and a request has been reviewed and approved by the Dean of Students;
(4) expulsion is reported permanently.
I want to emphasize that under Policy 4.7 in its current form, this proposed text is untenable. The reporting period for violations (e.g. the mandatory duration for retaining a record of the violation) is not set by the Code, ***it is set by Policy 4.7.***
Policy 4.7 currently mandates the following durations for record retention:
Expulsion: permanent (matches proposed new language)
Suspension: permanent (conflicts with proposed new language)
Disciplinary probation: retained at discretion of the OJA (may or may not conflict with new language depending on OJA practice)
Written reprimand: until graduation (conflicts with proposed new language)
Oral warning: not retained (matches proposed new language)
Proposed guideline (1) is particularly in conflict with the existing policy. It is the practice of the OJA to issue a written reprimand for ***essentially all violations*** no matter how minor. The OJA has explained to the UHRB that oral warnings are reserved for extremely rare circumstances, and the office is hesitant to issue them because they believe a lack of a written record fails to ensure accountability for students found responsible for code violations. The OJA’s default action is to issue a written reprimand for all violations. This means that, contrary to the intent of the new proposed language, Policy 4.7 currently makes minor violations reportable until graduation because these violations almost always carry a penalty of written reprimand.
Guidelines (2) and (3) are also problematic from the standpoint of Policy 4.7. The policy allows the OJA to retain records of disciplinary probation at their discretion, and my understanding is that the OJA’s current practice is to retain such records for some years after graduation. I do not know if the OJA would be obligated to follow the proposed new language in the revised Code, or if it could maintain its right to retain the records at its discretion pursuant to Policy 4.7. Clearly proposed guideline (3) is also in conflict with Policy 4.7, which states records of suspension will be maintained permanently.
It has been my long-standing belief that the UHRB should have discretion to alter the duration of the reportability of violations (though I have no problem with default durations being set by the Code). This is because reportability is itself a de-facto punishment, and the UHRB is supposed to have discretion to adjust the severity of sanctions based on the circumstances of each individual case. Reporting requirements are often “hidden sanctions” themselves, with the ability to severely impact a student’s future career and graduate school prospects. Inflexible reporting requirements force the UHRB into a very difficult position when determining sanctions. Increasing the “level” of sanction (from oral warning to written reprimand, probation, etc.) also increases the duration of reporting requirements in a way the board cannot control. For example, the UHRB may feel a violation would otherwise warrant probation, but be hesitant to impose this sanction because of the long reporting period and feel compelled to impose a written reprimand.
Moreover, this problem is compounded by the fact that most cases are resolved through Summary Decision Agreements (SDAs) and very few make it before a hearing board. Since the OJA’s practice is to propose a written reprimand by default, this means that potentially hundreds of students are agreeing to sanctions with reportability periods that they do not know can be challenged. In theory, it is possible for a student to reject a such proposed SDA with a written reprimand and argue to the UHRB that the sanction should be reduced to an oral warning so as to avoid the reporting requirement. But very few students are in a position to know about (much less opt for) this complex and arcane maneuver, especially those accused of low-level violations unlikely to be working with a JCC.
My understanding is that Policy 4.7 is the responsibility of the University Counsel. I would strongly recommend opening a discussion with the University Counsel on amending Policy 4.7 so that it supports the objectives outlined in the proposed amendments to the Code, which I believe are laudable. Numerous Cornell students have likely been saddled with inflexible reporting requirements for even the most minor of Code violations--requirements that can have a major negative impact on their futures in a way disproportionate to their violations. I also recommend adding language to the Code allowing the UHRB discretion to change reportability durations, so that the board retains its ability to set sanctions at a level appropriate for the offense.
#2. The expansiveness of the “Obstruction” provision (4.16) risks exaggerating the seriousness of a respondent’s conduct if a disciplinary record Is created.
The text of the current proposed Code amendments includes the following passage in Section 4:
4.16 Obstruction with Code of Conduct Investigation and Adjudication Process
Obstruction or interference with, or failure to comply in, Code of Conduct processes, including, but not limited to:
Falsification, distortion, or misrepresentation of information;
Failure to provide, destroying or concealing information during an investigation of an alleged Code violation;
Attempting to discourage an individual’s proper participation in, or use of, the campus conduct system;
Harassment (verbal or physical) and/or intimidation of a member of a campus conduct body prior to, during, and/or following a campus conduct proceeding;
Influencing, or attempting to influence, another person to commit an abuse of the campus conduct system;
Refusing to participate, without a substantial reason, as a witness in an investigation of or proceeding brought to enforce potential violations of this Code;
Failure to comply with the sanction(s) imposed by the Code or other conduct policy, including Policy 6.4.
I have major concerns about how the Code (both present and proposed) treats students who fail to complete their sanctions in a timely manner. No matter whether a student intentionally refused to complete sanctions or just procrastinated, they are charged with obstruction of the Code. The proposed text of this section, like the OJA’s current practice of charging respondents who fail to complete sanctions with obstruction (Title Three, Article II, Section A(3)(g)) is problematic because the language of the Code can be read to exaggerate the seriousness of violations falling under the last bullet point.
The disciplinary record that will be created by a written reprimand for this Code violation under Policy 4.7 includes ***no context about the circumstances of the violation*** other than the language of the obstruction provision in the Code. Someone reading the disciplinary record of a student who was charged under this provision because of failure to complete sanctions could infer that the respondent also committed such serious violations as destroying evidence, lying to an investigator, or taking other active measures to hamper an investigation. There is an incredibly wide gap between the seriousness of these offenses and such actions as missing a deadline to complete sanctions. But this gap would not be perceptible to any individual (e.g. a graduate school admissions officer) reading the respondent’s disciplinary record with no additional context. It would be up to the respondent to provide the context that they were only charged under the last bullet point, which the OJA is under no obligation to corroborate.
There is a serious risk in this scenario that some students’ graduate school or job prospects could be unduly damaged by the omission of context from the disciplinary record created by a written reprimand. It is certainly reasonable for there to be a Code provision punishing failure to complete sanctions, but this should not be lumped in with the other extremely serious violations covered in 4.16, which would be felonies in the actual criminal justice system. There should be a separate, stand-alone provision for punishing students who fail to complete their sanctions.
JCC Eligibility / Student and Campus Life; Public HearingsSubmitted by Anonymous Committee Member on Wed, 2020-04-29 13:55 (user name hidden)
"The CJC voted 4-3 to keep the language above. The 3 members who voted against believed that the position of the JCC should be open to any graduate, professional, or undergraduate student who is interested and goes through the necessary application process. In addition, some members believed the Office of Judicial Codes Counselor’s should be moved into Student and Campus Life to increase accountability, understanding of other aspects of student life, and make the process less legalistic and more educational. In addition, the name might be subject to change."
I agree with the members who voted against this proposed change. Being a member of the Cornell community gives them a greater understanding of the various situations that students and faculty are facing, which gives them better context with which to make decisions.
"The CJC voted 5-3 to make all hearings private. The 3 who voted against believed that there should be some exceptions to allow for a public hearing. The existing code allows for public hearings in certain circumstances and believed those exceptions should be included."
This is somewhat concerning. As detailed in the current Code of Conduct, in cases where neither party is at risk of harm from a public trial, the accused should have the right to opt for a public hearing. This provides for greater accountability, and increases transparency in the hearing process.