Office of the Assemblies

Dear Gabe,

Thank you for submitting University Assembly Resolution 24, “Finalizing Housekeeping Amendments to the Campus Code of Conduct.” I appreciate the continued work of the University Assembly (UA) and the Codes and Judicial Committee (CJC) to update the Campus Code of Conduct in a manner that is responsive to the needs and requests of the campus community.

As you have doubtless seen, the presidential task force on campus climate has recommended a significant overhaul of the Campus Code of Conduct. I look forward to a conversation with the UA early in the fall semester about this topic. I understand that any such effort will require significant work and will take time, and so it makes sense to proceed with smaller, “housekeeping” changes in the interim.

When the UA submitted Resolution 4 (UA R4), I wrote back on December 7, 2017, and indicated that I was supportive of many of the items contained therein, but asked for appropriate engagement of the campus community, consistent with the requirement for meaningful public notice and comment set forth in the UA charter. I appreciate the lengths to which the CJC went to satisfy this requirement, and I am prepared to accept several of the proposed code changes contained in Resolution 24.

The proposed changes I can accept are:

1. The changes contained in Subpart C entitled, “Language addressing public hearing notice timeframe.”
2. Changes in Subpart C that would increase the judicial boards pool size. I would suggest, however, that the UA consider the potential consequences of increasing the mandatory pool size for the judicial boards, as I understand that there may be difficulty in fully staffing members of the University Hearing and Review Boards at their current sizes. In order to prevent a situation where the mandatory minimum pool size cannot be fulfilled, I would recommend you consider setting a minimum and maximum range for pool size in order to accommodate additional members should the demand arise. Finally, I would note that the proposed change to Title II, Article IV, Sec. C.1, as written, would eliminate the Code’s provisions on the initial nominations process and the UA Executive Committee’s ability to make emergency appointments. I assume the UA does not intend to eliminate these provisions; if you do, however, I would not be able to accept the proposed change to Section C.1. 

In addition to the above changes that I can accept, Resolution 24 contains several provisions that, while addressing concerns I raised in my response to UA R4, include new language that I cannot support. If the new language were to be removed, I would be pleased to support the Code changes.  These include:

1. The language in Subpart A addressing suspension within the Campus Code of Conduct[1].While Resolution 24 generally accepted the proposed modifications transmitted in my December 7, 2017, response to UA R4, it adds new language in the section related to non-compliance of sanctions that is problematic. Specifically, in UA R4, subsection (m) read, “To refuse to comply with any penalty or remedy given pursuant to this Code.” It now reads, “To refuse to comply with any valid penalty or remedy dispensed by the Office of the Judicial Administrator and/or University Hearing or Review Board” [changes in italics]. In my December 7, 2017, response I indicated my support for the original version of this provision. I cannot accept the new language for two reasons. First, the inclusion of the word “valid” implies that there are invalid Code penalties, which is not a position I can support. Second, the spelling out of the JA and UHRB in the new language as entities that may issue penalties is limiting and fails to recognize my authority to enforce Title IV of the Code. I would be happy to accept a version of this subpart if it were reverted to what was proposed in UA R4 (i.e., with “valid” and “dispensed by the Office of the Judicial Administrator and/or University Hearing or Review Board” removed).
2. The language in Subpart C clarifying the UHRB appointment process. The assembly considered and adopted my suggestion to require input from the Dean of Faculty for faculty reappointments to a judicial board. In doing so, however, they added new language to include the CJC in the reappointment process for faculty members, which should be the sole purview of the Dean of Faculty. Accordingly, I cannot accept this new language. I would be happy to accept a version of this subpart if the CJC review is removed from the reappointment process for faculty members, consistent with the initial appointment process for faculty.
3. The language in Subpart B addressing the role of non-matriculated minors. I expressed support in my response to UA R4 for excluding non-matriculated minors from the definition of “student” in the Code in every instance and recommended the deletion of language that would remove such minors from the Code only if they were subject to written behavioral policies. The current resolution declines to adopt the changes I requested. Notwithstanding the resolution’s reasoning that the Code should include a “saving” clause that will likely never be used, I do not believe the Code should ever extend to minors unless they are degree candidates, for the reasons articulated in my response to UA R4. Accordingly, I cannot accept an amendment to Title II, Article I, Section B.2 of the Code that contains the clause, “so long as such individuals are subject to written behavioral exceptions, policies or procedures.” I would be happy to accept a version of this subpart if that clause were removed. 

Finally, Resolution 24 proposes some other Code changes that raise concerns, as detailed below. I would be happy to have members of my leadership team meet with the CJC to discuss these so that we can come to agreement on a set of amendments that meet the interests of the UA while also being acceptable to the administration. The provisions in Resolution 24 that I cannot accept are:

1. Changes in Subpart C addressing the operations of the University Hearing and Review Boards and Hearing Mechanics. Unfortunately, I cannot support the proposed change in the language clarifying the Hearing Board removal process. The university’s judicial boards are intended to be and must remain independent bodies. The proposed change would provide the CJC with an oversight role it was never intended to have. Moreover, if a hearing board member is not fulfilling his/her responsibilities, chairs must be able to act quickly to remove a member of the pool. Creating this new removal process would hamper a chair’s ability to remove a member who is not honoring his/her commitments.
2. Changes to Subpart C concerning the Hearing and Review Board Procedures. Again, the judicial boards are independent bodies. While the judicial boards are free to consult with the CJC as they see fit, I cannot support changes requiring the judicial boards to consult with the CJC regarding the UHRB’s internal rules and procedures, nor changes that allow the CJC to modify and/or reject the UHRB’s internal processes. These changes again vest the CJC with an oversight role with the adjudicative process that it was never intended to have. 
3. Changes in Subpart D regarding the no-contact directive procedures. I appreciate the UA removing language that created an appeals process for no-contact directives. In doing so, however, the resolution proposes new language that would limit the JA’s discretion in issuing no-contact directives, the duration of which has always been at the discretion of the JA. Limiting that authority in the Code would place a new burden on Hearing Board Chairs to partially assess the facts underlying the order before the case comes before the UHB. Subsequently, those Chairs would need to recuse themselves from the matter if and when it does come to the UHB, which could limit the availability of Chairs to hear cases. In addition, I am concerned about limiting the JA’s authority by mandating that no-contact orders be mutually binding. I believe the JA should retain discretion in this area so that facts and circumstances can be appropriately assessed in individual cases. 

I regret not being able to fully accept the current resolution as I am supportive of a great deal of it, consistent with my response to UA Resolution 4. I hope that you will consider making the changes mentioned above, and I look forward to working with the UA to consider future holistic revisions to the Campus Code of Conduct.

Thank you again for submitting this resolution.

Sincerely,

Martha Pollack

[1] Please also note that the code reference on page 2 in appendices to UA Resolution 24 under the section labelled “Language to address to [sic] immediate suspension for non-compliance of sanctions” should be corrected to Title Three, Article IV, Section C.2 (Code pg. 36), not Title Three, Art. III, Sec. D.4 (pg. 24, 2017).

Martha E. Pollack

President, Cornell University

300 Day Hall

Ithaca, NY 14853

Tel: 607-255-5201

www.cornell.edu