Section 4.1 should include disability status.

I'm not going to repeat the criticisms of lowering the burden of proof that others have been made, which are clearly adherent.

I also agree with others that we shouldn't be moving to expand the definition of harassment, which is already wide and vague, but to make a better, and more narrow, definition so that we have a clear understanding of what constitutes harassment. Expanding the definition seems completely counterproductive, and increases the likelihood of being used in nefarious ways. 

However, I do want to bring attention to the definition of harassment that includes the following clause: "the fact that the conduct targets a group that has historically experienced discrimination may be relevant to a determination of whether the conduct creates a hostile environment." I think this is politically and ideologically motivated language, and should absolutely not be part of any objective definition of harassment. What constitutes a " a group that has historically experienced discrimination" exactly? And which "groups" 'deserve' to be part of this category, and what 'groups' don't? And who decides this? More importantly, this amounts to essentially creating a protected class, or set of groups, on campus in that any remarks made that can be construed as 'conducts that targets' them (which is subjective) can be deemed as creating a hostile environment. This seems incredibly authoritarian and a potentially extremely dangerous road to embark on in a setting that claims to offer a space for opinions to be heard as well as differing viewpoints to be part of a learning environment. 

First of all, any edits to a judiciary code that affects students should be publicly presented to students for an open forum, town halls, explanation of the policies, and a vote. Doing this on such a random little corner of the Cornell site is shady, and doing it NOW when thousands of your students and staff CLEARLY HAVE OTHER THINGS ON THEIR MIND is VERY shady. At least pretend to be democratic. If y'all can send emails every other day whining about your money troubles and trying to encourage us with empty platitudes, you could have emailses us about this too.

Second of all, instead of punishing consensual drug possession, sale, and use, why not put that fire and fury into expanding the healthcare resources available to students? Y'all know damn well that the workload and culture here push people to use uppers to perform and downers to decompress. Y'all must also be aware of the opioid epidemic that's simultaneously got millions of Americans in its grip, including in the Ithaca community. This would be a terrible example; we know you're a bunch of racist hypocrites at the top, but it'd be nice not to see it so well.

Third, under no circumstances should you extend your jurisdiction beyond the campus. You don't even pay property taxes, on what authority do you presume to control our behavior off campus? Do you own us now? Do you own this town? Is profiting off our money, labor, research, and success rates not enough for you bloodthirsty clowns?

Fourth, don't even pretend to PRETEND to care dor the environment. We know you chose not to divest from fossil fuels. We know you waste hundreds of gallons of food every day, turning it into compost instead of feeding the community. We have no illusions of your true values. This greenwashing charade can stop.
Finally, you need to make these documents EXCEEDINGLY public and put them in more plain terms. This reads like a trap, like it's meant to confuse us into not caring. My writing got me into this school but I still don't know what the hell this is saying. Stop the charade. Do this another time, or not at all, and MAKE IT PUBLIC.

I think it's that the "preponderance of the evidence standard" in section 6.9 is a clear and convincing subversion of due process. Being able to punish students for simply "suspecting" a student has violated the Code is a dangerous precedent to set, it assumes that the Panel will be always correct about its suspicions (which will definitively not always be the case), and the only standard truly being set is "guilty until proven innocent." This is dangerous and not acceptable.

I teach substantive criminal law at the Law School.  The definitions of prohibited conduct are unnecessarily vague and overbroad. I will give just a few examples:

1.  Student A says to Student B while sitting in their dorm room: "I think I'll steal Student C's computer." Student A gets up to walk to Student C's dorm room, where he believes Student C's computer is located. Before he gets to the door of his own doom room he changes his mind: he won't steal Student C's computer after all. Student A reports Student B to the Office of Student Conduct & Community Services. Section 4.3 (Attempt to Violate the Code) makes it a violation of the Code to "attempt to violate any provision(s) of the Code." Has Student A violated section 4.3, inasmuch as he has "attempted" to violated section 4.23, which makes it a violation of the Code to "violat[e] any federal, state, or local law, regulation, or ordinance," which would include provisions of New York law prohibiting theft? 

2. Student A is riding her bicyle on campus. She gets distracted when she hears a loud bang in the distance. She accidentally runs into Student B. Student B suffers "physical harm." Has Student A violated section 4.4 (Assault and Endangerment), inasmuch as she has "engage[d] . . . in conduct that does . . . result in physical harm"? It would seem so, but does the Code really intend for Student A's conduct to constitute a violation of the Code? On its face, section 4.4 imposes strict liablilty for engaging in any conduct causing "physical harm." A student's mental state with respect to that harm is irrelevant.

3. Student A gives Student B a pencil because Student B said he lost his. Student B uses the pencil to draw on the wall of a University bathroom, which is presumably a violation of section 4.17. Is Student A an accomplice to Student B's violation of section 4.17 and thus (given the way complicity is understood in the criminal law) himself guilty of violating section 4.17? Again, it would seem so, inasmuch as Student A has, pursuant to section 4.6, "aid[ed] . . . another student to commit a violation of the Code." (P.S. Section 4.6 is captioned "Collusion and Complicity." Complicity is a concept known to the criminal law, as is conspiracy; collusion is not.)

4. The definition of bribery doesn't even amount to a definition. It defines "bribery" as "bribery." But that's not a definition. It's a tautology.

These examples would be easy to multiply.

One common response to vague and overbroad prohibitions such as those contained in Section 4 is to claim that those in charge of initiating proceedings against those charged with violating those provisions will do so only when it would be "appropriate" to do so; or in other words, to trust that the charging authority will use wisely the broad discretion vague and overbroad statutes bestow upon it. Perhaps, but those subject to that authority can be excused for being skeptical when that authority gives itself broad discretion and then says, "Trust me." Moreover, vague and overbroad provisions are bound to result in different finders of fact reaching different results when those provisions are applied to the same set of facts. One panel will find a violation; another won't, all in good faith. The process will thus appear arbitrary and capricious, not to mention being vulnaerable to charges of bias and discrimination. Provisions as vague and overbroad as those in Section 4 are an open invitation to such charges.

One might think these provisions are to be lauded because they use "plain English." That would be a mistake. Provisions can be drafted in plain English without bestowing on the charging authority what amounts to breathtakingly broad discretion. The desire to speak plainly should not be used as an excuse (or subterfuge) to vest broad and unnecesary discretion in the hands of the charging authority.

While I assume the best of intentions in Campus administrators, the proposed changes will invite administrator overreach and potential misconduct that could create a chilling, almost Orwellian environment on campus. Two particular points of disagreement: 

-4.1 Affiliation with Unrecognized Student Organizations or Groups (Previously known as Misconduct Related to Student Organizations or Groups): Assuming these "Unrecognized Groups" are not operating on University property, it makes no sense what right the Administration has to regulate which organizations students affiliate with. If an organization is destructive in a material way, let law enforcement handle the matter. They handle everything from littering to terrorism so they can certainly handle off-campus, unrecognized student organizations. This change could give the Administration coercive power over the social and political activities of the student body (while they are off-campus).

-4.12 (2): "The fact that the conduct targets a group that has historically experienced discrimination may be relevant to a determination of whether the conduct creates a hostile environment." Again, while assuming the best of intent on behalf of those who propose this change, it is vague and open to ideological interpretation. All groups of humans have at some point in time experienced discrimination. The other concern is the "may be relevant" portion. When will it be relevant? Perhaps when it suits the political / ideological motivations of those involved?

Dear Cornell Daily Sun,

Thank you for covering the University Assembly meetings. And specifically for pointing out more bias in this process for individuals who do not have time to attend the meetings.

Dear Codes and Judicial Committee or University Assembly,

Why was the Student Assembly affiliated Office of Student Advocate presenting at the last UA meeting? Is it because that group has a self-interest in the process by wanting to be paid advocates? Is it because they were there to argue for proponderance of the evidence which it is clear from the comments is not the popular choice for Cornell's standard? I looked up the speaker whose name is in the latest Sun article and she was or is running to be a Student Trustee and is also a co-founder of Cornell's ACLU. Interesting. Funny how co-founder of an organization that fights to uphold constitutional rights is proposing to lower the burden of proof and grant the administration absurd power while disadvantaging students. Why is the Student Assembly President also Chair of the Codes and Judicial Committee? There seems to be a conflict of interest. Why are we being asked for comments on one proposal for the Student Assembly to bring another into consideration at the last minute? I don't see that proposal here.

Maybe the students representing the Cornell student body cannot funny understand the magnitude of what they are saying because they are individuals who are graduating or are unlikely to violate the code. Keep the representation where it belongs, under the guidance of legal scholars and with the law students.

I hope that this body asked legal scholars from the law school for their opinion. Reading Professor Garvey's comment makes me worried that they were not consulted and the code is unfinished. 

Sincerely,

A young Cornell alumn

I'm saddened that the university is essentially making a power grab from its students. First off, I can't help but feel like this amendment is taking advantage of the fact that students are away from campus and busy with pandemic-related issues to enact a policy that could hurt the student body without properly consulting the students. I only recently received an email regarding this and have not been involved much in this discussion. There needs to be extensive discussion about this among students.

I have many commitments related to the COVID pandemic, so I will focus on the concern I feel strongest about. I am saddened that Cornell is attacking its students' rights to due process by reducing the evidence standard to what is essentially a preponderance of the evidence standard. An accused student could be held responsible for something he or she may not have done because a committee is essentially 50.1% sure a violation occurred. As you can probably see below, this is an issue that concerns many people. It's unfortunate that many members of Cornell's student body may not realize the implications of changing the standard or worse: will not realize that the standard has been changed until the new amendments are passed. The stakes are way too high for the panel to implement a preponderance of the evidence standard. The possible sanctions include suspension and expulsion, which would mean that again (I want to reiterate this), a student can be suspended or expelled because a panel is 50.1% sure that a violation occurred. This is completely unacceptable and extremely concerning.

I find the comments made on the amendment by the individuals supporting the preponderance of the evidence standard highly offensive. They stated that enacting that standard would be "educational." I have absolutely no clue what is meant by that or how attacking our rights to due process would be educational for anybody. If anything, it takes advantage of students who have not been educated in the field of judicial proceedings as they may not understand the implications of doing so. Additionally, it was stated that reducing the standard would balance "interests of the community," which again, I have no clue what is meant by that. As you can see by the previous comments made here, it is very clear that the community is concerned about reducing the standard and overwhelmingly not in support of the preponderance of the evidence standard. Furthermore, it does not "balance interests of the community, rights of the accused student, and due process" since as it can be seen here, all three concerned parties mentioned seem to agree that standard is an attack on due process. 

I think it's very telling that the majority of the people commenting here are faculty and law students. First off, it shows that other undergraduates have barely had an opportunity to raise their concerns. Second, these are well-informed individuals, many of which study law, that are agreeing that there are many issues with these amendments. Particularly, it seems that many agree that it attacks due process and that changing the standard to preponderance of the evidence does not represent the views of the community.
I'm very disappointed that this is happening. Initially, I was proud that Cornell was one of the few schools that had a code of conduct that promoted students' rights to due process. Now, it appears that will be reversed.

I will assert that using a “preponderance of the evidence” burden of proof, as proposed via amendment, in section 6.9 of the Campus Code of Conduct to charge and judge a university action is detrimental to Cornell's academic culture, and therefore shall remain a clear and convincing standard. First I will establish many items that are in the status quo that are missing from the campus code that are implicit in society. Then I will show that the forthcoming CJC Amendments will fail those that are the most vulnerable in our community. 

I will start out with many points that are rooted in experience and in law. A Cornellian's word is gold. Those that are highly educated have their statements holding more weight than those who only hold a GRE or equivalent. A person who holds a JD or MD is held in higher regard than those who hold a Bachlors. Their word is supposedly gold and should be speaking the truth, especially when studying at an Ivy League.

Secondly, let us then examine the proposed burden of proof. If the preponderance of the evidence is the burden of proof, whoever calls 911 first, nine times out of ten, wins the case. Street knowledge shows that if you initiate a fight with someone, whoever calls 911 first is going to get off without charges. That is due to the fact that whoever calls 911 is the one that feels like they are wronged. If you disagree with this street knowledge, let us take a trip to the Ithaca Commons or behind Walmart, get into a fight and learn the power of calling 911 first. As Section 1 states, “we value engagement in our community, our state, and the broader world, learning about their needs and strengths, and applying the knowledge we create for the benefit of society.” The proposed experiment under the amendment’s burden of proof will most definitely help with this mission. Another fact of the proposed preponderance of the evidence standard is that “the burden of proof is met when the party with the burden [Under the proposed amendments- prosecution] convinces the fact finder that there is a greater than 50% chance that the claim is true.” (Cornell LII Wex). This is a thin margin and it is inherently hard to prove that you did not do something. If someone were to state you were at an alley when you were actually at home typing a thesis, it is then difficult for you to prove you were not at that alley. Therefore, when the 911 call is then started, this places the defendant in an inherent disadvantage. 

I cannot go without stating the status quo burden of proof, clear and convincing. In brief summary, this standard burden of proof is used for “claims which involve fraud, wills, and withdrawing life support” (Cornell LII Wex). When the stakes of getting expelled from school is a real possibility, is that not on the same level as withdrawing life support?

Another fact is that having a university action on file with Cornell makes it harder to get into a dream graduate school. Those that are applying to graduate school now are receiving a question that states “Has there ever been a University Action against you, if so explain (500 words)”. In a majority of cases, 500 words is not enough space to explain how an unjust system is rigged against innocents on a systematic scope. This type of additional hurdle that the Administration wishes to freely provide are like ankle weights to the Cornell Track and Field runners. Graduate school to full professorship is a dream for a good proportion of your student population. Having Cornell being able to freely give out University Actions is like giving handcuffs to dancers. Sure the dancers can still make a passing effort, though they are likely not going to be on the top of the list. In an amendment that supposedly wants to make a climate where “we value diversity and inclusion, and we strive to be a welcoming, caring, and equitable community where students, faculty, and staff with different backgrounds, perspectives, abilities, and experiences can learn, innovate, and work in an environment of respect, and feel empowered to engage in any community conversation”, does giving every dancer handcuffs when they miss a beat (something able to be prosecuted with a preponderance of evidence) sound like an environment of respect?

An implicit assumption in this amendment is that there exists bad apples in the Greek system. I agree wholeheartedly and they should be punished. This is clear and clean and there should be no issue with this. Now bad apples do not follow or care for the rules or common morality, such as not lying. Having a bad apple Cornellian is then a very dangerous person since their lies are then solid evidence against their enemies in a preponderance of the evidence standard. 

Finally a key piece of evidence for convictions or university actions are police statements. In a police statement, they interview, take notes and photos of possible pieces of evidence. The police officer is first there to protect the innocent. If you start a fight and call 911 the operator and officer automatically assumes that you are the one being assaulted. The officer is sympathetic to the caller victim’s needs and statements. The report will likely than not be more soft on the caller victim. 

Let us take the above and apply them to Cornell after a preponderance of evidence burden of proof standard is enacted. Take Jane, a first generation, hispanic woman who finally went to her first college party in collegetown and aspires to be a professor in business. She does not want to get a judicial action against her. Also take Chad, a white fraternity “bad apple” from ABC fraternity. Chad attempts to seduce Jane, bringing her to his room, though she refuses and exits the house. A frustrated and angry Chad goes to the bathroom and concoct a plan with one of his buddies. His buddy would slap him and Chad can get Jane in trouble for assault and battery(assault IAW amended CCC). Chad calls 911 and Cornell Police arrive on scene. Chad accuses Jane of assault and the police take his statements more lightly than Jane’s, due to him being subject to battery. Jane does not have any evidence to show that she did not slap him. The fabricated evidence and the 911 call to CUPD is the preponderance of evidence that Chad has to deprive Jane of an easy graduation, transition to graduate school and her dream professorship. All Jane can state, especially without a good lawyer that can navigate the “plain english” Campus Code of Conduct, is that she was in his room and left the room after a failed seduction and the handprint could have come from anywhere. There is reasonable cause to believe Chad’s story that assault by Jane happened via the preponderance of the evidence burden of proof during the UA hearing. Assault is classified as at least a class A misdemeanor in NYS (NYSPL 120.00) punishable by up to one year in jail (NYSPL 60.01(3)a). 

Now let us examine Cornell in the status quo. If the same scenario were to go down, sure the police will be sympathetic to Chad and see the handprint, though there is not enough evidence to prove that Jane did anything wrong. There is not enough to charge Jane with assault and the innocent Jane can go home free without a university action against her. She can go home free and protected from further retaliation and accusations by bad apple Chad. All people are given what was due.

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Dear Codes and Judicial Committee and (by cc) the greater Cornell Community,

I hope that my examples and carefully laid out argument proves convincing. I am a current undergraduate senior who does not want their alma mater’s judicial system to enable the worst of our community to oppress the most vulnerable. Those who are in a minority status are continually attacked and subjected to accusations such as stealing and rape, fueled by racist thoughts. I do not want this diverse and amazing body to become a place rife with accusations just to silence their unique and innocent voices. 

In response to those on the board who believe that the preponderance of the evidence provides due process to the accused, I will state the following: Bad apple Cornell fraternity boys are smart, or at least their parents are smart. Once their lawyer parents get hold of the Code, they will absolutely tell their child to call emergency services first to abolish themselves of guilt and have the preponderance of evidence on the accused (who are absolutely innocent). This method does not protect the accused. Instead it subjects them in a huge pit that they have to struggle to get out of. Accusals under the preponderance of the evidence burden of proof hold a ton weight, one that many minorities do not have the resources nor ability to defend against. If the minority student were to get charged with a high crime such as an Academic Integrity (AI) violation, having that preponderance of the evidence burden would certainly make the process educational. This realization would occur when they are subjected to many AIs, accusations made by toxic white fraternity boys that cheat the judicial system, forced to take a leave of absence by the administration and working a minimum wage job reflecting on their prior aspirations to get out of the cycle of poverty that they grew up in. Would you be able to look into Jane’s innocent crying eyes, after getting accused of AIs that she has no evidence of not doing and only the preponderance of evidence, and say “accusations hold weight, wasn’t this process educational?” 

I fear that the instances that I have highlighted will come to being and justice at Cornell will be but a vague memory. 

Respectfully but forever cautious,

Iustitia

We need to carefully reconsider Policy 6.4 as well -- especially since the new Title IX regulations have just been released:

https://www.ed.gov/news/press-releases/secretary-devos-takes-historic-action-strengthen-title-ix-protections-all-students

https://www2.ed.gov/about/offices/list/ocr/docs/titleix-overview.pdf

If anything, due process protections are especially important when we're considering branding someone a sexual harasser let alone a rapist. That's much higher stakes than, say, finding someone responsible for vandalism or underage drinking.

Under the new rules, Cornell can use either preponderance of the evidence or clear and convincing evidence -- either way, we'll just need to apply it across the board (among other things, to accused faculty and staff as well as accused students).

I for one urge clear and convincing evidence. It's that important to make sure we get it right.

PS: One more good thing about an independent Judicial Codes Counselor's office: Since the respondent him- (or her-) self can't cross-examine the complainant, a JCC advisor can do this professionally.

I have read some of the previous comments. Some are against expanding safety and security measures. Many students live off campus. A statement that maybe specifies a perimeter regarding campus police involvement / authority [and what specific actions would they be authorized to warn against, make arrests, and so on] could help minimize misinterpretations. I agree that all of these proposed statements should be made known publicly to CU consituents and be given a time frame to respond if they so choose. I disagree about not making it punishable by law "consensual" use , sale, purchase of illegal substances. They're called illegal [against the laws or regulations of an institution]. This is besides the undeniable fact that they're dangerous, harmful to health and safety. About  the use of the phrase "historically discriminated"...I urge you to rephrase. No human of any group, affiliation, race, etc., deserves nor should be expected to tolerate harrassment in any shape or form. However, the more specific about what constitutes harrassment, the better. It also needs to be made clear what the procedure to report conduct issues is. Laso, how many will be employed and properly trained to implement and enforce the code of conduct?

We represent graduate students concerned about gender issues in computing and across Cornell University.

We are very concerned about the feedback process for these proposed changes. 

• Giving only three days for feedback is unacceptable (students received notice via email on May 5, the forum is on May 7, and comments close on May 8). 
• The open forum is scheduled at the same time as the Graduate Student Town Hall on Teaching Reactivation.
• It is difficult to parse the proposed changes, and a direct comparison of before-and-after texts would be more helpful. 
• The proposed changes are not explained. For example, why is the scope narrowed to students, excluding faculty and staff?
• Unstructured open comments without constructive conversations between the committee and student groups will result in changes that do not represent the students. 
• Finally, we are in the middle of a global pandemic that has produced huge uncertainty and turmoil for universities, making it difficult to give proper attention to these important changes.

We therefore ask for the timeline for review and feedback by students to be extended, more transparency and better summarization of proposed changes by the committee with ongoing public forums, and a clear timeline of proposed changes and votes.

Regarding the Code of Conduct text, we strongly support more specific language about sexual harassment. The more specific the definition, the easier it is to identify destructive behavior. Both the current and proposed Code of Conduct do not contain explicit language describing sexual harassment. Relying only on Title IX is not sufficient; sometimes sexual harassment does not meet the strict legal definitions covered under Title IX but is still unprofessional, deeply harms the victim, and damages our academic community. Both undergraduate and graduate students experience sexual harassment in alarming numbers, often with little access to redress. 

In addition, the standard of evidence should not be changed unilaterally without significant feedback from students over a longer period. 

Executive Board

Graduate Students for Gender Inclusion in Computing at Cornell

https://gsgic.org/

I believe the amount of sexual assaults that are reported, and actually followed through with at Cornell is about 100. It's clear that clear and convincing evidence is not working. Most people are not going to have 7 bystander eyewitnesses or a text message saying "I apologize for assaulting you" and forensic evidence is not applicable to a lot of cases. We need to start addressing what kind of proof we actually want and create the standard of something attainable to achieve. 

These code changes DO NOT apply to sexual harrasment or assault. Title 9 is a completely different campus code and system. These changes only deal with the campus code. 

I agree that the Code should not be as punitive. A more educational and less punitive experience will equip students with tools for making better decisions.

The JA should not recommend the same blanket sanctions solely based on what code was violated. Rather, there must be greater consideration of each cases’ mitigating and aggravating circumstances.

Prohibited conduct should be more specifically broken down into subsections rather than grouped together in a code section. That is, there should be subsections to appropriately reflect degrees of severity so that, for example, possession of alcohol is not under the same section as selling alcohol or operating a motor vehicle under the influence. It is unjust that a student who committed a less severe alcohol-related behavior violation has the same violation code on their record as a student who committed a more severe alcohol-related behavior violation, or that a student who possessed marijuana have the same code violation as a student who sold a lethal controlled substance. While students may have an opportunity to explain their misconduct to a future employer or admissions office who may interpret the code violation in the most severe sense, the prejudicial effect may not be overcome. Additionally, the added stress to a student of having a code violation on their record that could be interpreted in the most severe sense is unncessarily punitive.  

Plenty has been said in the comments about the burden of proof so I will just add my very strong support for the “clear and convincing” standard.

A formated PDF has been emailed to the Assemblies Office.

STATEMENT BY THE UNDERSIGNED GREEK ALUMNI

ON CODES AND JUDICIARY PROPOSED DRAFT

The undersigned are offering comments on the draft code and judicial procedures posted by the Codes and Judicial Committee (CJC).  We thank the CJC for their hard work on a project that involves many difficult issues.  This project is important because it brings together all elements of the Cornell community to forge a set of widely-accepted conduct rules and procedures that will bring fairness and justice to students as those standards are enforced.

            Since Cornell admitted its first students in 1868, Cornell fraternities have provided values-based education and opportunities for self-governance to generations of Cornellians.  Fraternities are also valuable inter-generational organizations that promote mentoring and career advising for undergraduates and recent graduates.  Fraternities offer skills training and education resources from both Cornell alumni and from each fraternity’s national organization.  In general, most fraternities operate under the Trustee “recognition policy.”[1]  Most fraternities are single-gender organizations, but some are co-ed.  Fraternity alumni have a long history of contributing to Cornell in many ways that further the university’s goals of allowing “any person” to get a quality education.  Fraternity alumni welcome improvements to the campus judicial system as long as the changes continue to protect student rights and support fairness and objectivity in the adjudication process.

1. Burden of Proof

If Cornell students were before the criminal justice system, they would face the standard of “proof beyond a reasonable doubt,” which was put into Cornell’s Campus Code of Conduct in 1970. Later, the Code has required a lower standard of “clear and convincing evidence”.  It would be a huge mistake to further reduce this standard to a “preponderance of the evidence”, as recommended by a 6-4 CJC vote. Society recognizes the importance of the burden of proof protecting the innocent from mistaken identity, erroneous claims and potential bias. A “preponderance of the evidence”  or 51% likelihood does not offer adequate protection to students, families and alumni who have invested time and money in a Cornell degree that can be so easily devalued by a finding that does not require clear and convincing evidence. The consequences for a student found mistakenly “responsible” are severe and can damage chances for graduate school acceptance or finding a good job. In essence, Cornell Judicial decisions can be both career- and life-changing.  Thus, before putting such a consequential mark on a student’s record Cornell has an obligation to be very sure indeed that the sanction is thoroughly examined to a high standard of proof.  Cornell should not be advocating reduced standards for due process and fairness. 

2. Freedom of Association

Since Cornell first opened, it has recognized the right of students to form groups.  Conduct is best regulated on an individual-by-individual basis rather than a group level by weighing the freedom of association and expression against the deterrence of group misconduct.  In the criminal law, corporations make official decisions through required formalities and leave paper trails.  But student groups are usually unincorporated and tend not to leave paper trails documenting their misconduct.  The proposed document is too vague on when the misconduct of individuals warrants a complaint and potential sanctions against the organization(s) of which they are members. The same criteria should apply regardless of the type of organization(s) involved.

Section 3(A) on jurisdiction would be clearer if there were a consolidated registration process for all student groups, and then have the Code apply only to those student groups who register.  In this manner, any disagreements on jurisdiction would be resolved through enforcement of the registration process rather than during an after-the-fact adjudication of Code violations.  This would further your goal of “decriminalizing” disputes surrounding the benefits and burdens of registration.  Registration would make clear who to notify if a group were to become a party to a proceeding.  Notification should be to both the undergraduate leader and to the alumni/faculty advisor.  Even if a group is not registered, the conduct of individual students would remain subject to the Code. Proposed Section 4.2 would empower the hearing panels to abrogate contracts between Cornell and respondent groups found “responsible” that should be beyond the scope of a student Code conduct proceeding.

This approach would also allow Section 4.1 to be simplified.  To protect freedom of speech and association, Cornell has not required groups to file their membership lists.  We encourage Cornell to continue that important tradition of organizational privacy.

The second bullet of Section 4.1 should be replaced with:

To use knowingly, when acting as an agent of the university, ethnicity, gender, national origin, political persuasion, race, religion, or sexual orientation or affectional preference as a basis for exclusion from university-funded programs. Nothing in this Code shall be interpreted as preventing single-gender groups or activities.

The goal should be to put students in the same obligation as faculty and staff in ensuring that Cornell-funded programs comply with various civil rights legislation.  The current CJC draft is so broad that it could be misinterpreted as prohibiting single-gender groups or club sports.

 3. Right to Counsel

Cornell’s current Code protects a student’s “right to be advised and accompanied at every stage by an individual of the accused’s choice”.  Restricting the participation or role of counsel violates the student’s rights to due process and fairness.  Counsel could be the Judicial Codes Counselor, a private attorney, or a parent or alumnus.  “Section 1 Participants in the Process” should be revised to guarantee these rights.  “Section 3 Investigations” should be amended to guarantee participation of counsel in the meeting between the Judicial Administrator[2] and the student. Section 6.6 should be amended to give counsel the right to question witnesses.

4. Off-Campus Conduct

First, the Code should carefully define the “campus” and include a map to make it clear.  The phrase in Section 3(A) “the property of a University-related residential organization” needs to be defined.  The definition of campus in proposed Section 2(1) is too vague.  How long a distance is meant by “immediate vicinity”?  Students need a clear line regarding the jurisdictional scope.  We assume that privately owned houses or apartments are not a part of the campus, even if all the residents of a building are Cornell students.  We also understand that “space owned, leased, used, or controlled by” a student organization or student-alumni group residence is not part of the campus, because only Cornell controlled spaces are. An official “campus boundary” map should be published and distributed with the Code so that there are no after-the-fact surprises.  This same map should be used to determine when campus protests are subject to Cornell regulation or are subject to the permitting requirements of Cayuga Heights or the City of Ithaca.

On-campus conduct and off-campus conduct have different impacts.  Extending the “campus” definition to cover the academic campus, university-related housing, and other locations makes it impossible to draw any distinctions based on the context.  However, Section 3(A) contemplates extending jurisdiction to off-campus if the conduct poses a “substantial threat.”  This exception should be rare and applied in a non-political manner.  We believe that the Judicial Administrator should make the initial decision to charge off-campus action subject to the hearing panel finding the student “responsible” for the off-campus conduct.  University administrators should not participate in the decision.  The basic approach adopted by CJC is to limit the Code to on-campus conduct, unless off-campus conduct poses a “substantial threat.”  Yet, the proposal as drafted then attempts to put residential organizations entirely within the scope of the Code regardless of whether the conduct fits the substantial threat test.  The Code should treat all student groups equally.

5. Transparent Enforcement Focused on Fairness for All

When the Campus Code of Conduct and the judicial procedures were instituted in the early 1970s, the Office of the Judicial Administrator and the Judicial Advisor (now the JCC) were established separate from the Central Administration.  There was a concern that Cornell’s conduct regulation would be influenced by the political impact of news coverage or following the Kirkpatrick Sale case[3] that the Trustees or the President might put a thumb on the scales of Cornell justice. Hence, the present structure has these offices function independently of the Administration.  The JA needs more continuity of guidance and an experienced professional to give the office proper focus.  We strongly endorse the decision to have the JA report directly to the Vice President and thus become part of the formal administration structure of Cornell.

Although the draft would have the Judicial Administrator as directly under the Vice President on the organization chart, the draft would also give certain roles to the Dean of Students.  This is confusing.  We suggest that the roles given to the Dean of Students in the current CJC draft be eliminated and that all discipline be consolidated under the JA who in turn will report to the normal administration channels.

Many thanks for your consideration of these comments.

Signed:

Gene Kim Arts ’82, JGSM ’97, Kappa Sigma, Acting Vice President

David Ayers '80, Cornell Association of Phi Gamma Delta, Vice President

Kevin R. Baradet '81, AVC President for NY Beta Chapter of Sigma Phi Epsilon, Inc.

Randy Barbarash, Chairman, Alumni Board, Sigma Alpha Mu - Beta

Nicholas J. Carino BS '69, MS '71, PhD '74, Secretary, Sigma Nu Property Association

Anthony B. Cashen ’57, MBA ’58, Alumni Director, Delta Upsilon Fraternity

Mark Clemente ’73, Alumni Director and General Counsel, Delta Upsilon Fraternity

Norman “Lin” Davidson ’71, Delta Chi Association (DKE), Immediate Past President

John S Dyson ’65, Former President of Alpha Delta Phi, Emeritus Trustee

Derek Edinger ’94, President, Cornell Delta Phi Association

Bob Forness, Chair, FSAC, AIFC, former Chapter Advisor, Pi Kappa Alpha

Thomas Foster ALS ’81, Kappa Sigma, Chapter Advisor / Acting Co-Treasurer

Mike Furman ’79, Alumni Advisor, Delta Kappa Epsilon

Tristan Hemphill '12, President of Zeta Psi Alumni Association for the Cornell Chapter

Mark Kamon ‘75, President, Cornell Delta Upsilon Alumni Association

Rich Kauffeld '80, President, Alpha Psi of Chi Psi Corporation

R. Alexander Latella, B.S. ’10, Alumni Treasurer, Cornell Delta Phi Association

Bob Linden BA '71, MD '75, President Gamma Theta Property Association, Sigma Nu Undergraduate Brotherhood Chapter Advisor

Thomas McCune ’15, Kappa Sigma, Chapter Advisor / Acting Co- Treasurer

Rick Meigs ChemE ’80, President Cornell Lambda Chi Alpha Alumni Association

James Munroe '90, President, Alumni Corporation Board of Trustees Zeta Chapter, Alpha Gamma Rho

Peter  A. Muth ‘74, Sigma Pi, Alumni Board Member

Chris Nieves ‘11, Beta Charge of Theta Delta Chi Inc, President 

Donald A. Noveau, ’70, President, Theta Delta Chi Educational Foundation, Inc., President, Spectemur Agendo Foundation, Inc.

Fred Pape ’99, Kappa Sigma, President

Dennis Paese ‘73, Chapter Advisor, Sigma Alpha Mu Fraternity

Jeff Perry, President, Alpha Zeta Corporation Board

Robert C. Platt AB ’73, JD ’76, President, Delta Chi Association (DKE)

Alex Pruce ’13, Treasurer of CUAIFC and Chair of Greek Growth Committee

Matt Roberts ’98, President, Gamma Chapter House Association (Phi Sigma Kappa) 

Howie Schaffer '90, Alumni President, Alpha Delta Phi at Cornell University

William R. Shaw ‘69, '73, AB, MPA, JD, Delta Upsilon

Len Shapiro ’74, Theta Delta Chi

Rob Shuck ‘98, President, Chi Phi Chapter House Association

David Weber '68, Advisor for the Cornell chapter of Delta Chi

John Yerger ‘82, President, Alumni IFC

---Footnotes---

[1] However, some local fraternities, such as Seal and Serpent, continue to operate after Cornell changed its recognition policies to require affiliation with a national fraternity. 

[2] We use “Judicial Administrator”, “Student Judicial Administrator” and “Office of Student Conduct & Community Standards (OSCCS)” interchangeably, although we think that the proposed new name is too wordy to be useable.

[3]Trustee Minutes 1957-58 pages 3316, 3327 and 3330.

I am against any policy change that attacks judicial process. We have always lived in a nation with innocent until proven guilty without a reasonable doubt. Any policy that does away with this I would oppose 

Dear Codes and Judicial Committee and University Assembly,

I write to express my serious concerns with the proposed amendments, both in terms of content and in terms of the process by which the CJC has distributed these amendments for public comment. With respect, the CJC's communications with the Cornell community about these proposals have been appallingly sparse and misleading, and the proposed amendments are offensive to basic notions of due process and fairness. I can only imagine what the comments on this page would look like if the majority of the Cornell community was actually aware of what is contained in these proposals.

First, I will briefly address the alarming nature of the proposals themselves. As many commenters before me have noted, the amendment to Section 8.4 lowering the burden of proof is at best misguided and at worse disastrous. Given the serious penalties that are possible under the Code of Conduct, along with the enormous power disparity between the University, the OJA, and associated professional attorneys on one hand, and individual college students on the other hand, it is shocking for the CJC to suggest that this standard "[is] the best standard to balance interests of the community, rights of the accused student, and due process." The student in a disciplinary hearing will always be at a disadvantage compared to the University. Recognizing this inherent disparity is crucial to delivering on the promise of due process.

I am further concerned by the amendments to Sections 5.4 and 6.5 making all hearings private without exception. While I don't doubt that many students would prefer a private hearing, giving students the option of requesting a public hearing constitutes an important check on the power of the University. The Cornell community has an interest in ensuring that disciplinary actions are being conducted fairly. If a student wishes to open their disciplinary hearing to the public, they should be allowed to do so. The combined effect of lowering the burden of proof and eliminating the possibility of public hearings is to give the University virtually unchecked discretion in disciplinary matters.

Quite apart from the major substantive issues with the amendments, I am deeply troubled by the notice and comment procedure that has been used by the CJC with respect to these amendments. As has already been extensively noted, we are all in the midst of a one-in-a-lifetime crisis situation, and students are additionally in the midst of attempting to prepare for remote final exams. The timing of these amendments would be less than ideal even if the amendments themselves were fairly minor and routine. Given that they are neither, the choice to release the amendments to the public at this time is insupportable. I don't claim to know the CJC's intentions, but the optics of this situation are that the CJC and the UA are using the cover of a global pandemic to ram through major changes to the Code of Conduct at a time when hardly any community members have the ability to properly consider those changes.

Furthermore, in addition to the timing of the communications with the public, the communications themselves reveal a severe lack of transparency. Hiding the change to Section 8.4 under the vague goal of "[r]eworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone" cannot be rationalized as anything short of deliberate obfuscation. The initial commenting period was only two weeks long and included no provision for a public forum for discussion. When a public forum was scheduled, it was scheduled the day before the (new) deadline for comments, and students received only a two-day warning of the meeting. And what's more, the Zoom link sent for the "public forum" was incorrect, and no correction was issued to the community. Thus, the supposed "public forum" actually occurred in a Zoom meeting that was completely inaccessible to the majority of the community.

I strongly believe that these amendments are misguided and inappropriate. They should not be adopted. More than that, they should not have been proposed at a time when the community is extremely limited in their ability to evaluate and comment on them. And finally, the CJC should have at least made an honest attempt to communicate the actual content of the amendments to the community. I respectfully urge the CJC and UA to reconsider these proposals.

Sincerely,

Miranda Herzog

J.D. Candidate, Class of 2020

I am opposed to making all hearings private. There are times when greater transparency is appropriate and that should be an option in some situations.

I also oppose lowering the burden of proof.  If disciplinary consequences could result, a clear and convincing standard is appropriate in this context.  I disagree that lowering the standard of proof will accomplish the objective proferred or have a more educational impact for the student involved.

As invited by the Codes and Judicial Committee of the University Assembly, I am submitting the following comments on the 2020 Proposed Amendments to the Campus Code of Conduct.

Before turning to my comments, I will briefly state my background, which I think is relevant to my qualifications to comment on these proposals.

I am a loyal and active Cornell alumnus, Class of 1971. During the 1968-69 academic year, I was one of two student members of the Faculty Committee on Student Affairs, which at that time was the final review authority for student conduct matters. After the Willard Straight Hall takeover in April 1969, I became an elected member of the Cornell Constituent Assembly, which was formed to consider and propose changes in university governance. I spent the summer of 1969 researching student codes of conduct across the country, to inform the Constituent Assembly’s consideration of that topic.

The Constituent Assembly’s major recommendation was the creation of a Cornell University Senate, which would include students, faculty, and staff, and which would have broad authority over non-academic campus affairs, including student conduct. The Board of Trustees approved the creation of the University Senate in early 1970, and the Senate convened that spring. I was elected to the Senate, and the Senate elected me as its Speaker for the 1970-71 academic year.

After graduating, I went to law school; after several years of private practice, in 1980 I became the Legal Director of the American Civil Liberties Union (ACLU) of the District of Columbia, a position I occupied for 40 years. A few weeks ago, I became Senior Counsel at ACLU-DC. Among the ACLU’s current and historical concerns is due process—the guarantee of fairness when the government takes action involving persons (whether individuals or groups). Due process includes fair notice of what conduct is prohibited, and fair procedures for determining whether violations have occurred. Because Cornell is in part a governmental institution, the legal requirements of due process apply to many of its actions. And presumably Cornell wishes to apply the same standards when it acts with respect to individuals or groups connected to the private side of the university, rather than treating them as second-class citizens.

•           •           •

My main reaction as I read the Proposed Amendments was embarrassment on behalf of Cornell. They are just not ready for prime time. They are filled with inconsistencies, with provisions that are too unclear for a reasonable person to understand (contradicting the stated goal of “simplifying the Code and having it use ‘plain English,’” and with errors that any proofreading would have corrected. I believe that the adoption of these rules in anything like their current form will inevitably result in litigation that Cornell will assuredly lose. In addition to those problems, many proposed provisions raise serious questions of fairness, not to mention common sense.

I present my section-by-section comments below.

•           •           •

Substantive Provisions

Section 1: Principles and Values

Comment 1. The preamble states that “The expectations and standards in this Code of Conduct should be applied in a non-punitive educational objectives including opportunities to demonstrate growth from mistakes, and to implement restorative justice, and sanctions imposed should, to the greatest extent possible, advance Cornell’s educational goals.”

Right from the beginning, the proposal includes a sentence that makes no sense. What does “applied in a non-punitive educational objectives” mean? It is impossible to tell. Did no one proofread these proposed amendments before they were published?

I agree, of course, that any student code of conduct should pursue educational objectives; to the extent the code can be applied in an educational and non-punitive way, that is to the good. But this code, like any such code, does include punishment for prohibited conduct, and I think the preamble should recognize as much, and should also recognize that when punishment is involved, fairness to all parties is essential.

Comment 2. The preamble notes that “Authority over and administration of the Code and associated Procedures are vested with the Vice President for Student and Campus Life (VP SCL), in consultation with the elected Assemblies of the University. Student conduct matters are delegated to the Office of Student Judicial Administrator, overseen by the Dean of Students.”

What does “authority over … the Code” mean? Can the Vice President amend the Code? Can he or she overrule any of the other actors involved in the process? Likewise, what does “overseen” mean? Can the Dean of Students overrule the Office of Student Judicial Administrator what that office makes a decision not to the Dean’s liking?

These statements are never clarified, and are potentially very dangerous. Even the most carefully-designed procedures will fail if they are subject to arbitrary outside control. Just imagine if the President were given “authority over” the U.S. judicial system, or if the courts were “overseen” by the Attorney General. We would soon have a judicial system like the ones in countries where charges and verdicts are dictated for political reasons.

I have no doubt that the current and future Vice Presidents and Deans of Students will make every effort to be fair. But it is inherent in the nature of their offices that concern for fairness to individual students is not the priority. They are—necessarily and properly—more concerned with the university’s public image, the wishes of the President and the Trustees, and the interests of various campus affinity groups. For example, the Dean of Students’ constituency includes the Asian and Asian American Center, the Lesbian, Gay, Bisexual, Transgender Resource Center, and the Women’s Resource Center. https://scl.cornell.edu/identity-resources/office-dean-students/office-dean-students. The current Dean states that “the core of [his] role is a commitment to work broadly on aspects of access, equity, and social justice at Cornell.” https://scl.cornell.edu/identity-resources/office-dean-students. That’s great. But it means that he cannot be a neutral adjudicator. If the constituencies that he serves are demanding what they view as “social justice” in some individual case, he (or a future dean) is in a poor position to resist.

I assume that the people who administer the campus judicial system need to report to someone for administrative purposes—budget, office space, and the like. But “authority over” and
“overs[ight]” sound like much more than that. In my view, it is very important to preserve the independence of the judicial administrators from outside control when it comes to individual case processing and adjudication, and this should be made clear in the Code.

In this regard, see also comment 23, below.

Section 2: Definitions

Comment 3. Section 2(1) of the proposal provides that the term “campus” “can also include streets, sidewalks, and pathways adjacent to or in the immediate vicinity of Cornell campus or property.”

“Can” is a very troubling word in this context. Does it, or doesn’t it, include such areas? If it includes them only sometimes, when? Likewise, “immediate vicinity” must mean something further away than “adjacent,” but how much further? A student is entitled to know whether he or she is on campus for purposes of the Code. The person deciding whether to press charges needs to know whether a prospective respondent was or was not on campus. In many cases, the members of a hearing board cannot know how to rule on the defense that certain conduct was not covered unless they know whether it occurred on or off campus. The definition in the proposal is too vague to be fair in any case involving non-electronic conduct that is not literally on Cornell property. (See comment 19, below, for an example of where such a clear definition would be essential.)

Section 3: Scope and General Provisions

Comment 4. Proposed Section 3(A) provides that “The Code covers behaviors by . . . University-recognized or University-registered student organizations and . . . generally applies to conduct . . . on the property of a University-related residential organization.” (Italics added.) I hope there are clear rules elsewhere regarding whether an organization is University-recognized or University-registered. But what is a “University-related” organization? If the phrase is supposed to mean University-recognized or University-registered, it would be best to repeat those terms. If “University-related” means something different, then its meaning is entirely unclear.

Again, students are entitled to know whether they are on the property of a “University-related” organization. Code administrators and hearing boards have to know whether or not a student was on the property of a “University-related” organization when he or she committed an alleged offense. The answers cannot be made up after the fact, to suit the desires of Code administrators or board members to punish, or not punish, particular respondents.

Comment 5. In addition to the vagueness of the term “University-related,” its use raises the question whether the proposed Code extends the university’s jurisdiction beyond where it can lawfully go. If some organization is neither University-recognized nor University-registered, by what authority does Cornell purport to regulate what the organization does on its own property?

For example, would an off-campus organization that incudes students and people who are not affiliated with the University (for example, an off-campus food co-op, or political organization, or film club) be a “University-related” organization? That would raise all kinds of problems for university jurisdiction over the organization. Similarly, if an off-campus organization includes both students and alumni, when (if ever) would such a group be considered “University-related”?

Comment 6. Also lacking from this proposed Code are any standards for determining when an organization is responsible, as an entity, for the conduct of some of its members (or the conduct of people on its property). An organization that has an official policy that is prohibited by the Code—for example, an official policy of discrimination based on gender identity—presents an easy case. But other cases are much harder. For example, it is not unusual for one or two people to commit acts of civil disobedience or minor vandalism at the fringes of a political demonstration. Is the organization that sponsored the demonstration responsible for their acts? Nothing in the proposed Code provides any guidance about that. But holding an organization responsible for the actions of individuals whose conduct the organization does not control is problematic. (See also comment 9, below, for the related problem of holding individuals responsible for the conduct of a group.)

Comment 7. The same proposed provision provides that “The Code applies to conduct that . . . poses a substantial threat to the University’s educational mission,” and defines “substantial threat” to include “unique violations which shall be left to discretion of the Dean of Students as requested.” Similarly, it provides that “The final determination as to whether off-campus conduct is subject to this Code will be made by the Dean of Students, or their designee.”

It is not easy to imagine provisions more prone to abuse (and legal challenge) than these. The U.S. Constitution contains a prohibition on ex post facto laws for a good reason: it would be grossly unfair to allow a prosecutor to decide, after a person has engaged in some conduct, that it should have been a crime, and to punish the person for it. While the off-campus legal system would probably allow the university to respond to unspecified conduct in an educational manner (e.g., with counseling or required reading), it would not likely allow the university to impose serious discipline on a student for conduct the student could not reasonably have known was prohibited by the Code.

Section 4: Prohibited Conduct

Comment 8. Section 4.1 provides that “This prohibited conduct [namely, “To knowingly affiliate with groups, teams, or organizations that have had their University recognition or registration withdrawn, suspended or permanently revoked by the University for disciplinary reasons”] does not apply to unrecognized student groups who have never had University recognition or who are currently not recognized by the University because of non-disciplinary disbandment.” That is fairly clear, and sensible. But the section goes on to provide, “However, known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.”

That sentence is ambiguous. If it means that “known members of unrecognized student groups may be held accountable for such prohibited conduct by these groups,” then it is self-contradictory, because section 4.1 does not prohibited any conduct by unrecognized student groups who have never had University recognition or who are currently not recognized by the University because of non-disciplinary disbandment. Because the prohibition “does not apply” to them, there is no such conduct for which a person could be held accountable.

On the other hand, if the final sentence means that “known members of unrecognized student groups may be held accountable for any prohibited conduct by these groups,” then it amounts to guilt by association, which should not be part of the Code for the reasons given in Comment 9, below.

Comment 9. It is far from clear that Cornell could hold a person accountable for conduct by a group (recognized or not) when the student did not personally engage in, assist, encourage, or otherwise support the conduct. “Guilt by association” has long been viewed in this country as an improper basis for punishment. A student can be held accountable for the student’s own conduct. But without some personal involvement, it is not right, and probably not legal, to punish a person for the conduct of others over whom he or she had no control. (See also comment 6, above, for the related problem of holding a group responsible for the conduct of some individuals.)

Comment 10. Section 4.1 also appears to sweep too broadly in seeking to assure that groups whose recognition or registration has been withdrawn, suspended or revoked do not continue to operate on campus. While that is a reasonable goal, and while formal activities such as rushing or pledging can certainly be prohibited on campus, prohibiting a student from “being involved in any activity that would normally be associated with being a member of such an organization” would seem to forbid students from continuing to be friends or roommates with other students, since living together, eating together, and socializing with each other are “activities” that members of organizations normally do. I certainly hope Cornell does not wish to tell students who were members of a group that has been punished that they cannot continue to be friends or roommates. Beyond that, freedom of association is a core American value, and is protected by the First Amendment. This prohibition should be significantly narrowed.

Comment 11. Section 4.1 also prohibits the use of “political persuasion” (among other things), “as a basis for exclusion from university or group activities on campus.” It is odd that the prohibition on excluding people from official university activities, or activities of registered or recognized group activities on campus, is under the heading "Affiliation with Unrecognized Student Organizations or Groups,” since it has nothing to do with affiliating with unrecognized groups. Perhaps this portion of Section 4.1 should be a separate section.

Regarding the substance of this proposal, the inclusion of “political persuasion” is questionable. Political persuasion is a valid and constitutionally protected basis on which people choose to associate or not associate. While it would be reasonable for Cornell to require students to allow those of any political persuasion to attend an open meeting or a debate on campus, it would make no sense to require the Cornell Republican Club to allow avowed Democrats to participate in its meetings to plan future activities, or to require the Cornell Social Democrats to allow Republicans to march in their parade with their MAGA signs. Indeed, the Constitution does not allow Cornell (to the extent to which it is a public university) to impose such a requirement. See Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995). This prohibition should also be narrowed.

The committee should also think carefully about whether it makes sense to enact an across-the-board ban on the use of ethnicity, gender, national origin, race, religion, or sexual orientation or affectional preference as a basis for exclusion from university or group activities on campus. While such discrimination is often improper, it is not always so. Is it wrong to have a Native American club that excludes non-Native Americans? Or a Muslim organization for Muslims? Or a women’s support group for survivors of sexual assault that excludes men?

Comment 12. Section 4.1 covers athletic teams and, as written, would prohibit separate male and female sports teams. I presume that was unintentional, but if the Code is adopted as proposed, that would be the result.

Comment 13. I also note that the list of prohibited grounds for exclusion does not include “gender identity.” Unless that concept is intended to be included as part of “gender” (which is not the usual understanding of that term, and which would not provide fair notice), it is a surprising omission.

Comment 14. Section 4.7, on Disorderly Conduct, makes it a violation “To intentionally cause or recklessly create a risk of disruption to the University community or local community [by] . . . Ureasonably loud . . . behavior.” Causing a disruption is bad conduct. But to punish a student for creating a risk of disruption by being loud, when no disruption actually occurred, gives campus police a great deal of leeway to engage in discriminatory policing. It is well known that police across the country use disorderly conduct laws to arrest members of minority groups for conduct that is tolerated in others. College students are sometimes loud. If they cause no actual disruption, why should they be punished?

Comment 15. New York State has a medical marijuana program. But Section 4.9 makes it a Code violation to possess or use any controlled substance prohibited by state or federal law, and federal law continues to prohibit the possession or use of marijuana under any circumstances. It would therefore be a Code violation for a student holding a valid New York medical marijuana certificate to possess or use marijuana on campus, and perhaps off campus as well. Cornell is under no obligation to enforce the benighted federal law, and Section 4.9 should include an exception for the possession or use of medical marijuana that is lawful under New York law.

Likewise, New York State has a “Good Samaritan law,” which (with some exceptions) protects any person from prosecution if the person “seeks health care for someone who is experiencing a drug or alcohol overdose or other life threatening medical emergency.” McKinney's N.Y. Penal Law § 220.78.1. Such laws have been adopted in many states because lawmakers understand that it is more important to save a life than to prosecute someone for drug or alcohol possession. For the same reason, Cornell recently adopted a similar policy: “Under Cornell’s Good Samaritan Policy, individuals that call for help and those that receive help in an alcohol or drug related emergency are protected from individual judicial consequences.” Cornell University Sorority and Fraternity Life  Risk Management and Social Event Policy (January 21, 2020), page 6, available at https://scl.cornell.edu/sites/scl/files/documents/Risk%20Management%20and%20Social%20Event%20Policy%202020%201.21.2020%20Final-VD.pdf. But proposed Section 4.9 of the Code contradicts that assurance. Section 4.9 should be amended to make clear that the University’s Good Samaritan Policy prohibits punishment under the Code, just as New York State’s Good Samaritan law prohibits punishment by the criminal justice system.

Comment 16. Section 4.12, on Harassment, makes it a violation to subject “another person or group” to certain “behaviors,” but it is entirely unclear what harassment of a group is supposed to mean. First, such behaviors become violations if they are made “a term or condition of an individual’s participation” in university activities (italics added). So that applies only to individuals. Second, such behaviors become violations if the conduct unreasonably interferes with, limits, or deprives an individual from participating in or benefiting from university activities (italics added). So that also applies only to individuals. Those are the only two ways in which such behaviors become violations. The phrase “or group” should therefore be deleted, because the proposed Code does not actually create a violation of harassment of a group—nor should it.

Comment 17. Section 4.12 also provides, “The fact that the conduct targets a group that has historically experienced discrimination may be relevant to a determination of whether the conduct creates a hostile environment.” That would create an explicitly discriminatory standard for punishment. The very same words or conduct would be a violation when directed at student A, but not when directed at student B. The off-campus legal system would, at a minimum, be quite troubled by that double standard, and punishment based on such a standard might be successfully challenged. By contrast, I think a provision that took into account the particular characteristics of an individual victim, that were known to the harasser (for example, that the victim had PTSD and was easily terrorized by particular conduct), would be more legitimate.

Comment 18. Section 4.16 prohibits “Obstruction or interference with . . . Code of Conduct processes, including, but not limited to: . . . Falsification, distortion, or misrepresentation of information.” It is quite proper to prohibit obstruction or interference with the judicial system. But it is extremely common for anyone on one side of a disputed matter to believe that people on the other side are distorting or misrepresenting information. No one’s memory is perfect, and one person’s interpretation of a document or event is often very different from another’s. Putting students at risk of punishment because an adjudicator disagrees with the student’s understanding or characterization of certain information is not proper. Proof of deliberate falsification and an intention to obstruct or interfere should be required.

Comment 19. Section 4.24 makes it a violation to “possess, carry, or use any . . . object that can be used to cause physical harm.” That would include a cane, a pair of scissors, a baseball, or even a laptop computer, which could inflict serious injury if swung into a person’s face or neck. Under this provision, every student would be guilty every day. Even listing specific objects will not work; presumably Cornell does not really want to outlaw the possession of Swiss Army knives by students. The section should be revised to prohibit the use, or threatened use, of objects as weapons. If Cornell wishes to prohibit the possession or carrying of firearms (including replica firearms) on campus, it can so specify. Presumably there should be an exemption for members of ROTC. Such a prohibition would be an example of the importance of having a clear and careful definition of what counts as “on campus,” as noted in comment 3, above.

Procedural Provisions

Section 1: Participants in the Process

Comment 20. The number of typographical errors in Section 1.1 is remarkable: “employee of hte University”; “filing a complaint witth the OSCCS”; “resolution of the complain”; “Cornell University is names as the complainant”; “Each names complainant”; “a personal advisor of that person’s choise”; “shall not partipate.” If this reflects a rush to publish—which seems likely—it also suggests that the thinking and reviewing process was rushed, as seems pretty clear. A code of conduct that may have very serious consequences for individuals should not be the product of such hasty and sloppy work.

Comment 21. Section 1.2 provides that “for a disciplinary probation, suspension or expulsion to be imposed, [a respondent’s] counsel or advisor must have had a reasonable opportunity to participate fully in the hearings.” It is impossible to know what a “reasonable opportunity” to “participate fully” means. Indeed, the sentence is self-contradictory, because “reasonable” necessarily means something less than “full.” The Code should specify what a counsel or advisor may or may not do. Otherwise, hearing panels will almost surely apply different standards in different cases, depending on a host of subjective feelings, which will open the door to subsequent legal challenges.

Comment 22. I agree with the CJC majority that advisors should be able to speak on behalf of student parties. Students have widely varying speaking abilities, and will have widely varying levels of emotion about the process they are in. A student is the best judge of whether he or she would be better off asking an advisor to speak.

Comment 23. Section 1.3 provides that “The Director of OSCCS shall be appointed by and reports to the Vice President for Student and Campus Life.” The CJS requested feedback on this section.

It is not clear (at least not to me) just what “reports to” means here. I think an annual review is unobjectionable; an employee who is not doing his or her job should not be immune from review. But “reports to” usually means “supervised by” and “takes direction from.” It would be a real problem if a Vice President (current or future) were able to dictate the manner in which a particular investigation or adjudication is handled. If reporting to the Vice President is retained, it should be clearly provided that the Vice President may not become involved in any particular case. In this regard, see also comment 1, above.

Comment 24. Regarding Section 1.4, the CJC requested comment on whether the Judicial Codes Counselors should be law school students, or whether the position should be open to any student who goes through an application process. While there are undoubtedly some non-law-students who would make good Judicial Codes Counselors, I find it hard to believe that an application process would do an adequate job of assessing that. Indeed, I think the job should be limited to second-year and third-year law students. Law school teaches a particular way of reading and thinking, and however much the student discipline process may aspire to be educational, imposing punishment on people is unavoidably legalistic. It isn’t a matter of interest or intelligence; few students who have had no legal training will understand how to give good advice and counsel about a legalistic process. Perhaps my comments in this document are a good illustration of the skills that are necessary, and of the unfortunate consequences that ensue when those skills are absent.

Comment 25. Likewise, I think the suggestion that the Judicial Codes Counselors should be moved into Student and Campus Life is an exceptionally bad idea. The very reasons for the suggested change demonstrate why: “to increase accountability, understanding other aspects of student life, and make the process less legalistic and more educational.” The job of the Judicial Codes Counselors is to provide assistance and representation to student respondents. Their only accountability should be to the students they are assisting. Making them accountable to others necessarily means that they will be less effective at their jobs—indeed, that must be the goal. Likewise, insisting that they be more understanding of “other aspects of student life” means that they should be less understanding of the needs of the students they are assigned to assist.  And asking them to make the process “less legalistic” means asking them to fail to provide the students they are assisting with the best counsel and advice.

In the outside world, a core ethical mandate for a lawyer is to represent the client, and only the client. Being accountable to anyone else, or withholding “legalistic” advice or representation because they “understand” other interests, would get a lawyer disbarred. Forcing Judicial Codes Counselors to have divided loyalties will make it clear to students who can afford to hire lawyers that they should do so, and will mean that students who cannot afford to hire lawyers will have poor advice and counsel. The result will be discrimination against non-wealthy students—who may be just the students whose interests would supposedly be advanced by the proposal to make the process less legalistic.

Comment 26. Section 1.7 provides that “Copies of student conduct records shall not be released to outside sources without written consent of the subject of such record, except . . . when … necessary … to preserve the integrity of proceedings under this Code,” or (with respect to records of organizations) “when deemed necessary to educate the University community.” The proposal provides no clue about what sorts of circumstances might make it necessary to release student conduct records to outside sources, and none come to my mind. Have there been past situations where such release has been deemed necessary? And what sorts of “outside sources” are included? Parents or guardians? Treating medical providers? News media? Additionally, the section is silent about who makes these decisions, which is a key question. If the people involved in the judicial system do not believe release is necessary, can they be overruled by some administrator? Should they be?

Section 2: The University's Response to a Complaint of Prohibited Conduct

Comment 27. Section 2.1 provides that “If the OSCCS determines that an individual making the complaint of the alleged conduct in violation of the Code was directly harmed by the reported conduct … the OSCCS will designate the individual as the named complainant.” But how can anyone “determine” at the outset that a person was “directly harmed by the reported conduct.” The reported conduct is only an allegation; it may be unfounded. As written, this provision suggests that respondents are to be presumed guilty. The provision should say, “If the individual making the complaint alleges that he or she was directly harmed by the reported conduct … the OSCCS will designate the individual as the named complainant.”

 Comment 28. Section 2.3 provides that an initial inquiry “may lead to … a determination that the complaint or report … should be administratively closed because, even if the behavior occurred, the behavior alleged would not violate the Code; a more comprehensive investigation by the OSCCS of the allegations may be appropriate.” This is very puzzling. If the behavior alleged would not violate the Code, then why would a “more comprehensive investigation” be appropriate, and why would OSCCS be the proper entity to pursue it? Students should not be subject to a “comprehensive investigation” about alleged conduct that, even if true, involves no violation. There is nothing to investigate.

Comment 29. Section 2.5.1 establishes the process for review of interim measures by the Vice President of Student and Campus Life. A minority of the CJC recommends a “less formalized,” “ad hoc” process. I agree with the majority. The process described in the draft gives both the respondent and the complainant the opportunity to be involved, and requires the Vice President to provide a written decision. That process is fair to both sides—and also creates a written record in the event the matter goes to court. An informal, ad hoc process invites abuse, with one party perhaps kept in the dark and no requirement that the Vice President be required to account for his decision. Indeed, I suggest that the provision be modified to specify that “The VPSCL will provide a written decision explaining his or her reasons to the parties and the OSCCS” (adding the words in italics), so that a written decision simply saying “request accepted” or “request rejected” is not adequate.

Comment 30. Section 2.5.3 deals with a request to the Appeal Panel to lift a Temporary Suspension. I cannot tell from the draft whether this would take place before or after a request to the VPSCL to do the same thing. Who has the final word?

Section 4: Resolution of a Formal Complaint Following an Investigation

Comment 31. Section 4.1 includes an Educational Conference or Alternative Dispute Resolution as potential avenues for resolving complaints. It is good to make these options available. It should be made clear that the statements of parties during such proceedings are confidential and off the record. If a party’s statement during such proceedings could later be used against him or her (whether as a confession of guilt or an admission of uncertainty about an allegation), the free give-and-take that is an essential part of such proceedings would disappear, and a party’s advisors or representatives would need to have a right to be present.

Comment 32. Section 4.2 lists factors that OSCCS will consider in recommending sanctions and remedies. That list does not include doubt about what actually happened. Yet if the burden of proof is anything less than proof beyond a reasonable doubt, many cases will involve doubt—perhaps great doubt—about what happened. It seems to me that the existence of such doubt is a legitimate and important consideration when recommending sanctions and remedies, and it ought to be added to the list. To analogize: If I asked you to bet on whether James Buchanan or Franklin Pierce was the fifteenth President of the United States, you might be willing to bet serious money if you were totally sure which it was, but you might be willing to bet only a token amount if you had little confidence in your answer. Similarly, while an educational response might be justified in a case where there is real doubt about whether a respondent committed the alleged violation, serious punishment, such as suspension or expulsion, would probably not be appropriate in such a case.

 Section 5: Administrative Panel Procedures

Comment 33. Section 5.2 indicates that there is an “Administrative, Hearing, and Appeal Panels pool” from which panel members are drawn. But I don’t think there is anything in the draft Code about how individuals get into that pool—what are the qualifications (if any), what training (if any) do they receive, are they volunteers or are they selected involuntarily? These are all very important questions, and there must be answers, but I don’t believe they are in the proposed Code.

Comment 34. Section 5.2 also provides that in any case referred to the Administrative Panel for a hearing, “OSCCS shall make a good faith effort to give notice of the hearing at least ten (10) business days prior to the hearing.” But a good faith effort does not require any particular result, so notice could be given two or three days in advance, which would not be fair to parties preparing for a hearing, or to witnesses who may need to arrange their schedules. I think a minimum time should be specified, perhaps 7 business days. Such a flexible requirement for notice by OSCCS also conflicts with the inflexible time limits imposed upon respondents. See comment 39 and 53, below.

 Comment 35. Section 5.4 provides that all hearings shall be private. I agree with the minority that there should not be a prohibition on public hearings. There are good reasons why the Sixth Amendment to the U.S. Constitution requires public trials: members of the community who did not realize they had relevant information may come forward. Unfair conduct by panel members would be exposed. Flaws in the process could become public. A party may be less willing to lie in public. There may be good reasons to close some hearings, but closure should not be the rule, at least not if the respondent requests an open hearing.

 Comment 36. Section 5.7 provides that a respondent can appear in person at a sanctions hearing only with the permission of the Administrative Panel Chair and the Administrative Panel. It seems to me that a person facing punishment ought to have the opportunity to address the panel in person before the panel makes a decision. If the respondent wishes to speak and the complainant (or complaining witness) also wishes to speak, both should be allowed to speak.

Section 6: Hearing Panel Procedures

Comment 37. Section 6.1 provides that “OSCCS shall make a good faith effort to give notice of the hearing within ten (10) business days prior to the hearing” of a Hearing Panel.” But one day would be “within 10 days.” The word “within” should be deleted. And, as in comment 28, a minimum should be specified.

Comment 38. Section 6.2 deals with recusal, and provides that a panel member should be excused only if the member “has first-hand knowledge of the events at issue, has been directly involved in those events, or is personally interested with regard to the outcome.” That is too narrow. A panel member who has second-hand knowledge—in other words, who heard one party’s story directly from that party—should certainly be excused. And a panel member who has any personal connection to a party—a fraternity brother or sorority sister, a roommate, a faculty advisor, a member of the same sports team—should also be excused. This is much broader than being “personally interested with regard to the outcome.”

Comment 39.  Section 6.3 provides that “Names and written statements of any witnesses to be called at the hearing by the OSCCS or by the respondent, shall be exchanged no later than five business days prior to the hearing.” This may be reasonable if ten business days’ notice was provided. But it would not be reasonable if six business days’ notice was provided (see comment 34, above).  It is not fair to give OSCCS only a “good faith” obligation while imposing strict deadlines on parties.

Comment 40. Section 6.5 provides that all hearings shall be private. Please see my comment 29.

Comment 41. Section 6.6 provides that “The respondent’s counsel or advisor must have a reasonable opportunity to participate fully in the hearings. See my comment 26 on that point.

Comment 42. Section 6.6 also provides that “when the Hearing Panel Chair believes that direct questioning of a witness would result in undue intimidation, the Chair and the Panelists will ask questions instead of the respondent, in which case the respondent may submit proposed questions to the Chair.” The proposal contains no requirement that the Chair of the panel actually ask any question proposed by the respondent. But it is very unfair to allow a witness to testify without challenge. The Code should provide that questions submitted by the respondent must be asked if they are relevant and not duplicative of questions already asked.

Comment 43. Likewise, Section 6.6 provides that “If an individual complainant does not testify, the Hearing Panel may proceed to decision only if it finds that the complainant’s interests in not testifying outweigh the respondent’s interests in questioning the complainant as a witness at the hearing.” Even if the respondent objects to the introduction of any earlier statement by the complainant, the complainant’s earlier statement can still form the basis for a decision if the “Hearing Panel Chair finds compelling circumstances of need for and reliability of such statement.” In other words, the panel can reach a decision relying only on the complainant’s previous, unchallenged statements. That is a recipe for having a university decision overturned by a court of law, and with Cornell owing attorneys’ fees to the respondent’s lawyer.

Comment 44. In Section 6.6, The CJC notes that a minority believes a Hearing Panel should never order relevant witnesses to testify, because this would be “punitive and would delay the hearing process.” I agree with the majority. The hearing is an attempt to find the truth. Not every reluctant witness should be ordered to testify, but a witness with important evidence—perhaps an eyewitness, or perhaps someone who heard a party tell a different story than the story the party told to the investigator—should not be excused simply because the witness finds it inconvenient to attend, or because the witness’s evidence would be harmful to the witness’s  friend. These hearings are serious business.

Comment 45. Section 6.7 provides for oral and written closing statements. A minority of the CJC would eliminate them as time-consuming and adversarial. I agree with the majority. A student may not be able to organize his or her thoughts, or to remember every important point, extemporaneously at the end of a hearing. A reasonable opportunity to submit a written statement is important. The time need not be long, and of course the process is already adversarial.

Comment 46. Section 6.9 specifies that decisions shall be made based on the preponderance of the evidence. The proper burden of proof is a fairly debatable question. But it is easy to accuse, and difficult to defend. And I believe, in line with the traditional view in the United States, that it is better for a few guilty people to go unpunished than for an innocent person to be punished. I therefore support requiring clear and convincing evidence when serious sanctions are potentially involved. If only educational measures are contemplated, I think a preponderance of the evidence is not unreasonable.

Also, Section 6.9 properly provides that the “burden of proof on violation shall rest on the OSCCS.” To assure that all participants fully understand what this means, it would be useful to add that respondents are presumed to be innocent of the allegations against them. Thus, the section might read: “All decisions by the Hearing Panel shall be in writing, including a rationale and any dissenting opinions. A respondent is presumed to be innocent; therefore the burden of proof on violation shall rest on the OSCCS. The standard of proof on violation shall be clear and convincing evidence. Under a clear and convincing standard, the Hearing Panel must be persuaded that it is highly probable that the respondent violated the Code.”

Because the presumption of innocence should equally apply to respondents before administrative panels, language to that effect should also be included in Section 5.5, or, even better, in Section 8 regarding all types of hearings (see comment 49, below).

Section 7: Appeal Panel Procedures

 Comment 47. In Section 7.3, the CJC seeks comment on whether the right to appeal should be the same or different for the complainant, respondent, and OSCCS. My view is that it should depend not on the identity of the party but on the ground for the appeal. An appeal based on a claim that University officials prejudicially violated the fair application of relevant University procedures, or committed an error in interpreting the Code of Conduct, or its procedures, should be available to any party, because such an error infects the reliability of the proceedings and should be corrected regardless of which party will benefit from a correction. Such corrections will also benefit OSCCS and future panels by clarifying the proper meaning of the Code and its procedures. On the other hand, I think the other limitations in Section 7.3 are reasonable; the prosecution shouldn’t get a second opportunity to put the respondent on trial.

I have the same view regarding appeals from an Administrative Panel (Section 7.4). I think appeals based on a misinterpretation of the Code or a failure to follow proper procedures should always be allowed.

Comment 48. Section 7.6 provides that the Review Panel “may, but is not required to, stay a sanction where the appealing party clearly demonstrates the need for a stay.” This is puzzling. If an appealing party clearly demonstrates the need for a stay, by what possible reasoning should it be denied? Denying something that is “clearly” justified seems like the definition of injustice.

More broadly, a stay should not be granted only if an appealing party “clearly demonstrates” the need for a stay. I suggest that section 7.6 be revised to provide that “The Review Panel shall stay (i.e. postpone implementation of) any sanctions pending a final decision on the appeal when the appealing party shows that that there was probably an error in the panel’s decision that affected the outcome, or that failing to stay the sanction would create a serious hardship for the appealing party while staying the sanction would not create a hardship for the complainant.”

Section 8: General Panel Procedures Applicable to All Types of Hearings Under These Procedures

Comment 49. My main comment on Section 8 is that it shouldn’t come at the end. It should come before the sections specifying separate procedures for different types of hearings, and the general procedures it provides should not be repeated in the sections specifying separate procedures for different types of hearings. As it is, much of Section 8 does repeat things that have already been said.

Comment 50. Section 8.3 lists the grounds on which a party may object to certain evidence, “unless otherwise provided by the Code.” But I didn’t see anything elsewhere in the Code about this. If it exists, it would be useful to specify where. If it doesn’t exist, it should be deleted.

Comment 51. Section 8.3 provides that “The Administrative, Hearing, or Appeal Chair will make a determination on objections and instruct the panelists accordingly.” This highlights the need for the Chair to be carefully selected and to understand sch concepts as relevance and prejudice (in its evidentiary sense). Yet nothing in the Code says anything about the qualifications, selection, or training of Chairs or panel members. See also comment 33, above.

Comment 52. Section 8.4 specifies the burden of proof. Please see my Comment 46, above. This is a good example of the repetition that should be avoided.

Comment 53. Section 8.5 deals with conflicts of interest. But this subject was already covered—but differently—in Section 6.2. So the proposed draft is now internally inconsistent.

It is not at all clear why the Vice President of Student and Campus Life is involved in this process, as his or her role seems to be limited to forwarding mail. And the requirement that notification of a possible conflict must be made within 5 business days after the party’s receipt of notice of the identity of the panel members may mean that notification is not due until after the hearing, as Section 5.2 (for example) provides that the names of panel members do not need to be provided with the notice of hearing, but may be provided “at a later time, prior to the hearing.” These various time requirements need to be coordinated with each other. Someone needs to read through the proposal with attention to detail (see related Comments 34 and 39).

Comment 54. Section 8.8 provides that “The OSCCS, respondent, and, if applicable, the named complainant may listen to the audio recording of the hearing.” Perhaps this is intended to include the advisor or representative of the respondent, and, if applicable, the named complainant; if not, it should be revised to make clear that they are included. The audio recording is a key part of the hearing record for any appeal (Section 7.2), and it is essential that a trained person assisting a party with an appeal—or for that matter a court case—have access to the recording. For that reason, it should also be made clear that a party and the party’s advisor or representative will have the opportunity to listen to the recording privately, so that they can freely discuss its contents while listening, and that they have the opportunity to take detailed notes (unless they are allowed to make a copy).

Comment 55. Section 8.9 is titled “Public Record of Hearing Decisions,” but all it provides is that decisions shall be kept on file in the OSCCS. It says nothing about public access to those files. A sentence should be added providing that any member of the University community may review these files (from which the names of individuals and other identifying information have been redacted) during regular business hours.

I hope the Codes and Judicial Committee finds these comments helpful.

Sincerely,

Arthur B. Spitzer ’71

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

To:      Codes and Judicial Committee & University Assembly

From: Brianna Weaver, J.D. candidate 2020

Date:  May 7, 2020

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

I. Notice and Comment

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

II. Burden of Proof

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

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

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

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

III. Privae Hearings

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Section 1.2 Respondent’s Right to Have an Advisor Speak

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

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

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

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

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

Section 4.3 Recordkeeping –Transcript Notations and Withholding Degrees

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

Section 5.1 Disciplinary Probation and Hearings

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

Section 5.4 & 6.5 Public Hearings

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

8.4 Burden of Proof

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

COMMENTS OF UNDERSIGNED CORNELL DAILY SUN ALUMNI

The undersigned alumni of The Cornell Daily Sun file these comments on the Codes and Judicial Committee proposal.  Some of us have law degrees and others of us spent our careers as working journalists.  We all share a devotion to Cornell and to maintaining The Cornell Daily Sun as an independent journalistic voice and critic for the Cornell community, including alumni and Ithaca residents. 

The Sun’s value stems from being the Cornell community’s independent newspaper since 1880.  It has always operated without University subsidies or control.  The Sun publishes the facts regardless of whether they cause embarrassment or consternation in Day Hall, including coverage of the Campus Code and the judicial system.  Similarly, The Sun publishes a wide variety of opinions, regardless of whether those viewpoints will be vexatious to individuals or groups of students, faculty, staff, administrators or local officials.  It has been that way since 1880, and so it should continue to be.

1. Statement of Principles and Values Must Recognize Important First Amendment Rights

“Section 1: Principles and Values” does not fit with the start of a Campus Code of Conduct.  Certainly stating general principles and goals will be helpful in interpreting the Code, but this section does not adequately address fundamental rights such as freedom of speech, freedom of the press, freedom of religion, freedom of association and the right to petition for redress of grievances. Valuing these rights has served Cornell well for more than 150 years. 

However, recently these important rights have been under attack by people seeking to establish a “speech code” to ban or punish speech that some may find offensive.  The best way to avoid this proposed Code’s being misinterpreted, and from trampling on protected rights, is to include a strong statement in Section 1 reaffirming these bedrock First Amendment rights.

One would think that exercising protected First Amendment rights off campus would guarantee freedom from University interference and control. Not so, under the proposed Code. The Code asserts the right to regulate and punish non-registered groups as well as off-campus conduct, which would have a chilling effect on the entire Cornell community.  We know of no legal basis for this inadvisable over-reach.  The University must respect First Amendment rights as a matter of tradition, as a matter of educational policy as a world  leader in academic thought, and as a matter of law. We urge that the improper assertion of jurisdiction over unregistered organizations and off-campus conduct be removed entirely from the Code.

2. Strict Vicarious Liability For Student Members of Unregistered Organizations

Proposed Section 4.1 provides, “known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.”  This sentence imposes a strict vicarious liability upon any Cornell student for any asserted Code violation by an “unrecognized student group.”  If any student group published a news story, opinion piece or tweet that offended someone, the offended person or group, armed with the Code, could file a complaint with the Judicial Administrator alleging “harassment.” Any student known to be a member of that student media group could then be prosecuted for a violation of the Campus Code, even if that student had no direct role in the writing or editing of the offending article or commentary.  Such “guilt-by-association” serves no educational purpose, but merely serves to chill free speech and freedom of the press.  It should be removed in its entirety from the Code, thereby avoiding a challenge likely to show its enforcement would violate applicable law.

3. Traditional Limitations Should Be Respected for Campus Conduct Regulation

Legalities aside, Cornell traditionally has limited its conduct regulation to on-campus activity.  While registered student organizations that seek funding from Student Activity fees or use campus facilities voluntarily submit to Campus Code jurisdiction, unregistered groups such as The Sun do not.  Unregistered organizations should not be regulated by Cornell.  Further, the Campus Code should regulate only on-campus conduct, and jurisdiction should not be expanded to off-campus locations such as the Cornell Daily Sun building (located in downtown Ithaca) or to “online behavior” (Section 3(A)).

We file these comments as individuals concerned about the free exchange of information and views on campus. They do not necessarily reflect the editorial views of The Cornell Daily Sun.  We urge the Committee to respect the rights of student journalists and the readers they interact with every day.

Signed:

Jay Branegan ‘71

Kathleen Frankovic ‘68

Andrew Kreig '70

Carl P. Leubsdorf '59

Robert C. Platt ‘73

Elaine S. Povich ‘75

Charles J. Sennet ‘74

Dineen Pashoukos Wasylik '94

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

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

Colleagues,

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

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

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

Thank you for taking the time to receive community feedback.

My best,

Mary Beth Grant

Sr. Associate Dean of Students