Fall 2020 Campus Code of Conduct Public Forum | Questions

11/12/2020 Campus Code of Conduct Public Forum

Questions

Brandon will you please record this?
1. Hi Robert, this is being recorded. Thank you.
The UC's code delegates to VP Lombardi in consultation with the Assemblies. In contrast, the current UA Charter gives the UA the right to amend the Code, subject to President's approval. Once a Student Code of Conduct replaces the "Campus Code" will the UA retain the same level of jurisdiction over that Code?
If a group of students, faculty and staff all stage a protest disrupting traffic at the corner of Tower Road and East Avenue, it would be best if everyone is subject to the same behavioral standards and expectations regardless of their status. That is the case at present. Once a Student Code is adopted, how would the standards of conduct applied to the student demonstrators be different than those applied to the faculty or staff? Who would handle alleged violations by faculty or staff? Why is it that the other colleges in New York State can have a combined system to implement the Henderson Law, but that Cornell is now dropping that approach?
Is there no option to send questions anonymously?
1. There is now.
2. I believe that this option has now been enabled.
Has the authoring office made a list of the changes avaliable for review? I have only been able to find the new drafts.
What is the logic behind bringing an end to public hearings and lowering the burden of proof? It seems like this will result in less transparency and less chance of a fair hearing, but I can't see any corresponding benefits.
Isn’t the pay difference between respondent and complainant advisors due to workload difference? One office works under only one code and the other works under 3 codes?
The new title ix regulations don’t require a preponderance of the evidence standard. If the administration is concerned with differential standards of proof, why don’t we amend policy 6.4 back to the earlier standard?
That was the most sincere, clear explanation of changes with a concrete course of action - thank you professor.
Why do people continue to (falsely) imply the code only applies to undergraduate students, and their opinions therefore matter more than other students'? The undergrad students have been heard and the SA president then went on to silence the graduate students by telling them how to vote on a resolution within their own constituent group. Why are the graduate students being ignored/overlooked?
Ms. Krause mentioned that we should not “favor” respondents in this process—but why not? Why is it not appropriate for the complainant to have a “higher” burden when the complainant is a University with a multi-billion dollar endowment and the respondent is one single student?
Residential communities also operate under a set of House Rules. Why do these have a different standard than the code? Has there been talk of revisiting them to make them more equitable?
When a series of minor violations are taken into account for disciplinary actions against a membership organization, is it fair to claim that cases that do not involve suspension or explusion do not have serious consequences?
There is no provision in the proposed Code of Conduct stating that students accused of violating the Campus Code of Conduct must be informed in writing that they have the right to an advisor before the disciplinary process begins. I believe the Code should be modified to add language requiring both Complainants and Respondents to be notified of the services of the Complainants’ Codes Counselor and Respondents’ Codes Counselor, respectively, before any interviews take place. This would ensure that students have the opportunity to meet with their advisor and learn about their rights within the process before they have to meet with someone conducting an investigation. The current code does this and the new code should too.
1. Joanna's point is an excellent one and is an easy enhancement to make.
I’d like to pick up on the idea in one comment that what is good for the goose is good for the gander: Without being presented with evidence of it, it seems a little concerning to me that “educational values” seem to overwhelming result in the elimination of the rights of the respondent. Why is it that these values have resulted in no restriction on the power of the University to sanction? One comment online said that these hearings have no “payout,” but that itself is not even true, as fines are explicitly able to be imposed. Could someone in support of the changes explain to those of us without the relevant training why they result in this?
If this is "amount the community", why not let the community decide whether we want these changes?
1. Just to add to my answer - as stated, my email is nd398@cornell.edu and the link was just shared in the chat
A separate question from my other question: One comment online said that the University can’t subpoena people for information, which can justify some of the changes. But isn’t there a duty to cooperate? Unless the University commits to never enforcing this I worry that this is not functionally true. What is the force of this provision?
It's disheartening to hear that there is no change - I appreciate the number of people who are educated on this matter, been aware of it, and had time to do their research - but for many of us this just came to our attention, especially if we just joined this semester, and could use resources to meaningfully contribute. Having worked in policy drafting processes, it is standard procedure to share the draft changes.
Advisors need to be completely independent or else students won't trust them. If they don't trust them, they won't take advantage of their right to an advisor in the first place. But we've said as a community that we think students should have that right. So, let's make sure they feel comfortable exercising it by (1) informing them of that right (not currently required by the code) and (2) keeping the RCC independent.
Martha Pollack told the UA that University Counsel’s reading of title 9 regs required the same standard of proof for all codes on campus (this was told to us after the final regulations were releaed). Trusting this legal advice, the UA rejected its own propsoed code and handed it over to the University Counsel. Now, we learned that the Martha Pollack and counsel’s reading of the regulations was incorrect. Can Counsel please explain why the UA was misled by President Pollack?
It's not entirely clear to me how preponderance puts everyone on an "even playing field." The very nature of having the interests of the "university as a whole" and the power of the university brought against you inherently creates an uneven playing field for respondents. By nature of being accused of an offense and investigated there is a power imbalance there built in. It seems to me that clear and convincing is how you even the playing field, since that accounts for the inherent power imbalance between the accused student and the whole accusing campus community.
Currently the code gives the President the right to extend the code to off-campus activity if it is an "imminent Threat". The new proposal would allow VP Lombardi to extend the code to off-campus activity if it poses a threat to "Cornell's reputation?" Why this expansion and does it chill free speech rights?
A panalist said that the new, lower evidentiary standards would help convict students who, for example, were drunk or agressive in a dorm. These seem like cases where even a 99% burden of proof would convict. These also seem to be examples where less proof needed to convict would only deemphesize invesitgating these often highly emotionally charged situations as, under the new code, less evidence from such invesitgations would be needed. If the examples given for why this lower burden is necessary are ones that don’t seem to actually require less proof, for what cases specifically would this lower burden be useful?
Would you agree that the higher burden of proof, “clear and convincing,” would systematically protect innocent respondents who risks facing serious consequences (for example, one day being forced to disclose violations to the state bar)? Why or why not, and is it acceptable error to punish the innocent respondent for the speculative benefit of vindicating the rights of the campus community? At what point, in your mind, would the risk of punishing an innocent respondent be significant enough to justify a higher burden of proof?
Regarding the previous question about the benefits of a lower burden of proof, I am struggling to see why placing the complainant on a level footing with the respondent, before any evidence has been shown, is more fair. In civil court there is a primary threshold (summary judgement standard) that must be crossed before the preponderance standard can be applied. So isn't it a much different situation? (I would like JCC O'gara or professor Clermont to respond)
Hasn’t the same question of standard of proof already been decided in the criminal law setting? It’s the public against the suspect and everyone has already decided that a higher standard of proof is appropriate for real crimes. I know some have said that this is meant to be an educational process, but it’s called a disciplinary code, not an educational code.
1. Have the Complainant's advisors weighed in on the standard of proof?
How can you justify a lower burden of proof as more educational? It is, to my understanding, the direct opposite of the tennants of restorative justice.
It’s harder for non-native-english-speaking students and students not familiar with the code or similar laws to represent themselves without counsel. Doesn’t refusing to let students have counsel in all but the most serious cases unfairly penalize those members of our community?
How will you deal with the impact of a lower evidence standard on students who cant afford their own attorney? Those who can’t afford their own attorney will be significantly more likely to be erroneously punished when innocent. If the University switches to a preponderance of the evidence standard, this may be especially harmful to students from low-income backgrounds who are unable to afford an attorney. Clear and convincing evidence has been the longstanding standard used in non-sexual assault campus misconduct proceedings at Cornell, and there is no evidence that suggests the University has had any difficult finding students responsible for violations under this standard.
I haven't heard any discussion of the logic behind forcing students to speak instead of their advisors. I think the point that a students public speaking skills shouldn't dictate whether they are responsible or not is an important one, and it's just not clear to me there is any legitimate reasoning being presented for taking away students ability to have their representative speak for them.
There have been comments that this is not a criminal process but an administrative process. Other schools probably have student conduct processes and I am wondering what standard is used in those processes and if it is different from Cornell, why are we different? Why are we the outlier?
Under the current code, repsondents can ask witnesses questions. Under the current code, only the hearing chair can ask questions. How is this not a plain reductions of rights?
The President's Task Force recommended expanding the definition of harassment rather than enacting a speech code. They relied upon the then-effective Title IX rules. The current Title IX rules have narrowed the definition of harassment. How would a complaint go about showing that an individual engaged in creating a hostile environment against a student? How could this standard be applied in a content-neutral manner to protect students' free speech rights?
If the concern is about over-aggressive lawyers pressuring students, why not stop lawyers from speaking in hearings, but permit student advocates (respondents advisers and complainants advisers) to speak?
People keep saying the changes are fundamental, but as Zachary said, all of the changes have to do with what accused students are allowed to do. The penalties available haven't changed, the actual role of alternative dispute resolution and when it's available is not at all made clear, and it's not evident at all that this is a fundamental change. What is so fundamental here? That students will be accused (potentially wrongly) and their accuser will be represented by another student? That's not really fundamental at all, it's the same system with different actors.
As someone not well-versed in this topic, does the lowering of the standard of proof affect the impact that implicit bias may have in the decision made by the University Hearing & Review Board?
Would it make sense to restrict council to only Judicial Codes Councilor rather than professional lawyers? That might level the playing field.
Isn't it strange to implement such sweeping changes to the code during this pandemic, when there is much lower student input, less chance for mobilization of student opposition to the changes, and much diminished student-to-student discussion of the changes? It seems like a referendum without true, organic consensus.
How are diverse social identities being represented in the leadership and decision making process of all this? While it would be rude and irresponsible to make assumptions about all the identities of the panelists, it does seem quite homogenous and I’m concerned about how the lived experiences, voices, and perspectives of marginalized identities seem to be missing from this critical conversation since this affects a diverse student body.
I'm confused as to why graduate students are trying to take ownership of a code that does not truly affect them. The graduate students that are speaking have a larger role as members of the UA who have a duty to represent all constituents. Also, graduate students have silenced and harassed undergraduates at SA meetings as if its sport. If the code doesnt truly affect graduate/professional students, why are we not in favor of a code that supports undergraduates?
There is an emphasis on making the process less adversarial, while also requiring students to conduct live cross examination against each other where suspension or expulsion is concerned - how do we come to terms with these seemingly conflicting positions?
From an undergrad perspective, I think this is just all so confusing to hear about and not understand how it plays out in actual scenarios. With the changes in the lower burdening of proof, it seems like students are having to give up protection so that the majority of cases go smoother, even though these protections are in place to protect students in the more extreme cases. Too often, I will be talking to peers about the different levels of evidence, and everyone has a different understanding of how it either hurts or benefits the respondents. Is there a better way to disperse this information to the student body? If we truly are to get the undergrad opinion, more has to be done to get students involved and to understand this process and who all is involved. I think if this is were to be done, we would have a much different reaction from the undergrad community.
Isn't it illogical to impute the title IX standard of proof to the rest of the code when that lower Title IX standard was devised because of the inherent difficulty in proving sexual assault and discrimination cases, which applies only to Title IX and not other offenses?
As a follow up to this speaking for themselves thing, I understand students are encouraged to do so now. The logic of forcing them to isn't there. Students who aren't native speakers, who have mental health concerns that make speaking difficult, who are emotionally overwhelmed by what is happening to them - none of the responses have been sensitive to them at all. No answer has explained what is educational about being made to speak when speaking will actually harm them or be very detrimental to them.
Will the expansion of the complainants advisors office involve also looking at the current resources and workload of the respondents office and seeing if more resources might be warranted for them as well? I was under the impression the offices were somewhat similarly sized right now. Just want to be sure the school intends that both offices are on equal footing and intends to ensure that by looking at the resources currently available to both offices. I know both offices work hard and make sacrifices already, and I think as long as the resources of the complainants office are being looked at it makes sense to see if the respondents office is adequately resourced given the workload as well.
“Legalistic” has been thrown around several times this evening, and is sounding like a buzzword. I would appreciate if someone would speak to what that actually means, in particular in a process that by its very nature is based on a code of rules. In particular, it does not sit well with me that the stated goals are to make the process less “legalistic” while also lowering the burden of proof, a legal standard with all the deficiencies that have been pointed out by commenters before me.
The standard for imposing a temporary suspension in the proposed Code does not include important language from the current Code: “in extraordinary circumstances.” Temporary suspensions should be used only when appropriate, and only as an interim measure. Temporary suspensions are imposed before a student has been found responsible, and therefore must not be used indiscriminately. To this end, not only should the language in the code reflect this, but an independent panel should review these rather than the VP SCL.
A standard less than “clear and convincing” amplifies the risks of punishing innocent students; undermines the fairness of the process in favor of those with attorneys and away from those with less resources and inadequate self-advocacy skills; and moves us farther away from the truth in a situation. Students can have amazing respondents advisors as their counsel, but that is not the same as a person who is a FULL-TIME attorney, which many students cannot afford. Even with student advisors, lowering the evidence standard puts all students, undergraduates and graduates, in danger. The “clear and convincing” standard better ensures we get to the truth in a situation and don’t punish innocent people.
Thank you to the UA and the panelists for considering the many valid concerns raised this evening. I understand that there are still a few days to submit comments on the revised Code. What can the Cornell community expect after that? How can we bring unity and closure to this process?
I just want to clarify that if an RA documents an incident they then have to go to the hearing and defend what they wrote in their report it seems an undue burden on the RA.