BRANDON FORTENBERRY: Welcome, everyone. I'm Brandon Fortenberry, the Chair of the Codes and Judicial Committee. And on behalf of the Codes and Judicial Committee, I would like to welcome you all to today's forum. I'd like to ask the Codes and Judicial Committee members who are here on the panelist side to go ahead and join me to say hello.

 

I'd like to thank the members for all of their hard work in getting us here to be able to hold this public forum, as well as the work from the past to work to really make-- on the code's revision here. Today's forum is focus on the fall 2020 proposed amendments to the campus code of conduct to provide some insight into this revision, as at the conclusion of the spring 2020 the University Assembly asked the University Council to draft a new version of a student code of conduct and associated procedures that would best reflect the input from several entities that had worked on both versions over the past years. The current posted versions reflect Cornell University Council's work reconciling these different versions. And you'll see momentarily in the chat we'll place a link to that public comment section where you can see the current version.

 

Our goal for today's forum will be to allow our panelists, who I will introduce shortly, to provide you with their perspective of the current code revisions and ask of you the areas of importance for your comments from their viewpoint. Following our panelists' comments, we will open up to all of you in attendance here today to provide us with comments and questions. I would like to note the chat feature is disabled today, and we ask that you provide your comment or question in the Q&A feature of the webinar. Please note that while it states Q&A, you can provide a comment without it being a question.

 

We ask that you refrain from addressing your question to any one individual and pose your question to the code revision, as questions may be answered by multiple panelists or may not be answered here today. If you would like your comment or question to be read by myself as the moderator, please start that comment or question with the word moderator. If you do not state moderator at the beginning of your question and comment, when it comes your turn I will ask you to unmute and state your question or comment with or without video, and ask for you to please bear with me as I may not pronounce your name correctly and encourage you to please correct the pronunciation as you state your comment or question.

 

In addition, I would like to note that while we may not be able to answer all questions live, the Codes and Judicial Committee will be responding to all-- will commit to responding to all questions posed in today's forums that are not answered here. We will go over these items again after the panelists speak, but let's go ahead and get things started with our panelists. First, I would like to introduce Logan Kenney, the Chair of the University Assembly.

 

LOGAN KENNEY: Thank you, Brandon. Good evening, everyone. I'm very excited to be here.

 

So as Brandon said, my name is Logan Kenney. I'm a 2015 graduate of the College of Human Ecology and now a third-year law student. This year, I'm chair of the University Assembly.

 

This is my third year on the University Assembly, with my first as a voting member of the body, as well as the Codes and Judicial Committee. And last year, I was Chair of the Code's and Judicial Committee for the majority of the academic year. I understand firsthand the urgency and importance of drafting a campus code of conduct that works for everyone who is expected to be held accountable to it.

 

Over the past few months, we have done our best to quickly organize and provide a platform and spaces in which community members could give very much needed and well-intended feedback as we work to finalize the code of conduct that is expected to be reviewed and confirmed soon by our board of trustees. I apologize that this is our second forum regarding these issues, with one being last semester. But with the ongoing pandemic, I'm really grateful to the former and current chair of the CJC for organizing these essential platforms. I'm also grateful to all of our panelists for their dedication and involvement in the process and willingness to be here so late in the evening.

 

Many years of hard work and effort has been put in to create various drafts of the code. Today, we will be making statements about changes to the currently proposed code, which was drafted by the Office of the University Council, and we will be answering your questions. I absolutely encourage and implore everyone to give their raw input and perspectives.

 

Whether you choose to participate within this forum or just to listen, I ask that you consider commenting on the official page for review by the University Assembly Codes and Judicial Committee and Universe-- and University Council. The deadline for those comments is November 17th at 5:00 PM Eastern Standard Time. And that link will be and has already been posted alongside.

 

I cannot stress this enough, but your input particularly is incredibly crucial to this process. The University Assembly does not intend to make any comments or recommendations without adequate input from the Cornell community. We believe in a fair and Democratic process, which includes transparency, trust, and importantly, open-mindedness. I thank you all for being here this evening and I really look forward to a respectful, passionate, and informative forum. Thank you.

 

BRANDON FORTENBERRY: Thank you so-- thank you so much, Logan. I would like to now introduce Madelyn Wessel, Vice President and General Counsel.

 

MADELYN WESSEL: Thank you, Brandon. And good evening, everyone. It is a pleasure to be here, and I'm happy to have an opportunity to take you through at least my perspectives on the drafts that have been posted since the beginning of October.

 

I also want to apologize for the fact that I did not get those drafts up for the community in August as we had originally planned. There have been a few things going on at Cornell and in the world since March, and for both me and my team it's been a rough eight to ten months and we just simply got behind. But as a result of the delay, President Pollack pushed the board review of this back a chunk as well to make sure that there was, I think, the same amount of time as had been discussed with the UA in the spring to ensure community feedback.

 

I want to start and I'm going to also end with the same point. I've obviously worked very hard over the summer and in the fall to try to reconcile a lot of different perspectives that have come in over a lengthy period of time on the code and the procedures. But suggestions and edits are not only welcome, they are crucial.

 

I'm quite certain that as hard as we've worked to try to put a good draft together of three different documents, all of which are important, that we've made mistakes and that we've missed things. And so constructive edits and criticisms and suggestions about textual changes are very, very much welcomed. And that's the kind of feedback that is really necessary to get this in even better shape.

 

The existing codes and procede-- code and procedures are decades old. And when I started here four years ago and President Pollack started here, it became very important to her very early that we initiate a process to review and reform the code. She reached out to the UA, in fact, three years ago with a number of key elements in mind.

 

And those elements kind of were refined over the subsequent year as a result of the Presidential Task Force on Diversity and Inclusion that set a subcommittee which was headed by the Dean of the Law School. And that committee really tackled quite a few issues and concerns about both the code and procedures and what I would say the key sort of ask elements were from President Pollack as a result of her first year in office and the Presidential Task Force were a few.

 

One was to separate the substantive code from the procedures. The current code is so long and so detailed. Many people, I certainly myself, found it very confusing. And it's traditional to have the substantive law or the code be a document and the procedures that help to implement the code be obviously a related but separate document.

 

President Pollack wanted all of these sections to be more readable. She hoped that they would become less legalistic. She thought the code, especially the code that is the definition of rights and responsibilities for students, should be readable by students.

 

There were strong recommendations that the procedures should be less adversarial and more sensitive to diversity concerns. There was a big push for there to be a strengthening of alternative dispute resolution, restorative justice concepts, and other educational tools to address complaints, especially complaints that might occur as between students. And I would say the final key point and driver was that all forms of harassment and assault needed to be handled in a congruent fashion. There was a significant perception in the community that racial assault, assault or harassment based on other forms of diversity or differences, were treated extremely differently under the campus code as against sexual harassment and sexual misconduct that had been brought under policy 6.4 procedures, and were in many respects dictated by federal policy under Title IX.

 

So, another final point I would just observe. This is the third university that I've personally worked at. And I would say that Cornell's campus code I found to be different from any other place where I had worked, and really different in ways that I found concerning for students from most of the student conduct systems that I've experienced or have colleagues who've worked with them.

 

The new proposed code, and most importantly the procedures, definitely are very different from the current campus code. They are much more aligned with other systems that I've experienced, and friends and colleagues have experienced at other universities. They are different.

 

There is one point that I think is crucial to make. The current campus code has ensured significant procedural fairness for respondents for many decades. And those values absolutely can't be lost. I don't think anyone wants a new campus code or a new set of procedures that are not fundamentally fair to the community and that don't work well.

 

Here are just a few of the key changes that came out of the process that I and others in my office undertook trying to reconcile essentially two different fundamental visions and versions that came out in the spring. One was a version that was endorsed by the SA. They worked very closely with my office, but the components of that draft, especially the procedures, very much reflected undergraduate student input.

 

The code, I would say, had gotten a lot more completed under the leadership of the CJC last spring. And while there are some changes that I and my team incorporated in the code itself, we really work largely from the CJC version of that and from the separate responsible speech and expression document that I had crafted using elements from what the faculty Senate had posted, what a different Presidential Task Force had developed, and what was in the current code. So mainly the procedures were fundamentally quite different in the concept and the orientation vis a vis the parts that had come out through the CJC.

 

So key changes here are that a brand new student conduct office is created and moved over under the Vice President for Student and Campus Life. That office is not allowed to prosecute cases against students. And that's a really big point I really want to hammer home here. And it is written about substantially in the first sections of the procedures.

 

Instead, the new system that was proposed makes complainants, people who want to bring cases against students, responsible for actually managing those cases. Now, those individuals would get support from the complainant’s advisors. Complainants advisors is a smaller group out of the law school today. They represent individuals who are bringing cases under policy 6.4. The proposed procedures expand that office significantly so that students who are complainants against other students or against someone else in the community would have advice from the complainant’s advisors.

 

There is no JA prosecution. There is no JA, actually. That office really is fundamentally transformed.

 

When there would be an administrative case, so for example, if there is a case that would be brought against a fraternity or sorority-- and by the way, they would no longer, under the procedures that my office has proposed, be separated or have their own separate system. All student organizations come under the same exact procedures and the same code. So, there's no privileging of Greek life as we currently see in our system.

 

But if there were University cases that needed to be brought against an individual or an organization, again, there's no lawyers in the JA's office bringing those cases. They would need to be brought by individual administrators from the relevant unit. And the same accountability for bringing that case and putting that case together would fall on them.

 

The whole purpose of this new student conduct office is intended to ensure a fair process for everyone, starting with also a fair investigation. And that office is empowered under these procedures much more forcefully to work with the parties to explore alternative dispute resolution, including restorative justice tools. But the office cannot impose that kind of resolution.

 

There's a lot more off ramps to get off and away from hearings, but there are-- but cases that are not resolved in that way, and no party can be forced into alternative resolution, would go to a hearing board. And that hearing board, as is the case today, makes factual findings and imposes any discipline. I would say that the structure of the hearing board and the review boards, although again refined, is very much built on the current system and built on much of what the CJC had brought forward.

 

There's been a lot of work invested in ensuring that to some extent, unlike today, the Office of Student Conduct is required to ensure that both parties have complete access to the record, to interviews, and an investigative report. There's no showing up at the last minute with an attorney, dumping new evidence on the opposing parties. There is a lot more structure so that when a student would go into the hearing process, complainant or respondent, that they would know pretty much exactly what's in front of them.

 

Today, we have respondents, advisors, and complainants’ advisors, a smaller group. They are paid by the University. I discovered as part of my work that actually the complainant’s advisors, these are all law students, are paid less.

 

I don't think that's appropriate. So, we have certainly recommended that both the respondent's advisors and complainants’ advisors would make the same amount of money, and that the offices would be structured in directly parallel ways. Obviously, with no JA prosecuting cases against students anymore, I recommended that the complainants office would have to expand. There would have to be more funding for that team and more representatives in that group.

 

The procedures require some additional training. And I would say they impose higher accountability on both respondent's advisors and complainants’ advisors. I have to say, over the last two to three years my office and I have heard significant complaints about how students were treated by advisors for the parties and by outside attorneys at times representing one party or another. And the current procedures really seek to ameliorate some of the adversarial components of those interactions.

 

I will say, however, that the current procedures continue to allow for cross-examination. I actually think I ported the exact language in the current code over into the draft procedures in any case where a student would face suspension or expulsion from the University. Now, these are the kinds of drafting choices that I very much welcome feedback on. But the intent there was to bring that element of cross-examination, about which I know there's been a lot of discussion, over from the current code and make it pretty much equivalent to the current situation there.

 

Other aspects of hearings though, we've really tried to tone the process down to make it less adversarial, which was very much feedback that we had gotten from the undergraduate student community. And by the way, I think it is important to look at the data on the current campus code. Something like 97% or more of all cases are student cases.

 

And almost all of them are undergraduate students. There are occasional cases brought against graduate or professional students. So, the feedback from the undergraduate community was very, very important to me and to my team in trying to sort through options here.

 

There was a change in the complainants’ advisors and response advisors. It comes out of the undergraduate, the SA version, in that there is a recommendation at least to allow graduate and professional students, not just law students, to apply to and get trained to become advisors. I had a very interesting conversation with the complainant’s advisors recently. I don't think they support it.

 

I recommended that they reach out to the respondents’ advisors to discuss that and also to discuss if law student community feels strongly that only law students should serve as advisors, whether there could be other roles that could be crafted for other students to provide support to the system overall. You might keep in mind that I came from the University of Virginia, where the entire student conduct system and the academic integrity system is run by undergraduate students. So, I have a long history of a lot of respect for what undergraduate students and non-law students and law students can do.

 

So, I make just two final points here. First, the most significant issue I see for the community is one that the draft that we posted in October leaves open. The standard of proof is not being decided by my office or by the administration.

 

I think it is clear legally that changes in the regulations that got finalized by the Office of Civil Rights on Title IX very much left open a question, which is, does this community want to have a different standard of proof for student conduct cases that are not under Title IX, that are not under the preponderance standard that's been set by our community? Well, was set previously by the federal government but is now located in policy 6.4. Do you want to have a different standard of proof, a higher standard of proof, for other student conduct cases or the same standard of proof?

 

By the way, I think that same conversation can be had now about policy 6.4 cases. So that is no longer a dictated outcome, at least under the current regs, that the new incoming administration has said they may seek to change. But for now, that issue is open for sure. So, I think the standard of evidence, standard of proof that the community wants to see in the student code should be decided. And I hope that it's decided in a thoughtful way that is, as Logan mentioned, Democratic.

 

And I'll just end by saying that edits and constructive suggestions and criticisms to the drafts that have been up for six weeks now are very much welcome. I'm looking forward to seeing people's thoughts. I bet you will catch goobers and mistakes that I or my team made. And we will take your comments very, very seriously. Thanks, Brandon.

 

BRANDON FORTENBERRY: Thank you, Madelyn. I would like to now introduce Vice President for Student and Campus Life, Ryan Lombardi.

 

RYAN LOMBARDI: Thanks, Brandon. I'm glad to be here this evening and share some of my perspectives. I appreciate the invite. For those I have not had the chance to meet, I'm Ryan Lombardi, Vice President for Student and Campus Life here at Cornell.

 

And like many of my colleagues in a Student and Campus life, I am foremost an educator-- all three of my degrees are in education. And we consider our work, which is really to promote a transformative learning experience outside of the classroom, to be core to the educational mission of this institution and of the college experience.

 

I think most of us can recall the influential experiences we had-- or, for current students, are having-- at college that helped us to define our character, embrace our identity, shape our worldview, and help us become better versions of ourselves. I can't imagine that so many Cornell-ians would have chosen to return to Ithaca this semester if these experiences weren't considered central to the learning experience, given so many of our courses remain virtual.

 

As I share some of my perspective, I want to be upfront about my presence tonight and my intentions. I attended because most of the proposals that have been considered these past years place the administration of the code under my ultimate responsibility.

 

I also want to explicitly state that my willingness to provide oversight for the administration of the code is based on my belief that the new code and procedures should be rooted in education, growth and development. If so, this will ensure close alignment with the work we do in Student and Campus Life and allow for the approach to student conduct to be restorative in nature, and not adversarial between students and the university.

 

To be clear, I believe the proposed revisions that are under consideration have the potential to be a positive change for student life at Cornell. They strive to create equity between parties, removes the role of the university as a prosecutor against students, and allows for the greatest likelihood of supporting student growth and development.

 

While these revisions certainly reflect a change for Cornell, the proposed approach is not uncommon at many other universities in the country-- including a number of which I've worked at-- and it also aligns with the principles and best practices of the Association for Student Conduct Administration.

 

Now, in my view, the primary role of the student conduct process is not to punish students, but rather to promote learning through restorative practices that help to resolve differences between parties, and that allow an individual to reflect upon the decisions they've made, and to learn from them, and to grow as a human.

 

Student development theories examine how humans grow through various life events. It's critically important to note that most student development theories focus on the whole person-- including an individual's identity and their environment. There is no straight path through development, and no two paths are the same.

 

Strong educational systems provide for the ability to treat each person as an individual so they may find the best path to self-actualization. Inherent in this is creating an ecosystem in higher education institutions, with appropriate flexibility to help navigate outcomes that take the whole person into account. In my mind, a good conduct system will be staffed with professionals that approach their work in this manner, and it will be empowered to support students through their unique and individual journeys.

 

The aforementioned growth and development I have spoken about can and should take place while upholding the standards that a community has chosen to be of importance. This is a community process and should be a community process, those standards.

 

Now, understandably, there are some standards that are so fundamental to the well-being of a community they require consideration of substantial consequences when violated. And I believe that's the case. Those are the rare exception, but I believe that the appropriately robust procedures and processes should be in place for when that's the case.

 

I do believe it's important to note that the consequences that are built into a student conduct system do not ultimately have the ability to take away a person's fundamental rights. The power they hold is really in determining the privilege of access to a Cornell education, or education of another institution.

 

I've spoken to many undergraduates about the code in the 5 and 1/2 years that I've been here at Cornell. Some have gone through the current code process, and some have not. Many of them strongly seek change both in the process of how we approach code violations and also in what standards we have as a community. They almost universally express alarm and distress at how formal and intimidating these processes are currently framed.

 

So, to be clear, the proposal under review is not an undergraduate student code of conduct-- I recognize that. It is a student code of conduct. However, we do have to acknowledge that more than 97% of the cases are exclusive to undergraduates. So, I certainly hope we have the chance to hear their perspective on the revisions as well in some proportion to how they impact them. I know they have formally shared their proposals and perspectives in the past, and I hope they'll have the opportunity to do so again.

 

Thank you all for the chance to be here tonight. I appreciate it.

 

BRANDON FORTENBERRY: Thank you, Ryan Lombardi. I appreciate your comments. Next up, I would like to welcome Kevin Clermont-- the Robert D. Ziff professor of law in the field of procedure and advisor for the judicial code’s counselor.

 

Kevin, you'll need to unmute yourself, please.

 

KEVIN CLERMONT: Sorry about that. I was just saying that I'll be brief, but now it's going to be a little longer. As the designated ogre on the panel here, I could really be brief because I disapprove of this proposed code in its entirety-- both how it is written, but also what it contains. Saying that wouldn't be too productive or constructive, but I do want to make a recommendation.

 

In law, we have an idea called res judicata-- that you stick with a thing decided. We've been through this process before in 2006 through 2008. The administration tried to replace that code in just this way. Switch from a community-generated, rights-respecting code to an educational process-- educational being administrative newspeak for punitive.

 

The new process would have resembled being sent to the principal. But the administration, back then, made the mistake of seeking community input. And everyone was shocked-- many were heartened, but everyone was shocked-- by the uproar in support of the existing code. You know, the code that emerged from the Willard Straight takeover. And the uproar was such that the administration's proposal was DOA.

 

OK, fast forward to 2020. What do we have here? Well, we've got a new generation of students and, more recently, a pandemic. And so, the time is right for the administration to try, again, to repeal the community's code and substitute for it an administrative policy.

 

The CJC was charged with editing the university's council's first draft of the new system-- the new policy. It wasn't asked to amend the code. It was asked to start editing the administration's views. The CJC made some relatively minor changes and the result was that the administration took back its marbles, saying that they had to do this because of a basic misreading of the new Title IX regs. They didn't have to take it back.

 

But in any case, it's the administrative draft that's before us today. The aim, as has been said tonight, was to make the process more educational, less legalistic and more based on restorative justice. God, I would agree completely with that. Who wouldn't? Those seem to be very laudable aims. But the draft before us remains punitive. It can be called educational, but it's punitive. It's not educational.

 

And it is every bit as legalistic, and even adversarial, as the existing system. It's true that the adversaries may not have advisors that can really effectively help them, but it's an adversarial process. What the proposal does, almost exclusively, is to remove the respondents right and to make it easier to find the respondents responsible.

 

Now, realistically, I realize the administration is not going to start over. And so, what I want to propose is modifying the end game going forward. I think the administration should now give its draft back to the community, which would then act through its UA and its CJC. Keep the good ideas-- I'm not saying there are no good ideas in the new draft. Keep the good ideas, but make the changes that the UA and CJC feel most strongly about. And I think that would produce a fairer procedure.

 

Then, follow the code's path for amendment. The current code in Article IV, Title I says that amendments to the code are being made by the UA, and then they are subject to an up-or-down, yes-or-no approval by the president. That's the law on the books. I don't know why we're ignoring that law currently, since that is what ought to govern the amendment of the code. I think that process would give us a reformed community-based code.

 

Now, Brandon asked us to ask for public input. So, I think that the public input ought to be directed, also, to this process point. How should we go about these final steps in the approval process? I think this ought to be given back to the UA, and let the community adopt the new code. Thanks.

 

BRANDON FORTENBERRY: Thank you, Professor Clermont. Next up, I would like to introduce Marisa O'Gara, the judicial codes councilor.

 

MARISA O'GARA: Hi, everyone. I'm the lead judicial codes councilor and a third-year law student here at Cornell. The JCC's are referred to as the respondent codes councilors, just for reference, under the proposed code. And we advise and advocate for students who are accused of violating the Campus Code of Conduct, academic integrity, or Policy 6.4.

 

Our office has worked closely with hundreds of undergraduate, and graduate, and professional students. I personally have worked with over 70. Everything we're advocating for today is based on the experiences and priorities of those students. Because there's a lot to digest in the new code, I'm going to focus my comments on the few topics that I think will affect students most directly.

 

First, I want to say that we support the addition of advisors for complainants. We also support them making the same amount of money if they're doing the same work. We also support increased flexibility for restorative justice and alternate dispute resolution, which has been talked about a bit today.

 

But the new code, as Professor Clermont, has just said doesn't go far enough in that direction to justify the stripping of students’ rights that we see in this version. It doesn't explain when, or how frequently, these less punitive paths will be available to students. And students, at the end of the day, can still walk away with a disciplinary record, or suspended, or expelled. It's still a punitive code. And that's why these three changes are critical.

 

First, the standard of proof. A standard of proof refers to the level of certainty, or amount of evidence, a panel needs to find a student responsible for a violation. The current standard of proof we use here at Cornell is called clear and convincing evidence. It means that a panel has to be substantially more likely than not, or about 75% sure, in order to find a student responsible.

 

There is a proposal on the table to potentially lower the standard of proof to preponderance of the evidence, which instead means, more likely than not-- or about 51% sure. The JCC's believe that keeping the clear and convincing evidence standard, which is what we've used for decades here at Cornell, is the only way to ensure that those accused of violations are given a fair process.

 

The preponderance standard allows a panel to find a student responsible with a level of certainty that isn't much greater than a coin toss or a hunch. And importantly, five individuals sit on a hearing panel, but only a majority-- three-- even have to have that hunch to find you responsible.

 

That isn't a level of certainty that leaves one feeling like they've been given a fair process, especially when the resulting consequences could be anything from a reportable disciplinary record to expulsion. Some argue that the lower standard makes this process more educational, but there really isn't anything educational about being found responsible for doing something that you didn't actually do in the first place.

 

Second, advisor's ability to speak. Under the current code, we can speak if students would like us to assist them in presenting their case. The proposed code only allows advisors to speak when a student is being suspended or expelled and silences advisors in all of their circumstances, irrespective of the student's wishes.

 

It can be incredibly difficult and intimidating for a student respondent to tell their story clearly and concisely, using their own evidence and witnesses. At the end of the day, student's oral presentation skills should not affect whether they are found responsible or not responsible.

 

Additionally, forcing a student to speak in a hearing without the assistance of an advisor overlooks the anxiety, stress and fear a student experiences during campus disciplinary proceedings, as well as what is at stake for the student in the process. Silencing advisors exacerbates that emotional toll and makes the process less educational for the student.

 

As of now, as I said, we can speak in only limited circumstances. And as JCC's, we always encourage students to make statements on their own behalf when they feel comfortable. We understand that panels want to hear directly from them-- we respect that. But to prevent the process from becoming needlessly daunting and unfair, advisors must be continued to be allowed to speak during proceedings.

 

Third, and finally, the independence of the student's advisor. The proposed code gives the Office of Student Conduct and Community Standards-- currently the JA's office-- the ability to influence the hiring and firing of student's advisors. It is inappropriate for the director of the Office of Student Conduct and Community Standard, which is the office that will investigate students charged with disciplinary violations, to play a role in the hiring, removal or supervision of a student's trusted advisor, whether that's informal or formal.

 

The respondent’s codes councilors should only be subject to removal by action of the Board of Trustees upon a recommendation of a 3/4 vote of the student and graduate and professional student assemblies. Some suggest that this power should be given to the director to hold the JCC's accountable. But we are already held accountable in three important ways.

 

First, by the diverse body of students, faculty, and staff that serve on our hiring committee. I know I personally went through about five rounds of interviews before I was hired. Second, through our law school faculty advisor-- who you just heard from. And third, and most importantly, by our clients-- the students that we serve. Thank you.

 

BRANDON FORTENBERRY: Thank you, Marisa. And now I'd like to introduce our last panelist, Barbara Krause-- interim Judicial Administrator.

 

BARBARA KRAUSE: Thanks, Brandon. I appreciate the opportunity to be here this evening, and I'm grateful to all those of you who are in the audience and hopefully will provide comments.

 

I was going to speak a bit about the educational focus of the conduct process on a college campus. I think that's been addressed. And I hope that we could have an honest and philosophical disagreement, if we'd like to, about that. But I hope we wouldn't challenge the motives of people who feel very strongly that this is an educational process.

 

So, let me just start by saying, then, that the community and educational focus of this process, I think, relates directly to what I believe is the most important issue for public comment here tonight. And that is, what standard of evidence should apply in student conduct matters? Our office believes that the standard should be preponderance because it best balances the rights and interests of complainants, respondents and the campus community as a whole.

 

With the preponderance standard, the community and the respondent basically start at a level playing field. In order to hold someone accountable for a code violation, Cornell needs to show that it's more likely than not that misconduct occurred. This is not a frivolous standard. It's the standard that's used in civil litigation, where important rights and personal consequences are at stake. And it is the standard that's commonly applied in campus conduct proceedings across the country.

 

Clear and convincing, on the other hand, starts by favoring respondents and distinctly advantages individual complainants and the community as a whole. We don't agree, by the way, that just because university officials are often complainants that respondents’ rights should be favored in the ways that others are advocating.

 

Those university officials are not some impersonal administration. They are, for example, RA's and RHD's who are referring students who disrupted their residential communities by drinking too much, and throwing up in the bathroom, and passing out. And they're referring students who have responded aggressively when an RA knocked on the door during a loud late night party when other students were trying to study or sleep.

 

Those officials are sometimes campus police, yes. But they're police officers who are referring students under the code of conduct, not arresting them when students engage in behaviors that violate our shared values and disrupt the educational community. Our conduct process should be fair, to be sure, but it should not be fair to respondents at the expense of being fair to individual complainants and the campus community as a whole.

 

I want to just address a couple of other comments that have been made about the proposed code. And then I know we're eager to get to your questions and comments. First, we've heard, and read in comments, that students are terrified to be referred to the Office of the Judicial Administrator and that this justifies a completely independent advisor structure.

 

Truly, I want to reassure you that we are not ogres in the OJA. It is natural, I think, for anyone to feel anxiety when they're called to account for bad behavior. But I would respectfully suggest that it's the structure of our current overly legalistic code, not aggressive JA's or overbearing JCC's, that creates what can sometimes feel like a scary process.

 

And that's why our office supports this fundamental change in that structure. A change that is to a system that's grounded in student development, that minimizes the role for lawyers and other advisors-- except in the most serious cases-- and that explicitly favors alternative dispute resolution, restorative justice and informal case resolution. The proposed code will do those things.

 

We also hear arguments that students need to have representation by advisors because of the career-threatening consequences that students face when they're referred. We acknowledge that when suspension and expulsion are on the table, those are very serious matters. And the proposed code provides for an active role by a respondent's advisor in those cases, including the right to directly question the parties.

 

But I think it's important to know that during the three academic years from academic year 2017 to '19-- I'm not going to talk about last year, the numbers were skewed due to COVID-- but during the prior three years, the OJA averaged 665 referrals per year. And in those years, an average of two students per year were suspended. The most recent expulsion-- there's only been one in the past four years-- occurred four years ago, in academic year 2016.

 

So, what does happen? The vast majority of cases are resolved with a written reprimand, and educational sanctions like reflection papers, and alcohol education programs. And the vast majority of students found responsible for code violations face a disciplinary record only until they graduate. We have no evidence that having an internal disciplinary record until a student graduates adversely affects students post-graduate opportunities. Again, I would except out the suspension and expulsion. Those are more serious-- those do have an impact.

 

But the question is, then, do we need this independent judiciary-- a conduct system that's completely separated from student affairs professionals-- to support such a small number of serious cases? We need a robust hearing process for those serious cases, of course.

 

But the OJA believes we also need to ensure that the conduct process works well for the vast majority of cases that involve lower-level sanctions. And those are the types of cases that would more effectively develop responsible campus citizenship through educational conversations and sanctions, rather than through a highly legalistic and adversarial process.

 

Finally, I do want to point out that our office has proposed a revised definition of hazing that we think is very important. That is posted, along with other comments, on the UA website, and I'm happy to discuss that if there are further questions. But for now, I know we're eager to hear from the campus community. Thank you very much for your patience and for listening, and look forward to speaking with you.

 

BRANDON FORTENBERRY: Thank you all so much for your insight into the current code revisions. I would like to note that this topic is a complex one, and acknowledge that even our panelists may have differing opinions about these revisions. The focus of today's forum is to allow all of you in our Cornell community the opportunity to hear these differing perspectives and provide your comments and feedback, as well as questions, on the current revisions, and ask clarifying questions that you may have about the proposed code and associated procedures.

 

The Codes and Judicial Committee would like to add and ask for your comments and questions regarding the following. The proposed Cornell statement on responsible speech and expression. The reporting structure, including degree of independence of student code councilors. Private or public hearings from section 20.8.1. The scope of hearings and witnesses in sections 20.6 and 20.7. And the nature and scope of participation by parties’ councilors and advisors in sections 11 and 20.

 

As noted previously, the Q&A feature is what you will be using to provide your questions and comments. Additionally, those who would prefer that I read your question or comment aloud can type moderator at the beginning of your submission. Please note that all the questions and comments posed and discussed today will be included in the public comments along with those on the website noted in the chat previously. We greatly appreciate your value and input in this process.

 

Additionally, I'd like to note that our timeline is slated to go until 8:30 PM. But if there are no questions at a given time, we may end early. And at this time, I'd like to go ahead and move into our comment and question time frame.

 

The first question we have is from Robert Platt. If a group of students, faculty, and staff all staged protests 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. This is the case at present.

 

Once a student code is adopted, how would the standard of conduct apply to the student demonstrations be different than those applied to faculty or staff? Who would handle alleged violations by faculty or staff? Why is it that other colleges in New York state can have a combined system to implement the Henderson law, but that Cornell is now dropping that approach?

 

As noted previously, I would like to state that the questions provided here may not be answered live, but will be included in the questions and comments. We'd like to move on to our next question and comment, and remind the panelists they have the opportunity to return to the questions previously asked. The next one comes from an anonymous attendee.

 

As the authoring office made a list of the changes available for review, I've only been able to find the new drafts. And now, I'll turn to Nik Danev who will answer this question.

 

NIK DANEV: Thank you, Brandon-- and thank you for asking that question. So the only available document right now is the new draft, and the University does not currently have a list of changes where you can track the changes from the current code to the new code. Thank you.

 

BRANDON FORTENBERRY: Thank you, Nik. Our next question is from James Richard. I'd like for James to unmute, and you can ask your question.

 

JAMES RICHARD: I was just wondering what the logic is behind bringing an end to public hearings and lowering the burden of proof that we've been talking about. Because it just seems like there would only be detriments to the student population, but I don't really see where the benefits are coming from on that.

 

BRANDON FORTENBERRY: Thank you, James. Reminder to the panelists, let me know. I have Barb Krause who would now like to address your question.

 

BARBARA KRAUSE: So, James, I'll answer this-- and I think somebody else has a similar question down below that was maybe directed at me specifically. But to me, the whole concept with the burden of proof is to think about the university community as a whole. This isn't punitive-- people aren't going to jail for these conducts. Certainly, there are serious consequences for the most serious types of misconduct.

 

But, to me, the burden of proof issue is really about recognizing that, in our campus conduct process, we are trying to protect our educational community and give everybody-- every student, every person who is here-- an opportunity to be educated and thrive in a safe and secure educational environment.

 

And I think, for myself, as I've explained, I believe that the preponderance of evidence meets that standard better because it protects not only the rights of the respondent-- which are important-- but also the rights of individual complainants and the rights of the campus community as a whole. It puts everybody on an equal footing to start, and then allows the university to decide what the consequences should be for conduct that disrupts that educational community.

 

BRANDON FORTENBERRY: Thank you very much, Barb. And I believe, Madelyn, you had a question that you would like to answer.

 

MADELYN WESSEL: I was just going to follow on to the question that Barb answered in part and say that I don't believe that the proposed procedures make a change in the nature of the hearings. They don't make hearings that are currently public suddenly hidden and private. All students have rights, under FERPA, to privacy in disciplinary proceedings.

 

Students can elect, in some circumstances-- and I know that we had an example of this in recent years-- to make all, or a portion, of a hearing public because they want it to be public. But the administration cannot force that on a student. So, there's no change on that point. As to the standard of proof, I very much respect Barb's perspective but I do want to reiterate that my office did not take a position on this. And I truly believe that the standard of proof issue, as Marisa, pointed out, is really an important issue for the community to weigh in on.

 

Thank you, Barb. I'd like to ask another question from Robert Platt. The UC 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 a president's approval. Once a student code of conduct replaces the campus, will the UA retain the same level of jurisdiction over that code? And Kevin Claremont would like to answer that question.

 

KEVIN CLERMONT: No, I was on the previous question. This was my point-- that the current system calls for the UA's control. I noticed that, in the new code, there is no discussion of amendment. So, it's not clear at all. I assume it'll be run like Policy 6.4, where it's essentially a bureaucratic amendment process, and not the UA.

 

BRANDON FORTENBERRY: Thank you, Kevin. All right. We'll move on to our next question. A reminder to panelists-- we can circle back to previous questions, if anyone would like. The next question-- isn't the pay difference between respondent and complainant advisors due to the workload difference? One office works under only one code and the other works under three codes. And, Logan, I see you would like to answer either this question or the previous.

 

It was the previous question. So, the previous question asked of jurisdiction. Unless something hasn't been conveyed to the University Assembly or the CJC, I am hoping that it is still going to remain the same within the bylaws of the CJC that amendments to the code would go through the CJC, to the UA, and then to the President. And I'm hoping, if that's different, that somebody would please let us know as soon as possible. Because that would be really important for the community to know as well. Thank you.

 

BRANDON FORTENBERRY: Thank you, Logan. All right. Our next question, again, comes from an anonymous attendee. The new Title IX regulations don't require a preponderance of 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.

 

MADELYN WESSEL: Brandon, perhaps I'll just very briefly say that I don't think the administration is concerned about different standards of proof and that that's very much a reason for leaving open the question under the code to the community. What I said was that I also thought, given the change in Title IX regs, that the question of the standard of proof under Policy 6.4 could also be discussed by the community.

 

BRANDON FORTENBERRY: Thank you, Madelyn. Our next is a comment stating in regard to Kevin Clermont. That was the most sincere, clear explanation of changes with a concrete course of action. Thank you, Professor Clermont. Our next question comes from an anonymous attendee. Why do people continue to falsely imply the code only applies to undergraduate students, and their opinions, therefore, matter more than other students?

 

The undergraduate students have been heard, and the Student Assembly 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 graduates being ignored and overlooked? And Nik would like to answer this question.

 

NIK DANEV: Thank you so much, Brandon. So, I'm going to answer this in my capacity of a CJC member, but also Executive Vice President of the Graduate and Professional Student Assembly-- and a graduate student myself. So, I will refrain from commenting specifically on what happened at various assembly meetings.

 

But what I will say is, I will definitely reassure every student at Cornell that the CJC will listen to their concerns, and comments, and questions regardless of whether they're a graduate, professional, undergraduate, or any other type of student. In fact, we are part of the University Assembly and, as such, we will listen to any community member at Cornell on their opinions of this code, regardless of how much they are perceived to be impacted by this code. Particularly, I am talking to graduate students right now. You are affected by this code, and you will be listened to.

 

BRANDON FORTENBERRY: Thank you, Nik. And Barb would like to add a comment as well.

 

BARBARA KRAUSE: Thanks, Brandon. So, I absolutely agree that this is a student code of conduct that will apply to all students, and it's important to hear the perspectives of all students. But just for a point of information, in terms of referrals under the code-- in the last three years, again not counting this immediate past year, there were 14, 11 and 19 referrals of graduate students in each of those years. Which comes out to an average of 15 grad students referred a year, which is about 2% of the average number of referrals in those three years of 665 a year.

 

So, I don't mean to suggest that graduate student opinion shouldn't be taken into account-- it absolutely should. I just wanted to offer the point of information. Thank you.

 

BRANDON FORTENBERRY: Thank you, Barb. And Logan would like to add a comment as well.

 

LOGAN: Thank you, Brandon. So, yeah, I would like to say that, regardless of percentages, the graduate community, the professional community, is still held under this code. Whether it is 20 people, as opposed to hundreds of students. I think that this question was mainly speaking to an event that happened in the GPSA meeting where another constituent group told the GPSA how to vote.

 

And I think that it is important that the GPSA is able to provide their own separate input, thinking just about the professional community and the graduate community in mind. And that enforces why shared governance is so important-- that we can all disagree about certain aspects of the code. And that's why, at the end of the day, the CJC the UA and the U Council are going to look at all of these comments and figure out what the overwhelming amount of people want. And that is how the code is going to be decided. So, I just wanted to reaffirm that your voice is really important, and please use it.

 

BRANDON FORTENBERRY: Thank you, Logan. And now I'd like to turn to Marisa to answer a previous question, and ask if Marisa could please state the previous question.

 

MARISA O'GARA: So, there was a previous question about public hearings that Madelyn responded to, and I just wanted to weigh in on that as well. If the intention in the proposed code was to maintain the ability for students to request a public hearing and give the chair discretion about whether to grant that, I don't think that that is clear in the proposed code right now.

 

And so, I would say that I think it's important that we continue to allow those accused to indicate if they would like to waive the protection and confidence around their hearing to make it public. A chair can absolutely decide that it's not appropriate for that to happen, balancing any concerns that might impact the community. But we think having that option is really important.

 

A great example of this is that Mitch McBride was charged a few years ago with violations under the campus code for leaking documents from a university working group. He asked to have a public hearing, the OJA's office objected, and then the hearing chair allowed it. And the room was entirely packed with members of the Cornell community who were concerned. So, I think this current code makes it seem like that right is no longer available, and we should clarify to make sure that that continues to be available.

 

BRANDON FORTENBERRY: Thank you, Marisa. All right. Our next question comes in regard to Barbara Krause's note that 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 endowment and the respondent is one single student?

 

BARBARA KRAUSE: So, since that was directed at me and Brandon has indicated I should speak to it-- I think I've addressed this. But I'll just say again that I do think this campus-- this is a concept of the community's process, and the community's interests in this process, and the impact that misconduct has on the community as a whole.

 

And the point, as I made in my comments, that there is no university here that's affected. The university complainants are RA's who are dealing with misconduct in residence halls, and they're people in dining halls, and people in the campus store. But, primarily, in these cases, I think about the residence life staff where there is misconduct, which is a huge chunk of the cases that come to our office. And there is a huge impact on those students and early career professionals who are trying to deal with that conduct in the residence halls, for example.

 

BRANDON FORTENBERRY: Thank you, Barb, very much. Now Professor Clermont would like to respond.

 

KEVIN CLERMONT: Yeah. This is an area where I teach, and the considerations that Barb raised about--

 

BRANDON FORTENBERRY: Professor Clermont-- I think you're muted.

 

KEVIN CLERMONT: Spacebar doesn't un-mute. What I was saying was that this is an area in which I teach, and that the considerations about the community's interest are certainly relevant. The consideration of imbalance of resource is certainly relevant. But, by far, the most important consideration in setting a standard of proof is not an even playing field at the beginning. It really has to do with the costs of erroneous decisions.

 

In criminal cases-- in a lot of civil cases-- a false negative, falsely finding the person responsible, is considered more costly than a false positive. It's vice versa, of course. But that the fear of convicting an innocent person is much greater than the fear of acquitting an innocent person.

 

So, what you want to do is look at the situation here. If the offense is public disorder, or something like that, convicting somebody in this system where they didn't do it is really more serious than acquitting somebody who did do it. And that's the reason that we have clear and convincing evidence. This isn't a criminal procedure, no one's going to jail-- all that I grant. That's why it's not beyond a reasonable doubt.

 

But it is simply more serious to wrongly convict an accused student than to let the guilty student off. And so, I think that there is an argument to be made for clear and convincing evidence. And it's not really captured by this image of a level playing field.

 

BRANDON FORTENBERRY: Thank you, Professor Clermont. I would just like to remind everyone again that all the questions and comments provided today here will be compiled by the Codes and Judicial Committee and provided to the counsel's office for review. And as I stated earlier, not all questions may be answered, as this is a complex topic, and some questions may require additional research to be able to answer. However, the CJC is committed to responding to all questions. While we may not have answers to all questions, we will respond to all questions posed here today.

 

So, our next question is, residential communities also operate under a set of house rules-- why do these have a different standard than in the code? Has there been talk of revisiting to make them more equitable? And I believe Barb would like to answer the next question, this question. Please go ahead

 

BARBARA KRAUSE: Sorry, it's possible others may-- I don't mean to hog this. Anyway-- I'm happy to defer to others on this. But I would just say, I think the issue of how the residential communities will interact with the Office of Student Conduct and Community Standards if this new code is adopted will certainly involve a lot of conversation. And I think there is a lot of opportunities there.

 

To me, one of the biggest places that I am excited about in terms of the new code and this work being under the umbrella of student and campus life is the interaction between the conduct office and student affairs professionals-- people who work with student development. I think that's really exciting and would benefit our students. I defer if others have more to chime in on.

 

BRANDON FORTENBERRY: Thank you, Barbara. I appreciate that. All right, I'll move on to our next question from Robert Platt. 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 expulsion do not have serious consequences?

 

All right. We'll move on to our next question. Again, as I've noted, all questions will be noted and responded. The next question comes from Zachary Sizemore. Zachary, if you would like to un-mute your microphone and ask your question. Again, from Zachary Sizemore.

 

ZACHARY SIZEMORE: Hi, sorry. I think it had to elevate me. So, I guess I would just like someone who supports some of these changes on the panel to please speak to the fact and concern that I've had with these revisions, which is just that the broad term educational values seem to overwhelmingly favor getting rid of rights that respondents have and never restricting the power of the university in these proceedings.

 

And I give the fact that I'm a law student, so we are trained to think in a particular way. But it just seems to me that, without really laying out why that is the result, the university retains the ability to impose things like sanctions and others that are pretty serious. And I'm not really sure what the educational link is there. But that same value allows respondents to have a lowered amount of rights than under the current code. Thank you.

 

BRANDON FORTENBERRY: Thank you very much, Zachary. We appreciate that. Barb would like to answer the question.

 

BARBARA KRAUSE: I really don't want to answer all the questions. I'm trying to wait and let others chime in, but I also want to try to be responsive to the questions. So, I think, to me, the notion that students and respondents are losing rights only applies if you don't think about kind of the fundamental restructuring of this whole process.

 

And the additional emphasis in the new code-- it's true now, actually, that the vast majority of cases do not go to a hearing. But I think, if you listen to some other responses of people who are opposed to the revisions, the default language is to criminal notions-- notions of convictions.

 

And to me, what's important here is that there is behavior, it's concerning. Students who are accused of that misconduct absolutely should have a fair process that allows them to respond to the allegations against them. In the most serious cases, they would go to a hearing. But I just don't see it as taking away the rights. I see it as restructuring an entire conduct process.

 

BRANDON FORTENBERRY: Thank you, Barb. And Madelyn would like to provide a comment as well.

 

MADELYN WESSEL: Yeah. I too don't believe that the proposed changes to procedures, in light of the fundamental change in how these cases would be handled, take away rights. I have heard some really good suggestions today, and they're exactly the kinds of issues and nits that I was hoping we would begin to get weeks ago. For example, Marisa's point about the role of student advisors. I'm very much open to revisiting that one.

 

I'll tell you why we ended up with some restrictions on the engagement of advisors in the process. It was concerns from students who have experienced extremely aggressive treatment of them by lawyers for other students. And not all students can afford to hire an attorney.

 

And so, the idea that the bulk of speaking in these hearings would actually be done by students themselves, but with advisors present and able to consult with them at any time, and advise them at any time, was an attempt on my team's side to create a less adversarial environment for hearings. Unless we were at a point where a student was in a hearing process that could involve suspension or expulsion, at which point the advisor's role is back in play.

 

I do think that Marisa's comment is certainly making me think about ways to reframe this. But the perspective that I would want to continue to honor here is the perspective from the student who doesn't have the resources to have an outside lawyer. And for many students who felt that the process was so abusive at times and so frightening because of the role of advisors that they advocated for a change there.

 

But I think that the procedures, with the elimination of the role of the JA as a prosecutorial body, really are not disadvantageous from a process rights perspective. And to the extent that there is critique of them, I'm very interested in working on it.

 

Finally, I do want to say, again, that the point about the standard of evidence is a community decision as we've framed this that is, as Professor Clermont has pointed out, a very important barrier as far as convicting someone or finding someone responsible without a substantial amount of evidence on the side of the complainant. And if the community determines that that's a procedural protection that it wants to retain, I'm quite certain that the president and the Board are going to support that.

 

BRANDON FORTENBERRY: Thank you, Madelyn. Our next question asks-- and Nik would like to answer this question-- if this is amount of community, why not let the community decide whether we want these changes?

 

NIK DANEV: Thank you, Brandon-- and thank you to all the attendees and the attendee that asked this question. So, I just want to let you know that, although this process might feel a little bit rushed, there is an appropriate way to reach out to us. Ultimately, the only body that can authorize these changes is the University Assembly through the CJC. So please, please feel free to comment on the link that we will share.

 

Again, we've shared it at the beginning-- I'm sure that we can send it out again to everyone. All of these comments will be taken into consideration. Feel free to reach out to individual members of the CJC, myself included. I will also include my email in the link. Give us all of your feedback, and I am giving you my word that we will take all that feedback into consideration. And until the charter of the University Assembly changes, the fate of this code will remain in the hands of the University Assembly, which is here to represent each and every one of you.

 

BRANDON FORTENBERRY: Thank you, Nik. Our next question comes from Zachary Sizemore as a follow-up to a previous question. Zachary, would you like to ask your follow-up?

 

ZACHARY SIZEMORE: Yes. This is just a little clarification about the way the current code is drafted. So, one comment online said that the university has no power to subpoena. But I do see a duty to cooperate in all investigations. Can someone with knowledge of that explain what exactly the sanction is for that? Because unless the university commits to never enforcing, I just don't see how people could claim that there is no ability to subpoena or otherwise.

 

BRANDON FORTENBERRY: Thank, you Zachary. And Barb would like to take that question first.

 

BARBARA KRAUSE: So, there is a duty to cooperate that's written into the existing Campus Code of Conduct. There is no power to subpoena in these proceedings. And so often what that means is a situation where what it means to cooperate can vary.

 

What we expect currently, and what I would imagine would be expected under the new code, is that at least when a member of the Office of Student Conduct and Community Standards requests to speak with a student that they at least have to respond and participate. A student can't be required to testify. They can't require students to participate in proceedings and we can't subpoena evidence. If a student doesn't participate, a case can be resolved without that information. But there isn't any subpoena power.

 

BRANDON FORTENBERRY: Thank you, Barb. Our next comment comes in. It says, it's disheartening heartening 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.

 

Our next comment comes from Matthew Sunday. 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 rights to an advisor in the first place. 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, one, informing them of that right-- not currently required by the code-- and two, keeping the RCC independent. And Madelyn Wessel would like to respond to the questions regarding draft changes previously.

 

MADELYN WESSEL: Yeah. I completely agree that it would have been fantastic if we had been able to do a draft changes version. It literally was not feasible. There are so many changes, and we've also split the code into three different documents. So, no one on my team was in a position to be able to annotate the current code of conduct and, off of that, create these three new documents. That said, I do plan to post changes to the current drafts that are up in edit mode so that the community can see exactly what changes have resulted from these conversations.

 

BRANDON FORTENBERRY: Thank you, Madelyn. Our next question states, Martha Pollack told the University Assembly that the University Counsel’s reading of Title IX regs require the same standard of proof for all codes on campus. This was told to us after the final regulations were released. Trusting this legal advice, the University Assembly rejected its own proposed code and handed it over to the University Counsel.

 

Now we learn 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. And Madeleine would like to address the question.

 

MADELYN WESSEL: Yeah. I want to say, very strongly, that President Pollack did not mislead the United Assemblies. I made a mistake. It wasn't a mistake that was done on purpose. The 2000 pages of the regulations were released about a week, or 10 days, before the UA meeting. The then-governing versions of the regulations had made clear that a university would be at great risk if it had a different standard of evidence for Title IX cases versus other student cases.

 

The actual regs that were released were about 35 pages long. And I raced through them-- keeping in mind, please, all, that this was at the height of the, beginning of the, pandemic. I personally was working about 14 hours a day on things like trying to get ventilators into our hospital in New York City. And while I read those 35 pages carefully, this issue was not addressed.

 

It was true that when I had time early in the summer to go through the 2000 pages of commentary, that the Office of Civil Rights made clear they had changed that position. Professor Clermont wrote to me early in the summer about this, and I told him what I've told you today, which was that, when I had time to review the thousands of pages of revised guidance, if he was correct-- and Professor Leibowitz was correct-- that I would absolutely withdraw Counsel's position that the same standard of evidence had to apply to both types of cases. And we have done that.

 

BRANDON FORTENBERRY: Thank you, Madelyn. The next question comes in-- 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.

 

Our next one is a question. 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 does it kill free speech rights?

 

As noted, not all questions will be answered live here today. But I believe Barb would like to address this one. Thank you, Barb.

 

BARBARA KRAUSE: Well, I can't address all of it. But I think it's worth just noting what the difference in the language is. And so, the current language for off-campus misconduct is that jurisdiction will extend off campus if the conduct proposes a substantial threat to the university's educational mission, or property, or to the health or safety of the university community members. So, there's substantial threat language there.

 

And I heard somebody state, in a different forum, that it was the president who makes that decision. That's not accurate under the current code. It's the president or her designated representative in the person of the Dean of Students. So, it is the Dean of Students who currently makes that determination.

 

Under the proposed code, the language is that "it poses a threat to the University's educational mission or health or the safety of individuals." So, as I said, I thought it might be helpful to include the language. I don't feel that I can answer in the moment the rest of the question, in terms of the question is gone. I can't see it. So, I apologize for that.

 

BRANDON FORTENBERRY: Thank you, Barb. Next comment comes in-- "a panelist said that the new lower evidentiary standards would help convict students who, for example, were drunk or aggressive 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 de-emphasize investigating these often highly emotional-charged situations, as under the new code less evidence from such investigations 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"?

 

We'll move to our next one coming from Alyssa Ertel. Alyssa, would you like to read your comment and question aloud? The comment from Alyssa states, "would you agree that the higher burden of proof clear and convincing would systematically protect innocent respondents who risk facing serious consequences?

 

For example, one day being forced to disclose violations to the state bar-- why or why not? And is its 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, with the risk of punishing an innocent respondent, be significant enough to justify a higher burden of proof"?

 

Thank you, Alyssa for that information. Again, as I noted, these comments will be provided. And I hope you can all bear with me as I'm reading legal documents. I have no law education whatsoever. So, a lot of this speaks to legal. And if I bumble a bit as I go through it, please bear with me.

 

All right, we'll move to our next comment. Regarding the previous question about the benefits of a lower burden of proof, as we see we have a lot of comments about-- I want to speak before I read this. This is a very important piece. This is very important that the University Assembly and the Codes and Judicial Committee ask for your input on is the burden of proof. It is greatly appreciated.

 

So, 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 judgment standard, that must be crossed before the preponderance standard can be applied. So, isn't it a much different situation? Madelyn would like to respond to this.

 

MADELYN WESSEL: Colleagues, I am not advocating for preponderance versus clear and convincing. But I do want to come to Barb's defense on just an aspect of this last comment. One point that she made and is important to understand is that in civil courts of law it is the preponderance standard of evidence that is uniformly used.

 

So, it's not a standard that puts parties on an exact level playing field. It still requires that the burden is on the complainant to make their case. And this is the burden that our state courts and federal courts use. Again, I'm not saying it's the right standard to use here at Cornell. But it is not a standard that somehow ensures that respondents are always found guilty.

 

One point of analogy, we've used the preponderance standard in our Policy 6.4 cases now for a number of years, because the federal government did force institutions to adopt it. My impression is that we have at most a 50/50 percentage, and it may be lower, as far as respondents found responsible under our Title IX procedures in those cases.

 

So, it is not the case that using that standard guarantees a finding of responsibility. But it does lower the evidentiary standard that is necessary to find someone responsible. Thanks.

 

BRANDON FORTENBERRY: Thank you, Madelyn. And Marisa O'Gara would like to respond.

 

MARISA O'GARA: Yeah. I'll be brief. I mean, as I said, I support the clear and convincing standard. And I think the reason for that is because I work so closely with students who are affected by this process. And so, I think as JCCs we have this unique insight into what it's like for them, because they confide in us.

 

And I certainly won't suggest that we don't work with students who are responsible. We do, all the time. But even if it's less often, when I do work with students who are genuinely-- they did not do the thing that they are being accused of doing. I cannot tell you how heartbreaking it is to watch the stress and anxiety that that puts students through.

 

And so that's what comes to mind for me when I hear this question about standard of proof. It's hard. This is hard work being on a hearing panel and hearing competing evidence and putting it together and trying to come to a conclusion about what happened.

 

We're inevitably going to get it wrong sometimes. And I think it just comes down to if we know that a mistake is going to be made on occasion, even if we're going to do everything we can to try to prevent it, where are we more comfortable with that mistake happening?

 

And from my perspective, in the overwhelming majority of cases, the price of giving someone a disciplinary record is going to be a more harmful thing to do if they haven't actually committed a violation than the opposite. So that's where the perspective comes from.

 

BRANDON FORTENBERRY: Thank you very much, Marisa. Our next comment comes in. "How can you justify a lower burden of proof as more educational? It is to my understanding the direct opposite of the tenants of restorative justice."

 

The next comment comes in. "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?

 

Our next comment comes in. Actually, Madelyn would like to answer this question please.

 

MADELYN WESSEL: The proposed procedures absolutely guarantee to all parties a right to have counsel. They can have an advisor from the law school community from their respondents or complainant’s advisor’s pool. And they can also bring in a private attorney, or really anyone else that they want, as an advisor. That is absolutely a guaranteed right.

 

The change is to reduce the adversarial questioning by advisors in cases that do not involve suspension or expulsion. So, I do want that to be clear that there is no deprivation of counsel and no change in the rights of individuals to have an attorney by their side during this process.

 

BRANDON FORTENBERRY: Thank you, Madelyn. Our next comment comes in. "How will you deal with the impact of a lower evidence standard on students who can't 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 ever evidence standard, this may be especially harmful to students from low-income backgrounds who are unable to afford an attorney. Clear and convincing has been the long-standing standard and used in non-sexual assault campus misconduct proceedings at Cornell. And there is no evidence that suggests the University has had any difficulty finding students responsible for violations under this standard."

 

Our next comment. "I haven't heard any discussion of the logic behind forcing students to speak instead of their advisors. I think the point that a student's public speaking skills shouldn't dictate whether they are responsible or not is an important one. And it's just not clear to me that there is any legitimate reasoning being represented for taking away students' ability to have their representative speak for them." And Barb would like to speak to this one.

 

BARBARA KRAUSE: So, I think that we all, the people we work with in student conduct, understand that it's an uncomfortable position for students. I also personally think there was a conduct that was posted late this afternoon on this point as well. I think we want to be supportive of students who are alleged to have violated the code.

 

But it's also important, I believe-- I think one of the most important things in an educational process-- which again, I hear that some people don't see student conduct as an educational process. I do. And I think one of the most important things for students in that context is to speak for themselves and to answer for their conduct.

 

As Madelyn just said eloquently, students are not there on their own. And I will also say I do think that the JCCs by and large-- I think that they encourage the students that they represent to speak for themselves. But I think even in the proposed code, the language is that they will generally be expected to speak for themselves.

 

And I think that recognizes that when there are some unusual circumstances where a student does have an issue in being able to speak, these are not public speaking skills. Remember these are mostly supposed to be private conduct hearings. And I think that there's real educational value in students having to learn to speak and address what it was that they did wrong and how they're going to learn from that.

 

BRANDON FORTENBERRY: Thank you, Barb. Next comment. "There have been comments that this is not a criminal process, but an administrative process. Other schools probably have student conduct processes. And I'm wondering what standard is used in those processes. And if it is different from Cornell, why are we different? And why are we the outlier"? Madelyn would like to answer this question.

 

MADELYN WESSEL: There is a range. But I would say that the majority of institutions of higher education use the preponderance standard for student conduct cases. It doesn't mean that we have to. And I can't explain Cornell's history beyond the fact that clearly the code had its origins in a lot of suspicion of the administration.

 

It is very legalistic. And clearly those who drafted it wanted to have a higher standard of proof required than might have been typical at other places. Again, I think this is a really, really critical issue. I'm actually thrilled that so many of the questions today have focused on this issue because I think it's really important to have this conversation.

 

I also just, if it's OK, wanted to supplement Barb's point about the proposed role of advisors in hearings. Keep in mind that we're talking about a student on one side and a student on another side; or in some cases, an administrative staff person who also, as the complainant, has to speak for themselves. So, the purpose of this was to bring the temperature down; to have it be a conversation very often between two students, as we see in Title IX hearings, where they're accountable and they each speak to each other.

 

I've been having some correspondence with Marisa. And I'm really, really intrigued by a proposal that she made to me about increasing the role of advisors but protecting students when its outside lawyers coming in. And I really want to think about that. But I thank Marisa for a very thoughtful way to solve this concern.

 

BRANDON FORTENBERRY: Thank you, Madelyn. Our next comment-- "under the current code, respondents can ask witnesses questions. Under the current code, only the hearing chair can ask questions. How is this not a plain reduction of rights"?

 

Our next comment. "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 complainant 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?"

 

I'd like to state again that all comments and questions will be recorded and will be responded to by the CJC, even if they are not answered live here. Our next comment. "If the concern is about overaggressive lawyers pressuring students, why not stop lawyers from speaking in hearings, but permit student advocates, respondent advisors, and complaint advisors to speak"?

 

Our next comment here. "People keep saying the changes are fundamental." Actually, I apologize. I'm going to pause and let Madelyn speak to the previous question.

 

MADELYN WESSEL: It'll be very brief. That's exactly the suggestion that Maris made. And I thought it was extremely compelling.

 

BRANDON FORTENBERRY: Thank you, Madelyn. Our next comment. "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? The 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."

 

Our next comment. "As someone not well versed in this topic, does the lowering of standard of proof affect the impact that implicit bias may have in the decisions made by the University Hearing and Review Board"? And now I'd like to ask Charles Walcott to unmute to ask-- oh.

 

No, he's asked me to do so. "Would it make sense to restrict counsel to only Judicial Codes Counselor, rather than professional lawyers. That might level the playing field." And Logan Kenney would like to speak to this one. No?

 

LOGAN KENNEY: No, I'm fine. Mine was to the previous question.

 

BRANDON FORTENBERRY: Go ahead. You can respond to the previous question.

 

LOGAN KENNEY: Oh, OK. Would you mind rereading it, Brandon?

 

BRANDON FORTENBERRY: "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 and Review Board"? Is that the question you were looking to answer?

 

BRANDON FORTENBERRY: Yeah.

 

LOGAN KENNEY: So, I actually spoke to this to the University Assembly, who asked my opinion. So, I feel comfortable speaking as myself and not on behalf of that constituent group in saying that I believe that the preponderance evidentiary standard is closer to a coin toss where 51% finds you responsible.

 

So implicit bias is all over the place in the world, the courtroom, in the classroom, everywhere that you go. So, I wholeheartedly believe that this does implicate implicit bias because you just need to sway one person to believe that you are slightly guilty. Thank you.

 

BRANDON FORTENBERRY: Thank you. And then Madelyn would like to respond, I believe, to that question as well or to a previous. Please let us know.

 

MADELYN WESSEL: No, I was just going to respond to the previous question from the ombudsman. I think it would be virtually impossible for the University to prohibit students from utilizing attorneys. But I'm really, as I said, interested in Marisa's proposal to do some editing refinements so that the role of student advisors is a little bit different from outside counsel. We'd have to think about whether that would be legally defensible. But I think it's a really great idea, Marisa.

 

BRANDON FORTENBERRY: Thank you, Madelyn. And Barbara would like to speak to the previous.

 

BRANDON FORTENBERRY: Yeah, thanks. It was on the implicit bias thing. And What I just simply wanted to say is I think one of the things that's terrific in the new proposed code is a requirement that everybody who's involved in implementing the code have training to address the-- specifically on diversity inclusion and implicit bias issues. So, I think that's a real strength and is important to the process overall.

 

BRANDON FORTENBERRY: Thank you, Barb. Our next comment. "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 a student opposition to the changes, and much diminished student-to-student discussion of the changes? It seems like a referendum without a true organic census."

 

Our next comment comes. "How are the 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 homogeneous.

 

And I'm concerned about how the lived experiences, voices, and perspective of marginalized identities seem to be missing from this critical conversation since this affects a diverse student body." And I believe Marisa would like to respond to either this or the previous question.

 

MARISA O'GARA: I'll respond briefly to this. I totally agree that diversity is very important in any decision-making process, especially one that affects such a broad and diverse community here at Cornell. I can only speak to my office. But we have five JCCs. Four out of five are women, three out of five are people of color, and three out of five are LGBTQ.

 

So, we're a very diverse office. I personally am LGBTQ, a woman, and a person of color. So, I just wanted to share that diversity is definitely a priority in our hiring process. And we want to make sure that we're reflecting the diversity of the student body.

 

BRANDON FORTENBERRY: Thank you, Marisa. And Logan would like to respond as well.

 

LOGAN KENNEY: Yeah. Thanks, Brandon. I would also just like to point out that I understand that I'm the one here on the panel because I'm chair of the University Assembly. But I would love for you to look up the University Assembly and look at the rest of the executive board. Because we are entirely diverse.

 

We are two minorities, one minority student, one minority faculty member, and then two men and two women: and all of different ages. So, I apologize that it may not come across as diverse. But the group that I work with on a weekly basis is incredibly diverse.

 

BRANDON FORTENBERRY: Thank you, Logan. Next comment comes. "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 it's sport. If the code doesn't truly affect graduate professional students, why are we not in favor of a code that supports undergraduates"? And Nik would like to respond and then Logan.

 

NIK DANEV: I'd like to thank the anonymous attendee for asking this question. I'm confused as to why there is a perception that graduate students are trying to take ownership of this or that it does not truly affect us. We comprise a significant portion of Cornell's student population. And this code is the student code of conduct.

 

And maybe in the past there have been 3 of us or 10 of us or 15 of us that have been prosecuted by the code. But that doesn't mean that that might not change in the future. My job as a representative of the graduate students is to represent the graduate students. And I will be doing that as a member of the UA.

 

And as a reminder, the UA has an equal number, if not a greater number, of undergraduate representatives than it has graduate representatives. And finally, us to graduates harassing undergraduates, I can name zero times a GPSA member has interfered with an SA meeting. But I can definitely name a time when SA representatives have interfered with GPSA meetings.

 

BRANDON FORTENBERRY: Now to turn to Logan.

 

LOGAN KENNEY: Thank you, Brandon. Yeah, I just wanted to say that I'm really sad to see this comment. Because as someone who attends GPSA meetings and is also a member of the UA that works with the Student Assembly and undergraduate students regularly, I am not aware of one instance where graduate students have ever tried to take ownership of the code.

 

And Counsel Wessel actually was working with the CJC draft and a draft made by the Student Assembly, not the GPSA. So, the graduate students have not really had a voice yet in the code.

 

So lastly I want to say I don't believe that there has been a time where graduate students have gone to SA meetings, to my knowledge, and harassed them. I think that's what this individual is talking to is a time that the judicial codes counselors were invited and were asked questions. And their opinions were not in line.

 

But I personally read the minutes regularly. And I'm just disheartened to see this. Because I really thought that the graduate students were working with the undergraduate students. And there's no proof behind this statement whatsoever.

 

BRANDON FORTENBERRY: Thank you, Logan. I would just like to remind folks that we are at about 8:20 PM. We'll be ending at 8:30. So at this time, I'd like to do a thank you and then have an opportunity, if we do have time at the end, to read the remaining comments without the panelists answering for sake of time.

 

Please, I want to acknowledge again that all comments and questions provided here will be reviewed by the CJC and provided to the University Counsel's Office in addition to the public comments that are on the current website, which we've shared a couple of times here. I would also like to thank everyone for their comments and questions. As you've seen, we have differing opinions even within our panelists.

 

And we greatly appreciate the time that you've put in here today to provide us with these comments so that we can then take those and provide them to University Counsel. On behalf of the University Assembly Codes and Judicial Committee, I would like to thank our panelists for their time.

 

I'd like to thank the Office of the Assemblies for their work in organizing us and getting us together for this forum. I of course thank Matt Gorney for his incredible work on this and so many others Zoom webinars.

 

In addition, I would like to say thank you to all current and past University Assembly and CJC members who have worked so hard during this revision process, and most importantly all of you for taking time to provide your comments and questions today. Cornell's shared governance process would not work out without the participation of our amazing Cornell community.

 

I wanted to make sure I had time to thank all those folks. And now I'm going to go back to the comments and see if we're able to make it through as many as possible. And then at this point I want to offer up, if there are any of our panelists who would like to make closing remarks. And as I stated, again, I will read the remaining comments if time allows.

 

I believe for the sake of getting through the comments, all of our panelists are agreed to let us continue with the comments or questions. All right. We're going to finish up what we have in the list here. All right, we're almost there, folks. And again, thank you all so much.

 

"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"?

 

Our next one comes from Nicholas Matolka. And for sake of time, I'll read the question here. "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 lowering the burden 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 were to be done, we would have a much different reaction from the undergrad community." Logan would like to speak to this one.

 

LOGAN KENNEY: Yeah. I would highly recommend that you read the minutes from the last University Assembly meeting where Marisa and Barbara actually answered this question for the entire University Assembly. I think that would be really helpful. And perhaps the CJC can find another avenue to talk about the standard.

 

BRANDON FORTENBERRY: Thank you, Logan. And perhaps I could ask the Office of the Assemblies to put a link in the chat here for folks to be able to find those minutes. Next up. "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 to other offenses"?

 

Our next comment. "As a follow up to the '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."

 

Our next comment. "Will the expansion of the Complainant Advisor's 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. I 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."

 

Our next comment. "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 is by its very nature 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."

 

OK. Just checking to see if anyone was answering there. I've got to read the chat and get back to here. OK, next comment. "The standard for imposing a temporary suspension in the proposed code does not include important language from the current code in extraordinary circumstances.

 

Temporary suspension 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 of Student and Campus Life." And Barb Krause would like to answer the question in regard to temporary suspension.

 

BARBARA KRAUSE: I think this is actually interesting because I've had conversations with a couple of people about whether the standard in the current code is more or less stringent than in the proposed. So, the current standard says, "a temporary suspension can only be done if there are extraordinary circumstances for the purpose of ensuring public order and safety." The proposed language is "that the immediate action is necessary to protect the complainant or the University community and when less restrictive measures are deemed insufficient to protect the complainant in the University community."

 

So, I actually think this is one of the most serious things that the University does. I agree that there should be serious conversation about what the standard should be. I actually think that requiring that there be no less restrictive measures-- I think that's important and more stringent language than the language that exists now.

 

BRANDON FORTENBERRY: Thank you. And Marisa would like to respond as well.

 

MARISA O'GARA: Yeah. Barb and I have talked about this a little bit too. And I actually really love the addition of the language where immediate action is necessary and only where less restrictive measures are deemed insufficient. I think that that was a great addition.

 

I do think it would be helpful just to add the in "extraordinary circumstances" phrase back in just so it's clear that this is really something that we only want to do if we absolutely have to. And certainly, we would acknowledge that there might be situations where it's absolutely necessary. But we do think it should be extraordinary.

 

But I think on this, the real most important thing is the change from hearing panels reviewing this, which would have faculty, staff, and students; to just the Vice President of Student and Campus Life. And just because this is such a serious measure and a student hasn't yet had an opportunity to present their version of the story, I think having a diverse panel of stakeholders review an appeal is really important.

 

BRANDON FORTENBERRY: Thank you, Marisa. And Barb would like to add an addition.

 

BARBARA KRAUSE: Yeah. I'm sorry. I realized that I didn't answer the last part of that. I would just say, I appreciate that difference. One of the reasons for having a single person review it is the timing. As people have talked about, temporary suspensions result in an immediate suspension.

 

And I know it is not an easy thing to hear. But just trying to get together a panel of people to hear the suspension takes time. And so that was one of my thoughts, anyway, in terms of suggesting that they be reviewed by an independent person. But I understand there's a different perspective there.

 

BRANDON FORTENBERRY: Thank you, Barb. All right, our next comment. "A standard less than clear and convincing amplifies the risk 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 an amazing respondent's advisor as their counsel. But that is not the same of a person who has a full-time attorney, which many students cannot afford. Even with student advisors, lowering the evidence standard put 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 the innocent people."

 

And I would like to read the final comment we have here today and close our forum. “Thank you to the UA and the panelists for considering the many valid concerns raised this evening. I understand there are still a few days this 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 would like to stress again that the public comment site has been left here in the chat. Please go there to provide your public comments. And again, as noted, the public comments will be reviewed by the Codes and Judicial Committee as well as the University Assembly, and provided over to counsel's office who will then take into account all of the information provided here today on our website, which we have provided the link to-- and take those into review and provide the University Assembly back with a proposed revision.

 

I would like to make a clarification on the meeting minutes for the University Assembly on November 10. Those have not been approved yet by the Assembly. And once they are, they will be made live.

 

Again, I greatly appreciate everybody's time this evening and welcome you all to take time to go to the link just placed in the chat and provide additional comments. And note that everything said here today will be included, along with those comments, to the University Council. I appreciate your time. And thank you to the panelists and thank you to the public. Have a great evening, everyone.