why only students?

By narrowing its focus to student only, the Code of Conduct strips away a vital protection against harrassment, retailation, and sexual exploitation by employees, faculty, administration, and other non-student members of the Cornell community. This will make graduate student workers still more vulnerable to exploitation.

reply

Law School faculty advisor for Complainants' Codes Counselors?

The JCC comment below (11/02/2020 post, Item 2) states that their Law School faculty advisor provides an important level of accountability to JCCs (Respondents' Codes Counselor in the proposed revision).  Will a law school faculty member also mentor and advise Complainants' Codes Counselors?

I actually hate to ask this question, because I think it continues to emphasize a legalistic structure that we should move away from.  But if Respondents' advisors are going to have support from Law School faculty, do the JCCs think it would be important for Complainants' advisors to have support from Law School faculty, too?  Would JCCs advocate for that support?

reply

Authoritative Administration Strikes Again

When the administration did not get its way, it manipulated the undergraduate students and threatened shared governance by taking control of the code. Literally by threatening bodies. The proposed changes are just ridiculous and even worse than the proposed changes spoken about years ago.

1. Stop calling punitive measures restorative justice

2. No one wants to move away from clear and convincing (except administration and the students that administration has targetted)

3. Clear and convincing for the campus code does NOT alter Title IX proceedings in any way (and administration wrongly stated those standards must be the same)

4. Stop saying a lower burden of proof is "educational" or "restorative." This is just a lie.

5. Do not take away individuals' rights to have representatives speak for them. They can opt against that. But they should deserve this right which is akin to the Constitutional protection.

6. Leave the JCCs alone. They should be an independent group.

7. Leave the OJA alone. They should be an independent group.

8. Lastly, stop interfering with shared governance. This administration is embarrassing us all. I wonder if the board knows about the threats or if they hear lies about the flawed system they have deeply contributed to. Notice how we have short comment periods YET AGAIN. Coincidental? I think not.

The administration has been trying to pass revisions, which continue to be rejected in the past. Let us not allow them to do this again under false promises of restorative justice which is a sad mask for more punitive procedures. Give shared governance back its role. This power grab is shameful.

reply

Disability training and accommodations

I appreciated seeing that there would be diversity and inclusion training for hearing boards. This should include awareness of disability experience and when modifications or accommodations may be needed for either the complainant or respondent to participate in the process. Similarly, it would be important for the OJA to ask parties involved early on if they need any disability access accommodations or considerations in order to engage in the process. This may necessitate calling upon Student Disability Services for assistance or guidance to help ensure this importatnt part of the University procedures and protocols remains accessible to, inclusive of, and not inadvertently discriminatory against, community members with disabilities.  Thanks for your consideration, and for your hard work on this important effort! 

reply

Restorative Justice

Many parties want to shift towards a model of restorative justice, one that allows for an "educational component" and alternative conflict resolution when cases arise. If that is the case, more clarity needs to be provided in terms of that procedural structure as well. Two potential models could be used to ensure that most of the cases, specifically the minor ones, go through the alternative conflict resolution:

Model 1 involves the OSCCS referring minor cases to alternative conflict resolution prior to the formal proceedings mentioned in the Code of Conduct. 

Model 2 involves the OSCCS including minor cases into the formal proceedings and with the hope that alternative conflict resolution can arise during or at the end of the process. 

Currently, the Code Changes reads as both - however this becomes problematic when attempting to justify other aspects of the code such as the evidentiary standard. It may be best that if Model 1 is taken that the evidentiary standard is kept at "clear and convincing" to only allow for more severe cases to go through formal proceedings. With that said, the current reading of the Code Changes is also fully dependent on its environment and whether there are systems in place on campus for enacting restorative justice or educational programs. As of now, it is only maintained within the Scheinman Institute in ILR - it needs to be independently assessed (not in this code) whether that needs to be expanded. Yet without that insight, it remains difficult to interpret the current procedural code changes to fully support and align with its Principles and Values (in Section 1). 

reply

Rules without consequences may as well not exist

If the past few years have shown us, it does not matter how aspirational or well intentioned rules, laws, traditions, etc are, if there are no real consequences for failing ot meet them, then they may as well not exist.  It creates a system where the rules will ignored y the worst of us, and only have an impact on the folks who already were capable of remorse in the first place.

As for plane english, again needs to be backed up wiht concrete definitions and wording, otherwise it just leaves the door open for a lack of accountability as as folks weale their way around the wording.

reply

Keep Evidentiary Standard

As many other members of our community have remarked, the 'clear and convincing' standard of evidence appears to be the most just option when the rights of the accused students are at stake. I can understand the desire to revise the code to make it less 'criminal' in tone, but we should not forget that we are dealing with proceedings in which the norms of a criminal process must still hold, and the majority of offenses covered here would be best served by a 'clear and convincing' standard that gives due protection to the rights of the accused. I am not a lawyer, but this seems to be the choice that best serves the rights of students. 

Furthermore, I oppose any change that would reduce the independence of the Judicial Codes Counselor, such as in Procedures 2.2.1. While it seems that the OSA may have a limited influence over the Respondents' Code Counselor, any university control over the hiring process seems to detrimentally affect the credibility of the counselor to be a fair and impartial representative for students.

Lastly, I would like to emphasize that the revised code, as shown here, does not make the changes entirely clear, with the notable exception of the Standard of Evidence. For those of us who were not knowledgeable about this process from the beginning, we need a way to realistically understand the differences of this code in a more detailed way. The overview is helpful, but as many others here have noted, there are other substantial changes that students must be aware of.

reply

Judicial Codes Counselors' Comments

I am a third-year law student and currently serve as the Judicial Codes Counselor. The Judicial Codes Counselors (JCCs) are tasked with advising and advocating on behalf of students accused of misconduct in the campus disciplinary systems governed by the Campus Code of Conduct, Academic Integrity, and Policy 6.4. In that capacity, I personally have advised over 60 undergraduate and graduate and professional students and care deeply about ensuring that all students at Cornell have access to a fair process when accused of violating campus policy. While I am heartened to see some additional flexibility provided in this new proposed Code that allows for the resolution of alleged violations through alternative dispute resolution and restorative justice models, this proposed Code doesn't go nearly far enough in that direction to justify the blatant stripping of students' fair process rights that we see throughout its text. Below I will elaborate on the ways that this proposed Code misses the mark in giving students access to a fair process.

Current Campus Code of Conduct

Proposed Campus Code of Conduct

1. Respondents’/Advisors’ Ability to Speak and to Question Witnesses (Current Code: (Title II Article II B); Proposed Code: Procedures at 11; 20.8.2)

• The JCC’s oppose these changes. Both complainants and respondents (both themselves and through advisors) should be afforded the opportunity to question witnesses directly.
  • Respondents’ Ability to Question Witnesses: Allowing respondents to ask questions themselves is important for the following three reasons: (1) The parties know the facts of the case best and are best positioned to ask questions; (2) It’s the parties’ interests that are at stake. Allowing them to ask questions at their own hearing is a necessary component to ensuring the campus community can have confidence in the fairness of this process; and (3) Requiring the Chair to ask all questions will likely slow down the process and lead to unnecessary confusion. Further, if a Hearing Chair is the only person allowed to verbally ask questions, parties would need to submit written questions to the Chair well before knowing what a witness’s testimony would be. Parties would also be unable to immediately ask follow-up questions directly relevant to the witness’ testimony without continuously stopping the Hearing to submit additional questions to the Chair. This is neither efficient nor practicable. Finally, while witness intimidation is a legitimate concern, language in the current Code is cognizant of that and provides a safeguard to prevent any potential witness intimidation: “the Hearing Board Chair may require certain questioning to be conducted by written questions read aloud to the witness by the Hearing Board Chair.” Outside of these rare situations, however, parties should be afforded the right to question witnesses to ensure that their testimony is subjected to appropriate scrutiny before any violations are imposed on a student respondent.
  • Advisors’ Ability to Speak and to Question Witnesses: At hearings, the Complainant, in the overwhelming majority of cases, will be the University, and the University will be represented by University staff members who have the resources of the University available to them. It is inherently unfair to allow full-time professionals with the authority of the University to oppose an inexperienced, student-respondent without the active involvement of their advisor during a hearing. It can be incredibly difficult and intimidating for a student-respondent to tell their story clearly and concisely using their evidence and witnesses. Students’ oral presentation skills should not affect whether they are found responsible or not responsible. Likewise, students who may have a harder time with spoken or written English may be at an unfair disadvantage. In addition, forcing a respondent to lead and speak in the hearing without the assistance of an advisor in the name of making the process an “educational experience” overlooks the anxiety, stress, and fear a student experiences during campus disciplinary proceedings, as well as what is at stake for the student in this process. Silencing advisors exacerbates that emotional toll and makes the process more intimidating and likely less educational for the student. Allowing advisors to continue to speak at hearings would not make hearings more “litigious” either. Attorneys and outside advisors may only speak during limited circumstances. And as JCCs, we always encourage students to make statements on their own behalf during the hearing when they feel comfortable. To prevent the process from becoming unfair and needlessly daunting, advisors must continue to be allowed to speak during proceedings.

2. Oversight and Accountability (Current Code: (Title II Article II B 5); Proposed Code: Procedures at 2.2.1)

• The JCC’s oppose these changes and believe that the JCC (now Respondents’ Code Counselor) Office should remain completely independent from the Office of Student Conduct and Community Standards. Specifically, the Office of Student Conduct and Community Standards should not play any role in the hiring or removal of the Respondents’ Code Counselor, even in a consulting capacity. This new proposed Code creates a fundamentally unfair imbalance by giving the Director a newfound ability to influence the hiring and removal of the RCC, thereby threatening the independence that leads students to trust their advisors in the first place. Some have also suggested that these changes should go even further and that moving the JCC under Student Conduct and Community Standards would “increase accountability, understanding of other aspects of student life, and make the process less legalistic and more educational”. First, it is completely inappropriate for the Director of that Office—the Office that investigates students charged with disciplinary violations in the first place—to play a role in the hiring, removal, or supervision process of a student’s trusted advisor, whether formally or informally. Second, the Respondents’ Codes Counselor should only be subject to removal by action of the Board of Trustees upon the recommendation by a ¾ vote of the Student and Graduate and Professional Student Assemblies. Third, the JCCs are already held accountable in three ways: (1) first, by the diverse body of University stakeholders who sit on our hiring committee; (2) second, through our law school faculty advisor—who has been responsible for revising Cornell’s codes for over 20 years; (3) and third and most importantly, by our clients, whose interests we proudly serve. Additionally, under these proposed procedures and Policy 6.4, administrators from the Office of Campus and Student Life (including the OJA and the Vice President of Student and Campus Life) pursue formal complaints against respondents, impose and uphold interim measures against respondents, and rule on appeals that affect the respondent. How (and why) would respondents trust their advisors if they too fall under the same umbrella as those administrators? Third, given that JCCs are students themselves and meet with and interact with students every day through their work, what else must the JCCs do to understand other aspects of student life? Many JCCs take on the position to become more involved in the greater Cornell community. This position frequently attracts law students who attended Cornell as undergrads—our current Office composition reflects this.

3. Evidentiary Standard (Current Code: Title Three Article III E(9)); Proposed Code: Procedures at 20.2)

• The JCC’s believe that the clear and convincing evidence standard best advances principles of fairness and due process, ensures accurate outcomes, and creates trust in the misconduct process. In a hearing, respondents, who are often still teenagers and frequently are first time offenders, face University employees and the resources available to them. If the University switches to a preponderance of the evidence standard, the Code would effectively be putting its thumb on the scale of justice against a side that is already systematically disadvantaged. This may be especially harmful to students from low-income backgrounds who are unable to afford an attorney. Some people have raised concerns that the University has had difficulty in meeting this burden. However, no evidence has been presented to support that argument, and clear and convincing evidence has been the longstanding standard used in non-sexual assault campus misconduct proceedings at Cornell. The clear and convincing evidence standard signals to the campus community that the University is committed to avoiding finding the innocent responsible, thereby giving the community the confidence that the campus adjudicatory system is operating fairly. Further, the entire justification for shifting to the preponderance of the evidence standard—that the new Title IX regulations were expected to require that the standard of evidence for Title IX cases be the same as the standard applied to other student conduct cases—is no longer applicable as the new Title IX regulations were released and explicitly do not require that evidentiary standards be uniform across campus codes. Finally, it makes sense to have different evidentiary standards for the Title IX process and the Campus Code of Conduct process given that Title IX cases rarely have witnesses other than the Complainant and the Respondent and it is much more difficult to obtain evidence in those cases. That is not the case in Campus Code of Conduct proceedings. The evidentiary standard should, accordingly, remain different in these two very different administrative processes.

4. Right of Accused to be Informed in Writing of their Right to an Advisor (Current Code: Title Three Article III A(2)); Proposed Code: None)

• The right of the accused to be “afforded the assistance of an advisor provided through the Offices of the Complainants’ Code Counselor and Respondents’ Code Counselor to assist and advise...  at all stages under these Procedures” (Procedures at 11) can only be realistically protected if students are aware of that right in the first place. Under the current Code, students must be informed in writing of their right to be afforded the assistance of an advisor prior to the beginning of conduct proceedings, and yet still, countless students contact the JCC and report after proceedings have ended that they were not sufficiently aware of this right. If anything, the Code should implement additional measures to ensure awareness of this right. It is quite difficult to understand why the University would remove this provision and hide this right from students unless its desire is for them not to exercise it in the first place.

5. Confidentiality  (Current Code: Title II Article II B); Proposed Code: Procedures at 2.2)

• The JCC’s oppose this change. The JCCs understand the importance of confidentiality and always keep confidential information within the Office unless otherwise required by law. However, for years, the JCCs have been effective, in large part, because we have been able to share confidential information within our Office and thereby, collaborate and work together. We remain in essentially constant communication with each other to discuss questions as they arise. We meet on a regular basis to help each other prepare, answer each other’s questions, and solve problems. This allows the more experienced JCCs (now Respondents’ Code Counselors) to have the ability to take the lead and answer questions on harder cases and train the newer JCCs, creating an environment where a few people always feel qualified to answer a question or know which campus resource to ask for more information. Students deserve to benefit from the institutional knowledge and wisdom that this collaborative environment helps create.

6. Temporary Suspensions (Current Code: Title III Article III 3(B)(c)(1)); Proposed Code: Procedures at 8.1; 8.2)

• The JCC’s support the addition of the qualifiers of only “where immediate action is necessary to protect the Complainant or the University community” and only “when less restrictive measures are deemed insufficient to protect the Complainant or the University Community” added to the standard for imposing a temporary suspension, but would recommend (1) that the phrase only “in extraordinary circumstances” from the current Campus Code of Conduct be added back in and (2) we oppose the shift to having temporary suspensions reviewed by the VP SCL instead of independent hearing panels composed of members of the University community. The qualifiers that were added are important because they impose an immediacy requirement and ensure that temporary suspensions are only used as an interim measure when other less burdensome options are unavailable to address the potential threat to campus safety. We believe that it’s important to explicitly indicate that this intrusive interim measure should not be used in ordinary circumstances because temporary suspensions are imposed before an individual has had an opportunity to have their case adjudicated on the merits. That means they haven’t had an opportunity to provide evidence or share their side of the story. It is a very serious measure which forces students to vacate campus and deprives them of the opportunity to access their education. Accordingly, it should only be imposed in serious and unusual circumstances. Second, having an independent panel consisting of a combination of student, faculty, and staff perspectives functions as a critical check on the unilateral decision of the Director of Student Conduct and Community Standards and maintains campus-wide trust and faith in the integrity of the disciplinary process.

7. Public Hearings  (Current Code: (Title III Article III E(3)(b)(7)); Proposed Code: Procedures at 20.8.1)

• The JCC’s oppose this change. Allowing respondents the option of having a public hearing serves as an important check on the University administration. To understand why, consider the OJA’s decision to charge Mitch McBride with violations under the Campus Code of Conduct in 2017 for leaking documents from a University working group. After he asked to have a public hearing, the OJA objected. However, the hearing chair allowed the public hearing to occur and the hearing was streamed to a packed room of concerned members of our community. The hearing panel found McBride not responsible. The way to appropriately balance the privacy interests of complainants and other members involved in the hearing process is not to eliminate this right entirely—but to give the hearing chair discretion to determine whether a public hearing is appropriate in circumstances given the competing interests

8. Statute of Limitations (Time Within Which a Complaint Must be Brought)  (Current Code: (Title III Article III D(4)); Proposed Code: Procedures at 5)

• The JCC’s oppose these changes. It is important that if a student respondent is found responsible for a violation of the Campus Code of Conduct that that finding is based on evidence that has not deteriorated or become less reliable due to the passage of time. We believe that one year affords a generous amount of time within which to bring a complaint, and extending that time window any further threatens the fairness of the process for students respondents. The proposed Code itself seems to recognize this, in that it says: “A delay may affect the Director’s ability to gather relevant and reliable information, contact witnesses, investigate thoroughly and respond meaningfully, and may also affect the imposition of appropriate discipline upon a Respondent who has engaged in prohibited conduct.” We would also recommend that the second provision, which refers to Cornell graduates, be re-drafted to read: “If the Respondent is no longer a student at the time of the Formal Complaint, and the Director is unable to pursue resolution, the Director will assess whether any remedial steps outside of the Code can be taken to address any prohibited conduct or its effects on the Complainant or others.” It’s completely inappropriate and without justification to subject former students to Campus Code of Conduct proceedings. If any remedial action needs to be taken to address the effects of former students’ conduct, it should be taken outside of the Code and not at the direction of the Director of the Office of Student Conduct and Community Standards. For example, perhaps a student Complainant has suffered academically because of an incident involving a former student and needs to have an assignment deadline extended or an exam re-scheduled. The ability to seek these types of accommodations is important, but the Code should be clear that that is what this provision is referring to, as opposed to taking disciplinary action against former students.

9. Jurisdiction (Current Code: (Article III E3(b)9(a); Article II C 2(b)); Proposed Code: Code of Conduct 3(A))

• The JCC’s are comfortable with the shift to granting the University jurisdiction over all registered student organizations and living groups, but do not think it is appropriate for the University to have jurisdiction over off-campus conduct except for as specified under the ‘Grave Misconduct’ provision in the current Code.

10.  Addition of the Office of the Complainants’ Code Counselor (Current Code: No applicable language; Proposed Code: (Procedures 2.2.3)

• The JCC’s support this change.

reply

A lot is at stake

The community should be aware that a lot is at stake in this revision. It is the culmination of a long process by which the administration has worked to take over the community's Campus Code. The administration criticized the Code as too "rights-based" and said that we had to have a Code that was "educational rather than punitive" in purpose.  Do not let those slogans hide the fact that what the administration wants is to discipline without those pesky rights getting in the way. When the community last had a say on the administration's campaign, back in 2006-2008, it resoundingly rejected the administrations's position.

Title IX procedures (like its lowered standard of proof) can be justified because they are addressing a stubborn social problem. But the Campus Code addresses less fraught offenses.  Some are serious (like hazing), but these can be treated by substantive revisions (like those proposed by the OJA), without throwing out our procedural protections.

This time when the administration again did not get its way with its sought overhaul, it just took the Code away from the UA and its CJC. It did so on the basis of a completely false legal reason, but it changed nothing when it had to acknowledge its error. It is a power grab, plain and simple. Clearly, this whole project shoukld be given back to the community.  Clearly, the administration will not do so.

reply

Office of the Judicial Administrator Comments

The Office of the Judicial Administrator (OJA) supports the Fall 2020 Proposed Amendments to the Campus Code of Conduct as a whole. This post offers context for the OJA’s position, as well as a few general comments, specific suggestions, and one lingering concern.

The OJA believes that a student conduct code exists to promote a supportive educational environment for all Cornell students. This fundamental purpose underlies the existing Campus Code of Conduct and is reflected in the Principles and Values section of the proposed Code.  Among other reasons, the OJA supports the proposed comprehensive Code revision because it better balances the rights of complainants, respondents, and the campus community as a whole; is less adversarial and procedurally more coherent; and is firmly centered in the work of the Division of Student and Campus Life, so that responses to student conduct concerns can be better integrated into the student experience.

The OJA appreciates all those who have been working since September of 2018 to address President Pollack’s charge to revise the Code.  That charge followed upon the recommendations of the 2017 Presidential Task Force on Campus Climate and has resulted in two years of effort by the University Assembly, the UA’s Codes and Judicial Committee (CJC), and others across campus.  The OJA expresses its appreciation to all of those who have carefully considered and debated potential changes to the Code.  The OJA especially appreciates the Office of University Counsel’s most recent work, which has drawn from two documents submitted to the UA in spring 2020 – one from the CJC and one from the Office of the Student Advocate – to create the Fall 2020 proposal now available for public comment. 

As stated above, the OJA supports the Fall 2020 Proposed Amendments to the Code as a whole. (Unless specifically stated otherwise, references in these comments to the “Code” refer to the group of three documents that comprise the Fall 2020 Proposed Amendments: the Cornell Statement on Responsible Speech and Expression, the substantive section of the Code, and the procedural section of the Code.) Without attempting to summarize for present purposes arguments that have been made and considered previously, the OJA simply notes here a number of changes the OJA believes are fundamentally important: 

• Most significantly, the proposed Code moves student conduct under the umbrella of Student and Campus Life. 
• The proposed Code applies to students only, removing provisions relating to faculty and staff that have rarely led to referrals.
• The proposed Code applies to all University-recognized and registered student organizations and living groups, including sororities and fraternities.
• The proposed Code requires that all persons involved in its implementation must receive training focused on diversity, equity, and inclusion.
• The proposed Code procedures, overall, are more coherent, less procedurally burdensome, and less adversarial than the current Code.
• The proposed Code procedures explicitly favor alternative dispute resolution and summary resolution over more formal hearing options.

The OJA believes that the features above will fundamentally re-cast and improve Cornell’s approach to student conduct in a way that benefits complainants, respondents, and the Cornell community more broadly. In addition to supporting the Fall 2020 Proposed Amendments to the Code as a whole, the OJA offers the following comments and suggestions, each of which will be addressed more fully below:

• On the key question of what standard of proof should apply, the OJA strongly favors the “preponderance of evidence” standard.
• The OJA proposes a substitute definition of hazing, which we strongly urge be at least as broad as the current Code definition. 
• The OJA continues to have significant concerns about the proposed structure of Student Codes Counselors.

OJA’s strong preference for “preponderance of evidence” standard

The Office of the Judicial Administrator strongly urges adoption of the “preponderance of the evidence” standard for student conduct matters, because it best balances the rights of accused students (respondents), the rights of the complainant or victim, and the rights of Cornell’s educational community as a whole. 

The preponderance standard puts complainants and respondents on equal footing and allows disciplinary action to be taken when evidence establishes that it is “more likely than not” that an alleged violation occurred. The “clear and convincing” standard, on the other hand, puts respondents in a considerably more favorable position compared to complainants or victims, who must meet a significantly higher threshold of evidence in order to achieve the secure and nourishing educational environment which the Code exists to protect. 

Use of the preponderance standard in higher education student conduct processes is favored by the Association for Student Conduct Administration (ASCA), the leading national organization devoted to developing and supporting student conduct professionals. See C. Loschiavo and J. Waller, The Preponderance of Evidence Standard: Use in Higher Education Campus Conduct Processes (November 2015), which can be found at this link.  Moreover, other Cornell student conduct procedures currently use the preponderance standard, including adjudications of alleged fraternity and sorority organizational misconduct and adjudications under Policy 6.4 (Prohibited Bias, Discrimination, Harassment, and Sexual and Related Misconduct).  The OJA believes that the same standard of evidence should apply in all types of behavioral conduct matters.

The OJA acknowledges that disciplinary action against a student, especially when it creates a disciplinary record, is a great concern for students.  Respectfully, based on its experience reporting out student conduct records, the OJA believes that student concern on this point generally does not reflect the reality of repercussions for having a student conduct record.  In any event, the OJA believes more fundamentally that membership in the Cornell community is a privilege rather than a right, and the community should be able to enforce its standards of behavior based on an evidentiary standard that is balanced toward all members of the campus community and the community itself.

OJA’s proposal for a revised definition of “hazing”

Cornell, like other colleges and universities across the country, has recognized hazing as a public health issue.  President Pollack has consistently taken a firm stance against hazing and has demonstrated her commitment to achieving a culture change on our campus.  The Fall 2020 Proposed Code’s definition of hazing, however, is narrower than the definition in the current Code.  The OJA believes it is absolutely critical to define hazing broadly, in order to educate students about harmful behaviors and to eliminate them from our campus. Accordingly, the OJA proposes the following definition of hazing (2020 Proposed Code [substantive section], Section 4.11):  

Hazing is any act that, as an explicit or implicit condition of recruitment, admission, or initiation into, affiliation with, or new or continued membership status within a group, team, organization, living group, or academic group or cohort, does one or more of the following: 

1.     Causes, encourages, or compels another person to engage in any activity that could reasonably be perceived as likely to create a risk of mental, physical or emotional distress or harm; examples include but are not limited to: 

a. Undertake acts of servitude or menial tasks 

b. Undergo undue financial expenditures 

c. Engage in acts relevant to those of the group (for example practice or training activities), but in a manner that a reasonable person would consider excessive or dangerous 

d. Abuse, humiliate, degrade, or taunt another person or persons 

2.     Involves any of the following: 

a. Consumption of alcohol or drugs 

b. Consumption of unpalatable substances, or palatable substances to excess 

c. Damage to or theft of property, or any other illegal act 

d. Violation of any University policy 

3.     Subjects any other person (including an existing member or cohort of existing members of the group) to any of the above activities 

Hazing can occur on or off campus, and in person or in virtual settings. The individual subjected to hazing does not need to regard or identify the act as hazing. The fact that an individual does not object to and/or appears willing to participate in the activity, does not signify the conduct is not hazing.  

OJA’s continued concern about the proposed structure of Student Codes Counselors

The OJA acknowledges that the proposed structure of Student Codes Counselors (2020 Proposed Code Procedures, Section 2.2) represents a compromise of ideas proposed in the CJC and OSA versions of the Code submitted to the UA in the spring of 2020.  The OJA is prepared to accept that compromise, because it believes the positive changes reflected in the proposed procedures far outweigh these concerns.  The OJA, however, believes that even as re-worked, the structure of Student Codes Counselors is very problematic. Among other concerns:

• The benefit of independence of the Student Codes Counselors under the proposed structure is outweighed by the fact that the structure removes them from Student and Campus Life professionals and from broader conversations about Cornell’s philosophy and approach to student development – including the educational and restorative goals of the conduct process.
• The concept of separate offices for Complainants’ Codes Counselors and Respondents’ Codes Counselors unnecessarily perpetuates an adversarial approach in student conduct proceedings.
• The Student Codes Counselors are selected and can only be removed by the Student Assembly, the Graduate and Professional Student Assembly, and the Office of the Student Advocate. (The Director has only a consultative role in these functions.) It is unclear how these three large and independent shared governance bodies will fulfill what would otherwise be supervisory responsibilities of professional staff members. 
• The Student Codes Counselors are to receive administrative support from the University.  It is unclear, however, what office will provide that administrative support. 

As indicated above, the OJA accepts the proposed structure of Student Codes Counselors as a compromise in order to move forward with this long overdue comprehensive revision of Cornell’s conduct code. The OJA believes a better structure, however, would be to have these advisors located administratively within Student and Campus Life.

Nothing in this comment should be viewed in any way as a critique of those who have served as Judicial Codes Counselors under the current Code. The OJA has enjoyed good working relationships with JCCs and has great respect for the work they do. The OJA’s views on this point simply reflect a philosophical difference as to how student conduct concerns should be addressed on a college campus.

Conclusion

Subject to the suggestions and concerns expressed above, the OJA is pleased to support the Fall 2020 Proposed Amendments to the Campus Code of Conduct.  Specifically, the OJA urges adoption of the “preponderance” standard of evidence, adoption of the “hazing” definition proposed in the OJA’s comments, and reconsideration of the Codes Counselors structure.

Most importantly, the OJA urges compliance with the schedule requested by President Pollack so that a final proposal can be submitted for Board of Trustees’ approval as soon as possible. The issues under consideration now (including debate over what standard of evidence should apply) have been discussed within Cornell’s shared governance bodies for many years, including in the late 2000s following issuance of a comprehensive review of the Code in 2006 (archival materials available at this link); and, more significantly, since 2017 when President Pollack convened the Presidential Task Force on Campus Climate. It is time for a comprehensive restructuring of Cornell’s conduct process to better support all Cornell students and the campus community as a whole.

Barbara L. Krause

Cornell J.D. 1986

Interim Judicial Administrator

reply