OSA Code Procedures Section 20: Hearings
Findings of responsibility and determinations regarding sanctions and remedies are made through a hearing process conducted by the five (5) member Hearing Panel and a non-voting Panel Chair. At least four members of a five-person Hearing Panel must sit for a given case, in addition to the nonvoting Panel Chair, and at least three votes shall be required for any decision. The hearing is intended to provide the parties with a fair opportunity to present relevant information and to enable the Hearing Panel to make informed decisions regarding responsibility and sanctions/remedies.
A member of the Hearing Panel may be asked to withdraw from participation for good cause (including a valid conflict of interest), which shall be determined by the Panel Chair. Mere knowledge of the events at issue shall not disqualify a member. In the event that a member withdraws or is excused, an alternate member shall be randomly selected by the Panel Chair.
The Respondent is presumed “not responsible” unless and until a Hearing Panel finds the Respondent responsible for prohibited conduct under the Code by a majority vote using a preponderance of the evidence (i.e. more probable than not) standard of proof.
If the Hearing Panel does not find the Respondent responsible for any prohibited conduct under the Code, it will dismiss the case. If the Hearing Panel finds that the Respondent is responsible under the Code, it will consider appropriate sanctions and remedies.
The Panel Chair provides procedural oversight and guidance to the process and the Hearing Panel. However, the Hearing Panel makes all findings and issues any sanctions or remedies. The Panel Chair will draft the Hearing Panel’s decision, including findings of fact and rationales for their determinations regarding both responsibility and sanctions or remedies. The Panel Chair will obtain the Hearing Panel’s review and approval before issuing a written decision.
Hearings are scheduled as timely as possible after completion of an investigation. A timely Notice of Hearing is sent to the parties which includes the charges at issue; a brief summary of the alleged prohibited conduct; the date, time, and place of the hearing; the name of the Panel Chair; and, if determined, the Hearing Panel members. If the notice does not include the name of the Hearing Panel members, the parties will be so notified, in writing, at a later time, prior to the hearing. All efforts will be made to provide the Notice of Hearing no later than ten (10) business days prior to the hearing.
Either party may request that a hearing be rescheduled. Absent extenuating circumstances, requests to reschedule must be submitted at least three (3) business days prior to the hearing. A request to reschedule a hearing must be supported by a compelling reason for the delay. Given the number of individuals involved in a hearing, and the attendant difficulty of scheduling and rescheduling them in a timely manner, it may not be possible to accommodate all scheduling requests. The Panel Chair may also reschedule a hearing, without a request by the parties, when there is reasonable cause to do so.
If after the issuance of the final investigative record and investigative report and prior to the hearing, a party seeks to present a witness or introduce evidence not requested prior to the hearing and not disclosed to the investigator, the Panel Chair may grant admission of a witness or evidence only upon a sufficient showing that the witness or evidence is highly relevant, material, and could not have been discovered during the investigation with reasonable due diligence.
Where a Panel Chair permits a party to introduce a newly discovered witness or evidence, to prevent surprise to the other party, the Panel Chair will reschedule or adjourn the hearing for the investigator to review the newly discovered witness or evidence. The Panel Chair may also re-open the pre-hearing submission process, as appropriate, so that the parties may respond to the new information.
Prior to a hearing, the parties will be asked in writing by the Director to make certain decisions and requests regarding the conduct of the hearing. This process is designed to ensure that the hearing is conducted in as equitable, respectful, and efficient a manner as possible.
There are two stages at which the parties will be asked to make Pre-Hearing Submissions.
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First, the parties will be asked to submit in writing an opening statement (describing their views on the allegations in the Complaint) and names of any requested witnesses.
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Second, once witnesses are approved and finalized, the parties will be asked to submit in writing any proposed questions or topics for individuals who might testify, including themselves, as explained below.
All Pre-Hearing Submissions are optional and are waived if not completed by the stated deadlines. Prior to the hearing, the Director will distribute each party’s Pre-Hearing Submissions to the other party for their review.
Upon providing the parties with copies of the final investigative record and report to be transmitted to the Hearing Panel, the Director will instruct the parties, in writing, that they have the opportunity to submit a written opening statement (not to exceed 2500 words) and a written list of proposed witnesses. The parties may not add or address information in the opening statement not contained in the investigative record, as the Hearing Panel will not consider new information. The parties should include specific page citations to the final investigative record. All interview statements contained in the final investigative record become part of the hearing record and are before the Hearing Panel. If a party wants the Hearing Panel to hear directly from a witness, the party must submit a written witness request with their opening statement. Such a request should include:
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The names of proposed witnesses, including the investigator, if the party requests that the investigator testify.
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For each proposed witness an explanation of why the individual’s presence is relevant and helpful to the Hearing Panel in determining responsibility. For example, the party should explain why a witness’s interview statement contained in the final investigative report is not sufficient for the Hearing Panel to make its finding.
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The parties are encouraged to include proposed questions for or general topics to be addressed by each witness. The parties will have an opportunity to supplement and revise their requests for questions and topics once they learn who will testify at the hearing. However, by indicating proposed questions and topics at this juncture, the parties will help the Panel Chair and Hearing Panel understand why the parties would like to hear from specific individuals. The parties may request only witnesses who were interviewed by the investigator during the investigative process.
The Panel Chair will establish a reasonable deadline for these submissions, typically no longer than five (5) business days. The Panel Chair, in consultation with the Hearing Panel, will review the parties’ opening statements (for relevance and admissibility) and requests for witnesses, and the parties will be provided with those decisions in writing. This triggers the opportunity to file a second pre-hearing submission:
The second pre-hearing submission affords both parties the opportunity to submit a succinct proposal with:
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Questions and topics for the witnesses.
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Questions and topics for themselves and the other party. The parties are not required to commit to testifying at this juncture, but are encouraged to prepare for the eventuality that they and the other party would testify by submitting proposed questions and topics.
The Panel Chair will establish a reasonable deadline for these final submissions, typically no later than five (5) business days prior to the hearing. The Panel Chair, in consultation with the Hearing Panel, will review and rule on the parties requested questions and topics to be permitted at the hearing, approving those deemed relevant and that are not prohibited by these procedures or applicable laws, prejudicial, or duplicative of other evidence.
All hearings will be private. The only persons present will be the parties, their Counselor/advisor and support person, witnesses (when testifying), the Hearing Panel and Panel Chair, (and, at the Board’s discretion, its counsel), the investigator, and any staff necessary for the conduct of the hearing. Witnesses may be present only for their own testimony.
In cases of interpersonal misconduct such as assault, harassment or hazing, either party may request that the parties with their advisor(s) and support person, if applicable, will be in separate rooms. If separated, the parties will participate remotely via a secure audio-visual connection, with the exception that when a party testifies and gives their oral closing statement, generally, they should do so in the presence of the Hearing Panel and Panel Chair; they may be accompanied by their Counselor/advisor and support persons.
The Panel Chair, in consultation with the Hearing Panel, may establish reasonable time limits, rules, and format. The Panel Chair may adjourn the hearing, once commenced, and later reconvene the hearing in consideration of factors including, but not limited to, the unavailability of a witness, party, Panel Chair, Hearing Panel member, or needed personnel; inclement weather; late hour; or in order to make an evidentiary or procedural ruling.
Formal rules of evidence do not apply, the Panel Chair shall make all determinations regarding the admissibility, probative value, prejudicial effect, repetitiveness, redundancy, relevancy, etc., of evidence presented. Evidence that was excluded or redacted from the investigative record as impermissible will not be admissible at the hearing. Typically, the format of the hearing will be as follows:
- Introduction by the Panel Chair. The Panel Chair will explain the hearing process, address any necessary procedural issues, and answer questions.
- Testimony by the Complainant.
- Testimony by the Respondent.
- Testimony by any witnesses.
- Closing statements by the Complainant followed by the Complainant.
Testimony is conducted through a question-and-answer format. Questioning will primarily be conducted by the Hearing Panel, but the Panel Chair may supplement the Hearing Panel’s questioning. The Panel Chair will ask persons being questioned to affirm that they will testify truthfully. Both the Complainant and the Respondent may testify or decline to testify and may make their election when their turn to testify arises. If a party testifies, they are expected to answer all questions asked. A party who testifies may propose supplemental questions that they wish to answer. Counselors/advisors participate in this process as set forth in Section 11 of these procedures.
The Panel Chair, in consultation with the Hearing Panel, may call a witness not on the witness list but 981 previously interviewed by the investigator, and ask any question. In such cases, the parties will be given time to propose questions for the witness.
The parties may provide both oral and written closing statements. This is the opportunity for the parties to marshal the evidence in the hearing record and suggest inferences and conclusions. The parties may not add or address information not contained in the hearing record, as the Hearing Panel will not consider new information. Nor may the parties address issues that pertain to sanctions and remedies. The Hearing Panel does not consider these issues when determining responsibility. The parties may appropriately raise such issues in their Impact/Mitigation Statements.
The Panel Chair will establish a time limit for brief oral closing statements, typically around five (5) minutes. The Panel Chair will also set the schedule for submission of written closing statements. The parties should assume that deliberations will commence immediately following the hearing, in which case the parties will be expected to submit written closing statements shortly after the oral closing statements. If there is an adjournment for deliberations, the Panel Chair may provide the parties with limited additional time to submit their statements.
Each party’s signed closing statement will be limited to 2000 words and to the evidence contained in the investigative record and hearing. The written statements will be distributed to the other party, Panel Chair, and Hearing Panel for their review.
The parties are permitted, but not required, to prepare a written Impact/Mitigation Statement relevant to any sanctions. The parties may submit the statement up until the end of a hearing, but are advised to begin to compose such statements in advance. The statements are distributed t o the Hearing Panel only upon a finding of responsibility and are included with the Hearing Panel’s written decision to the parties.
After closing arguments, the Hearing Panel may begin its deliberations. Deliberations will be completed as expeditiously as possible. Deliberations are conducted in private and they are not audio-recorded.
A Hearing Panel that finds the Respondent responsible will continue its deliberations to consider sanctions and remedies. It will issue its findings on responsibility and sanctions/remedies simultaneously. Prior to deliberating on sanctions and remedies, the Panel Chair will distribute to the Hearing Panel any written or recorded Impact/Mitigation Statements previously submitted by the parties.
If the Respondent has a Cornell disciplinary record, a known disciplinary record from another institution, or a known criminal conviction, the Panel Chair may distribute to the Hearing Panel a copy of such disciplinary and/or criminal records prior to deliberating on sanctions and remedies. (Where an educational record, including a Cornell disciplinary record, is being considered solely for sanctions, it will not be shared with the Complainant.)
The Panel Chair may support the deliberations but may not express views on the merits and may not vote. The Hearing Panel will determine sanctions and remedies by a majority vote. In determining sanctions and remedies, the Hearing Panel will consider:
- the severity of the prohibited conduct;
- the circumstances of the prohibited conduct;
- the impact of the prohibited conduct and sanctions and remedies on the Complainant;
- the impact of the prohibited conduct and sanctions and remedies on the community;
- the impact of the prohibited conduct and sanctions and remedies on the Respondent;
- prior misconduct by the Respondent, including, the Respondent’s previous disciplinary record at Cornell University and if known, other disciplinary records or criminal convictions;
- the goals of the Code and these procedures; and
- any other mitigating, aggravating, or compelling factors.
The Hearing Panel may impose one or more of the following student sanctions and remedies:
- Measures similar in kind to the interim measures specified under these procedures.
- Appropriate educational steps (such as alcohol or drug education, reflection exercises, counseling, or directed study).
- Community work, which shall not be more than 80 hours per violation, and must be performed in a manner acceptable to the Director.
- Restitution to the Complainant.
- Fines of not less than $20 nor more than $500 payable to the University Treasurer.
- Restrictions or loss of specific or all privileges at the University for a specified period of time.
- Oral warnings.
- Written reprimands.
- Disciplinary pr obation for a stated period.
- Suspension from the University for a stated period not to exceed three (3) years.
- Dismissal (i.e., expulsion) from the University.
The Hearing Panel may impose one or more of the following sanctions and remedies on University-registered organizations:
- Measures similar in kind to the interim measures specified under these procedures.
- Appropriate educational steps for organization members (such as alcohol or drug education, reflection exercises, counseling, or directed study).
- Community work performed by organization members, which shall not be more than 80 hours per violation, and must be performed in a manner acceptable to the Director.
- Restitution.
- Fines of any reasonable and appropriate amount payable to the University Treasurer.
- Restrictions or loss of specific or all privileges for the organization at the University for a specified period of time.
- Written reprimands.
- Dismissal, i.e., rescission of permission to operate on University property and/or termination of the organization’s agreement and relationship with the University.
Ordinarily, the penalties for subsequent or repeated violations, whenever such violation(s) occur, should be more severe than for a first violation. Further, certain types of violations are so fundamentally inconsistent with the University’s educational mission that, absent unusual mitigating factors, a sanction of substantial suspension or dismissal ordinarily will ordinarily be imposed. Such violations include acts of violence or other violations that substantially threaten the University’s educational mission or property, or the health or safety of University community members. The Hearing Panel may also recommend to the Director that the University take measures on campus to remedy the effect or prevent the reoccurrence of such prohibited conduct. Sanctions and remedies will be effective immediately unless otherwise specified by the Hearing Panel.
The Hearing Panel will issue a written decision as expeditiously as possible upon completion of deliberations. The Director will provide the written decision to the parties simultaneously and as soon as 1080 practicable. The decision will include:
- The specific prohibited conduct for which the Respondent was found responsible and not responsible; and
- the findings of fact and the rationale for the Hearing Panel’s determinations regarding both responsibility and sanctions.
The decision may incorporate and reference any portions of the proceedings, including the investigative record and report, as the Hearing Panel deems appropriate. The decision will include instructions and time limits for appeals. Both the Complainant and the Respondent will be informed simultaneously of the decision and any sanctions and remedies, the date by which the requirements must be satisfied (if applicable), and the consequences of failure to satisfy the requirements.
The hearing record will include: the audio recording of the hearing, the Hearing Panel’s decision, the final investigative record and report, the parties’ pre-hearing submissions, the written witness lists, written opening and closing statements, written submissions permitted by these procedures made to the Panel Chair or during the hearing, and the parties’ Impact/Mitigation Statements (if considered by the Hearing Panel). The hearing record may also include a transcript of the hearing.
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