Spring 2020 Proposed Amendments to the Campus Code of Conduct
PUBLIC FORUM VIDEO AND TRANSCRIPTS (5/7/2020)
Reworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone.
Significantly simplifying the Code and having it use “plain English”.
Narrowing its focus to students.
Separating standards of behavior from administrative procedures for managing misconduct.
Simplifying the administrative procedures.
Expanding the treatment of Harassment.
Permitting enhanced penalties for Harassment or Assault that are motivated by bias.
Considering moving less serious types of misconduct to the Office of the Dean of Students for resolution.
Do you agree or disagree with these changes?
Do you think the CJC incorporated these changes well into its proposals or did it not go far enough with incorporating some of these changes?
Are there changes that aren't part of that list that you think we should consider as well?
All of your comments will help the Codes and Judicial Committee in its efforts to create a better Code for our community. Review and public comment by the Cornell community are welcomed and encouraged through 5:00 PM on Friday, May 8, 2020.
Downloadable PDF of consolidated public comments
- Section 1: Principles and Values
- Section 2: Definitions
- Section 3: Scope and General Provisions
- Section 4: Prohibited Conduct
- Section 5: Other Applicable Procedures & Policies
The items below are related to the procedural section of the Code revision. Please note that a * denotes a section that has corresponding CJC comments that the committee wishes the public to review.
- Section 1: Participants in the Process*
- Section 2: The University’s Response to a Complaint of Prohibited Conduct*
- Section 3: Investigation
- Section 4: Resolution of a Formal Complaint Following an Investigation*
- Section 5: Administrative Panel Procedures*
- Section 6: Hearing Panel Procedures*
- Section 7: Appeal Panel Procedures*
- Section 8: General Panel Procedures Applicable to All Types of Hearings Under These Procedures*
This page contains comments posted by members of the Cornell community pertaining to General Comments in the current and proposed Campus Code and judicial system. Before posting to this forum, please read the comments below to make sure that the information you are providing is pertinent to the discussion and has not already been addressed before. Comments containing inappropriate language, including but not limited to offensive, profane, vulgar, threatening, harassing, or abusive language, are subject to removal.
Review and public comment by the Cornell community are welcomed and encouraged through 5:00 PM on Friday, May 8, 2020.
Comments** Please Login to add Comments.
Concern about why undergrads are not being heard in this processSubmitted by Anonymous Committee Member on Mon, 2020-11-16 15:59 (user name hidden)
It seems as if several comments here are completely not based in reality of what it is like to be an undergraduate student. Why are alumni and law students who are not undergraduates trying to push back against changes to the code that are intended to support undergraduate students, when the code and judicial processes have vastly changed since they were here on campus? It seems very out of touch and unfair for current undergraduates who are the ones actually experiencing and going through these changes and whose voices should be heard.
Was conflicted about changingSubmitted by Anonymous Committee Member on Mon, 2020-11-16 15:52 (user name hidden)
Was conflicted about changing the standard of evidence, but seeing as the Greek Life judicial system already uses preponderance of evidence as their standard, it makes sense to align all our judicial processes so some cases don’t have different standards than others.
Codes and Judicial Committee CommentsSubmitted by Wendy Treat on Mon, 2020-05-11 11:18
The undersigned alumni are submitting the following comments on the Codes and Judicial Committee (CJC) draft proposal. We have years of experience with the Campus Judicial system. We ask that you give our comments your careful consideration.
- A Cornellian pours blood on the files of a Selective Service Office in Maryland.
- Cornellians travel to Washington DC for a peaceful protest, get trapped when the police throw tear gas and end up being detained by police in RFK Stadium for theweekend.
- A group of students marches to the then-President’s home in Cayuga Heights and throws an egg at him.
- A student standing just outside the Cornell campus chants a provocative message directed at a campus living unit.
- A group of students defy COVID social distancing orders and throws an off-campus party.
- Restrictions or loss of specific or all privileges at the University for a specified period of time;
Disciplinary probation (imposed or deferred);
Suspension from the University for a state period not to exceed five (5) years (imposed or deferred);
Rescission of permission to operate on University property and/or termination of the organization’s agreement and relationship with the university.
it is meant to be either abusive or humiliating toward a specific person or persons; or
it persists despite the reasonable objection of the person or persons targeted by the speech.
an objective person would not view the expression as raising a policy issue that is under public discussion.
COMMENTS OF UNDERSIGNED CORNELL DAILY SUN ALUMNISubmitted by Robert C. Platt, Esq on Fri, 2020-05-08 16:11
COMMENTS OF UNDERSIGNED CORNELL DAILY SUN ALUMNI
The undersigned alumni of The Cornell Daily Sun file these comments on the Codes and Judicial Committee proposal. Some of us have law degrees and others of us spent our careers as working journalists. We all share a devotion to Cornell and to maintaining The Cornell Daily Sun as an independent journalistic voice and critic for the Cornell community, including alumni and Ithaca residents.
The Sun’s value stems from being the Cornell community’s independent newspaper since 1880. It has always operated without University subsidies or control. The Sun publishes the facts regardless of whether they cause embarrassment or consternation in Day Hall, including coverage of the Campus Code and the judicial system. Similarly, The Sun publishes a wide variety of opinions, regardless of whether those viewpoints will be vexatious to individuals or groups of students, faculty, staff, administrators or local officials. It has been that way since 1880, and so it should continue to be.
- Statement of Principles and Values Must Recognize Important First Amendment Rights
“Section 1: Principles and Values” does not fit with the start of a Campus Code of Conduct. Certainly stating general principles and goals will be helpful in interpreting the Code, but this section does not adequately address fundamental rights such as freedom of speech, freedom of the press, freedom of religion, freedom of association and the right to petition for redress of grievances. Valuing these rights has served Cornell well for more than 150 years.
However, recently these important rights have been under attack by people seeking to establish a “speech code” to ban or punish speech that some may find offensive. The best way to avoid this proposed Code’s being misinterpreted, and from trampling on protected rights, is to include a strong statement in Section 1 reaffirming these bedrock First Amendment rights.
One would think that exercising protected First Amendment rights off campus would guarantee freedom from University interference and control. Not so, under the proposed Code. The Code asserts the right to regulate and punish non-registered groups as well as off-campus conduct, which would have a chilling effect on the entire Cornell community. We know of no legal basis for this inadvisable over-reach. The University must respect First Amendment rights as a matter of tradition, as a matter of educational policy as a world leader in academic thought, and as a matter of law. We urge that the improper assertion of jurisdiction over unregistered organizations and off-campus conduct be removed entirely from the Code.
2. Strict Vicarious Liability For Student Members of Unregistered Organizations
Proposed Section 4.1 provides, “known members of unrecognized student groups may be held accountable for prohibited conduct by these groups.” This sentence imposes a strict vicarious liability upon any Cornell student for any asserted Code violation by an “unrecognized student group.” If any student group published a news story, opinion piece or tweet that offended someone, the offended person or group, armed with the Code, could file a complaint with the Judicial Administrator alleging “harassment.” Any student known to be a member of that student media group could then be prosecuted for a violation of the Campus Code, even if that student had no direct role in the writing or editing of the offending article or commentary. Such “guilt-by-association” serves no educational purpose, but merely serves to chill free speech and freedom of the press. It should be removed in its entirety from the Code, thereby avoiding a challenge likely to show its enforcement would violate applicable law.
3. Traditional Limitations Should Be Respected for Campus Conduct Regulation
Legalities aside, Cornell traditionally has limited its conduct regulation to on-campus activity. While registered student organizations that seek funding from Student Activity fees or use campus facilities voluntarily submit to Campus Code jurisdiction, unregistered groups such as The Sun do not. Unregistered organizations should not be regulated by Cornell. Further, the Campus Code should regulate only on-campus conduct, and jurisdiction should not be expanded to off-campus locations such as the Cornell Daily Sun building (located in downtown Ithaca) or to “online behavior” (Section 3(A)).
We file these comments as individuals concerned about the free exchange of information and views on campus. They do not necessarily reflect the editorial views of The Cornell Daily Sun. We urge the Committee to respect the rights of student journalists and the readers they interact with every day.
Jay Branegan ‘71
Kathleen Frankovic ‘68
Andrew Kreig '70
Carl P. Leubsdorf '59
Robert C. Platt ‘73
Elaine S. Povich ‘75
Charles J. Sennet ‘74
Dineen Pashoukos Wasylik '94
Judicial Codes Counselors' CommentsSubmitted by Gabrielle Kanter on Fri, 2020-05-08 15:42
I am a third-year law student and currently serve as the Judicial Codes Counselor. The Judicial Codes Counselors (JCCs) are tasked with advising and advocating on behalf of respondents accused of misconduct in the campus misconduct systems governed by the Campus Code of Conduct, Academic Integrity, and Policy 6.4. We advise students, faculty, and staff members. For the last year, we have been involved in the conversations about the campus code of conduct amendments, drafting new sections, commenting on other people’s work, and advocating for respondents’ rights in the process during the CJC meetings. I would like to share some of my observations from these meetings. Additionally, given that the JCCs were asked not to speak at the most recent UA meeting when the CJC Chair presented information about this proposal and another competing proposal—this appeared at the eleventh hour (you can read my comments regarding that proposal here)—I wanted to ensure that the JCC Office had an opportunity to voice our opinion.
While I am generally accepting of the direction the CJC took in this draft, that is only because I’ve seen how much worse the campus misconduct system could become for students. This draft is a compromise. Earlier drafts and other proposals even more substantially deprived students of due process. However, I still greatly respect and prefer the existing campus code to this watered-down version. Regardless, because of the constraints imposed by the administration and the UA, the CJC did not have adequate time to thoughtfully consider public comments made here. These “amendments” (aka a complete overhaul of the existing code) were rushed throughout this academic school year. For example, I agree with Mr. Spitzer’s and Professor Garvey’s comments about the ambiguities in the substantive/violations section. These problems are a result of the UA constantly pushing unrealistic deadlines—not a reflection of the lack of effort by the members of the CJC. And because of these deadlines, the wonderful suggestions and comments made on this public comment page will not make it into the draft that the UA votes on this coming Tuesday. This process appears to be built on “shared governance” and democratic principles when in fact it is not.
Below are some of the substantive comments on behalf of the JCC Office:
Section 1.2 Respondent’s Right to Have an Advisor Speak
We support the CJC’s vote in favor of allowing advisors to speak during proceedings. At hearings, the University is represented by the Office of the Judicial Administrator (OJA), full-time professionals with an abundance of experience and resources. Meanwhile, respondents typically have a law student advisor (a JCC) if the respondent cannot afford an attorney. It is inherently unfair to allow full-time professionals with the authority of the University to oppose an inexperienced, student-respondent without the active involvement of their advisor during a hearing. It can be incredibly difficult and intimidating for a student-respondent to tell their story clearly and concisely using their evidence and witnesses. Students’ oral presentation skills should not affect whether they are found responsible or not responsible. Likewise, students who may have a harder time with spoken or written English may be at an unfair disadvantage. In addition, forcing a respondent to lead and speak in the hearing without the assistance of an advisor in the name of making the process an “educational experience” overlooks the anxiety, stress, and fear a student experiences during campus misconduct proceedings. Silencing advisors exacerbates that emotional toll and makes the process more intimidating and likely less educational for the student. The proposed code does not make the hearing more “litigious” either. Attorneys and outside advisors may only speak during limited circumstances. And as JCCs, we always encourage students to make statements on their own behalf during the hearing when they feel comfortable. To prevent the process from becoming unfair and needlessly daunting, the proposed provision allowing advisors to speak during proceedings must be adopted.
Section 1.4 The Office of the Judicial Codes Counselor – Office Members
We support the CJC’s vote in favor of ensuring that JCCs are law students. While we recognize and are humbled by the intellect and abilities of our undergraduate and graduate student colleagues, having specialized training in the skills most pertinent to the JCC position is essential. This frequently boosts our clients’ confidence and trust in our abilities. For example, every Cornell Law student is required to fulfill a certain number of credits through experiential learning. Through the Law School’s clinical programs, students receive invaluable client representation experience. Students are taught how to perform interviews, gather information about a client, make effective arguments, and comfort people who are coping with severe trauma. JCCs must be armed with all of these skills. Similarly, having professional training in ethical issues lawyers face, such as conflicts of interests (which is taught in a required law school course) is vital to maintain a professional and functioning office. JCCs must also be able to understand and explain the nuanced difference between confidentiality and attorney-client privilege and be ready to research issues related to these concepts as they arise. Importantly, this provision impacts more than just the Campus Code because JCCs also advise on Policy 6.4 and advocate on behalf of faculty and staff members accused of sexual misconduct. These proceedings can have life-changing consequences. Because these circumstances are so high stakes, having some legal training and an advisor in the Law School who we can turn to for help is crucial. And given that most individuals in the OJA have a law degree and that the student advocates for Policy 6.4 complainants are law students, having law students be JCCs ensures that all community members are provided with an equivalent advisor. Finally, when JCCs begin, they must hit the ground running. JCCs spend most of their time training by learning the different codes and policies. It would place respondents at a serious disadvantage—and potentially risk their future academic and professional goals—if a student did not have the basic understanding of how to advise and advocate on these complicated issues.
Section 1.4 The Office of the Judicial Codes Counselor – Office Independence
We support the CJC’s vote to keep the JCC Office independent from the Office of Student and Campus Life. Some members of the CJC suggested that moving the JCC under Student and Campus Life will “increase accountability, understanding of other aspects of student life, and make the process less legalistic and more educational.” First, the JCCs are held accountable through our law school advisor and by our clients. Some CJC members believe that more accountability by the University administration would be a good thing. However, separation from the University administration is important to ensure that respondents trust their JCC advisor. Additionally, under these proposed procedures and Policy 6.4, administrators from the Office of Campus and Student Life (including the OJA and the Vice President of Student and Campus Life) determine when a student is responsible, uphold interim measures, and rule on appeals. How (and why) would respondents trust their advisors if they too fall under the same umbrella as those administrators? Second, given that JCCs meet with and interact with students every day through their job, what else must the JCCs do to understand other aspects of student life? Many JCCs take on the position to become more involved in the greater Cornell community. This position frequently attracts law students who attended Cornell as undergrads—currently, one JCC was an undergrad at Cornell. Finally, JCCs do not make the process more legalistic. JCCs make arguments, advise, and advocate for students. Making persuasive arguments, advancing student interests, and protecting the fairness of the campus misconduct system is not legalistic.
Section 4.3 Recordkeeping –Transcript Notations and Withholding Degrees
The CJC voted 5-3 against the proposed language (but retained the language in the draft because the CJC did not create an alternative). The proposal disallows the use of transcript notations during the pendency of a complaint. The proposed language also disallows withholding degrees when a student may graduate during the pendency of the complaint so long as the student enters into an agreement with the OJA granting the OJA jurisdiction over the student until the final resolution of the complaint (including the completion of sanctions). We disagree with the CJC’s vote and urge the CJC to adopt the proposed language. First, these notations are frequently imposed before a student is actually found responsible. These notations may cause damage to a student’s academic and professional career; this is especially concerning because the student may ultimately be found not responsible. Noting a student’s academic transcript prior to a finding of responsibility prevents that student from applying to academic and professional programs such as summer internships. Second, the OJA has encouraged the CJC to move the new code in an “educational” direction. It is difficult to imagine a bigger threat to a student’s ability to attain her “educational objectives” than withholding her degree—especially when a less restrictive and less punitive mechanism (an agreement) may be used.
Section 5.1 Disciplinary Probation and Hearings
The proposed procedures create less extensive hearings (Administrative Panels) for lower violation cases and more involved hearings (Hearing Panels) for higher violations cases. We support the CJC’s vote in favor of having disciplinary probation fall under the Hearing Panel process as opposed to the Administrative Panel process. Disciplinary probation is a higher sanction and is usually proposed where the respondent is charged with more serious violations of the code. A serious violation of the code may create lasting consequences on a student’s disciplinary record. In these circumstances, respondents should be given the opportunity to fully present their narrative before a hearing panel. In particular, respondents should have their opportunity to present all evidence they would like to present without the filtering mechanisms included in the Administrative Panels. When a disciplinary probation is imposed, a respondent may be required to meet with members of the Office of the Judicial Administrator for several semesters, which makes this sanction very different from (and more serious than) a written reprimand, oral warning, or educational sanctions.
Section 5.4 & 6.5 Public Hearings
Disallowing public hearings is a departure from the existing Campus Code of Conduct, which allows respondents to ask to have a public hearing. The University should maintain the public hearing option. Consider the OJA’s decision to charge Mitch McBride with violations of the Campus Code of Conduct in 2017 for leaking documents from a University working group. After he asked to have a public hearing, the OJA objected. However, the hearing chair allowed the public hearing to occur and the hearing was streamed to a packed room of observers. The hearing panel found McBride not responsible. Allowing respondents the option of having a public hearing serves as an important check on the University administration. The way to appropriately balance the privacy interests of complainants and other members involved in the hearing process is not to eliminate this right entirely—but to give the hearing chair discretion to determine whether a public hearing is appropriate in circumstances given the competing interests.
8.4 Burden of Proof
We disagree with the CJC’s vote to adopt a preponderance of the evidence standard because the clear and convincing evidence standard better advances principles of fairness and due process, ensures accurate outcomes, and creates trust in the misconduct process. In a hearing, respondents, who are often still teenagers and frequently are first-time offenders, face the employees of Office of the Judicial Administrator (many of whom are attorneys), the University, and the resources available to both. If the University switches to a preponderance of the evidence standard, the code would effectively be putting its thumb on the scale of justice against a side that is already systematically disadvantaged. This may be especially harmful to students from low-income backgrounds who are unable to afford an attorney. During CJC meetings, some people raised concerns that the University has had difficulty in meeting this burden. However, clear and convincing evidence has been the longstanding standard used in non-sexual assault campus misconduct proceedings at Cornell and no evidence has been presented that would suggest a need to alter that standard. The clear and convincing evidence standard signals to the campus community that the University is committed to avoiding finding the innocent responsible, thereby giving the community the confidence that the campus adjudicatory system is operating fairly.
Views from a JCCSubmitted by Jialin Yang on Fri, 2020-05-08 14:37
I currently serve as assistant Judicial Codes Counselor and I am a third-year law student. I work one-on-one with students, faculty and staff to advocate on their behalf when they are accused of misconduct under the campus.
Before I delve into substantive issues, I first want to critique the fact that the so-called “Public Forum” held on May 7th was hardly public at all. The wrong link was sent to the entire Cornell community and participants were left in a Zoom meeting unaware that the panelists were in a different meeting. By the time we were able to access this other meeting, the “Public Forum” was underway. Mistake or not, this is unacceptable when this is purported to be an opportunity “for the entire community to discuss the issues” of the proposed changes.
Secondly, the CJC requested feedback on section 1.4 on the Judicial Codes Counselors. Specifically, the CJC requested feedback about whether the JCCs should be independent from administrative oversight. Requiring oversight from the very administrative bodies that the JCCs seek to hold accountable completely disregards the potential conflicts of interest that would arise. It is important for our office, the advocates for respondents, to remain independent from the University’s administration. We are here to zealously advocate for respondents and we are able to do that because of our independence. I’m at a loss for how moving our office under the Student and Campus Life and essentially dismantling us will “increase accountability, understanding other aspects of student life, and make the process less legalistic and more educational.”
Third, the lowering of the burden of proof is wrong. I have witnessed the devastation when respondents are expelled or dismissed. While it may seem like a vague concept to some CJC members, I would like to remind them that these are real peoples’ lives at stake. These are students, like you or me. There is already a structural power difference between students and the University. By lowering the burden of proof to preponderance of the evidence, the Code will be exacerbating the negative consequences of this power dynamic. A student standing in front of a Hearing Panel is already at a disadvantage given the Judicial Administrator’s authority and perceived credibility. The CJC should not downplay the consequences for a student found mistakenly “responsible”. A finding of responsibility can be severe and can destroy students’ chances at graduate school or finding a good job, not to mention students who are suspended or expelled. With such high stakes, Cornell should not lower the burden of proof at all—the proposed change to a preponderance of the evidence standard blatantly erodes the due process and fairness in our campus misconduct system.
Additionally, the campus misconduct system, as with any judicial system, is rife with unconscious bias and disparate outcomes based off of race, class, sexual orientation, gender, and other factors. The proposed changes would only serve to exacerbate these inequalities and do nothing to alleviate them.
Strong concerns about proposed changesSubmitted by Anonymous Committee Member on Thu, 2020-05-07 23:52 (user name hidden)
I would like to reiterate below some concerns about the proposed changes, and the importance an overall system that is protective of student’s rights. Being a JCC requires so much more than being a supportive presence to a student during a disciplinary process. It requires commitment, sacrifice of personal time, and, above all, unwavering advocacy on behalf of your client. A client whose future could hang in the balance whether they be student, professor, or staff member. The presence of the JCCs and their law student status is not what makes the process under the code legalistic. Systems with codes and rules and punishment will always, by default, feel at least a little legalistic. Any time you have a team of professionals employed by the university on one side, whose primary solution is the distribution of punishment, you are going to end up with a process that requires advocacy on behalf of the student facing said punishment. That’s just how systems of punishment work.
It’s great to suggest a movement toward more restorative justice practices. I applaud it, and hope you’ve consulted people who make implementing restorative justice practices their life’s work in deciding what you will do. But the changes being made or thought about are not restorative justice. Making punishment easier to pass out, suggesting that the people assigned to protect the rights and interests of the students (the JCCs) be supervised under the same administration they are representing students in front of—this is not restorative justice. This is granting more power to the administration, and creating vast conflicts of interest.
The OJA, while student focused, is still an administrative office of a large university. This can create many concerns beyond the interests of students: universities do not like facing the possibility of bad press or lawsuits; universities (and the offices within them) are constantly forced to justify how they spend the exorbitant tuition money they take in; universities have internal politics always occurring that the student or general public can only imagine. I believe in a restorative and educational process, and I believe the OJA has good intentions. But in our current system of education, working at a university means balancing many competing interests with the interests of students. Granting any administrative office more power without considering this may not achieve the educational goals envisioned.
While the current proposal separates potential sanctions based on their severity, any sanction could impact a student for years to come. I hope that during this process a diversity of people who have gone before the OJA under different charges and faced different sanctions have been spoken to and heard. For an 18-year-old from any background, but especially from backgrounds underrepresented in the Cornell community, it can be terrifying. Having independent, well trained, disciplined advocates committed to students’ rights benefits both those students and the university community as a whole.
Burdens Undue and Due Process UndoneSubmitted by Brianna J Weaver on Thu, 2020-05-07 23:49
To: Codes and Judicial Committee & University Assembly
From: Brianna Weaver, J.D. candidate 2020
Date: May 7, 2020
Re: Notice and Comment Procedure and Sections 5.4, 6.5, and 8.4 Proposals
I. Notice and Comment
I am frustrated. I am frustrated because I should be writing a seminar paper right now. Because we are in the midst of finals, but I am here, writing this comment. I am frustrated because I am commenting during a global pandemic while some of my peers lack the internet access, emotional energy, or time to comment. I am frustrated because the link to the public forum was broken. Because if it were not for law students posting on their private social media accounts, I would not have known about the proposal to lower the burden of proof. Because "[r]eworking the Code to have an educational and aspirational rather than punitive, quasi-criminal tone" is indefensibly nondescript. Understand this: when I say I am frustrated, I do not mean to say that I am emotional. I mean that I am aware there has been an effort to frustrate the efforts of students like myself to take note of the changes to the Code and to voice our opinions. That frustration has come in the form of insufficient communication, useless - if not misleading - characterizations of the proposals, and suspect timing. The fundamental unfairness of these proposals is not limited to their substance; whether intentional or not, it began with improper notice and comment procedures.
II. Burden of Proof
Preponderance of the evidence is a standard lifted from civil law. Preponderance of the evidence is often thought of as 50%+ certainty. It is when one side is more likely than not correct. Civil law does not generally serve to discipline,* but to set the parties right. The harm of a potential error is, therefore, equal in either direction. If the court decides incorrectly, one party will be erroneously deprived of a certain award to which they are entitled or the other party will be deprived of that same award to which they are entitled. Because the risk is equal to the parties, preponderance (50/50) is a fitting standard of proof.
The same can not be said when we take the preponderance standard out of the context of civil law. For example, in criminal law, the harm arising from an error is not equal. Either a guilty defendant is erroneously acquitted or an innocent defendant is erroneously found guilty. In criminal law we use the beyond a reasonable doubt standard. There are a variety of articulations of the standard, but it is a much higher standard than preponderance. The principle underlying the use of beyond a reasonable doubt in criminal trials was articluated by William Blackstone: "better that ten guilty persons escape, than that one innocent suffer."
The clear and convincing standard falls between preponderance and beyond a reasonable doubt. This makes perfect sense in the context of a university code of conduct. The stakes are not as low as a typical civil suit nor as high as a typical criminal case. The parties would not experience equal harm in the event of error, yet the harm would not be as disproportionate as an innocent defendant going to jail.
What's more is that there is a significatly higher risk of discrimination with a preponderance standard for Code of Coduct violations. Because the preponderance standard asks what is more likely than not to have occurred, implicit biases are more likely to change the outcome of a case. Take, for example, a case where the evidence is perfectly even (50/50). If there were a perfect factfinder without any prejudice or bias, there would be no preponderance of the evidence. If, however, there is any implicit bias in the factfinder whatsoever, it will necessarily determine the outcome of that case. Now this is not just true when a factfinder is consciusly biased; this is what happens when a factfinder has implicit bias, which everyone does. Although it's still possible, implicit bias is much less likely to determine the outcome of a case when there is a higher standard of proof like clear and convincing evdence. In today's political climate, we have to be especially mindful of these biases. Willing away bias is not sufficient; we need systematic protections to protect targetted groups.
III. Privae Hearings
Rather than propose edits to the existing exceptions that allow for a public hearing, this proposal eliminates them in one fell swoop. The proposal does not include any descretion which could allow claimants or respondents to have a say. The proposal does not entertain the possability that a claimant and a respondant may both favor a public hearing. A claimant who fears that their claim will be burried may favor a public hearing. A respondant who wishes to clear their name may favor a public hearing. The preferences of neither matter in the proposal. This alone makes the proposal breathtakingly overbroad. Even without consensus, there are reasons to have public hearings in certain situations. The public has an interest in monitering the carriage of justice. Here, the Cornell community has an interest in monitering the enforcement of the code of conduct. The interests of the public and the various players may conflict and often do conflict. That alone does not justify a blanket rule. A rebuttable presumption against public hearnings would be more appropriate than an outright ban.
*There are, of course, limited situations where a party is dettered or punished in civil law, such as cases where punitive dmages are sought; however, such situations are the exception and not the rule.
Timing of the public comment periodSubmitted by Anonymous Committee Member on Thu, 2020-05-07 22:18 (user name hidden)
I share GSGIC's concerns with the duration and timing of the public comment period for the Campus Code of Conduct. Three days is not enough time to give everyone a chance to comment on the proposed amendments. Also, many of us are busy with classes (and finals) and don't have much time to participate in this process, especially because it is near the end of the school term.
Connection to other student affairs professionals criticalSubmitted by Mary Beth Grant on Tue, 2020-11-17 16:36
Thank you all for your work on the updated and modernized Student Code of Conduct. I have a few thoughts to share.
I have had the honor of serving both in the Office of the Judicial Administrator and in Student and Campus Life (Office of the Dean of Students). As a member of the OJA, one of the hardest things was the isolation. I understood this even more after I left the office. As a part of SCL, I am part of a broader team of student affairs professionals and am much more able to keep in touch with student life at Cornell. Creating this opportunity for our colleagues in the OJA would benefit the students we all serve.
With respect, I have heard the expression "educational system" misapprehended by some campus partners. Student affairs professionals who work in conduct (yes, it is a distinct professional calling!) think from a developmental perspective. Rather than just considering whether a student violated the Code and what the sanction should be, an educational approach considers a fair process to determining responsibility AND the social, emotional and ethical development of a student found responsible AND ways to heal the harm to a complaining witness and the community. It is much more complex and nuanced than some folks portray it. Understanding these complexities shifts the lens in which one views the entire system, but it does not imply that students are more likely to be found responsible of allegations. So, as you all are weighing whether the standard should be "preponderance" or "clear and convincing" I think it is noteworthy that nationally "preponderance" is much more common in higher education. The important pieces, though, are that the system is fair, developmental and considers those harmed.
Thank you for taking the time to receive community feedback.
Mary Beth Grant
Sr. Associate Dean of Students