Follow a live blog of the hearing here.
The nomination and confirmation of Supreme Court Justice Neil Gorsuch brought with it a public airing of the merits and nature of textualism, a philosophy of jurisprudence maintaining that judges, when tasked with interpreting a legal document, should derive their interpretation not from intention, but a plain, objective reading of the text.
Readers of judicial writing may find some textualist opinions bland because they are often strewn with arguments over word definitions and grammar rules.
But definitions, grammar rules and interpretive canons are now directly relevant to the fate of a member of the Cornell community. The Office of the Judicial Administrator today will argue that Mitch McBride ’17 violated the Campus Code of Conduct by giving internal working group documents to The Sun.
The success of the OJA’s charge against McBride depends on how the University Hearing Board interprets two sections of Cornell’s Campus Code of Conduct.
“To forge, fraudulently alter, willfully falsify, or otherwise misuse University or non-University documents”
Under Title III, the University forbids students to “forge, fraudulently alter, willfully falsify, or otherwise misuse University or non-University documents.” McBride is presumably being charged under the “otherwise misuse” provision.
The relevant textual canon — a rule to help adjudicators decide how to interpret text — for this kind of syntax is called ejusdem generis, Latin for “of the same kind.” It means that when a catchall term like “otherwise misuse” follows a specific list of terms, the things that the catchall applies to are “of the same kind” as the things mentioned in the list.
An easy example of this rule is in interpreting the meaning of “other animals” in the phrase “dogs, cats, horses, cattle and other animals.” Basically, the rule says that the word “similar” should be inserted between “other” and “animals.” Hence, a bee might not be included in the catchall “other animals.”
Prof. Kevin Clermont, law, who helped revise the Code in 2007 and 2008, argued that ejusdem generis clears McBride of responsibility under the Code’s forging prong.
“[The] idea is that ‘misuse’ takes its meaning from forge, alter, and falsify,” Clermont told The Sun, adding that the University’s interpretation “would simply set the provision adrift.”
Prof. Molly Diesing, linguistics, specializes in syntax and semantics and largely agreed with Clermont’s interpretation.
“In this instance of the code, the word ‘misuse’ appears in a series of verbs: ‘alter, willfully falsify, or otherwise misuse,’” Diesing told The Sun. “The first two elements make clear what kind of misuse is at stake — forgery, falsification, misrepresentation, etc. In the most obvious interpretation, that limits ‘otherwise misuse’ to cases of the same kind.”
Diesing also noted a second portion of the Code that seems to show that the code does not relate to the documents in McBride’s case.
The Code states that the documents covered by this provision include “computerized or noncomputerized records, parking permits, dining cards, identification cards, other permits or cards, reserve books, or other property.”
The whole section of the code “seems to be concerned with forgery, falsification, or hacking of documents of certain types given in a list, and the possession and use of such documents,” Diesing said in an email. “I think extending this more generally to *any* documents is a bit of a stretch.”
It is possible that the OJA will ignore the ejusdem generis canon and ask the hearing board instead to consider the strict definition of “misuse”: “to use (something) in the wrong way or for the wrong purpose,” according to the Oxford Dictionary.
McBride, the OJA may claim, used the documents for the wrong purpose by sharing them with people not on the task force.
“To refuse to comply with any lawful order of a clearly identifiable University official acting in the performance of his or her duties”
The main source of interpretive tension in this provision is the meaning and applicability of “lawful order.”
Clermont said this provision only applies to orders made by officials for the purpose of maintaining public order because of the section of the New York Education Law that gives Universities the responsibility to make such a rule.
Clermont argued that his interpretation is consistent with Title IV’s heading, “Regulations for Maintenance of Public Order.”
Any order McBride received not to disclose the documents was not an order under this provision of the Code, Clermont argues.
If the University were not constrained by that understanding of the Code, Clermont said, the result would be that a “Cornell administrator can simply ‘order’ students and faculty to do things.”
McBride, for his part, said he was never ordered by anyone to keep the documents confidential. The senior said he knew Senior Vice Provost Barbara Knuth, who chaired the working group from which the documents were leaked, wanted the documents to be kept confidential, but said no committee members ever made any written or oral agreements to do so while he served on the group, The Sun previously reported.
But the OJA could contend that leaking documents understood to be confidential inherently disturbs public order by thrusting private documents into the public eye. If University officials cannot give lawful orders to keep documents private, how can they enforce confidentiality at all, without a revision of the code, OJA officials may argue.
If it rules in McBride’s favor, the UHB will make a decision that could have broad implications, such as determining that the University cannot enforce confidentiality without a written agreement, disincentivizing the administration from consulting students on internal policy debates.
The University Hearing Board will hear McBride and the OJA’s case on at 4:30 p.m. on Wednesday in 163 Day Hall.