Editor’s note: This is the second part of a two-part series examining the Cornell disciplinary system. For the first part of the series, click here.
When Interim Judicial Administrator Jody Kunk-Czaplicki gets a referral, she said her office first performs a basic, brightline analysis to determine whether the alleged misconduct falls under the purview of University codes. If the office decides it does, administrators launch an investigation. During this stage, multiple witnesses with competing testimony and unclear pieces of evidence can sometimes make it difficult to resolve the issue.
Until last year, the J.A. was responsible for investigating referrals under both the Code of Conduct and Policy 6.4, which governs cases including sexual assault and sexual violence. At the beginning of this year, Policy 6.4 cases were moved to the Office of Workforce Policy and Labor Relations. However, as a Deputy Title IX Coordinator, the J.A. is still involved in those investigations.
While Policy 6.4 cases represent the smallest proportion of total code violations, the Judicial Codes Counselor, a law student charged with representing accused students in J.A. proceedings, said they are the most time-consuming to defend.
Are We on Time?
Last year, the J.A.’s office came under fire for taking too long to investigate cases under both its Code and Policy 6.4. Amanda Minikus J.D. ’15, who served as JCC for the 2014-15 academic year, said lengthy investigations sometimes resulted in psychological damage to her clients. However, Kunk-Czaplicki said that while her office aims to be efficient, she is primarily concerned with effectiveness.
“I will not disrupt or append or minimize the investigation, so the thoroughness of the investigation is critical to our office,” she said.
The timeliness of the University’s handling of Policy 6.4 cases was strictly scrutinized last year, when representatives from the JCC’s office publicly alleged that the J.A. was missing the federally-recommended 60-day deadline for the investigation of sexual assault cases. In the JCC report, Minikus called the average of seven to eight months she says it takes to resolve Policy 6.4 cases “unacceptable.”
(Taken from the JCC Annual Report for Academic Year 2013-2014)
Policy 6.4 cases have since been transferred to the Office of Workforce Policy and Labor Relations, so only time will tell whether the new investigative team will be able to comply with the Office of Civil Rights’ timetable. However, Alan Mittman, director of the Office of Workforce Policy and Labor Relations and the person now responsible for leaving investigations in Policy 6.4 cases, said he is unwilling to build an investigative procedure solely structured to meet the 60-day deadline.
“I would not sacrifice thoroughness and fairness for a specific guideline,” he said.
Still, Minikus stressed the need for expediency, saying that lengthy investigations can take a toll on both the accused and the complainant. The Office of the JCC has recommended that more staff assistants be hired to assist in Code of Conduct and Policy 6.4 investigations to alleviate the workload involved in handling such cases.
While Policy 6.4 cases garner the most public attention, 67 percent of J.A. cases in the 2013-14 academic year were alcohol or drug related, and 75 percent of JCC cases involved alcohol or drugs. Some of these cases may fall under Policy 6.4, but many are simple Code of Conduct violations, including transgressions such as underage drinking, illegal drug use or possession of a fake I.D.
Last year, the JCC reported that the excess time spent on Policy 6.4 cases had created a backlog for handling Code of Conduct cases. As the J.A. is no longer responsible for investigating Policy 6.4 cases, representatives from the JCC’s office say they are hopeful that Code of Conduct cases will now be processed more efficiently. Splitting the burden of Code of Conduct cases and Policy 6.4 cases between two different offices may wind up mitigating the timing issues for both.
Until this year, sexual harassment and sexual assault referrals were sent directly to the J.A.’s office, meaning that Grant had control over the investigations from the outset. While Kunk-Czaplicki said there is still a “tremendous amount of overlap” between the Office of Workforce Policy and Labor Relations and the J.A. in Policy 6.4 investigations, WPLR is now primarily responsible for shepherding these cases through to their conclusions.
Minikus said she is encouraged by this change because during her time on campus, she has seen a difference in the way WPLR and the J.A. approached their respective workloads. While WPLR became responsible for student 6.4 investigations just this year, they were already responsible for investigating 6.4 cases launched against faculty members. Although Minikus emphasized that she does not have statistics to support her perception, she said she thought she observed more contentiousness in WPLR investigations than J.A. investigations.
“I would have been more comfortable with students having their cases adjudicated and investigated by WPLR than J.A.,” she said.
Last year, the JCC enumerated multiple complaints with the J.A.’s handling of 6.4 cases. The office reported that J.A. investigators periodically informed accused students they had no right to remain silent during questioning, that the office was not disclosing the selection process for co-investigators and that investigators, as J.A. employees, were not impartial and sometimes lacked expertise in the areas they were investigating.
Kunk-Czaplicki’s appointment as interim J.A. was approved only days before Policy 6.4 cases were transferred to WPLR, so she never had the ultimate responsibility of overseeing those investigations. However, she defended the quality of the 6.4 work done during Grant’s tenure, saying she thought investigations were completed thoroughly and within reasonable timetables.
In outlining his goals for 6.4 cases, Mittman said he is committed to “managing the cases so that they’re done properly, effectively, efficiently and if they were to be scrutinized by anybody down the road, they will pass muster.”
This kind of attention to detail is imperative, Minikus said, because while the public may have an image of the typical sexual assault case in their heads, actual cases present such complexity that they can be very difficult to distill in an investigation.
“[These cases] are very, very messy. We are not talking about, most of the time, cases in which one party was clearly incapacitated or refused consent,” she said. “Even those cases are not cut and dry, and, yeah, I’ve had a handful of those, and you feel bad for everyone involved, but at the end of the day most of them are not like that. They are very complicated.”
Instead, Minikus described cases in which witnesses contradict each other and evidence is scarce or nonexistent — in which the outcome hinges on a couple’s relationship dynamic or the fact finder’s definition of consent. In fact, she told The Sun that many of the 6.4 cases she was involved in centered on alleged assault or harassment in “the context of a monogamous, long-term relationship on campus.” In those instances, she said, one must look into the context of the relationship, which can prove extremely difficult.
While the accused in those cases, of course, may rightfully deserve findings of code violations and harsh sanctions, Minikus maintains that the facts can be impossible to parse without a complex understanding of the campus social scene and culture. In the cases she was involved in, she said she felt as if investigators were reluctant to consider the social and generational context.
Policy 6.4 Going Forward
While some changes to Policy 6.4 went into effect at the beginning of the school year — most notably, the introduction of an affirmative consent standard in sexual assault cases and drug and alcohol amnesty provisions for victims and witnesses of sexual violence — sources tell The Sun more changes are to be expected shortly after the new year.
As both state and federal law governing sexual assault on college campuses have been evolving rapidly, the University has had to scramble to keep Policy 6.4 in compliance with evolving legal standards.
“I just think that [the current version of Policy] 6.4 … was, in my opinion, hastily drafted, because, like all other universities, Cornell was desperate to come into compliance with [the Office of Civil Rights’] guidance,” Minikus said.“As a result, there are some significant loopholes.”
Policy 6.4 was originally passed as a modification to the Code of Conduct, and only briefly mentions certain procedural issues, like the rules governing temporary suspensions; the deadlines and standards of that procedure are found within the body of the Code. The position of the Office of the JCC has been that this means the Code’s definitions and deadlines are binding on Policy 6.4. However, Minikus said the J.A.’s office and WPLR claim Policy 6.4 and the Code of Conduct are under separate ownership, meaning that the procedural provisions of the Code do not apply to Policy 6.4 cases.
This has led the J.A. and the JCC to disagree on some procedural rules governing 6.4 cases. The standards and deadlines governing temporary suspensions in Code of Conduct investigations are more specific than they is for 6.4 cases; the JCC thinks the Code standards should apply to both types of investigations, but the J.A. and WPLR defer solely to the language of Policy 6.4, separate from the Code of Conduct. Minikus said these points of confusion illustrate the need for a more thought-out Policy 6.4.
Ever since the Title IX investigation into Cornell’s handling of sexual assault cases was announced this past summer, the University has been working to bring Policy 6.4 and its associated procedures into legal compliance. Mittman declined to comment on Cornell’s prospects for the resolution of the investigation, but said the University is working to revise the policy to respond to recent changes in law “as soon as possible.”
“We want to make sure our policies are clear and accessible to our students,” Mittman said, “and, in that regard, we also want to make sure the procedures involved strongly enforce the policies, while at the same time protect[ing] our students, whether they be a complainant or a respondent.”
In outlining her hopes for the revised Policy 6.4, President Elizabeth Garrett primarily emphasized the University’s responsibility to protect alleged victims in investigations, though she also spoke to the need to ensure that investigations yield accurate results.
“We must also have a system where those decisions can be appealed appropriately, and where appropriate sanctions are applied,” she said. “In cases in which sexual assault is believed to have or found to have occurred, there should be serious and severe sanctions.”