Editor’s Note: This is the first part of a two-part series examining the Cornell disciplinary system. For the second part of the series, click here.
Over the past decade, the number of temporary suspensions used in Judicial Administrator investigations has increased by 350 percent, the number of suspensions on the merits of a case has increased by 333 percent and the number of expulsions has increased seven-fold. However, the number of referrals sent to the Office of the J.A. in the academic year 2013-14 was very similar to the number sent 10 years prior, rising only slightly from 812 in 2004 to 862 in 2014.
While the J.A. attributes these trends to an increase in serious cases, the law students tasked with representing students in J.A. proceedings, known as Judicial Codes Counselors, contend that recent developments in the University’s disciplinary practices merit attention.
How Did We Get Here?
At the conclusion of the 2014-2015 academic year, Amanda Minikus J.D. ’15, who was then ending her one-year term as JCC, released the first ever JCC Annual Report. In it, she alleged that the J.A.’s office, understaffed and overloaded with cases, was mismanaging investigations, underreporting its numbers and interpreting University codes in a way that reduced students’ rights.
The report focused extensively on University Policy 6.4, a modification to the Code of Conduct governing prohibited discrimination, protected-status harassment, sexual harassment and sexual assault and violence. In the report, Minikus said lengthy investigations and haphazard investigative procedures were creating outcomes at odds with both University codes and federal guidelines.
Last spring, The Sun reported that the J.A. was taking longer to investigate sexual assault cases than allowed by University codes or recommended by the federal Office of Civil Rights. This past May, the Department of Education launched a Title IX investigation into Cornell’s handling of sexual assault cases. In September, the University announced that it would relieve the J.A. of the responsibility of investigating student referrals under Policy 6.4, instead transferring those cases to the Office of Workforce Policy and Labor Relations.
In the midst of these policy shifts, former J.A. Mary Beth Grant J.D. ’88 left the Office of the J.A. to assume the position of senior dean of students for inclusion, engagement and community support. Jody Kunk-Czaplicki, who had formerly been an associate judicial administrator, has served as interim J.A. since the beginning of this school year. A committee is currently beginning a nationwide search for candidates to permanently fill the position.
After a period of many changes, and with many more pending, the new campus disciplinary system is just starting to take shape.
‘A Duty to Release the Numbers’
Every year, the Office of the J.A. releases an annual report informing the community on the state of the campus disciplinary system. However, the JCC says the numbers contained in the report are general and cursory, contending that the office has not fulfilled its obligation to educate the campus community.
“Numbers in the Annual Report do not communicate meaningful trends or provide the Cornell community with a clear picture of the University’s response to instances of substantiated misconduct,” the JCC report reads. “Further, some information in the report is misleading and lacking appropriate context, giving community members a false impression of the nature and incidence of misconduct on campus.”
Kunk-Czaplicki defended the reporting done during Grant’s tenure, telling The Sun that the J.A.’s Annual Reports have been thorough in disseminating data and information. While Minikus agreed that the reporting was once fairly comprehensive, she argued the J.A. reports became “shorter, more general and less detailed on the numbers” over the course of Grant’s term.
The J.A.’s most recent annual report does contain statistics on the number of referrals the office received, the percentage of referrals that involved alcohol or other drugs and the number of investigations that resulted in suspension or expulsion. It offers its most comprehensive reporting on sexual assault investigations: It relays the number of sexual assault referrals received each academic year and details how many of those referrals progressed to each point in the investigative and appeals processes.
However, the J.A.’s report offers no information on the use of any sanctions other than suspension and expulsion. It does not report what type of offenses lead to those extreme sanctions, and it often refers to offenses by categories like “serious, physical complaints,” without breaking the numbers down to speak to the level of danger imposed on the community. The JCC also believes that some of the reporting is misleading, citing instances in which case descriptions leave out important details
The J.A. also does not disclose how many referrals have resulted in findings of code violations. The report says that the Office of the J.A. received 862 referrals last year, with 20 resulting in punitive suspension or expulsions. However, it does not detail how many referrals resulted in the imposition of any lesser sanction, which could range from a verbal warning to community service, leaving the remaining 842 referrals left unaddressed.
In the JCC report, Minikus called for the release of more detailed numbers, emphasizing that this information is imperative for the community to form realistic conclusions on the nature of disciplinary processes at Cornell.
“We cannot have administrators shirking their duty in informing the community on how many cases are reported, etcetera,” she said. “The J.A. has a duty to release the numbers, and they’re just not doing it.”
When Suspensions Aren’t Punishments
Under the Code of Conduct, the J.A. is delegated the authority to decide when a student should be temporarily suspended during the course of an investigation. The J.A. can choose to temporarily suspend under two circumstances: when an investigation is pending (for example, if the J.A. thinks a student presents a danger to the community but has not yet been found in violation) or if a student violates a No-Contact Directement, which is an order for the student not go within a certain distance of or to refrain from contact with another party.
While suspended, the student cannot be physically on campus or take part in any Cornell-related activities. Both the JCC and the J.A. agree that temporary suspension can be a necessary tool to keep the campus safe.
In an interview with The Sun, Kunk-Czaplicki said temporary suspensions are used only in extraordinary circumstances. While she said she was not sure exactly how often the option is invoked, she estimated that there are, “on average, two a year.” This estimation was mostly accurate between 2004 and 2007; however, the last J.A. Annual Report shows that the number of temporary suspensions spiked suddenly in 2008, and has averaged 5.6 a year since then, peaking at nine in the 2013-14 academic year.
The JCC’s office has expressed discomfort with this trend because, Minikus explained, temporary suspensions have the power to do immediate harm to a student, even with minimal evidence of wrongdoing. She said she has seen students temporarily suspended based on the testimony of a single witness or based on the accidental violation of a No-Contact Directement.
“The trouble I have with the J.A.’s procedure is that this is in the hands of a single administrator, and there is no official check in place with which to [immediately] review that initial decision,” she said.
Minkus told a story of one client who was denied a review of his temporary suspension until his entire case was resolved, and another of a student who was suspended during finals week. These situations can result in permanent academic or emotional damage to a student, she said. And while she acknowledged that temporarily suspended students are always allowed to appeal their suspensions, she believes this option is not speedy enough to “meaningfully mitigate the effects of a decision to temporarily suspend.”
When students are suspended, they first have to draft an appeal arguing that the action was unjust. Minikus estimated that this usually takes at least 24 hours to do well. The Code of Conduct requires that a review authority then consider the appeal within five days. However, the review panels are not standing; there are pools of community members designated to serve on the panels, but a panel to review a specific case is not assembled until the appeal is submitted. While Minikus said she found participants to be timely in their reviews of suspensions once the panels were formed, she said that it often took over a week to find people available to review the case. During this period, the codes give the suspended student no recourse.
Kunk-Czaplicki emphasized that temporary suspensions are reserved for extraordinary cases, and said she could not think of a time when a student was temporarily suspended and later found not to be in violation of University codes. However, Minikus reported that she had seen “several” clients temporarily suspended and then later exonerated.
Both Kunk-Czaplicki and Minikus said that if a student is suspended and later found not in violation, the J.A.’s office will work hard to get that student academic accommodations in order to mitigate the harm of the suspension. However, Minikus maintains that no accommodations can fully erase the effects of a prolonged absence during the semester.
Kunk-Czaplicki stressed that decisions to suspend students are made carefully and painstakingly, adding that she looks “forward to a robust community discussion on how our community defines” the extraordinary circumstances required for a temporary suspensions.
Because Kunk-Czaplicki took office at the beginning of this academic year, there is not yet data available on her use of temporary suspensions, and JCC Emily Sanchirico law says not enough time has passed to gauge Kunk-Czaplicki’s willingness to use the measure. However, over the years Grant served the J.A.’s office, suspensions were invoked more and more frequently.
“The trouble is that we saw, in our opinion, temporary suspensions being used more and more liberally, in cases where it’s not really clear what happened,” Minikus said.
To prevent undue punishment in cases where facts are uncertain, Minikus advocates that a standing panel be created to review all temporary suspension requests, and that the panel have to vote that a particular investigation requires suspension before the accused can be separated from campus. This would essentially take the appeals procedure and move it up in the process, making the same kind of vote necessary before the suspension is initiated, rather than being available as a recourse after the fact.
“There are tough decisions, and I just feel like temporary suspension is not one that should be left to any one individual,” Minikus said.