When a Cornellian noticed that 10 undergarments were missing from her room, she claimed that she had been sexually harassed under Policy 6.4 — Cornell’s policies and guidelines for handling issues of discrimination, sexual harassment, sexual assault and violence.
Based solely on her intuition, the student blamed one of her male classmates for the theft, according to a report drafted by Amanda Minikus J.D. ’15, the University’s Judicial Codes Counselor at the time.
The alleged thief — the male — denied the accusation.
The University’s investigator had “no evidence whatsoever to place the [male student] (or anyone else for that matter) at the scene of the theft,” according to the Minikus report. But somehow, the investigator determined that the female complainant was more credible than the male respondent. Then, using an evidentiary standard that places a low burden on the complainant, the University’s investigator — who was also the case’s adjudicator — deemed the male respondent guilty of sexual harassment.
Under Policy 6.4, such a charge can warrant a host of punishments, ranging from mere oral warning to suspension from the University.
Had the male student not appealed the decision and had the appellate panel not overturned the initial decision due to a lack of evidence, his Cornell transcript could have identified him as a sexual harasser for the rest of his life.
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The University revised Policy 6.4 a year after the Minikus report — an 80-page evaluation of Cornell’s disciplinary systems based on one year of observations — exposed a judicial process “fraught with inequities,” a process where respondents had no right to appear at trial, to remain silent, to be represented by a lawyer, to confront their accusers, to question witnesses or even to view original evidence.
But whether University personnel adhere to Policy 6.4’s revised text has been the subject of debate. Lately, that debate has not been in the University’s favor. Earlier this month, N.Y. District Justice Eugene Faughnan suggested that the University’s interpretation of Policy 6.4 was “made out of whole cloth” and may have reduced the policy’s “guidelines to a meaningless mouthing of words.”
In addition, the University has more open Office of Civil Rights investigations against it than any other college or university in the country, except for Indiana University Bloomington, which has the same number of open OCR investigations, five, but over twice as many students as Cornell.
While open OCR investigations do not necessarily imply wrongdoing on the University’s part, the more probes that the OCR conducts, the more likely it is that it will find fault in Cornell’s practices. All five of Cornell’s open OCR investigations will examine the Title IX office’s handling of sexual misconduct cases. Four cases involve sexual assault, and the other involves sexual harassment, according to OCR documents.
As the University’s investigative procedures are under the proverbial microscope — from state judges and the federal government alike — public documents from the recently decided John Doe v. Cornell University case and the Minikus report bring new issues concerning Cornell’s practices to light.
College (Not) Confidential
The University’s policies governing confidentiality place a heavy burden on parties involved in investigations. But they place almost no burden on the University.
Cornell prohibits parties “from revealing any information they learn in the course of their involvement in matters under University Policy 6.4.” However, for its part, the University promises only to “take reasonable measures to protect the confidentiality of proceedings and records.” Policy 6.4 states that the “University cannot and does not guarantee that confidentiality will be maintained.”
This double standard is highlighted by the Doe trial, where the University entered the sexual history of Jane Roe — John Doe’s accuser — into the public record, even though why this personal information was relevant remains unclear. The University’s court filings divulged many personal details about Roe and her relationship with Doe, including how many sexual partners Roe had and what Roe told her roommate about the night of the party where she had sex with Doe. Cornell’s court submissions also contain Doe’s graphic explanation of his encounter with Roe, such as the various sexual acts he described Roe as doing.
These alleged details would probably never have become public if the University had not submitted them to the court. The University made public this information despite its stance that “participants should be protected from unreasonable disclosure of their involvement in University Policy 6.4 processes, and of any information they reveal during their participation,” according to University Title IX Coordinator Sarah Affel.
Although the University submitted these details to the court, they were likely not relevant to the claim that the University was arguing in the case, which was Doe’s claim that the sexual assault investigator discriminated against him because of his sex. Justice Faughnan never cited these facts in his opinion, and Doe’s attorney aimed to keep these facts out of his own case filings entirely. The University has not articulated why it chose to put Roe’s sexual history in public record. Instead, it has told The Sun that, “[g]iven the pending internal University proceedings in this matter, Cornell cannot comment on the case at this time.”
The University has not explained why it divulged a student’s sexual history in the Doe case. It has not explained why it included Doe’s graphic explanation of arguably irrelevant but personal and alleged events. It also has not explained why it holds itself to a seemingly lower standard of confidentiality than other parties. As of publication, the University has not provided adequate explanations to these questions.
Lawyer Up
The Doe case began when John Doe and Jane Roe accused each other of sexual assault. Doe later sought to file a 6.4 complaint against the investigator who handled the case, alleging that this investigator discriminated against him because of his sex.
While student-against-student 6.4 complaints go to the Title IX Office — headed by Affel — student-against-staff 6.4 complaints go to the Office of Workplace Policy and Labor Relations — headed by Laurie Johnston. Because the investigator is a member of University staff, Doe went to Johnston.
When Doe and his father met with Johnston to file their complaint, Johnston “promised that she would promptly draft a formal complaint of sex discrimination against the investigator,” according to court documents. The University has not commented on whether Johnston made this promise.
Two days later, Doe’s father emailed Johnston asking for her draft of the complaint. He received no response.
Ten days after Johnston made the initial promise to draft a complaint, Doe’s attorney threatened litigation as a last resort and Johnston finally provided the six-sentence discrimination complaint.
At the same time, Johnston noted that she would not pursue Doe’s claim against the investigator until the underlying sexual assault investigation was complete. When Affel later confirmed that Johnston’s decision not to investigate was unappealable, Doe sued, claiming that delaying his discrimination claim was an arbitrary decision that contradicted Policy 6.4’s plain text.
The University has neither explained why Johnston failed to respond to Doe’s father’s email for eight days nor answered why Johnston failed to tender the complaint until threatened with litigation, reiterating that “pending internal University proceedings in this matter” bar it from “comment[ing] on this case at this time.”
The course of Doe’s complaint may have been significantly different if his family had been unable to hire an attorney.
Discrimination
For some, the University’s self-imposed standards of confidentiality or its relaxed communication pace may be startling. However, in Justice Faughnan’s courtroom, it was the University’s conception of discrimination that raised eyebrows.
The University argued at trial that the investigator’s alleged discrimination against Doe could not have harmed him before the investigator had made a decision on the sexual assault claim.
Faughnan responded to Associate University Counsel Wendy Tarlow’s J.D. ’89 argument with a simple question: “Isn’t discrimination by itself harm?”
“The only harm that will come is if [Doe is] held responsible for doing something in violation of policy,” Tarlow responded.
Evidently unsatisfied with the University’s response, Faughnan offered a hypothetical.
“Let’s say that you have a professor who says, ‘I don’t think women should be doing science. I think women shouldn’t be doing math and science. Women should stick to the softer liberal arts kind of curriculums,’” Faughnan said to Tarlow. “Do we wait for … grades to come out to determine if there’s harm [due to discrimination]?”
The University might “not even accept that [complaint] because it doesn’t rise to the level of an actionable complaint,” Tarlow said in response.
“You really don’t think so?” Faughnan replied.
“It may not,” Tarlow said. “It would depend on the context. Seriously.”
Alan E. Sash, Doe’s attorney, retorted that the University’s argument was “like saying you have a right to a jury, have your jury trial and let’s see if you win the trial. If you’re found not guilty, we don’t have to worry about [your other rights].”
“Discrimination in and of itself is a harm,” Sash added. “[I]t’s this invidious sense that because of who you are and the class of person or group that you’re in, you are worthless.”
Carry That Weight
The University was adamant in its claim that Doe had suffered no harm during the investigation of his alleged sexual assault. Faughnan rejected that claim, but even if the University were correct, Doe faced an uphill battle in other respects.
Roe’s complaint that Doe sexually assaulted her will be adjudicated under a preponderance of the evidence standard, which the University adopted in response to an OCR letter threatening to withhold federal funding from universities who do not use the preponderance standard in sexual assault cases.
The OCR took Princeton to court in 2014 when it used the old clear and convincing evidence standard — a more stringent evidentiary standard than preponderance of the evidence — to adjudicate a student accused of sexual assault.
The preponderance standard means that Doe or Roe, by “just 50.01% of a modicum of evidence,” can be found guilty and earn an “inexpungable disciplinary record and a transcript notation, visible to potential future employers, admissions boards and the government,” Minikus wrote in her report.
Additionally, a finding of guilt in sexual assault, even under the preponderance standard, can mean expulsion from the University for the guilty party.
“It means the likely cessation of access to education or employment within the Cornell community, which precedes a loss of unbounded future opportunity and illimitable success,” Minikus said.
But when Cornell faculty are respondents claiming that academic freedom or the subordinate-supervisor relationship warranted their conduct, they enjoy the much more respondent-friendly clear and convincing standard, according to the Minikus report. This practice could put students in odd situations.
On one hand, students like Doe and Roe — accused of an offense that is criminal under U.S. law — enjoy bare protection with the preponderance standard in Cornell’s judicial process, even though a criminal court would use the comparatively hefty “beyond a reasonable doubt” standard, the highest evidentiary standard in the country.
But when a student accuses a faculty member of discrimination — a civil charge in U.S. law — and if that faculty member claims protection under academic freedom or a supervisory relationship, the student must furnish “clear and convincing” evidence that the faculty member discriminated in order to prevail. The clear and convincing standard that faculty can enjoy when charged with discrimination is not only a higher evidentiary standard than the one a student would face in a sexual assault case, but it is also higher than the one the faculty member would face in a civil discrimination case.
Such an outcome would render Policy 6.4 backwards with respect to common legal practices, bent against student respondents while protecting University faculty.
In her report, Minikus argues that the University’s dual burdens of proof are arbitrary.
“This glaring discrepancy evinces that the Cornell administration is willing to ignore OCR’s guidance when certain members of the Cornell community are accused,” Minikus wrote.
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The University says further updates to Policy 6.4 likely will go into effect in February. But with Faughnan’s damning indictment and Minikus’s harsh picture of the University’s allegedly inequitable system of justice, a crucial question remains: is it better to change the current policy or start from scratch?
Correction: A previous version of this story misattributed a statement to Senior Director of Media Relations John Carberry. In fact, this statement came from Title IX Coordinator Sarah Affel.