Cameron Pollack / Sun Photography Editor

The University Hearing Board will determine on Wednesday whether Mitch McBride '17 sharing documents with The Sun was a violation of the Campus Code of Conduct.

April 19, 2017

McBride ’17, Charged for Leaking Documents, To Face Hearing Board Wednesday

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A group of Mitch McBride’s peers is expected to determine on Wednesday whether the senior violated the Campus Code of Conduct when he shared internal working group documents with The Sun in a case that has pitted many students and professors against the Office of the Judicial Administrator.

More than 250 people have indicated they plan to attend the rare public hearing at 4:30 p.m. in 163 Day Hall, during which the OJA will make its case against McBride. Five members of the Cornell community will decide the matter.

After McBride turned down a plea offer from Associate Judicial Administrator Christina Liang last month, the OJA charged McBride on March 16 with violating two sections of the Code, claiming that he had shared confidential documents with The Sun.

McBride told Liang and the public that he had shared internal draft documents from the Admissions and Financial Aid Working Group, on which he served, but claims the documents were not confidential and, even if they were, that the Code provisions do not apply. McBride said he never entered into any written or oral agreement to keep the documents confidential.

One Cornell Law School professor who has worked on the Code said the sections McBride is accused of violating are not relevant to his actions, and two more law professors shared concerns with The Sun on Tuesday about the prosecution.

The University Hearing Board, which will hear arguments from McBride and the OJA on Wednesday, is made up of three students, one faculty member and one staff member, all of whom are chosen at random from a pool of 45 making up the University Hearing and Review Boards.

The OJA’s case will likely be argued by either Liang, Judicial Administrator Michelle Horvath or both OJA administrators. The OJA and McBride will both be able to present witnesses and exhibits in making their arguments.

The rotating UHB chair — in this case, Prof. Timothy DeVoogd — does not vote, but will pen the majority decision in the case in line with the determination of a majority of the group of five. Dissenting or concurring members are allowed to write additional opinions.

The 43 pages of internal draft documents published by The Sun in February showed that the working group was considering nine possible options to reduce Cornell’s burden of providing financial aid, including admitting more international students who do not need financial aid and reviewing the financial needs of transfer students during the admissions process.

Provost Michael Kotlikoff, who formed the Admissions and Financial Aid Working Group in 2015, wrote in a letter to the editor on Tuesday that the documents shared by McBride were “misrepresented as an attempt to disadvantage poorer students and enroll more wealthy students, a gross mischaracterization of the charge to the Working Group.”

“Other students on the Working Group were upset by this action by a fellow student, identified the student and approached [Dean Barbara Knuth, who chaired the working group,] for guidance,” Kotlikoff wrote.

Kotlikoff said the working group’s focus was to determine whether Cornell’s financial aid funds were distributed equitably, but McBride said on Tuesday that the working group had strayed from that objective, leading to his decision to share the documents.

“Even though that was the goal, I don’t think, in effect, that’s the way it was shaping out to be,” he said of Kotlikoff’s characterization.

The public hearing in front of the University Hearing Board will take place in 163 Day Hall at 4:30 p.m. on Wednesday

Sun File Photo

The public hearing in front of the University Hearing Board will take place in 163 Day Hall at 4:30 p.m. on Wednesday

McBride said his attorney, Alan Sash, will not be able to speak on his behalf at the hearing on Wednesday. The New York-based lawyer said in an email that the OJA’s prosecution of McBride was “unfortunate” and that “Freedom of speech should be promoted, not punished.”

“I wish that the process employed by the OJA was fairer,” he said. “Right to counsel, right to a public hearing, and right to a fair application of the code should be absolute.”

A Cornell Law student will act as McBride’s judicial codes counselor and will be able to advise McBride at the hearing.

McBride previously told The Sun that he shared the documents because he “believed that, principally, the community needed to be involved before such a drastic decision was going to be made that was going to change the mission of the university from ‘any person, any study’ to any rich person.”

The senior is being charged with violating two provisions of the Code — one that makes it a violation “To forge, fraudulently alter, willfully falsify, or otherwise misuse University or non-University documents” and another that requires students “to comply with any lawful order of a clearly identifiable University official acting in the performance of his or her duties.”

Prof. Kevin Clermont, law, was on a team that helped revise the Code in 2007 and 2008 and said Cornell is using an overly-broad interpretation of both sections to prosecute McBride, which he said was “troubling.”

“Cornell is trying to stretch the Code to reach behavior that the Code does not cover,” he said.

Two additional Cornell Law School professors took issue on Tuesday with the OJA’s prosecution of McBride.

“[T]he conduct complained of doesn’t seem to fall under either of these Code sections,” Prof. Cynthia Grant Bowman, law, said in an email. “And proceeding with the prosecution seems very punitive.”

“If the administration is trying to stretch the Code beyond its plain and intended meaning in order to prosecute a student whose otherwise proper conduct it disagrees with, that would be very troubling,” Prof. William Jacobson, law, said. “Students should be entitled to rely both on the plain meaning of the Code, and a neutral application.”

Prof. Robert Howarth, ecology, a member of the Faculty Senate, told The Sun on Tuesday that the OJA action against McBride is “a vast over-reaction” and “very disappointing,” adding his voice to a growing number of professors who oppose the prosecution.

Howarth said McBride should have notified Knuth before releasing the documents, but added that “the community is well served by having had those materials released.”

“Many times at Cornell, officials like to keep materials confidential when in fact we all would be better served by greater transparency,” he said. “I made a statement to this effect at the University Assembly last fall, and perhaps this contributed to McBride’s actions.”

Prof. Richard Bensel, government, a member of the Faculty Senate, previously told The Sun he was concerned about the potential for an “extremely chilling effect” after the prosecution, adding that the OJA’s handling of the case was “Kafkaesque.”

And Prof. Elizabeth Sanders, government, said the charges were “excessively punitive, heavy-handed, and unjustified.”

Public hearings in front of the UHB are rare, and the OJA initially opposed McBride’s request to make the proceedings public. The matter was sent to DeVoogd, who ruled in the whistleblower’s favor.

Wednesday’s hearing will be streamed live in a nearby room of Day Hall for all attendees who are not involved in the case, Gina Giambattista, director of the Office of the Assemblies, confirmed. It is unclear how long the hearing will last, but a provision in the Procedures of the UHB encourage the Board to break for the day if deliberations continue past midnight.

The plea deal McBride turned down in March would have put McBride on disciplinary probation for three weeks and placed a reprimand on his academic record for six years. If he is found responsible by the UHB, the group will also determine sanctions.

The UHB decision can be appealed by either party, moving the matter before the University Review Board, which would select one student, one faculty member and one staff member from the same group of 45 — excluding the five who served on the hearing board.