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Nearly three-quarters (73.6%) of America’s top 53 universities do not even guarantee students that they will be presumed innocent until proven guilty, according to The FIRE.

September 5, 2017

Cornell Wins Top Spot in College ‘Due Process’ Rankings, But Prof Says ‘Comfort and Pride Should Be Restrained’

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Cornell’s disciplinary policies earned high ratings from a leading campus rights group on Tuesday, topping the list of 53 colleges.

In the Foundation for Individual Rights for Education’s 2017 due process survey of U.S. News and World Report’s top 53 colleges, Cornell and the University of California, Berkeley were the only two universities to receive B grades on both their sexual misconduct and non-sexual misconduct policies.

Cornell’s sexual misconduct policy — Policy 6.4 — was rated higher than Berkeley’s sexual misconduct policy, giving Cornell the survey’s top spot. None of the surveyed colleges’ policies earned an A.

Prof. Kevin Clermont, law, an expert on legal procedure who helped draft the University’s Code of Conduct, told The Sun that Cornell’s “comfort and pride should be restrained.” Clermont noted that FIRE’s study only considered written policies, not how those policies are implemented.

“My experience is that Policy 6.4, as opposed to the Campus Code, is not administered fairly,” he said. “The rules are not observed, or at the least they are stretched.”

Cornell’s high ranking, he said, reflects poorly on the other colleges in the survey.

“The rest of the country is in very bad shape. This should not, however, be a source of comfort or pride for Cornell,” he said.

FIRE rated the policies according to 10 criteria. Each criterion was worth two points, and institutions earned zero points if the due process criterion was absent, too narrowly defined to protect students or subject to the total discretion of an administrator, FIRE said. Universities earned one point if the policy provides “some protection with respect to that element” and earned two points if “the safeguard was clearly and completely articulated.”

The chart below shows how Cornell’s policies were ranked. Red marks correspond to 0 points, yellow to 1 point and green to 2 points. The top row addresses Cornell’s Code of Conduct while the bottom row addresses Cornell’s Policy 6.4, the sexual misconduct policy.

Policy 6.4, the fairest sexual misconduct policy of all surveyed schools, according to FIRE, went into effect in August 2016. The University’s previous policy did not include a hearing and Clermont said he and others welcomed Policy 6.4.

“Much saner, level-headed people at the University got involved, and they redrafted the Title IX procedures,” Clermont said. “They are just so much better.”

John Carberry, senior director for media relations, told The Sun that “the new Policy 6.4 procedures were the result of [a] yearlong effort to create an investigative and hearing process that is fair to students who experience sexual or related misconduct and to those who are accused of such conduct.”

The new policy includes a hearing before impartial adjudicators, some participation by counsel and cross-examination. Parties may not directly confront the witnesses or each other, but they may suggest questions to a hearing panel chair.

FIRE gave the policy zero points in only one area: unanimity required for expulsion. 6.4 does not require a unanimous finding of guilt in order for Cornell to expel a student.

Cornell’s 6.4 policy lost one point under the “conflicts of interest” category because, FIRE said, the same people perform prosecutorial and adjudicative functions.

“[Y]ou have the hearing panel responsible not only for deciding the outcome of the case, but also for conducting all of the questioning of the parties, witnesses, and investigator,” Samantha Harris, an author of the study, told The Sun.

FIRE also docked points from Cornell because 6.4 doesn’t allow students to appeal on grounds that the findings are not supported by the record and because it does not allow counsel to speak on a party’s behalf.

Harris said the Code of Conduct, unlike 6.4, allows counsel to participate fully in the hearings when suspension or expulsion is at stake, “which naturally raises the question of why students facing expulsion for sexual misconduct are entitled to less attorney assistance than students facing expulsion for non-sexual misconduct,” she said.

Despite FIRE’s overall optimism about Cornell’s Policy 6.4, the jury is still out on whether the new policy has yielded fairer outcomes.

For Clermont, who advises the law students who defend Cornellians accused of misconduct, the answer is no.

“The [new 6.4] procedures had no effect,” Clermont said. “The system is working exactly as it was. The lesson I’m taking away is that the procedures matter less than a proceduralist would like to think they matter, and it’s much more personnel driven. The same people are in charge, and the same people are doing the same things.”

Under the old policy, a Title IX investigator would conduct all of the fact finding, analyze the evidence, render a decision of guilt and recommend sanctions. Now, Title IX investigators’ roles are much more limited: they investigate the allegations and provide a “summary of the facts,” but do not give a recommendation of guilt and do not recommend sanctions. Those responsibilities now belong to the panelists, who are expected to be neutral, independent fact finders.

But they are not, Clermont said. He said the panelists often analyze the case with “the mindset that what they’re doing is reviewing the investigator’s conclusions.”

“I do not mean anything invidious against these people,” he added. “These people are really good people for serving. I was hopeful that this would work out, and it didn’t work out.”

Carberry told The Sun that “faculty and staff members who serve on the hearing and appeal panels spend many hours preparing for the hearings and appeals and are deeply committed to the fair and transparent adjudication of all Policy 6.4 complaints.”

There is also the question of whether Cornell abides by its own policies. Judges in at least two cases have found that Cornell arbitrarily and capriciously departed from its own policies, and in one case, a judge ordered Cornell to initiate a 6.4 proceeding after a sexual assault complaint had gone, in the judge’s words, “wholly disregarded.”