April 23, 2020

GUEST ROOM | Judicial Reform Can’t Work In A COVID Emergency

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Within a few weeks, the University Assembly is about to reverse the long-standing rights of Cornell students under the campus judicial system.

Fifty years ago, the Cornell Board of Trustees established the University Senate and entrusted to it, as representatives of the Cornell Community, decision-making over conduct codes and the campus judicial system. Cornell is about to erase many of these important reforms and abandon the concept of a judicial code and procedure that gains its legitimacy from the community, and replace it with a student-only code and a set of procedures that apply only to students — a system that answers to Vice President Ryan Lombardi.

At the same time that the Trustees handed responsibility to the Senate (predecessor to the University Assembly), the New York State Legislature enacted the Henderson Law, which required each college in New York to enact Regulations for the Maintenance of the Public Order. At the time, student advocates felt that law was a terrible setback, but with hindsight it was a brilliant gift that prevented Cornell and other schools from destroying themselves, as recently happened at Evergreen State College. The Henderson Law mandated a common set of rules equally applicable to “students, faculty and other staff as well as visitors and other licensees and invitees on such campuses and property.” It also mandated fair notice of those rules, and there was an important First Amendment carve out that the rules not “be construed to limit or restrict the freedom of speech and peaceful assembly.”

The Senate worked hard to draft a fair code that was as clear as possible and was a set of rules that students, faculty and staff could all accept.  We also came up with fair procedures that had community acceptance over the years. In particular, the accused was presumed to be innocent until proven to have violated the code “beyond a reasonable doubt” — the same standard used in criminal courts, because the consequences of a code violation were just as severe as conviction in Ithaca courts.

To avoid the accusations of political pressure or interference, both the Judicial Administrator and the Judicial Advisor (now called the Judicial Code Counselor) operated independently of Day Hall. The code and judicial system offered equal, just treatment to everyone regardless of their class or status. It also provided the accused with opportunity for counsel and for the questioning of witnesses.

This system was the product of many exceptional students, faculty and staff who served on the Senate, including Rich Levao (who later became President of Bloomfield College) and Harold Levy (who later became Chancellor of the New York City Schools).  The University Assembly resisted subsequent demands to abridge Cornellians’ rights granted under this system.

This system largely survived through to today with some modifications along the way.  For Title IX matters, it was supplanted by Policy 6.4 through which the Obama Administration required Cornell to remove many important procedural protections, including the “proof beyond a reasonable doubt” standard. (Those requirements have since been lifted.)

The most recent challenges to the existing system came from a student chanting “Build a Wall” near the Latino Living Center.  This led some to call for imposing a “speech code” at Cornell — a step that had been repeatedly rejected in the past. A task force on campus climate then recommended a separate, student-only code and the backdoor enactment of a speech code using a very vague definition of prohibited “harassment.”  I hope that the University Assembly will see through this ploy and make clear that nothing, including the “harassment” code provision, should be interpreted as limiting the free speech rights of any student.

Finally, there is the question of organizational culpability for the actions of individuals. The current proposal would expand jurisdiction from “registered student organizations” to include “recognized organizations” such as fraternities and sororities. While Cornell does require registration as a prerequisite for getting Student Assembly funding or use of student facilities, organizations, such as The Cornell Daily Sun, are free to operate as a non-registered organization if they do not need those benefits.  The new code takes a step too far by giving Cornell the power to prosecute future students (who had no involvement with the alleged misconduct) for joining these non-registered organizations. It is difficult to see how to extend a punishment of a group beyond its immediate membership and refusing it the benefit of registration. Any further sanction quickly infringes upon the freedom of association that all Cornellians value. It would be unjust to prosecute a student solely for joining an organization that has previously been sanctioned for events that happened before they came to campus. Also, the new “student-only” code leaves a big loophole for student-alumni, student-faculty and town-gown membership groups.

In the 1970s, the Senate worked through such problems under very trying circumstances. There were still racial tensions in the wake of the Straight takeover and the application of the old judicial system to black student protestors. There were massive protests and civil disobedience over the Vietnam War, and there was violence and even student deaths at Kent State. Yet, clear-thinking people carefully analyzed the problems and used communication and outreach to engage broad support of the community in the judicial code and system. In contrast, today we face the COVID-19 pandemic, which has emptied the campus and hindered communication between students, faculty, staff and alumni. The coronavirus makes a broad-based community discussion difficult and distracts many students from realizing how dramatically their important rights are being removed. Pushing through this proposal while the campus has been locked down will not bring the new system any sense of legitimacy. It will also dishonor the intent of the Henderson Law to have equal applicability to students, faculty, staff and visitors. The University Assembly should not dishonor Cornell’s long heritage of carefully protecting Cornellians’ rights.

The public can leave comments on the University Assembly webpage, and I would urge people to at least voice concerns about hasty action.

 

Robert C. Platt ’73, J.D. ’76 served in the Cornell Constituent Assembly and the University Senate. Comments can be sent to opinion@cornellsun.com. Guest Room runs periodically this semester.