The University Assembly held a meeting on Tuesday, the main topic of discussion being the proposed changes to the campus code of conduct.

Boris Tsang / Sun Photography Editor

The University Assembly held a meeting on Tuesday, the main topic of discussion being the proposed changes to the campus code of conduct.

April 29, 2020

University Assembly Considers Lowering Evidentiary Standard in J.A. Proceedings

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The University Assembly met on Tuesday afternoon to discuss the proposed changes to the campus code of conduct, which were approved by the Codes and Judicial Committee on April 18 and have since been published on the U.A. website for public comment.

The majority of the meeting was devoted to reviewing and discussing the changes proposed by the CJC.

After Joe Anderson ’20, chair of the CJC, presented a summary of the main changes to the code, the assembly began their discussion, which revolved heavily around a proposal to decrease the standard of proof required of the Judicial Administrator in judicial proceedings.

In a divided 6-4 vote, the CJC chose to lower the evidentiary standard for the J.A. from “clear and convincing evidence” to “a preponderance of the evidence,” which was a point of contention within the CJC as well as between U.A. members.

The “preponderance of evidence” standard means the J.A. must simply prove “it’s more likely than not” that the accused student is responsible for the conduct in question, explained Gabrielle Kanter J.D. ’20, the current head Judicial Codes Counselor. JCCs serve as advocates for accused students in code of conduct proceedings.

In contrast, a “clear and convincing evidence” standard requires the J.A. to prove that “it’s substantially more likely” that the conduct occurred, said Kanter.

Prof. Richard Bensel, government, was a strong opponent of the lowered standard, saying that he would not vote for a code with such a provision.

“Preponderance [of evidence] is an invitation to bias,” Bensel said. “An educational program with that built into it is a real mistake.”

Logan Kenney J.D. ’21, a graduate and professional student representative, also expressed her belief that that a lower standard of proof is a “huge move away from due process” for accused students and will lead to “wrongful convictions.”

Anderson clarified that though campus judicial proceedings are often compared to criminal proceedings, adjudicating student misconduct is not analogous to “a court of law.”

Barbara Krause J.D. ’86, interim judicial administrator, added that preponderance of evidence is a “well-recognized legal standard” in civil litigation.

“If Cornell doesn’t follow its procedures — that falls under a civil lawsuit, and the standard used would be preponderance of evidence,” echoed Christina Liang, an associate judicial administrator.

Krause acknowledged the serious nature of potential sanctions, but maintained that having a lower standard of proof — even in cases where expulsions and suspensions are possible outcomes — would not invite “bias and lawlessness.”

“I think [the preponderance of the evidence standard] is the best way for a campus community to weigh the interests of the entire community, not only that of accused students, but also those who have been affected by serious misconduct,” Krause said.

But Kanter rejected the comparison to civil proceedings, saying that a sanction from the J.A. is not just “a civil fine,” but a “recognition from the University that someone is responsible for a certain conduct,” which “carries a lot of weight for students.”

“A civil suit should not be a model for how we adjudicate personal relations, conduct, honor and ethics at Cornell,” Bensel said.

There was also concern that the committee’s two-week revision timeline did not leave adequate time for students to review the publicly posted changes and make comments.

Anderson responded that the CJC did discuss the possibility of extending the period of review with administration, though further explained that the administration actually expected the code revisions to be done last year, but “the people before us … did not create progress.”

“I wish we had a longer public comment period, but under the directions that we were given, we did the best we could,” Anderson said.

Robert Howarth, chair of the U.A. and a faculty representative, clarified that extensions must be granted by the Board of Trustees, who he said are “unhappy” about the delays that have already occurred.

“We can ask for an extension, but I’m reluctant to do so, and I don’t think we need it,” he said.

“Less than two weeks is not enough time in the midst of a pandemic to let people adequately understand their rights, comment on them, and be heard,” countered Kenney.

The meeting concluded with Kenney proposing an informal vote on whether to extend the discussion and review period until June 15, which ended in a 7-6 count in favor of adhering to the original two-week timeline.

Other major changes to the code include renaming the Office of Judicial Administrator to the Office of Student Conduct and Community Standards, extending the code’s jurisdiction to cover fraternities and sororities and increasing the cap on suspensions from three years to five.

The U.A. also voted to appoint the new Judicial Codes Counselor for the 2021-2022 academic year, Suzanna Swanson J.D. ’22, and postpone U.A. elections to the fall 2020 semester.

Correction, May 4, 5:06 p.m.: A previous version of this article misspelled Swanson’s first name and misstated Swanson’s term as Judicial Codes Counselor and the vote breakdown of the resolution. Swanson’s term will be for 2021-2022 academic year, not 2020-2021, and the final vote breakdown on the resolution was 7-6, not 7-5. The article has since been updated to reflect these changes.