May 8, 2020

GUEST ROOM | Cornell Should Not Lower the Standard of Evidence in the Campus Code of Conduct

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The University Assembly is deliberating a proposal to amend the Campus Code of Conduct to lower the standard of evidence required to find students responsible for a Code violation. The proposal would lower the standard from “clear and convincing” to a mere “preponderance of the evidence,” which is commonly understood as ‘probably.’ Such a change — if you are a student — will increase your likelihood of being found responsible for a Code violation. Simply put, this is a bad idea.

Especially right now. It is inappropriate to fundamentally rebalance the power the Campus Code of Conduct grants to the Judicial Administrator while students are not on the campus. It precludes meaningful community participation and prevents members from collecting feedback from their constituencies. If the Assemblies feel it inappropriate for their constituents to elect representatives because community feedback cannot be obtained, it should follow that it is even more inappropriate for the Assemblies to exercise their power over their constituents while those same conditions hold. As a result, right now, the presumption should be against amending this part of the Code. If the standard must be changed, do it when Cornell students are on campus, not now. Perhaps if the Assembly were amending the Zoom Code of Conduct, such a change could make sense.

Nevertheless, even when students eventually return to campus, the standard should not be lowered. I suggest that my former colleagues on the Assembly reconsider the Codes and Judicial Committee’s proposal to lower the standard of evidence for the following reasons:

Bias in Cornell’s judicial system can exist, as it can in the United States criminal justice system writ large. Even the most well-intentioned people sometimes enable racism by letting bias creep into their decision-making. For example, the Judicial Administrator could propose harsher penalties against racial and ethnic minorities, or members of the University Hearing and Review Board could unreasonably be more suspicious of racial and ethnic minorities and so be more predisposed to find them responsible. Such predispositions are insidious, but they exist, even at Cornell. While the current officeholders of these positions probably do not harbor such animosity, relying on the goodwill of current officeholders is foolish if you do not know who the JA will be and who will compose the UHRB next year — and no one does. For that reason, the effects of prejudice must be limited. A higher evidentiary standard provides this limit as the final check against a possibly biased enforcement of the Code. By lowering the evidentiary standard, it becomes much more likely that a student will be found in violation of the Code who otherwise would not have been. If you value eliminating bias and mitigating its damaging and sometimes life-altering effects on minority students at Cornell — and you should — then oppose lowering the standard of evidence to a preponderance of the evidence.

Additionally, a ‘preponderance of the evidence’ standard is typically used if a judicial system puts equal value on finding an individual ‘responsible’ when it should not have and on finding an individual ‘not responsible’ when it should have found them responsible. Another way to say the same thing is that a ‘preponderance of the evidence’ standard is used when the harm of a false positive is roughly equal to that of a false negative. In civil cases, such a standard is justified because finding the defendant not liable when they are actually responsible is considered roughly as bad as finding the defendant liable when they are actually not responsible. The logic is that if the court gets the decision wrong, it has inflicted/permitted an equal harm against either the actually non-responsible defendant (by forcing them to pay damages) or against the actually harmed plaintiff (who now cannot recover damages). Either way, getting it wrong in civil cases causes roughly equal damage.

But this equivalence is not the case in Cornell’s judicial system. Finding a student who did not commit any wrong responsible for a Code violation has consequences beyond the financial; it damages their permanent record, reputation and impairs their ability to apply for jobs and graduate programs. In short, it inflicts a disproportionately egregious wrong relative to the potentially small harm to the community of letting a Code-violator (against whom there is not clear and convincing evidence) walk away unpunished. Furthermore, the mismatch of resources between the administration and a lone student inherently favors the administration due to its power and expertise. So, the system should — and presently does — recognize that non-equivalence by requiring the administration to provide clear and convincing evidence that the accused student actually violated the Code.

Finally, a lower standard of evidence is common in other schools precisely because Cornell has a unique tradition of heavy student involvement in drafting campus policy. It has been the participation of students in making these decisions through representation on the University Assembly that has traditionally guarded against an encroachment on student rights. The idea that a lower evidentiary standard is some sort of “best-practice” is fanciful at best and at worst, a pretext to make punishing students easier. Cornell University may very well be unique in providing students with security against allegations that are not clearly and convincingly proven. Good — let’s keep it that way.


Gabriel D. Kaufman ’18 graduated from The School of Industrial and Labor Relations. He served as Chair of the University Assembly, 2016-2018, and as the Chair of the Codes and Judicial Committee, 2015-2016. Comments can be sent to [email protected]. Guest Room runs periodically throughout the semester.