President Martha E. Pollack rebuked the Codes and Judicial Committee’s propositions, calling the suggested revisions of the Cornell code of conduct “not congruent” with Cornell’s Policy 6.4, which would put it at odds with federal Title IX revisions.
“The revisions that [the CJC] propose include many very good ideas,” Pollack wrote in a May 8 email to Prof. Robert Howarth, ecology and environmental biology, chair of the University Assembly, which oversees the CJC. “Unfortunately, and with regret, I will not be able to accept their version of the code should it be approved by the U.A.”
Instead, Pollack proposed that the U.A. authorize the creation of a code drafted by University lawyers, meant to combine the best proposals from the CJC, “while also being consistent with federal regulations.”
The CJC’s Compromise
The revision process for Cornell’s code of conduct — a document that dictates judicial proceedings — has been ongoing for the past year-and-a-half and has dominated the discussion in U.A. meetings since the beginning of April.
The judicial process involves any students who violate code of campus violations, which include anything from alcohol possession to assault. From 2018 to 2019, the Office of the Judicial Administrator — in charge of investigating such cases — reported 820 cases of code violations by students, of which 377 were found responsible.
The code revisions were undertaken to make the judicial process more student-friendly and less “legalistic,” said Joe Anderson ’20, S.A. president and CJC chair, in January 2019.
The CJC, made up of students, faculty and employees, garnered criticism from students and faculty alike for reducing the standard of proof needed to find the accused responsible in judicial proceedings, from the previous requirement of “clear and convincing” which means the evidence must be “highly and substantially more likely to be true than untrue.”
On April 10, the CJC voted to change the standard of proof to “preponderance of the evidence,” which means the infraction had more likely than not occurred.
Detractors of this shift argued that this change was “a huge move away from due process” and could lead to an increased number of unjust outcomes for accused students involved in proceedings.
Public comments on the code of conduct revisions revealed widespread condemnation of the preponderance of the evidence standard, with a majority of the approximately 80 comments negatively responding to this change.
Commenters ranged from current undergraduates and graduate students to alumni and faculty.
“The idea that a respondent would walk away from a trial, where they are subject to a preponderance of the evidence standard and summarily expelled, thinking about the educational value is simply unrealistic,” wrote Zachary Sizemore J.D. ’21.
The CJC compromise, presented at the U.A. meeting on May 5, adjusted to reflect the criticism, included a “bifurcated system” of evidentiary standards where administrative boards — responsible for determining sanctions on less-serious violations of the code, like essays — and hearings, which decide on the more severe sanctions like suspension and expulsion, would be treated differently in terms of the burden of proof needed to find the accused responsible.
Administrative boards would be held to a preponderance of evidence standard, while a hearing would rely on the clear and convincing evidence standard — which is higher than preponderance of evidence.
None of these changes would affect Title IX cases. Under Cornell Policy 6.4, Title IX hearings currently use a preponderance of the evidence standard, different from the current standard used by Cornell code violation-based judicial proceedings, which is clear and convincing evidence.
‘The Eleventh Hour’
Pollack’s email — sent two days before the Assembly vote — also included a tacit endorsement of the OSA code proposals, which supported the use of the preponderance of the evidence standard for both the administrative and hearing boards and called for Judicial Codes Counselors — Cornell Law students who advise students dealing with judicial proceedings — to become a part of a University “Office of the Student Code Counselors.”
“Because the code is almost entirely directed towards students,” Pollack wrote, “it seems to me that the work of our duly elected student government should be seriously considered.”
The Office of the Student Code Counselors would be open to non-law students and represent both the accused and the complainants as a part of the Cornell administration.
“[The OSA code proposals] take into account the rights of respondents, complainants and the well-being of marginalized groups on campus,” wrote Student Advocate Liel Sterling ’21 in a statement to The Sun. “I fear the continued feeling of silence and marginalization already felt by many on this campus that will persist if we do not finalize these changes.”
These proposals unanimously passed the S.A. on April 23, accompanied by a letter of support from over 30 students leaders. However, when Sterling presented the OSA recommendations at the May 5 U.A. meeting, the proposals were met with criticism about its timing — the final vote on the code will be just a week later, at the May 12 U.A. meeting.
Read the OSA code of conduct revisions here.
“It is highly irregular to now have the [OSA] proposal coming in at the eleventh hour being treated as given equal weight as the CJC’s proposal,” said Prof. Risa Lieberwitz, labor and employment law, in an interview with The Sun on May 9.
Furthermore, much of the substantive criticism of the OSA proposals came as a result of the office’s espousal of a non-independent JCC office.
“An advisors’ duty is to her clients and it is imperative that parties have an advisor who will fight for what is best for them, not the school,” wrote Morgan Anastasio J.D. ’21 in a public comment.
Some S.A. members voiced their doubts about whether the OSA proposals had been discussed enough.
Nick Matolka ’21, S.A. undesignated representative, told The Sun that the S.A. received the resolution about two hours before the meeting and spent “approximately five minutes discussing it.”
“None of the sponsors brought up that this has the potential to replace over a year-and-a-half of CJC [deliberation],” Matolka said.
The President Responds
Pollack’s opposition to the CJC compromise hinged on its acceptance of the clear and convincing standard, even just for hearings, as well as its changes to the procedure of judicial cases in the wake of new federal Title IX regulations.
According to Pollack, the new federal regulations would require that “all student conduct proceedings are handled in a fundamentally congruent fashion and utilizing the same burden of proof.”
Federal Title IX guidelines require colleges to hold live hearings, allow cross-examinations of alleged victims and the accused. Under the new guidelines, universities now have the flexibility to choose between preponderance of evidence and clear and convincing evidence for their evidentiary standard for Title IX cases.
Some members of the CJC disagreed with Pollack. Lieberwitz called Pollack’s assessment “not accurate” in a May 8 email to the U.A., pointing out that the new regulations did not necessarily force University Title IX proceedings to use the same procedures or burden of proof as judicial proceedings.
Howarth wrote in an email to the U.A. that he “completely” agreed with Pollack’s suggestion to endorse code of conduct revisions authored by University lawyers — bypassing the U.A. — stating that he would formally ask for a motion in favor of the endorsement at the final U.A. meeting on May 12.
If this motion is approved by the U.A., the code revision process will then be led by the Office of the University Counsel instead of the CJC or the OSA. A draft of the code, ostensibly combining the CJC and OSA proposals, would be released by the counsel over the summer for public comment and then sent to the Board of Trustees for final approval in October.
Pollack stressed the importance of passing the code of conduct changes, despite the complications caused by the shift to online meetings.
“The pandemic has challenged us,” Pollack wrote in a May 4 email to the U.A. “But it has not made all interaction impossible and we need to move forward with critical items like the code revision.”
Read the most recent U.A. revisions here.