The University Assembly meets Sept. 5, 2017. The U.A. passed a resolution on Tuesday to place code of conduct revision efforts in the hands of Cornell's University Counsel.

Cameron Pollack / Sun File Photo

The University Assembly meets Sept. 5, 2017. The U.A. passed a resolution on Tuesday to place code of conduct revision efforts in the hands of Cornell's University Counsel.

May 13, 2020

University Attorneys to Draft Code of Conduct Revisions

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The effort to revise the code of conduct is now in the hands of Cornell’s lawyers.

On Tuesday afternoon, the University Assembly passed a resolution allowing the University Counsel — which represents Cornell in legal matters — to decide on what amendments would be implemented in the final code document, instead of the U.A.

However, the endorsement passed with one caveat: The final code of conduct revisions would not be immediately sent to President Martha E. Pollack and the Cornell Board of Trustees for approval. Instead, it will come back to the U.A. for final adjustments before being sent off.

“We recognize the fact that the code is out of touch,” said Uche Chukwukere ’21, U.A. ranking member. The resolution, reached on Tuesday’s U.A. meeting, marks the end of a year-and-a half-long revision process for the code, a document that dictates Cornell’s internal judicial proceedings.

Much of the debate in the past weeks surrounded proposals made by the U.A.’s Codes and Judicial Committee, the organization that initially produced the code revisions, particularly their decision to lower the standard of proof needed in judicial cases.

In response to negative feedback from U.A. members and public comments, the CJC had amended their proposals to a “bifurcated system” that would divide judicial proceedings into administrative boards — which would deal with less-severe sanctions — and hearing boards, which would handle cases of probation, suspension and expulsion.

Administrative boards would investigate the accused using the “preponderance of the evidence” standard, meaning that an infraction would have to have been more likely than not to have occurred in order to find the accused responsible. Hearing boards, on the other hand, would operate under the “clear and convincing” standard of evidence, which means the evidence must be “highly and substantially more likely to be true than untrue.”

Cornell judicial proceedings currently use the clear and convincing standard for all code of conduct violation hearings, except for cases that involve violations of Title IX — falling under Cornell Policy 6.4 — which employs the preponderance of the evidence standard.

These rules apply to any students, faculty and employees who violate the code of conduct, which includes provisions for anything from alcohol possession to assault. The offense is then investigated by the Office of the Judicial Administrator, which then decides on appropriate sanctions for the accused.

President Martha E. Pollack voiced her opposition to the compromise in a May 8 email to the U.A., refusing to accept the CJC code revisions based on their approval of the clear and convincing standard — even just for hearing boards, which made up just 12 of the OJA’s 820 cases in the 2018-2019 school year.

Under new federal Title IX regulations, Pollack argued, all Cornell judicial proceedings had to be “handled in a fundamentally congruent fashion and utilizing the same burden of proof.”

In a May 8 email to the U.A., Prof. Risa Lieberwitz, labor and employment law, a member of the CJC, called Pollack’s assessment “not accurate,” indicating that the new regulations did not necessarily force University Title IX proceedings to use the same procedures or burden of proof as judicial proceedings.

This sudden denial of the CJC proposal — months in the making — concerned members of the assembly.

“Our members on the CJC put in a lot of hard work under the expectations that their work would be given primacy in terms of its evaluation by the president and others,” said Adam Howell, U.A. employee representative. “To have that process changed at the eleventh hour is disturbing to me.”

Though the most recent measure passed with 13 votes, some members of the assembly were concerned with the ramifications of giving the University Counsel the authority to decide what revisions to enact.

“My big problem is that this resolution is giving the administration a ‘blank check’ to do whatever they please with the code,” said Logan Kenney J.D. ’21, graduate and professional students representative.

Kenney proposed an amendment to the resolution requiring the creation of a committee made up of student, faculty and employee representatives, as well as Cornell Law faculty, to provide oversight on the University Counsel in revising the code. It ultimately failed in a narrow vote.

The University Counsel-created revisions will be sent out over the summer for public comment and then will be given back to the University Assembly for approval. Then, they will have to be approved by Pollack and the Board of Trustees.

“At the end of the day, I don’t think that we’re bowing down to administration or giving them a ‘blank check,’” Chukwukere said. “I think the fact of the matter is that we failed as an assembly and now it’s time to make a decision and get things going.”