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September 24, 2020

Despite Two Years of Work, Code of Conduct Revision Process Remains Unfinished

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After nearly two years of deliberation, Cornell’s code of conduct revision process remains incomplete. Neither a code draft nor a fall revision timeline have appeared, despite assertions by University lawyers in May.

University Counsel aims to have a draft of the code — which governs Cornell’s internal judicial proceedings and every student, staff or faculty member involved in them — done by the end of September, according to John Carberry, a University spokesperson.

The Codes and Judicial Committee of the University Assembly began a process to revise the code in January 2019 — internal disagreements hindered the process. Over a year later, a draft was then submitted to the University Assembly in April 2020.

Concerns about the code revolved around the standard of proof needed to find the accused guilty in judicial proceedings: The Judicial Administrator pushed for a shift to “a preponderance of the evidence,” which means that the evidence presented convinces the judicial hearing panel that there is a greater than 50 percent chance that their charges are true.

The current standard of proof required of the J.A. is “clear and convincing evidence,” which means that evidence makes the charges “highly and substantially more likely to be true than untrue.”

A compromise was ultimately reached within the CJC: “Preponderance” would be used during “administrative boards,” which would determine less-grave sanctions like decision making classes, while “clear and convincing” would be used for hearings, which decide on severe code violation cases that can lead to suspension or expulsion. The draft was then sent to the U.A. for approval in early May.

The flashpoint occurred when President Martha E. Pollack rebuffed the CJC draft in a May 8 email to the U.A., calling the revisions of the Cornell code of conduct “not congruent” with federal Title IX regulations and suggesting that the modification be placed in the hands of the University Counsel — Cornell’s lawyers.

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.”

However, under the new Title IX guidelines, universities can choose between “preponderance” and “clear and convincing” for the standard of proof for judicial proceedings in Title IX cases.

By the end of May, the counsel had taken control of all code revisions, pushing the CJC and U.A. to the background. Members of the CJC were upset with this decision.

“Delegating away authority of a document which is within the purview of the University Assembly to the campus administrators was a complete deviation from shared governance and all shared governance stands for,” said Logan Kenney, a third-year law student and a member of the CJC.

The counsel planned to release its proposal for public comment by the end of August, but since Cornell spent the summer preparing to reopen campus in the fall, the revision process faced delays once again. .

The code is not anticipated to have any major changes from the original CJC version; a further review of the federal regulations confirmed that Title IX and other judicial proceedings could be held to different standards of proof.

“Counsel will be recommending that the standard of proof for code violations be determined by the community, not Counsel,” Carberry wrote.

Prof. Robert Howarth, ecology and environmental biology, chair of the U.A., said that the counsel would open their composite code to public comment, likely through an open meeting and a post on its website.

Some CJC members were optimistic about their work, despite all of the delays the code had already suffered.

“One of the big criticisms [in the Spring] was that the process was rushed, and it wasn’t communicated broadly enough, and folks weren’t given enough time to actually weigh in,” said Marissa O’Gara, who is a third-year law student, CJC member and Judicial Codes Counselor.

A last-minute amendment to the U.A. code revision resolution on May 12 ensured that the counsel had to show its final revisions to the assembly before sending them to the Board of Trustees. However, both the U.A. and CJC are currently operating in a limited fashion.

This means that any draft of the code created by the counsel must go through the U.A. before the University accepts it As a result, the final code will not be approved until Oct. 10, the date given by Howarth for the assembly’s next meeting.

“It’s very important for the governance process to get underway and to put measures into place that genuinely call for full campus public comment periods that will enable us to have a real democratic participation,” wrote Prof. Risa Lieberwitz, labor and employment law, a CJC member.