UA Codes and Judicial Committee

Codes and Judicial Committee Meeting Minutes October 21, 2009

Members in attendance: Thomas Van Haaren, Rachel Weil, Ethan Warsh, Kevin Clermont, Gary Stewart, Scott Flanz, John Cetta (non-voting, from University Assembly), Evan Magruder (non-voting, from Judicial Codes Counselor), Mary B. Grant (non-voting, Judicial Administrator), Ari Epstein (non-voting, from Office of Assemblies)

1. Approval of minutes
   • The Committee unanimously approved the minutes from its last meeting.
2. Elect Chair and Secretary
   • G. Stewart proposed K. Clermont for Chair of the Committee; K. Clermont declined. K. Clermont proposed J. Cetta for chair; J. Cetta said he would accept, but expressed uncertainty as to his eligibility as a non-voting member from the University Assembly. A. Epstein said such eligibility was unclear, but the U.A. Charter does not explicitly forbid it. J. Cetta said he would accept the nomination pending a discussion of it at the next U.A. meeting.
   • No committee members expressed an interest in serving as Secretary of the Committee. J. Cetta recommended soliciting a member of the Cornell community to serve as secretary. G. Stewart suggested requesting a staff member from the Office of the Assembly to fill the role. (Note: J. Cetta volunteered to take minutes for this meeting.)
3. Code of Conduct (continued from last meeting)
   • The Committee continued its discussion of Title Three, Article II.A.1.c. of the Campus Code of Conduct.
   • J. Cetta noted that his impression from the last meeting was that the Committee is going recommend that the UA withdraw last year’s recommended change to the Code, allowing for a more extensive inquiry and debate of the matter.
   • R. Weil asked what the nature of any campus debate would be, expressing the need to properly frame the debate. R. Weil suggested posing such questions as: Do we want to change the code at all? If so, should there be an entirely separate clause to narrowly address this issue?
   • T. Van Haaren asked if there are any benchmarks from peer institutions or other sources. M. Grant said she was not aware of any typical practices, but would research the matter further.
   • K. Clermont described the difficulty of defining discrimination in light of the President’s concerns, wondering if adopting an anti-discrimination provision that adequately addresses every interest would create a clause itself longer than rest of the Code.
   • S. Flanz asked what, if anything, in Policy 6.4 addresses First Amendment freedoms. K. Clermont answered that under a specific harassment provision, there is a brief mention of protecting academic freedom, but there exists no larger framework to addresses that or similar concerns in Policy 6.4.
   • J. Cetta asked if the Committee desires to formally recommend rescinding last year’s recommendation. R. Weil also asked if the Committee wants to leave the code as it is�without proscribing discrimination. R. Weil expressed wariness of legislating against discrimination, providing examples and undesirable results that could arise due to over-breadth, such as liability for the Women’s Resource Center and the Asian American Students Association.
   • M. Grant asked how one would define student on student discrimination. K. Clermont answered that “discrimination” in the Code would not cover an individual’s actions against (an)other individual(s); it would only affect organizations.
   • K. Clermont described the problem as one of weighing costs and benefits and that the difficulties being discussed are due to the costs of going after such discrimination
   • T. Van Haaren suggested that an anti-discrimination policy could leave discretion to the hearing boards so as to address only undesirable discrimination. J. Cetta expressed skepticism about giving the hearing boards too much discretion, fearing problems of transparency and consistency.
   • M. Grant urged the Committee to look beyond the Chi Alpha incident from last semester and to instead come up with, focus upon, and consider the larger issues�the differences between protected classes, whether or not we want to follow the constitutional analyses, and so forth.
   • K. Clermont noted that little discussion took place within the Committee last semester when drafting the original recommendation.
   • T. Van Haaren expressed the desire to prohibit discrimination, but questioned what mechanisms ought to serve that end, suggesting that instruments of University policy other than the Code, better serve that purpose.
   • E. Warsh questioned how a larger campus debate could reach a satisfactory consensus, given that the Committee finds it difficult to do so.
   • K. Clermont worried that any case that would arise due to an anti-discrimination clause would be a political case and doubted the legitimacy of a five member board deciding policy, instead of the typical factual matters it must resolve.
   • G. Stewart described a possible worst-case scenario where an anti-discrimination provision coupled with the Code’s off-campus jurisdiction could be so far-reaching so as to prohibit members of the Cornell community from affiliating with off-campus, non-University organizations that “discriminate.”
   • G. Stewart asked if Cornell United Religious Works deals with these issues when advising organizations. M. Grant answered that C.U.R.W. does work with organizations on such matters.
   • T. Van Haaren suggested withdrawing last semester’s recommendation for now, also suggesting that the U.A. hold a public forum on the issue.
   • K. Clermont suggested that an anti-discrimination clause could be incorporated into the Code as an aspirational statement, lacking any enforceability.
   • Rachel Weil expressed the intention of the Committee to research: other universities’ policies regulating student discrimination; whether there are better means of addressing discrimination than through the Code; and the consequences of including an anti-discrimination clause in the Code.
   • J. Cetta pledged to report the Committee’s recommendation that the prior recommendation to add the words “or discriminate against” to Title Three, Article II.A.1.c. of the Campus Code of Conduct be withdrawn and that the Committee will continue to conduct an inquiry into if/how to address discrimination in the Code to the University Assembly at its next meeting.
4. Schedule next meeting
   • The committee resolved to establish its next meeting time via email so as to accommodate the greatest number of members.
5. Adjournment