UA Codes and Judicial Committee

Codes and Judicial Committee
November 16th, 2011
4:00 p.m. — 6:00 p.m.
128 Rockefeller

I. The meeting was called to order at 4:07pm.

II. Roll Call

Members Present: Jim Blair, Matthew Campbell, William Candell, Kevin Clermont, Philip Goldstein, Risa Lieberwitz, Peter Scelfo.

Also Present: Mary Beth Grant, Jessica Hittelman, Kyle Hogan, Nelson Roth, Alan Mittman, Michael Linhorst, Ari Epstein, Miriam Asher.

III. Dear Colleague Letter

• M. Grant gave an overview of the disciplinary system, Title IX, and the Dear Colleague Letter:
  • A flow chart was sent out to make sure that those new to the judicial process can understand it. There are a lot of checks and balances built into the system. A complaint can come from people on or off campus. We talk to witnesses and find out what the accused has to say. If we don’t find sufficient evidence, we dismiss it. If there is evidence, we almost always resolve it by agreement. At this level, there has to be an agreement-the committee cannot command an action. If the accused or complainant disagrees with the decision, they go to a hearing. This is very much like a trial. The hearing board decisions can be appealed to the review board, which checks for mistakes or new evidence. Cases involving violence can be appealed to the president. The checks and balances are to make sure the system is fair.
  • Title IX says that institutions cannot discriminate based on sex. It is often associated with athletics, but it really applies to almost every aspect of life on campus. In April, the Office of Civil Rights in the United States Department of Education (the government) put forth the “Dear Colleague Letter,” which talked about gender violence and set expectations regarding those situations. We found differences between our policies and the government’s expectations, which we are trying to fix now.
  • One of the differences is in standards of evidence. “Beyond reasonable doubt” is the standard of evidence for a criminal violation. For civil cases, “clear and convincing evidence” (about %75) and “preponderance of the evidence” (about %51) are two less strict standards. Our code of conduct is set on “clear and convincing evidence” standards.
  • The burden of the proof should be the same no matter where you are in the process. Currently, Cornell’s process has two standards: one for Title IX related incidents (“preponderance of the evidence”) and one for everything else (“clear and convincing”).
  • In terms of appeals, Title IX related incidents now have more room to appeal than before the Dear Colleague Letter.
  • Our system is modeled more on the criminal justice system than most educational administrations. The Campus Code of Conduct puts guidelines on sanctions.
• N. Roth on Title IX:
  • Title IX comes from the education amendments from 1972 and is very general. We are not sure what actually started the Dear Colleague Letter-there are many possibilities. This letter shook up the education world in a major way. It said there are two sets of people involved: the accused and the complainants. You need to treat both equally.
  • Our process is very involved and provides more protection for the accused. However, in this category, the complainant and the accused must be on equal footing according to Title IX. The Letter does not set forth any new requirements. It implies that the complainant deserves the right to appeal a not-guilty decision. Also, the burden of proof is the “preponderance of the evidence” for other civil cases so it must be the same for Title IX related incidences. The Letter says the educational institution has to have a system resulting in the prompt and fair adjudication of these cases regardless of what may be happening in a criminal or civil courtroom. The system we use involving faculty and staff meets the fair and prompt regulation. Making the complainant go through 2 separate proceedings is not prompt or fair and so the government, Board of Trustees, and administration would not approve it.
  • Why won’t the University fight the government agency on this? First, a policy judgment must be made as to whether or not we agree with it. As of yet, I don’t know of any college or university who has fought the government on this. It is an option, but not very likely in my opinion. Nationally, the focus has been more on the right to appeal aspect of the letter rather than the burden of proof aspect.
  • J. Blair: They did not vet this to the standard of law. I don’t object to the letter, but I cannot see that it can be enforced in court. How seriously do we have to take this?
  • N. Roth responded that the letter is guidance. However, there are regulations that say that the system has to be fair and equitable. The government is the authority on that and they can enforce their guidelines in the courts. What we must decide is, are we prepared to say that the government’s stipulated standard of evidence is not fair and equitable? We have changed the code and we have to change it again, legally. The government would not care about the uniqueness of Cornell’s system.
  • P. Goldstein: Now the standard of evidence could be different for the same person on different aspects of their crime.
  • We could use the process used for the faculty and staff for everything. Using two different processes, as we do now, is too complicated.
  • R. Lieberwitz noted that there is no hearing for sexual harassment cases. It is the investigator’s opinion. Moving the codes would greatly change the process in these cases.
  • N. Roth responded that the investigator actually writes a report with a recommendation to the dean or department head. The accused person then has the right to comment on the report and then the dean then makes a decision on everything. So there is a fact finding with an appeal process.
• A. Mittman: The process from University Policy 6.4 that we use is investigatory and is commonly used at public and private educational institutions. We use it to investigate all different kinds of discrimination cases. There are opportunities for defense. We have always interpreted this process according to the standards articulated in the Dear Colleague Letter, it was just never expressly written. If this applied to students against students as well as students against staff, it would be in accordance with the Dear Colleague Letter.
  • Roth noted that the key issue is whether or not an issue affects the education of the student, not where the issue occurred.
  • M. Grant added that the code has off-campus regulations.
• J. Blair: what about the fringe cases, like a case that happened a long time ago or not on campus or the complainants are not students.
• M. Grant responded that funneling everything to 6.4 would resolve these outlying issues. There are challenges in the cases with more than one type of crime, but it is a good change.
• K. Clermont asked if we should really completely change the regulations? What I said last spring: just take out sexual harassment from the policies and evaluate those crimes separately according to Title IX.
• J. Blair asked if anyone is in objection to moving this process to 6.4?
• M. Campbell responded that yes, he is in objection because students are used to the code. There is a lack of equality, but I have a fundamental issue changing the process to 6.4.
• P. Goldstein noted that the main job of this committee is to create a solid proposal to the UA. There were two major interim changes to the campus code of conduct. They changed the balance between the accuser and accused for limited cases, namely the Title IX applicable cases. They also called to restructure the Code to make the Title IX rules understandable. This committee must decide to what extent the Code should change to fit Title IX.
  • The reason this interim policy cannot be permanent is because it was simply a “band-aid” to comply with the new guidelines. The UA and President Skorton explicitly stated the solution would be in place indefinitely, but would not be permanent.
• P. Goldstein reminded the committee that the UA, the President, and the Board of Trustees must agree upon what the committee decides.
• N. Roth added that this process does not exist in isolation; it is part of an overall community process that will result in further review of this decision by the UA and other groups.
• P. Goldstein summarized: Now we are charged with creating a proposal that is permanent. One option is to make everything one standard of evidence (51%). Another option would be to have sexual assault cases go to 6.4, but with the original process, while still preserving the Title IX guidelines. Another option would be K. Clermont’s proposal.
• K. Clermont explained his proposal: What the OCR is talking about is basic grievance policies. Cornell treats this more like a serious matter with punishments. To satisfy the OCR and preserve Cornell’s tradition, apply the OCR’s recommendations with regards to the remedies, but not with regards to the sanctions.
• J. Blair asked if a remedy is equivalent to the current “agreed settlement”?
• Clermont responded that remedies are different because they can be imposed. The remedy is to cure the problem; the sanctions are to punish crimes.
• N. Roth did not believe the Dear Colleague letter makes the same distinctions. They equate grievance policies with disciplinary proceedings so we cannot make distinctions between these.
• Eva Drago presented her view as part of the Women’s Resource Center: We enthusiastically support moving these cases to University Policy 6.4. It is not appropriate to have 18 and 19 year-olds deciding such fraught cases. Many victims of sexual assault have said they found elements of the Campus Code of Conduct process intimidating and she and other advocates for victims of sexual assault had been advocating to the committee to provide a procedure that addresses those concerns. Some elements cited by victim’s in the present process are: fear associated with sharing information about their ordeal with peers of the same age with whom they might share class or other university engagement, cross-examination by attorneys, and direct confrontation with the assailant.
• M. Campbell commented that right now, the code is not fair. I would suggest that the JA receive some additional independent powers (verbal warnings, written warnings, no contact orders�), but have them subject to review. As we move up in the harshness of punishment, we increase the extent to which these punishments can be reviewed.
• C. Ferguson: From what I understand, a situation can be tried in multiple processes. It would be nice to have these cases moved to 6.4 and have everything through the same process.
• P. Goldstein reminded the committee that the question before the committee is solely how to fulfill the mandate of the “Dear Colleagues Letter” either by addressing issues identified in the Code or moving resolution of such issues to a different policy.
• A. Mittman: There are thoughts now about who would be doing the investigations if this were moved to 6.4. We could give the responsibility to people who have the judgment and experience to do this job.
• Blair: If it were moved to 6.4, it would never go back to the hearing board/review board process? Alan: Yes.
• C. Ferguson: Could it go through the JA process?
  • A. Mittman: The JA or the office of the JA could be doing the investigation, but it would be adjudicated according to a different process, not the one specified in the Campus Code of Conduct. As such it would not necessarily involve other actors or procedures specified in the Code.
• J. Blair commented that if we recommend moving this process to 6.4, we would not be responsible for rewriting 6.4. There is a process separate from this committee to do that. We would be part of the process.
• J. Blair: So the Women’s Resource Center says that “clear and convincing” is a barrier to reporting and we need to ensure that the campus does not seem to have a discouraging climate towards complainants?
  • E. Drago: yes.
• N. Roth: One of the options would be keeping 6.4. There are already 3 processes in 6.4: the fact-finding process, who the report goes to for recommendations, and who would fulfill the review function. You could use those processes and change who carries out each one.
• J. Blair noted that this could still include student involvement.
• P. Goldstein: Do we pull Title IX violations out of the process it currently exists in?
• M. Campbell commented that sexual harassment is primarily a student issue. However, students have no say in how the administration decides these issues. Also, we can solve these issues under the current code if we make smart changes.
• C. Ferguson said that, from a staff point of view, there needs to be some type of consolidation for these laws. We have to also recognize that people actually go through this process and they need some integrity.
• K. Hogan reminded the committee that we need to consider what rights of the accused we are forfeiting by moving this to 6.4.
• M. Campbell said that 6.4 currently has a bias against the accused.
• K. Clermont said that this is the main decision that needs to be made first.
• E. Drago asked what the main rights are that the accused would lose?
  • K. Hogan: The most important right is the right against self-incrimination i.e. a 5th amendment right.
  • A. Epstein: The 5th amendment protects against self-incrimination, but no criminal sanction or process is associated with the Code. The Code does.
• P. Goldstein remarked that we should wait until the next meeting to actually vote on anything.
• J. Blair expressed his desire to hear more perspectives. The general consensus is to move this to 6.4. The next meeting should be counterarguments to this.

IV. The next meeting was proposed for November 30th.

V. The meeting was adjourned at 6:06pm.

Respectfully submitted,

Miriam Asher