UA Codes and Judicial Committee

Codes and Judicial Committee Meeting
November 30th, 2011
4:03 p.m. — 5:47 p.m.
Cornell Police Conference Room, Barton Hall

I. Call to Order

The meeting was called to order at 4:03 pm.

II. Roll Call

Members present: Jim Blair, Matt Campbell, William Candell, Kevin Clermont, Curtis Ferguson, Philip Goldstein, Peter Scelfo, Risa Lieberwitz, Kathy Zoner

Also present: Jessica Beidelman, Rachael Blumenthal, Dara Brown, Anisha Chopra, Evan Cortens, Eva Drago, Mary Beth Grant, Ashley Harrington, Kyle Hogan, Mike Linharst, Melissa Lukasiewicz, Alan Mittman, Royce Novak, Hilary Orzick, Alex Pruce, Margo Cohen Ristorucci, Kevin Toomer, Laura Weiss

III. Approval of Minutes

November 2

No proposed corrections. Motion to approve: approved.

November 16

J. Blair proposed a correction. Motion to approve: approved.

IV. Experiment on Campus — Dmitry Epstein

D. Epstein: We from the Cornell E-Rulemaking Initiative are working with federal agencies and planning an experiment for spring semester on campus. We would like to see different ways to facilitate people helping the committee to make decisions. What seems to work is soliciting public comment on policy. The people who participate will probably be representative of the Cornell demographics, but not necessarily of your stakeholders. The results of this experiment could be insightful and beneficial to the decision-making body. We would like to work with you to make our findings more insightful. We would like to learn what input would be beneficial to this process and we would value this Committee input in evaluating the outcomes of the experiment.

P. Goldstein: What is the timetable for this experiment?

D. Epstein: This is a controlled experiment. Students will get either credit or money for participation. We should be ready to go with a fully-fledged experiment around the 6th week of the (spring) semester.

P. Goldstein: Would we be able to see the responses?

D. Epstein: Definitely. We want your insight on the results. We will need materials from you. We would like comments from people who would be useful to the decision-making body. We would like your insight into what would be beneficial information from the experiment.

D. Epstein: We are anticipating about 70 short documents from the participants of the experiment. We would like at least 2 committee members take a look at each document. Please either contact me personally (de56) or go to www.regulationroom.org for more information.

P. Goldstein: I motion to table this issue for now. Seconded. No objections. Issue tabled.

V. Proposal to Move Investigation and Resolution of Title IX Offenses to University Policy 6.4 or Similar Process

J. Blair Proposal

J. Blair read his proposal to the Committee members and then summarized it.

J. Blair: At the last meeting (November 16th), N. Roth confirmed that 6.4 would be compliant if we move all issues to it. M. Grant said that the Code is currently not compliant. There was also other support in the room, including from the Women’s Resource Center, to move these issues to 6.4. There were also people concerned about the policy. Not everyone is convinced that this is the right way to go for various reasons: they like the protections that the Code currently provides to the accused, the “Dear Colleague” letter is only the government’s interpretation of the law and would not necessarily hold up in court, they believe that sexual assault cases should not be treated so differently from cases involving other kinds of assault. We also stated last time that at this meeting, we want to hear counter-arguments to moving this to 6.4.

E. Cortens: The big issue last spring was the standard of evidence. Why is it such a big issue if we just change the standard of evidence in the current system?

J. Blair: It’s hard to separate things. Some people don’t like decreasing the standard of evidence.

E. Cortens: Then aren’t you disagreeing with the Letter?

J. Blair: We may have criminal process elements, but fundamentally, we are a civil process, not criminal. It’s harder to rewrite the Code to address that. There is a letter from the Counsel’s Office, dated April 22, 2011, in the attachments from the last meeting that enumerates all changes we would need to make.

E. Drago: Who is interpreting the letter? Who is the “administration”?

M. Grant: There is a Title IX Coordinator and three Deputy Title IX Coordinators, including A. Mittman and me. We are working with upper level administrators of the university.

A. Epstein: The senior administrators make a decision about whether to draft the policy. There is an Executive Policy Review Group (EPRG) that would have to start a policy-writing process to create a new Title IX grievance procedure for students. They have not done this yet because there is still the question of whether we will modify the Code so it will be unnecessary to make a significant policy change. The UA would have a stakeholder role and an opportunity to submit its comments on the draft policy before implementation.

P. Goldstein: What did you [Blair] have in mind for the revisions to 6.4?

J. Blair: I would like to move students to 6.4 and answer who reviews, who investigates and who issues the punishment for these new cases. Policy is the university’s process, but they impact us. We cannot guarantee exactly where the policy will go.

C. Ferguson: What about hearings?

M. Grant: The administrators have not considered hearings. They are talking about the 6.4 process to include other groups.

R. Lieberwitz: Faculty and staff can also file a grievance. There are different procedures for different members of the community (faculty vs. different staff) for grievances that include hearings.

J. Blair: I proposed what I did because 6.4 is compliant, it can be adjusted easily to add students, and the Code would be very complicated to fix.

P. Goldstein: As 6.4 stands, there is potential for conflict. If 6.4 is already considered compliant, then the issues in 6.4 will not be fixed by simply moving students to 6.4.

K. Hogan: The Judicial Codes Counselor represents and advises accused students. If we are going to transition to 6.4, we have to make sure that some of the rights of the accused are not lost.

K. Clermont, R. Lieberwitz, and M. Campbell Proposal

K. Clermont summarized the memo to the committee members.

E. Drago: Did anyone else come away from the OCR Webinar with the idea that we only need to beef up the grievance policies to comply?

K. Clermont: Yes. Our proposal is a reflection of that.

K. Zoner: Most sanctions are not punitive. We do not use the word punishment. There are penalties, but we do not see them spelled out.

M. Campbell: I don’t really care about using the word “penalty” vs. “punishment”. We are talking about a process. By moving this to 6.4, we are affecting the process and therefore decreasing accused students’ rights.

A. Epstein: Keep in mind that the president is bound by the University Bylaws to follow his Counsel’s advise on legal questions. The CJC and UA are not expected as a group to be legal experts. There was speculation on the motives of the administration in the memo that wasn’t fair. Everyone I have talked to seems above board: they want to implement what the Letter is asking for. The Princeton model seems to do the same thing that moving to 6.4 would do, but in a more complicated way.

K. Clermont: The Princeton model does not allow disciplinary sanctions under its Title IX policy.

A. Mittman: The only issues not covered now under 6.4 are issues involving students as the accused. The University is not a party — you cannot bring grievances against the University. Right now, it is not expressly said to whom student issues would be brought.

M. Grant: Because there are many different ways to do this, I would recommend thinking about what the spirit of the Letter is about. It is about better ways for students, both the accused and the complainants, to have fairness when they are being brought forward on a specific complaint.

R. Lieberwitz: Today, we are trying to figure out and recommend whether it makes sense to change the Campus Code of Conduct or take these issues out of the Code. The proposal we signed onto says that sexual harassment and other harassments are serious and have severe consequences for the accused. The Princeton model says to retain the rights of the accused and alleviate the stress for the complainants. This would also be a way for the student to complain against the University with a preponderance of the evidence.

Goldstein: What would happen in a process modeled after Policy 6.4 if an issue involving two students came to you [Mittman]?

A. Mittman: It would trigger an investigative process. An investigator would investigate the claim, review documentation, interview parties, try to determine what happened to the preponderance of the evidence, and issue a report on the findings. The investigator would then make a recommendation to the decision-maker, who would decide what punishments would be appropriate. Then there is an appeal process depending on who you are. The last part would have to be adjusted for students specifically. There is an opportunity to have an attorney present.

P. Goldstein: Regarding K. Hogan’s Letter, there is an appeal process. Would that exist in your system? How could they appeal? Where would they go?

Mittman: There would be an appeal process. I don’t know exactly what it would look like because it would be in an amendment to 6.4.

R. Lieberwitz: Under 6.4, there is a recommended sanction before the hearing. This is a very important difference: the hearing is more like an appeal to overturn a decision already made.

A. Mittman: The investigator is the one you would be heard from before the decision is made. He/she is finding the facts.

J. Blair: We exist to give independent advise to the administration. When people have political agendas or other influences, what is the protection for, say, protestors? These counterarguments are important to consider since we do not want to put too much power with the administration.

P. Goldstein: I don’t see that much of a difference between these proposals. 6.4 has to be revised and certain issues need to be resolved. We recommend that these issues get moved to a separate policy like 6.4, but revised to reflect the concerns made by the 2nd proposal that will satisfy the OCR letter.

M. Campbell: We are aiming for fairness. When you punish someone, we should be more fair about it and so there should be a higher burden of proof. Instead of putting the obligation on students, we put the obligation to prevent harassment and assault on the University. We have to be careful about balancing rights.

A. Epstein: It seemed that the Cleremont et al. Proposal accused bad faith in the administration. I don’t think that speculating on motives is the right way to go. It is not looking at the merit of the argument. The call for changes to the system addresses longstanding concerns. No one has really addressed these issues in the past. In policy-making, we have to look at every argument regardless of how popular it is.

C. Ferguson: What’s really concerning me is that there is a double process for different issues. If we are all community members, how can we be under two different policies? Is there a way to move students to 6.4 and keep it fair?

J. Blair: I propose we close the discussion and then vote on my proposal. Yes means this goes forward. No means we look into Clermont et al.’s Proposal or some other proposal.

Motion to extend the meeting 10 minutes. Motion passed by unanimous vote.

The chair allowed members of the community who were present to comment before holding the vote.

A. Harrington: I was taken aback when someone said we should ignore what happened 40 years ago. There is nothing wrong with the University being accused because problems in the administration need to be addressed. It is important that there is a hearing because there are negative implications when a single administrator is deciding what happens. There should be a board and a hearing. Otherwise, you are denying students basic rights and ignoring basic rights of students of certain races/colors/incomes etc.

E. Drago: I brought a series of changes last March which are now being brought to this committee as alternatives. As long as the main issues (like unequal protections for the accused compared with the victim, having students report to other students about being raped/harassed) are fixed, I support what you pass.

R. Lieberwitz: I think that dividing sex and race is not right. However, I still support the proposal we put out to retain the system. It has also been asked whether or not the process in 6.4 itself should be changed. This may open other options.

P. Goldstein: In response to Harrington, I do not believe that we should apply an event from 40 years ago to our current situation. I did not mean that it doesn’t matter what happened.

R. Blumenthal: My concern with the Clermont et al. Proposal is that I don’t see you addressing changes to the actual process a student goes through before bringing an issue to the administration, which is very intimidating.

R. Lieberwitz: These are all issues that need to be worked out. Giving the complainant/the accused the option of having a hearing with just faculty (no students) is one option. There are others. We could still keep sexual harassment issues in the Code.

Motion to extend 5 minutes. Motion passed by a unanimous vote.

Motion to close discussion. Motion passed: 8–1−0.

Motion to call to question (approve Blair Proposal as it was read and send it to the UA). Motion rejected: 3–6−0.

Motion to postpone D. Epstein’s proposal: Motion passed: 9–0−0.

VI. Next Meeting

The next meeting was proposed for next semester. It was proposed to send out a poll for the date and time.

VII. Adjournment

The meeting was adjourned at 5:47pm.