UA Codes and Judicial Committee

Codes and Judicial Committee Meeting
February 10th, 2012
4:06 p.m. — 6:01 p.m.
B12 Day Hall

I. Call to Order

The meeting was called to order at 4:06 pm.

II. Roll Call

Members present: Jim Blair, Matthew Campbell, Kevin Clermont, Evan Cortens, Curtis Furguson, Philip Goldstein, Peter Scelfo, Rachel Weil, Kathy Zoner

Also present: Dara Brown, Eva Drago, Mary Beth Grant, Jessica Hittelman, Kyle Hogan, Alan Mittman, Sean Murphy

III. Approval of Minutes

November 30

E. Cortens proposed a correction. Motion to approve the corrected minutes: approved.

IV. Motion to Approve Clermont Proposal

P. Goldstein: We have a deadline of March 14th from the UA to make a decision and send them a resolution on this topic.

K. Clermont explained his proposal: I wrote a proposal, moving forward from our last meeting, which in effect uses the Princeton model. One part proposes that the University goes forward with 6.4. Another proposes to repeal last May’s changes and to adopt other changes. In support of my proposal I would say that I understand that the University will view this as illegal, but I don’t think we should revoke it just because of that. Also, there has been argument that President Skorton won’t accept this. In response I say that we should pass what we want to pass, not what the President wants us to pass.

J. Blair requested that the committee walk through the “whereas” clauses.

Clermont proceeded to explain the “whereas” clauses for the committee.

Goldstein: The Committee should note that this body does not have the authority to change policy 6.4.

Clermont: This resolution is not itself an amendment to 6.4, it only suggests amendments.

Blair: So you believe that adjusting 6.4 in the right way would mean that we don’t need to change the Code?

Clermont: Yes.

M. Grant: This body does not have authority over the President. In a decision between this committee and his Counsel, I believe he would go with his Counsel.

Blair: The UA has asked for a decision from this committee by their March meeting. They are not looking to argue with the Counsel, but they want to know the differences between our points of view and theirs. We want to send the UA something that the Counsel would support, but if we don’t agree, we want to establish our side so we can maybe come to a compromise.

Goldstein: Regardless of what Counsel’s Office does, we have the right and obligation to discuss this. Even if we are “spinning our wheels,” it is our obligation to go through this.

From my discussions with Nelson Roth, he does not think it is feasible. Does anyone know what this might mean?

A. Epstein: The proposal on the floor assumes that the Dear Colleagues letter defines the “grievance procedures” that it applies to are only ones that involve remedies and not ones involving penalties. The Counsel’s office believes the letter makes no such distinction and therefore its detailed “prompt and equitable” requirements apply to the Code.

R. Weil: If we cut out the part of the proposal with the Code of Conduct, my understanding is that we return to clear and convincing standard of evidence and these cases are added to the cases of sexual assault. Can this stand independently of what happens with the grievance procedure? Which part is the Counsel saying is illegal?

Clermont: The standard of evidence part of the proposal is not legal according to the Counsel.

R. Weil: I support this proposal. A good constructive amendment would address these issues in the “be it further resolved” bullets.

E. Drago: We see that other schools are all lowering to a preponderance of the evidence. By comparison, this feels illegal.

P. Goldstein: I have done some research and different colleges have all different models.

R. Weil: If you are trying to come up with a credible disciplinary system, you have to take into account the rights of the accused. The negatives of lowering the standard of evidence outweigh the positives.

J. Blair: In these cases, preponderance of the evidence was to be used. The Counsel does not like the distinction the Letter makes between grievance procedures and disciplinary procedures.

M.B. Grant: My understanding is that the Dear Colleague Letter is not very clear in terms of language. In some ways it hurts complainants. It was really trying to define expectations in instances of students accusing students.

J. Blair: If the attorneys can’t agree, then that makes our decision even harder. I don’t think Skorton should reject this just because Roth rejects it. The students want their rights reserved. This proposal seems constructive. I think we need more articulation on whether or not we can make this proposal work and how we should fix it.

A. Epstein: I think the committee members should read the Dear Colleague Letter and determine what they think it means.

K. Clermont: The Letter agrees that due process is necessary, even though it wouldn’t be necessary in a perfect world.

P. Goldstein: Our interpretation of the law is not on the table right now. What is on the table is this proposal.

A. Epstein: I disagree. The resolution says that the committee has come to a decision about the interpretation of the Dear Colleague letter and its legal implications, so we need to discuss it. Quoting from the letter:

A. Mittman: I agree with Epstein. 80% of colleges have already accepted the preponderance of the evidence. Right now 6.4 does not cover students accusing students. You could add that to 6.4.

J. Blair: But that was voted down last time.

K. Clermont: The Campus Code says we must have preponderance of the evidence and we say that is unnecessary.

M.B. Grant: Is that your only argument with it?

K. Clermont: No. I disagree with other parts of it too. For example, parents of victims can bring forward complaints.

A. Epstein: The letter elaborates at great length on what grievance procedures must do to be “prompt and equitable”.

M. Campbell: Can we come up with our own definition of “prompt and equitable” instead of using a checklist for rights?

R. Weil: I support Campbell. I believe that our job should be to come up with a defendable proposal that satisfies the “prompt and equitable” law.

Blair: We need to make sure that the climate here is not conducive to illegal acts.

So some people think that preponderance of the evidence is correct, but others here want clear and convincing evidence.

C. Ferguson: As I see it, the problem is that certain issues within the population are taken from the Code. Are we really doing what’s right? The amount of responsibility we are putting on the Counsel is not fair. I agree with not putting this into 6.4. I think Counsel came in good conscience and said what the letter means.

M. Campbell: We have different standards of evidence for different issues. When we talk about a school’s disciplinary system that seems like a governmental power that should be checked.

M. B. Grant: Except that the issues we are addressing are between two students, not students and the school.

M. Campbell: Is the “remedy” against the accused or in favor of the complainant? Would both apply to student-student issues?

Grant: There are remedies and “punishments”. Both could happen in student-student issues.

K. Zoner: We have to address the preponderance of the evidence.

A. Epstein: The preponderance of the evidence standard, according to the Letter, is necessary for civil cases and therefore for school policies. The letter states the following:

A. Mittman read a letter from the Women’s Sports Foundation relating to the Dear Colleague Letter.

M. Campbell: From what I understand of Mittman’s reading, it comes down to credibility.

A. Mittman: Yes. The burden of proof is more like a scale. This is the way that all of the issues we are discussing are resolved.

K. Hogan: In order to meet the clear and convincing evidence, all you need is to believe the complainant. I don’t see a practical different between the two. We see punishments on a daily basis and it seriously affects the accused.

J. Hittelman: These issues do have very significant effects on the students when you are talking about suspension.

C. Ferguson: Why is this so different for students than for, say, a faculty member losing his/her job? My proposition is to vote on the evidence level i.e. to take out the second to last “be it therefore resolved” and then vote on the proposal.

R. Weil: We could have 3 votes: one on the section with the bullet points, one on changing the burden of proof, and one on creating procedures in 6.4 to deal with students either as an alternative second path or as a final solution. We might also think that 6.4 should be amended to include students.

K. Clermont: The AAUP filed a complaint against preponderance of the evidence-don’t start out with the assumption that preponderance of the evidence in 6.4 is appropriate for such drastic results such as firing a professor.

M. Campbell: What about the other cases that are not sexual harassment, but still problematic? Do the students involved in those cases not get to feel safe as well?

E. Drago: That is a much larger issue that would be a discussion for a different time.

P. Goldstein: You are saying that the President will not sign this proposal. Can we keep the basic framework but create something that will be passed in the UA?

J. Blair: There seems to be an agreement that the 4 bullets are good and address the OCR letter.

M. B. Grant: Last May, we kept getting tripped up with the legality of the OCR Letter, but we need to look at the spirit of the Letter. Namely we need to make sure that we have a fair process for students. How would the Counsel feel about the rest of the proposal (without the standard of evidence part)? I think they would be fine with the 4 bullet points. I don’t know if the heart of the concern for the Counsel’s Office is about the burden of proof or the two-prong approach. I believe they have agreed with moving the proposal to 6.4.

P. Goldstein: I do remember that Roth was against a two-prong approach.

J. Blair: The University was not prescriptive on what we should recommend.

R. Weil: It seems like it will take them a while to move everything to 6.4. We want faster justice so I believe we should vote on the 4 bullet points, even though they would be inapplicable after moving to 6.4. Then we could vote on the rest of it and send it over to the UA.

K. Hogan: About the 3rd bullet point: that is the one shot that the defendant has in vetting the truth. The 3rd bullet point mitigates this process in the cross-examination.

P. Goldstein: Is there a need and/or way to change this bullet?

M. Campbell: I think cross-examination is important, but I also think protecting people from intimidation is important. Is there a specific objection you have to asking these questions in person (not written)?

E. Drago: Even though you are not technically allowed to ask certain questions, they could still be put out there which intimidates the complainant.

M. B. Grant: In this format (written questions), it also decreases some of the drama and just puts out the facts.

P. Goldstein: How, as an institution, can we prevent lawyers from asking these intimidating and inappropriate questions?

M. B. Grant: For attorneys outside of our community, it is a challenge.

K. Hogan: I think cross-examination is the most important part of this kind of case. I also think that it is an important part of getting to the truth.

C. Ferguson: I motion to close debate on the resolution as written.

E. Cortens: Point of procedure: You can motion to split apart the proposal. If there is support for some parts of the resolution but not for others, it might make sense to vote on them separately.

M. Campbell: I propose we vote on Clermont’s resolution paragraph by paragraph to table or approve.

Ferguson’s motion to end the discussion was seconded. Vote: 6:1:2. Motion passed-discussion ended.

Vote on the proposal as written: 1:6:2. Motion failed.

Debate reopened.

R. Weil made a motion to discuss the adoption of the last “be it further resolved” clause with the 4 bullet points.

Discussion of this motion:

K. Clermont: I view this as a package-we should go back to the basic code and make it fairer. I motion to table this issue.

M. Campbell: I think there is more to discuss about the third paragraph.

R. Weil: I don’t see the 4 bullet points and the standard of proof as interdependent.

K. Clermont: I believe that they are very interdependent.

R. Weil: I propose keeping the 3rd bullet point-I believe it is the best possible compromise between the right to cross-examine and the protection of the victim of further victimization during the trial.

P. Scelfo: I have been thinking of adding a graduate student to the hearing panel in the 2nd bullet. This would shed some light on how the students are feeling about going through this process.

E. Cortens: I was discussing this with Drago and I believe that attitudes in this situation are probably more related to life status than student/faculty/staff status. For example, a graduate student with a wife and kids is more likely to relate to a faculty member with a family than to an undergraduate student living in a dorm. The Code doesn’t distinguish between students. I think the hearing board might feel uncomfortable about having a graduate student on the board.

M. Campbell: I don’t think the language in the 3rd bullet point is clear enough to allow dynamic (real time) questioning. I move to amend 3rd bullet to say “…written questions submitted in advance or in real time, including follow-up questions, and…”

Motion to approve this amendment, seconded. Vote: 7:0:2. Motion passed, 3rd bullet point amended.

Motion to end discussion: unanimous approval.

Motion to pass bullet points as amended: 7:0:2. Passed.

Motion to discuss the adoption of the second to last “be it further resolved” clause. Seconded. Passed.

Discussion of this clause:

E. Cortens: This would make the Code no longer compliant with the OCR. If this resolution were to be adopted, we would need to act immediately to exempt sexual harassment/violence from the Code. Otherwise, we have created a proposal that is not in line with the Counsel’s opinions on legality.

J. Blair: I am not personally willing to approve this as a stand-alone resolution. I think it is important to understand this more. It is useful to know what this body thinks about the concepts in this proposal.

P. Goldstein: We need another proposal that further fixes this issue at the next meeting for us to vote on.

Motion to table indefinitely. Seconded. Unanimously passed.

J. Blair: Is anyone willing to move this forward concretely?

P. Goldstein: I could get a small group to work on a new proposal for next time.

Motion to end the meeting. Seconded. Unanimously passed.

V. The next meeting will be February 24th.

VI. The meeting was adjourned at 6:01pm.