UA Codes and Judicial Committee

MINUTES
University Assembly:
Codes and Judicial Committee Meeting
B16 Day Hall
Friday, February 24, 2012
4:00–6:00 p.m.

Call to Order

P. Goldstein called the meeting to order at 4:05 pm.

Present: J. Blair, M. Campbell, K. Claremont, C. Ferguson, P. Goldstein, P. Scelfo, R. Weil, K. Zoner

Absent: W. Candell, E. Cortens, J. Kelly

Also Present: A. Epstein, E. Drago, T. Shear, R. Pancholi

Minutes from Previous Meeting:

P. Goldstein moved to approve the minutes from the previous meeting. J. Blair suggested some corrections. Seeing no objections, the corrections were adopted. J. Blair then motioned to adopt the minutes. R. Weil seconded. The minutes were unanimously passed.

Resolution

P. Goldstein introduced R. Weil’s motion, a Resolution Regarding Campus Code of Conduct Compliance with Title IX. He then opened the Speaker’s List for discussing this issue.

R. Weil said that she and A. Epstein had prepared this proposal after the CJC had come to a dead end on the issue at its last meeting. Where prior discussions focused on choosing a single solution, this resolution proposes to rank possible solutions in descending order of preference. This enables the CJC to specify its first preference, but also to offer a backup option if its first preference is something the President will not accept. They had also provided a set of suggested amendments and appendices, which the committee might make use of to adjust their order of preference. This resolution was also offering a clear standard of proof. Proposing a priotized menu of choices should foster a constructive discussion so the CJC can produce a recommendation as it has been charged. As introduced, the resolution offers a first preference that the Code be returned to the standard of evidence and procedures it had before the Title IX issue arose. Anticipating that the President will not accept that recommendation for legal reasons, it proposes as a secondary option that Title IX offenses — sexual assault and sexual harassment — be moved to the jurisdiction of Policy 6.4, which is compliant with Title IX. She saw passing this resolution as a way of finding common ground and reaching a shared position.

A. Epstein further explained the suggested amendments of the resolutions. Each is intended to raise a question that will either alter the original proposal or confirm what it says. He said the first question arising was “Does the CJC prefer the current balance of rights in the Code, which tips in favor of accused people?” The second question was, “Would the CJC prefer, as an alternative to transferring jurisdiction to a different policy, to retrofit the procedures in the Code so it complies with what the Dear Colleague’s Letter requires?”

J. Blair asked about the benefits of retrofitting the code, A. Epstein said this retrofit proposal would be to have Title IX offenses handled in the same manner as other offenses.

N. Roth, asked to discuss the university’s legal position on the resolution, said a proposal which did not recognize the Dear Colleague Letter’s changes would be rejected for policy and compliance reasons by the university. The changes recommended and mandated by the OCR should be put in the Campus Code. Regardless of which policy Title IX offenses fall under, the UA will have a voice in shaping these processes because it is a stakeholder in the university policy process.

J. Blair said that if the CJC gave a cascading list of options to the administration, the UA would want to know a retrofit option was considered, even if it is not endorsed. He personally was in favor of adding a retrofit option before presenting it to the UA. He moved the second suggested amendment, which would amend the motion on the table to include a retrofit option. R. Weil seconded it.

R. Weil explained the different options and clauses on the proposal. She explained Appendix C, which made changes to the current code, all of which were called for in the Dears Colleague’s letter. She said that Appendix C could always be amended if the committee wanted. It resolves inconsistencies with the Dear colleague letter in procedures, but does so in a way that would also apply the same to offenses other than sexual violence and harassment.

A. Epstein explained the clauses of the resolution in detail. He had spoken to Mary Beth Grant about the proposal and she said that generally addresses the compliance issues adequately, but would need more refinement and vetting. He asked M.B. Grant and N. Roth to comment further on the adequacy of the proposal.

M. B. Grant said that some further changes were required regarding provisions related to double jeopardy. She also noted that the summary did not state an important detail of the proposal, specifically that the preponderance standard of evidence would be applied in all procedures, not just those related to Title IX offenses.

N. Roth said he was in a Washington for a meeting with the regulators responsible for enforcing Title IX and the “Dear colleague” letter two weeks back. The regulators made clear that they expect that sexual assault cases will take no more than 60 days from start to finish to be dealt with in most circumstances. They intend to consider this time criterion in determining whether universities are following the law. In the current Campus Code, proceedings often exceed that time.

M. Grant said that there would sometimes be difficulties solving complex issues within a 60 days period, especially with breaks in the middle. N. Roth said there need not be blind adherence to this criterion. There could be exceptions made with certain cases. The goal for the Office of Civil Rights was more of a general proposition.

C. Ferguson asked that if they needed amendments to change the burden of proof to a 60 day period, how was it to be worded. A. Epstein said this would require further revisions beyond the 60-day clause, he said it would be beyond his area of expertise. At this meeting, he mainly intended to present main clauses of the problem.

M. Campbell had a question for N. Roth. He wanted to know that with regards to the Counsel’s Office recommendation, if the University had to be 100 percent in compliance with the Dear Colleague’s Letter, or was the Counsel’s office willing to compromise if the CJC makes some minor changes, with good reason. N. Roth said that it was not wise for the University to go against the Counsel’s Office for civil rights mandates. He said the administration’s decisions were going to be made on legal and policy grounds, despite the fact that these two realms sometimes overlapped. There were thus legal and policy reasons to abide by what the Office for Civil Rights had mandated. If not followed, this could result in a withdrawal of Cornell’s federal funding, especially regarding compliance according to the 60-day rule. Other enforcement measures are also possible. N. Roth said that the mandate for preponderance of evidence didn’t originate with the “Dear Colleague” letter, it was in place way before that. Therefore, he felt that it should be of prime importance that these issues be treated seriously.

R. Weil wanted to go back to talk about the feelings of the committee on these issues, assuming that in order for sexual harassment and assault offenses to be dealt in the Campus Code of Conduct, it would require the current code to reduce evidence standards. She wanted to explore the option of lowering standards for one kind of offense as opposed to lowering it for all kinds of offense. M. Campbell said that in his ideal world, he would like to have evidence standards dealt with on a case-to-case basis. However, since this was not feasible, he favors moving all offenses to the same standard.

K. Clermont gave a suggestion for M. Campbell’s comment. He opposes having a universal code for everything. Much is at stake in the details of a retrofit. For example, a person would not be able to defend himself properly under the Code if a separate criminal process was imminent, because answering university charges in private might infringe on his right against self-incrimination in a public proceeding if the private findings were later subpoenaed. For a 60-day rule to be put into place was not a minor change. It would mean the end of the code as we know it; it would mean repealing the code.

J. Blair said UA was also entitled to play a role in case of student cases and intervene if need be to increase student involvement in these processes. He felt that this however would have to be a written change. Students thus would have a greater role for participation in cases through the UA.

In terms of the Campus Code of Conduct, J. Blair suggested 2 options:

• Leave the code alone.
• Retro-fit the code

K. Clermont had said that the latter would be the end of the code. J. Blair said that in that case, these issues would have to be written so that students could be more involved in them through the UA. A. Epstein said that the UA and SA already had a role as consultants in these matters regardless of whether it specifically stated in a resolution.

M. Campbell was opposed to the first change; he prefers to lower the standard of proof of the Campus Code of Conduct. He felt that this was more practical and addressed concerns brought up in the Dear Colleagues Letter.

C. Ferguson said the clauses of the resolution contradicted each other. He agreed with adding J. Blair’s original amendment where they should explicitly state the changes of student voice being putting into processes, into the resolution. The UA could then decide what to do with the whole proposal.

R. Weil said this depended on the order in which things were being done in the committee. They could move this option up as preferred to the other two options.

C. Ferguson said he was against lowering standards of proof for the whole code, not just Title IX issues. This, he said, would compromise on the strength of the code.

E. Drago asked if it would be possible to lower the code just for Title IX cases and keep it intact for other issues. M. B. Grant said this would be a challenge to present two standards of proof the Board.

K. Zoner had a problem with the fact that if she did she didn’t support one of the 3 clauses, she couldn’t vote for the resolution in its totality. She also said that the resolution, in calling for an approach that the President cannot adopt, did not meet compliance standards and she thus couldn’t vote for it. She however felt that it was progress that the CJC had at least compacted the contention to the three key issues.

J. Blair said that the main proposal would first go to the UA, which would decide on it. He said that the UA would want to know the Counsel’s view of Appendix C. It would also want to know what the SA and GPSA felt about lowering the current standards of proof. He said this would reflect on student consensus on these conflicting opinions. He said he agrees the CJC recommendation should not decimate the current code. He wanted to preserve these various options for UA discussion.

R. Weil said she does not want to arbitrarily retrofit the code to fulfill the requirements of Title IX. In terms of process, it was great that these decisions were subject to discussion within the UA. However, she felt that the CJC had an obligation to recommend what makes sense to its members. If a retrofit did not make sense to members, they shouldn’t pass the amendment.

A. Epstein said that even if the amendment was not passed, there was still the possibility of a retrofit at a later date.

M. Grant said that she would like a provision of more time to observe how Policy 6.4 worked in a student setting. She felt that it might be hard to complete cases in 60-days time period. It also might be unfair on account of a number of possibilities, such as those K. Clermont had mentioned. K. Clermont said Policy 6.4 was inherently very different from the current Campus Code. He felt that the changes needed to meet the OCR provisions were very complicated.

C. Ferguson motioned to close the discussion and vote on adding the discussed line to the current amendment. No objection was raised to closing debate.

The committee voted on the amendment: 2 in favor, 5 opposed, 1 abstained. Motion failed. The committee returned to the main motion.

J. Blair then moved the first suggested amendment, which would strike the preference for the current balance of rights between accused and accuser in the resolution. Despite some opposition, R. Weil seconded, noting that she did not necessarily support the amendment.

K. Clermont said that striking clause 1 was not too much of a definite measure but it would at least demonstrate a step forward.

K. Zoner said that her preference would be that Clause 1 still stay in the Code. C. Ferguson asked if a “Whereas” clause on the resolution be added for that option. P. Goldstein said that was not a feasible option.

C. Ferguson moved to close discussion and vote on striking Line 1 from the Resolution.

The committee moved to a vote without objection: 2 in favor, 3 opposed, 2 abstained. The motion to amend failed. Line 1 would therefore stay in the resolution. Discussion returned to the main motion.

C. Ferguson motioned to add an amendment to the resolution to strike line 1 in the resolution and add line

10 in the whereas section and also rephrase it in a better manner. K. Zoner seconded it. K. Zoner felt this would illustrate better the intent of the statement; it would also make sure this resolution would still stay in the Campus Code. She therefore, supported it.

No additional members requested to speak on the amendment, so the committee moved to a vote: 2 in favor, 3 opposed, 2 abstained. Motion failed. Discussion returned to the main motion.

R. Weil then motioned to add line 10 to the whereas section but still keep line 1 in the resolved section. J. Blair seconded.

No additional members requested to speak on the amendment, so the committee moved to a vote: 5 in favor, 1 opposed, 1 abstained. Motion passed. Discussion returned to the main motion as amended.

K. Clermont was opposed to amending the Code along the lines of Appendix B. He said this would create interim problems. J. Blair and Mary Beth Grant said that appropriate changes could still be employed in the interim period till Policy 6.4 came into place.

P. Scelfo made a recommendation to add an amendment to Line 2 of the resolution. He suggested making a differentiation between the SA and UA in that line. P. Goldstein said that distinction should be made amidst all constituent assemblies, SA, UA, GPSA and EA.

A. Epstein said UA’s role in Policy 6.4 did not need to be stated in the resolution the UA charter already provides for the role. J. Blair said it would be helpful for the sake of clarity to state the UA’s intended role and to suggest engagement of other assemblies in the resolution nonetheless.

J. Blair seconded P. Scelfo’s recommendation. The motion was carried without objection.

Seeing no further discussion on the resolution, J. Blair moved the previous question. K. Zoner seconded. Without objection, the committee moved to a vote on the main motion as amended: 5 in favor, 1 opposed, 1 abstained. The motion was adopted.

Motion to Adjourn

P. Goldstein motioned to adjourn the meeting. P. Scelfo seconded. Seeing no opposition, the meeting was adjourned at 6:00 pm.