WHEREAS, the University Assembly (the Assembly) exercises its authority to propose changes to the Code pursuant to a delegation of authority from the President of the University (the President) stated in Article III of its Charter. Article X of the University’s Bylaws provide that “[t]he University Counsel shall represent the University in all legal matters [including] the provision of legal service and advice to… the President and all duly authorized representatives of the University.”

WHEREAS, the United States Department of Education’s Office of Civil Rights (OCR) issued a “Dear colleague” letter (OCR letter) clarifying what it believes Title IX of the Education Amendments of 1972, 20 U.S.C. �� 1681 et seq., (Title IX) and its implementing regulations, 34 C.F.R. Part 106 requires of schools receiving federal education money, including Cornell, regarding resolution of disputes involving sexual harassment and violence in the student community.

WHEREAS, a group of University officials (the group) was convened to assess the university’s compliance with the legal obligations of Title IX as the OCR letter describes them.

WHEREAS, the group identified several provisions in the Campus Code of Conduct (the Code) and University Policy 6.4 (Policy 6.4) they believe do not comply with the OCR letter and related these issues in a letter to the Assembly on April 22 (the April 22 letter) which Counsel has confirmed represents the University’s legal position.

WHEREAS, the Assembly addressed some of the issues raised by the group in their April 22 letter with interim changes to the Code made effective May 17, 2011 (the interim changes), and committed to addressing the other issues promptly in the current academic year.

WHEREAS, the President approved the interim changes and stated, “I believe strongly that we, as a campus, should thoughtfully consider, through the proper policy approval processes, long-term revisions to both the Campus Code and [University] Policy 6.4 to accommodate [the] OCR’s directive [as described in the April 22 letter].”

WHEREAS, absent a compelling cause, the present balance of rights in favor of the accused should be maintained. Only the President, advised by University Counsel, may determine definitively what legal mandate is contained in the OCR Letter and whether such a mandate constitutes such a compelling cause. The Assembly’s recommendation is constrained to the President’s determination that it must address the issues raised in the April 22 letter.

WHEREAS, the procedures in the Code and in Policy 6.4 should not utilize respectively different standards of evidence depending on the nature of the offense and, absent a compelling reason, should be consistent internally and as much as possible with each other.

WHEREAS, the procedures currently provided in the Code cannot be easily retrofitted to comply with the legal mandates recognized by the President.

WHEREAS, the Assembly would prefer that sexual harassment and sexual assault ultimately be covered in the Code.

RESOLVED, the Assembly recommends that the interim changes be repealed and one of the following proposed actions be taken in order of descending preference:

1. no further changes be made to the Code beyond those already approved and described in Appendix A; or, should the President determine such changes do not fulfill the mandates of the OCR letter,
2. transfer offenses involving sexual assault and sexual harassment from the jurisdiction of the Code to Policy 6.4 contingent on an administrative overhaul of that policy to make it applicable to members of the Cornell community for conduct that is not job related until such time as the Code is amended to fulfill requirements of Title IX. Further, the Assembly and the constituent assemblies of the university will engage in the revision of Policy 6.4 as stakeholders under the terms of University Policy 4.1.

RESOLVED, the Assembly be given the opportunity to robustly participate in the review of and commenting on any resulting changes to Policy 6.4.

RESOLVED, the university continues to increase its prevention and education efforts to make all members of the Cornell community aware of what constitutes sexual harassment and sexual violence, and what the individual’s rights and responsibilities are concerning these.

Respectfully submitted,

Rachel J. Weil, Faculty Member Member, Codes and Judicial Committee

Philip A. Goldstein, Undergraduate Student Member, University Assembly and Chair, Codes and Judicial Committee

Appendix A

Resolution Recommending Changes to the Campus Code of Conduct with Respect to Procedures in Cases of Sexual Assault and Sexual Harassment

Resolved that the following changes should be made to the Campus Code of Conduct:

Add a new subsection at the end of Title Two-IV-C: “6. Training of the members of the University Hearing Board and University Review Board pool will include special training in handling complaints of sexual harassment, abuse, assault, or rape.”

Add before the period in Title Three-III-E-3-a(1): “, except that in cases of sexual harassment, abuse, assault, or rape the complainant, victim or the accused may opt for a Hearing Panel composed of three faculty members and two nonfaculty employees drawn from that pool”;

Add a new fifth sentence to Title Three-III-E-3-b(6)(c): “In particular, to avoid the risk of intimidation in cases of sexual harassment, abuse, assault, or rape, the Hearing Board Chair shall require cross-examination of the complainant or victim to be conducted by written questions submitted in advance or in real time, including follow-up questions, and read aloud to the witness by the Hearing Board Chair, if the witness so requests.”; and

Add a new penultimate sentence to Title Three-III-E-3-b(7): “Witnesses shall not see or hear other evidence presented at the hearing, such as any police report, except as the Hearing Board Chair determines to be appropriate.”.

====================================================================== NOTE: The University Assembly approved this Appendix as UA Resolution R.6 on February 28, 2012.