UA Codes and Judicial Committee

I may have missed it, but I did not see anything about teachers requiring a physician’s note for a missed class or assignment deadline - missed because of illness - even a self-limited illness such as a gastroenteritis. Would it not be better to treat the student as an adult and accept the student’s excuse, and only require more confirmation if the missing of a class or assignment deadline became habitual?

General suggestion: I suggest that Title III and Title IV be consolidated. I understand that there are historical/political explanations for their separation, but these explanations always appeared to be merely expedient, rather than necessary and logical. The “educational environment” and “public order” have many points of overlap, and the distinction seems artificial and confusing.

Specific suggestion on harassment: Article II Violations — A. Listing — 1. “It shall be a violation… d. To harass intentionally another person (1) by following that person or (2) by acting toward that person in a manner that is threatening, abusive, or severely annoying and that is beyond the scope of free speech.”

After serving on at least two hearing/review panels in which harassment was charged, I have doubts about the language in this section and recommend that the language be changed.

The basic problem is that the violation is defined in such a way that it requires two separate acts of speculation: first, to ascertain the “intentionality” of the accused harassment; i.e., did the accused commit the act “on purpose,” with the intention to harass. Because the adverb “intentionally” modifies the verb, “harass,” it is not enough that the accused acted intentionally to do the various things that are judged to be harassing (e.g., to act in what others interpret as a threatening manner, etc.), but requires that the intention itself is to harass, and not merely to engage in behavior which may have a result construed by others as harassment. It is not normally possible to get into someone’s brain to determine intentionality. Not only that, there are many examples that appear as harassment (e.g., repeated, annoying phone calls from a spurned lover) that would not qualify under the current wording if the caller’s intentions were not to harass (i.e., to cause the recipient to feel annoyed) but rather the opposite.

This leads to the second required act of speculation: we must ascertain whether a complainant feels annoyed or severely abused. But what standards are we to apply? People have different tolerances for the same behavioral acts. Is it enough that a complainant states that she/he feels severely annoyed, or are there objective standards that we use to determine whether a particular act is “annoying.” Does receiving lengthy e-mails qualify as harassment? Does having to listen to someone humming in an adjacent office constitute harassment? Both acts can feel severely annoying to certain individuals.

Finally, what is “beyond the scope of free speech?” Anything that someone finds annoying, or severely annoying? Or only certain things?

The vagueness of these guidelines leaves them open to abuse. In my experience on hearing/review panels, I believe that the guidelines for harassment have been, in fact, abused.

To clear up the wording, one needs to either make the criteria objective and verifiable, or make explicit their subjectivity and provide guidelines for their application. The first improvement in the text would be to remove the word, “intentionally.” We don’t require that an accused person “intentionally rape” someone, so why would we say “intentionally harass…”? It only confuses the issue by requiring that the accused person actually intend that the complainant reacts in the manner defined by the code. Second, one needs to reduce the subjectivity in the second part by defining harassment as behavior that is not only threatening, abusive, or severely annoying (states of mind that are triggered by widely varying degrees of threat, abuse, and annoyance in different people) but rather is behavior that satisfies all three of the following criteria: (1) that the behavior could be “reasonably assumed” to be experienced as threatening, abusive, or severely annoying; (2) that the behavior has been either explicitly communicated to the accused as “unwanted behavior” (e.g., “please stop!”) or can be reasonably assumed to be unwanted; and (3) that the behavior has either no communicative function that would lend it protection as “free speech;” or has some communicative content ordinarily protected as free speech that is overridden by threatening, abusive, or severely annoying content inseparably contained within the same behavior. A list of harassment examples, such as appear in the “hazing” definition, would be most useful.

I have read the CJC’s proposed revisions as well as the original Krause report, and I have to conclude that the Krause report is closer to where I think we should be going. I don’t understand why the University feels it can set up a judicial system separate from the city, county, state, and federal courts for the prosecution of alleged offenses. If one is engaged in rape, theft, sexual harrassment, etc., let the civil and criminal courts address the matter - and act when they have reached a decision.

There is a place for the Code of Conduct - for those actions which either are not against the law or present more serious harm to our educational mission than they law recognizes. In those cases, an educational role based in the Dean of Student Affairs Office seems entirely appropriate. Punishment might be part of education - but the most important thing is to educate.

In short, I would reject the CJC approach in favor of the Krause approach (except for her insistence that Cornell and criminal processes can run at the same time). The JA should be in the Dean of Student’s office, and faculty and staff should be reprimanded by their school or office.

It has recently come to my attention that many Greek organizations keep records of old exams, homework assignments, etc on file in a ‘library’ for use by future members. This seems to me to be ‘unfairly advancing their academic possition’ especially in a class graded on a curve. Since it may be very difficult to regulate these ‘libraries’ to the point of getting rid of them, I suggest a revision of the code of conduct and Cornell procedures. In order to even the playing field, all old tests, quizes, homeworks, etc should be made available for all students via the Cornell Library online system.

I am writing in the strongest possible terms to language in the Proposed Campus Code of Conduct, Revised 9/17/07, that could have chilling effects on artistic freedom and the broader freedom of speech and expression at Cornell.

Article 2, Section L would make it an offense for any member of the Cornell community to take a video, photograph, picture or sound recording of persons in any public gathering without their consent. If one were to follow the letter of the law, this would include any artistic or documentary footage in any student/faculty/staff film or video shot in public spaces populated by passers-by, any photographs of public space or landscape that included persons, any capture of natural sound that might include snippets of anonymous public conversations, etc.

This language also precludes the use of video, photography, or sound recording for the purpose of documenting public events, such as public orientation events, graduations, and demonstrations. In the case of demonstrations or other large gatherings (such as Slope Day), it could preclude documenting actions taking by University public safety officials to control or quell actions without receiving the permission of the officials being documented (while the same officials no doubt would be able to use video or audio to tape the very same University members who lack the permission to film officials…).

In addition to this language being potentially chilling, it also fails to acknowledge the current cyber-media reality of the widespread use of cell phone cameras, web cameras, and digital audio devices to record daily life without ill intent. In essence, this language even prohibits the University’s own live web cam over Ho Plaza which shoots live over the internet passers-by without their consent. Consequently, the pursuit of violations of this provision necessarily would have to be extremely arbitrary and occasional.

While the intent of Article 2L may be to delimit the use of communication devices for nefarious reasons (such as voyeuristic surveillance), its language fails to comprehend and acknowledge the commonplace public use of recording devices, the reality of digital culture, and the need to protect the freedom of expression for artistic purposes.

I strongly request that that Article 2L, as copied below, either be removed or completely revised:

Article II. Violations A. Listing

1. It shall be a violation of this Title, as offense against another person:

Article 2,

L. To invade privacy or misappropriate property rights by videotaping, photographing, audiotaping, or otherwise making any picture or sound recording of another person without that person’s consent.

Thank you for giving your attention to this matter.

Best,

Tim Murray

— Timothy Murray Professor of Comparative Literature and English Director of Graduate Studies in Film and Video Studies Curator, The Rose Goldsen Archive of New Media Art, Cornell Library 285 Goldwin Smith Hall Cornell University Ithaca, New York 14853

This looks like an inadvertent mistake in the draft, but, even if it is (and certainly if it isn’t), I want to endorse Tim Murray’s argument.

As a member of the Class of 2011, I also want to endorse Tim Murray’s argument and fully support all of the points he has made.

As a Masters student in AAP, I also endorse Tim Murray’s arguments.

In Title III. D 4. Limitations Period, I suggest adding one more exception:

In cases where an individual is charged with violation A1a, which is to rape, sexually assault or sexually abuse another person, the limitation period should be extended from one to two years, since such a violation, unlike other violations, may substantially rob the victim of many of his/her normal powers to act expediously. In such cases, it may take more than a year for the victim to realize that an offense was committed and to act upon it through the judicial system.

P.9 The American conception of academic freedom includes the principle that “professors” may participate in political demonstrations and speak out on controversial issues without jeopardizing their employment.

How inclusive is the term “professors”? Does it apply to all teaching personnel regardless of status (e.g. lecturers)? Since the concept “academic freedom” applies to those engaged in teaching, what implications does this principle have for the vast majority of employees who are not serving a teaching function. Do the staff who express controversial positions or oppose University Administration policy risk their employment? Faculty and other employees are within the jurisdiction of the Code (Title Two, Sec. C(2)(b), but only the former appear to be in a protected class. This issue is not addressed in other Cornell University policies including that on Standards of Ethical Conduct.

P.10 Even in regard to conduct that is intentionally expressive and perceived as such, the University “should” impose reasonable time, place, and manner restrictions on such conduct to preserve other important values and interests of the University community.

This standard phrase, excerpted from numerous court opinions, if narrowly construed, could have a significant negative impact on the exercise of free expression on campus. Some provisions of the Campus Code and Cornell University policies, procedures, and regulations were developed in response to the mass protests that occurred during a very limited period in Cornell University’s 142 year history. The Regulations for the Maintenance of Public Order were adopted by the Board of Trustees in 1969 to comply with the newly adopted Henderson Law in New York State. The application of the University Use of Property regulations has confined large gatherings for such activity to the “free speech zone” of Ho Plaza from 12:00–1:00 p.m. weekdays. Permits for such activities in other areas of the campus may be denied for their impact on the University’s educational mission (interference with classes?). Large spontaneous nonviolent mass protests are inherently disruptive. There may be significant educational value in a given activity and little negative impact on normal University functions, yet it could be ruled illegal for lack of a permit or that it is not held in a “reasonable time, place or manner”. However, if one were to survey the participants in the mass protests of 1969–1972, one would find that many of them reflect upon these events as formative life experiences. Neither the society at large nor our campus community in the post 9–11, globally warming world is suffering from excessive free expression activity. Both would benefit from an increased engagement of faculty, students, and staff. The Statement of Principles, especially in the light of the application of existing policies and procedures that value order above other interests, could provide more inspirational language to encourage greater involvement in critical issues rather than provide a pro forma recitation that those specific actions not forbidden by this Code may be permitted.

I commend the Committee’s positive response to comments received in the past year and otherwise support the Proposed Code revisions.

Brian Eden