UA Codes and Judicial Committee

Current practice described in Krause Report

Attorney or any other adviser may be present at any stage and may participate actively (e.g., question witnesses or advocate).

Proposed practice in Krause Report

Accused may have an adviser from the University community at any stage. Adviser may speak with accused but may not participate actively. If accused was also arrested, accused may be accompanied by an attorney from inside or outside the University, but attorney’s participation is limited to same extent as any other adviser.

If I am reading the proposed practice correctly, the change would prohibit a student accused of an offense for which she is not arrested from having an outside attorney during the proceedings. This would severely limit the accused student’s ability to present a defense to the charges. I cannot imagine how this change could be considered fair in the context of offenses such as plagiarism, where a student’s future livelihood may be at stake, but would likely not result in arrest. Furthermore, while limiting the participation of counsel may achieve a certain efficiency during the proceedings, it deprives the accused student of the right to present her defense via the most effective means.

Students should not be exposed to the University’s system of punishment without adequate representation, else the University will run the risk of being seen (potentially, for good reason) as running a kangaroo court instead of determining if real violations have occurred. The school ought to have the search for accuracy of fact in mind, and they ought not to intimidate accused students into cooperation by denying them adequate representation. If the school has been too lax in the past, it is equally problematic to become too draconian now.

A knee-jerk reaction from a law student who should be studying for finals, and with no great udnerstanding of the University’s structure:

Some of Cornell’s schools are public. To the extent that they are public, and therefore to the extent that Cornell University is a state actor, they have a responsibility under the due process clause to ensure 1) Notice 2) an explanation of the charges brought against them, and 3) An opportunity to to rebut those charges by presenting his or her own side of the story.

Traditionally these rights include corellaries such as the right to an attorney for advice, the right to bring forth witnesses, etc. Now I’m not familiar with higher education due process jurisprudence, but it seems to me allowing only an advisor already affiliated with the university is stripping accused students of the benefit of outside advice. I have to believe the eggheads in the administration have researched this more than I, but to me there are potential problems to only allowing an advisor who by definition is affiliated with the very organization trying to strip the accused of “life, liberty, or property”

I’m sure it makes the process much easier for the university without all those know-it-all lawyers to get in the way, but it would also sure be alot easier to catch criminals if we didn’t have that pesky Bill of Rights…

Again, I’m sure the authors of this proposal have better information than I, but from where I’m standing, this proposed rule change stinks

I believe it is inappropriate to disallow lawyers at any stage. The university seems to believe that lawyers are appropriate when criminal charges have been filed. It seems to ignore the case, however, where criminal charges will be filed in the future.

Let’s say, for example, that the police disclose that criminal charges will, with 100% certainty, be filed the day after the university’s proceedings complete. Would a lawyer not clearly be appropriate in the Cornell proceedings for that case (given that Cornell agrees it is appropriate when charges have already been filed)?

What if there is no such disclosure, but charges are likely to be filed? Seems that a reasonable, innocent person trying to save him/herself from prison (and expulsion from Cornell) would want a lawyer then, too.

But, the reality is that we may not know whether there will or will not be criminal charges in the future. Therefore, it seems that it is appropriate to always allow a lawyer in campus proceedings, regardless of whether there is already a criminal charge, just in case a criminal charge comes in the future.

Otherwise, I would be concerned about the police intentionally delaying filing criminal charges until Cornell completes its proceedings in order for students to be interrogated, etc. without the presence of an attorney and without the right to remain silent.

Additionally, I would be concerned about the lack of an attorney when there is a possibility of civil suits in certain cases. That possibility seems to have been overlooked here as well.

As an American and a student at Cornell, I find the proposed changes frightening. I feel that Cornell is attempting to trample on individual rights here. Please stop.

A symmetrical code is important to ensure fairness. I personally have no problem with giving up attorneys as long as the administration is willing to give up their right to use University Counsel.

I just noticed that the Krause Report gives as a concern the fact that affluent people can more easily afford an attorney than less affluent. That can be easily remedied by providing an attorney to the financially disadvantaged at reduced or no cost. If that is not an option, at least allow them to attain a lawyer to work pro bono from an outside agency.

Do not use this as an excuse to exclude attorneys. There are other ways to remedy that concern without taking counsel away from innocent people wrongfully accused.

I don’t like the proposed changes. Every student should be able to obtain representation that may actively participate at all stages.

I thought the idea of trial without representation was discarded by intelligent people before the French Revolution. The purpose of representation is not to have a lawyer use the twists and turns of the legal system to deny justice, but to provide an intelligent advocate to any person caught in a system which may impose a life-altering decision on an individual. Many will discuss students and hopefully faculty so I defer those groups to them. In the case of employees, what may be at stake is their ability to provide livelihood for themselves and their families - being fired has a huge, immediate impact in one’s real world. The purpose of advocacy is to help prevent such a result upon an innocent party, and I can easily see a less-informed, innocent employee being unjustly dismissed without proper advocacy built into the system. We must also remember that decisions by this system are subject to later review by local, state and federal courts using appropriate laws; were I fired unjustly by Cornell I would not hesitate to pursue action in the courts.

The fact that you are even proposing this is insulting to me. Subjecting off-campus students to Cornell disciplinary action in addition to what the police or other authorities is ridiculous. Where is this jurisdiction coming from? You own the campus, you don’t own houses or apartments or even any interest in these other residences. Not to mention that this whole proposal makes a lot of disciplinary cases weird instances of double jeopardy.

Also, other proposed changes are equally laughable. Hey, I have an idea! Let’s deny students undergoing disciplinary action any form of legal counsel! The proposed changes: “Accused may have an adviser from the University community at any stage. Adviser may speak with accused but may not participate actively. If accused was also arrested, accused may be accompanied by an attorney from inside or outside the University, but attorney’s participation is limited to same extent as any other adviser. “

So you are not only proposing that you should prosecute students where you have no jurisdiction, but also to deny them adequate representation?

I have seen numerous times the effect that professional speakers have on others’ perceptions of what is fair. However, while I understand the university’s desire to reduce the undue and possibly unfair influence of professional lawyers in proceedings, and the desire to make proceedings less confrontational, I do feel that students should be entitled to some council. Do we even have any data on the frequency with which students use attorneys and their effects on the outcomes of proceedings? Is there a perception that attorneys have actually helped students “get away” with infractions of the Code of Conduct? Removing attorneys should only be considered if this is a demonstrable problem, otherwise it only serves to hurt the students and reduce the fairness of the proceedings. If this need cannot be demonstrated, then a major argument for prohibiting attorneys will fall apart (and one could effectively ignore the rest of this comment).

Restricting a student’s options for council to persons within the university community also seems overly restrictive. Perhaps students should be allowed access to an attorney or anyone else that they choose as an advisor, regardless of whether they are also being charged with criminal offenses, but that advisor should only be able to speak with the accused and not participate directly. This would give accused students access to council and advice, reduce the undue influence of professional speakers, and fulfill the university’s desire for an “educational component” by having the students take an active part in their own defense (whether guilty or innocent). Perhaps this is a compromise that satisfies no one, but perhaps it would be useful.

I find this element of the proposed changes the most disturbing. Given the huge consequences of these proceedings, it seems unthinkable that the accused would not have a right to representation. Given that some of these students could potentially be minors, straight out of high school, it seems unrealistic to expect that they would be able to adequately defend themselves, or even understand all of the potential issues.

The report raises fairness, and the fact that some more affluent students may have superior access to legal representation. This is an important issue, and it underlines the fact that representation can be an important element of an effective defense. However, denying representation to all students does not help anyone; those without access to representation will still be just as disadvantaged. That those with more resources will now be just as disadvantaged as them should give nobody comfort.

It seems that if legal advocates are disallowed, then this is not a judicial system. How can you have it both ways? An adviser may or may not work for you - just as academic advisers differ in their willingness to actually deal with students. If this is a judicial system with ramifications (sanctions, remarks on your permanent record, possible filing of civil charges with outside police agencies, etc.), then I don’t understand why the accused should not be allowed to have legal representation at all stages of the proceedings. Otherwise, you are denying a fundamental right and, at least in my mind, inviting legal challenges against the University. If the University was charged with a crime, would it use University Counsel or hope that a professor was willing to stick his or her neck out?

The Krause report makes interesting points no doubt, but I think fails overall to give a deep enough explanation. The argument made in the Krause report is less than one page long after all!

One really has to ask, why, why this change? The report makes the argument that lawyers made the system adversarial, and only affluent students can afford them. She has a point when it comes to small matters such as misdemeanors. There is no need for an underage drinking charge to get out of hand. However, some cases that go up the JA are very very serious, and one person is ACCUSING another person of a serious crime. The system is inherently adversarial in that regard. The rights of the accused should never be lost in making the process more ‘friendly’. If someone is accused of assault, the focus should be on the truth, even if that means getting dirty.

Yes, affluent students may be able to get better lawyers. So then don’t allow lawyers at the trial. But even not-so-well-off students should be allowed the chance to have ANY representative speak for them, or a lawyer. It seems that in an attempt to reduce the disparity in the the abilities of students to defend themselves in a trial, the University has simply lowered everybody’s level to defend themselves. But in this case, the bar has been set so low that even those that were worse off in the original system are even more worse off now.

If lawyers aren’t allowed, at least some representation should be allowed by the accused at a trial. I find that the comment made in the daily sun article on 2/06 has merit here. A student is not able to cross-examine an accuser; they aren’t trained for it. Can you imagine the scenario. If someone were to be accused of a major crime on campus, then they would be in no position to confront the accuser (scared to death of being expelled). There is a reason we have lawyers for these things. Remember, most often the students aren’t even 21. They have trouble public speaking, much less defending themselves when the stakes are so high!

As a current Hearing Board member, I can attest that an accused person represented by someone trained in law has an advantage compared to representing themselves. The Judicial Administrator, who has a law degree, deals with violations of the code daily, and regularly is involved with hearings, represents the community. The current process seeks fair advice for and representation of the accused either by an outside lawyer or a Judicial Codes Counselor. Everyone can, in the present system, obtain some representation without paying for it. I see this as an important right in the present system that is removed by the administrations’ proposed changes. A few people, by choice, represent themselves. To make this the only option does not seem fair to me.

The proposed restriction appears to stack the deck against the accused, and assures that only “the prosecution” has legal expertise. Increasing student access to counsel would be a far more preferable option, if equity of representation is a concern.

Sachin Desai, you have a good point about students’ ability to cross-examine opponents. However, I respectfully suggest that having lawyers come in and do the cross-examination turns the hearing *too* far away from an educational proceeding into a formal trial.

Ms. Krause has a good point here: professionalizing the proceedings drains the educational content. Remember, these are university proceedings for students who, while (mostly) legally adults, are still being prepared in that university for independent life. They should be run under different assumptions from those that guide official tribunals out in the larger society.

It’s one thing for advisors, including attorneys, to, well, *advise* students on how best to conduct themselves. It’s quite another to invite students to build a wall between themselves and educational proceedings. Respondents should be strongly encouraged to interact with everyone else at their hearings. Those who are responsible for the acts they are accused of will learn valuable lessons.

Even many (not most or all, but many) of those who are not responsible for the specific things they are said to have done, may learn a thing or two about how their words or actions affect themselves and others.

That having been said, I basically agree with the due process emphasis prevailing in this forum, including the thrust of Sachin Desai’s remarks.

I will say here that I believe students should continue to be allowed to have attorneys as advisors, but also that all advisors be restricted to communicating with the students they are advising.

I think attorney representation is very closely linked to the other issues of the right to remain silent and deferring university proceedings pending civil or criminal trials.

I’m not sure how many of you would like to see my posts (especially long ones) in triplicate, so I refer you to my remarks under “Right to Remain Silent” for my detailed views on those three questions.