UA Codes and Judicial Committee

This is a place for general comments that do not fit in any other category. In particular, questions or comments about the process for evaluating and acting on the Krause Report or other proposals for the codes and judicial system.

Thank you for this opportunity to comment on the Krause Report, which I read with great interest. For years I have wondered why Cornell University has not employed the concepts of Transformational Mediation at all levels of the campus, so was quite please to note, near the end of the report, the paragraph on Restorative Justice. As a trained mediator, I know that these concepts depart widely from a criminal justice model, yet they have deep, positive results. I would recommend that all those involved in finalizing the new Code of Conduct take advantage of the expertise of the Community Dispute Resolution Center, right here in Ithaca, NY (Judy Saul, director, 273–9347). For decades this gold mine has been at our feet, and we have only to learn the basic concepts before we, too, can integrate them into the fabric of our campus.

Dear President Skorton,

Thank you for the clear and open letter of December 7th 2006 in which you wrote to the entire Cornell community regarding the Campus Code of Conduct. As both a member of the UA and a member of the Cornell community I will do my best to work on a code that is inspirational, fair, prioritized in such a way that rape is not lumped in with failure to leave a building during a fire drill, while civil disobedience is singled out in a category by itself.

The new code should clearly demonstrate that Cornell recognizes that campus safety is the highest priority, but when a crime is committed, the rights of the victims and the rights of the accused are of the highest priority. A rape victim, for example, should believe that she has the full institutional support of Cornell behind her in terms of both sensitivity and access to the criminal justice system. The accused should also believe that they have the full institutional support of his rights as an accused person. Currently rape victims do not feel that they have the full institutional support of Cornell and in fact there is a perception that Cornell tries to keep such crimes hush hush. I believe (although University Counsel disagrees) that more severe penalties as opposed to writing reflection papers for violent crimes would deter would-be rapists. Thus I believe that men who find themselves in sexually questionable situations (situations that could be considered date rape) may not question themselves twice. After all rape is grouped together with not leaving a building during a fire drill and who amongst us hasn’t left a room immediately upon hearing the fire drill, but instead finished up work or grabbed a book to read.

I have one specific question for you. Do you think that a campus code of conduct should apply to all members of Cornell including the President and the Board of Trustees?

Thanks you very much,

Sincerely,

Randy Wayne

Amendment concerning “recording”

I would like to suggest an amendment to section III A 4 of the proposed code of conduct which concerns recording, photographing etc. and requires permission of the persons, recorcded, photographed, etc. My amendment’s effect is to allow persons to record public events without getting permission of the participants It would add the words in the sentence precluding activities before the period, “with the exception of recordings at public events for which no admission fee is charged, and for the normal outdoor videotaping, photography, etc, of the campus where the presence of persons is incidental to the subject of the recording.”

Rationale for the amendment:

It would be a violation of civil liberties not to allow the recording of public events for which no admission is charged.

It would be unreasonable not to allow visitors, families, students, etc. to take pictures of the campus. Since the campus is rarely depopulated, it is exceedingly likely that people will appear in these pictures, some nearby, some across the quad, and it would be unreasonable to ask the recorders to obtain permission from all these

1. Should the campus code and judicial process apply equally to students, faculty and staff (including administrators)?

Yes

Should faculty and staff (including administrators) be bound by the code but have a judicial process separate from the students?

Yes

Should off-campus misconduct by students, faculty, and staff be subject to Cornell discipline? Yes for some things regarding faculty and staff—such as inappropriate behavior with students or subordinates and for all serious crimes. No for students unless convicted of a serious crime (armed robbery, rape, assault, etc.)

I have no opinion on the other issues mostly because I don’t have the time to research them adequately.

1. Yes, no, no 2. Yes…Keep JA and keep it independent 3. This office should be separate and independent and not part of the office in the University Central Administration, so there is no possibility of bias, or conflict of interest.

I agree with the recommendations of the Krause report.

Faculty and staff should be referred to the Dean, VP, or Department head for appropriate action. Inappropriate behavior needs to be related to their employment status for appropriate actions to be untaken by the University. Off campus actions need to be included as we are now an international campus, but also we have a significant number of students living off campus and they too deserve an appropriate educational environment. I think the current office should be dsolved and recast as part of the Dean of Students who can protect the rights of all students better than the current system. Also the University adminsitration is in a significant better postion to be responsible for the code than the UA.

While generally critical of these changes, let me first note that I am glad to see that the more affluent students will no longer have the advantage of a lawyer. Having said this, I believe that Cornell has no business taking disciplinary action in response to events taken place off of campus. A “direct and substantial threat to… the health, safety, or property of the University or its members” seems suspiciously and perhaps deliberately vague. Consider the example of a minor who goes home over spring break and engages in underage drinking, a clear example of a direct and substantial threat to the health of a University member. Should that individual fall under the jurisdiction of Cornell? While the aforementioned and many other minor changes are of concern to me, I am most distraught over one particular break from long established precedent, the preponderance standard. The preponderance standard encapsulates how these changes will ultimately undermine Cornell’s collegial environment. If charged with a serious crime (student, faculty and staff alike), ask yourselves, do you honestly want, or find it fair, to be forced to prove that you are less than more likely to be guilty? Of course not; such a thing is outrageous. I hope that potential freshmen and new faculty do not learn of these possible changes while deciding whether or not to join us at Cornell, for any reasonable person would perceive these changes not as indicative of a progressive community, but of one instead willing to cater to the whims of the moment, carelessly casting aside both justice and established precedent. Is this honestly how we want to define “the type of community that Cornell aspires to be”?

There needs to be a clause for self-defense. The current code doesn’t allow for a case where a student is forced to defend him or herself. This is a major oversight.

I believe the office JA should remain independent, this would help ensure a sense of impartiality to both victims and accused, as well as outside parties. Same for maintaining the UA, rather than transferring code oversight to the university administration. Off-campus conduct should be evaluated with respect to the campus code of conduct: violent and criminal actions should have serious repercussions in keeping with local laws, non-violent and minor infractions should have repercussions consistent with local laws and campus code.

1. Should the campus code and judicial process apply equally to students, faculty and staff (including administrators)?

Yes.

Should faculty and staff (including administrators) be bound by the code but have a judicial process separate from the students?

Yes.

Should off-campus misconduct by students, faculty, and staff be subject to Cornell discipline?

Yes.

2. Should the Office of the Judicial Administrator (JA) continue to be independent?

Yes.

3. Should the UA continue to be responsible for the Code?

Yes.

I do not agree with the Krause report. I believe that it inhibits the physical, intellectual, and judicial rights of Cornellians far more than is appropriate.

Tracy Mitrano and Patricia McClary suggestions further consideration or revision of the following provisions:

I. Section I

Make citizenship an explicit statement in section (A) of the General Principles. (Pat agrees that the “freedom with responsibility” is a subset of citizenship, individualized and a bit dated in its resonance.) Moreover, explicit mention of the concept in the beginning of the General Principles will fit nicely with section III which begins to address that topic more specifically.

2. Section III (A) (4)

Reframe the prohibition against “videotaping, photographing, tape recording…” to one concerning the specifically objectionable behavior: intrusion upon seclusion, invasion of privacy, misappropriation of likeness rather than a prohibition against the technology per se.

3. Section III (J)

Restate the compliance with federal, state and local laws section as not singularly focused on alcohol and drug abuse, but in regard to a number of enumerated issues, to which “intellectual property” will be added (making it its own category, instead of how JA currently categorizes it as “theft.”)

4. Appendix

There is a whole section on “misuse of computers and network systems” which draws on very old policy language (Policy on Abuse of Computers and Network Systems, 1990). I will take a crack at a first draft of a completed updated revision of this section including incorporation of the entire IT Policy Framework and perhaps with emphasis on more contemporary concerns such as information security.

In response of the comment regarding affluent students having the ‘advantage’ of a lawyer:

Your comment implies that you view the issue as one of richer students having an advantage over the less affluent. This might be true, but I’m not sure if it affects the function of the system. The system is not a contest between the rich students and the poorer, it is rather a conflict between the university and the accused student. Even if you take the lawyers away from the wealthy students, you will do nothing to help the students who could not afford counsel. Conversely, I do not see how providing those with access to counsel the right to representation disadvantages those other defendants who could not afford counsel.

To add to Tracy’s comment, as I read the draft, it seemed to be okay to break into a computer system and “look around” or copy files. As long as I did not interfere with the performance of that system, I would argue that I was within the letter of the code and not subject to punishment.

It seems dangerous and alarming to suggest that the Office of the Judicial Administrator should lose independence and become an arm of the university administration. Its independence is essential if it is independently to adjudicate. Even more alarming is the proposal that the campus code be taken away from the UA and placed in an office of the central administration. These are just not salutary for important decisions on campus conduct and justice.

As Cornellians, we are guests in Tompkins County. Many of us would not be in this area if it were not for the university. As such, shouldn’t the code serve to ensure that we as students, faculty, and staff are the kind of guests that both Tompkins County and and the best university in the world can be proud of?

I am only suggesting that the Code clearly state the what the behavioral expectations of of a person associated with the best university in the world are. There should be consequences when those expectations are not met and since we are here because Cornell brought us to this area we should be accountable to these expectatios where ever we are as we are Cornellians anywhere we go.

[This is a transcript of my comment at the community forum of 5 February 2007.]

I speak both as a current faculty member at Cornell and as a former undergraduate at Cornell. The Code as it’s currently written has been a fixture since my days as a student. (Indeed, on re-reading the Code today I recognise its language on “symbolic structures” as an echoing response to the South Africa divestment protests in which I took part during my freshman year.)

When I was a student here I was proud to be part of an institution that, on the whole, respected me as an equal within a community of scholars. Crucial to this sense was the fact that the Campus Code then, as it does now, applied to the entire community of students, staff, and faculty. When I entered Cornell I felt that I had finally left behind those days of childhood, when an adult could send me to the principal’s office on a whim. Being part of a system that treated me as a responsible adult encouraged me to take up that responsibility and to behave as a responsible adult.

As a teacher, time and time again I’ve seen that what our students grow into depends on the expectations that we help them set for themselves, and that education is most effective and transformative when we approach students as partners in defining the environment in which we’re all expected to live and to work.

It has been suggested that our tried and true judicial system ought to be scrapped in favour of a more expedient version that equates, roughly, to that old trip to the principal’s office, in terms of the lack of clear and convincing evidence and the abolition of the independent status of the judicial administrator. It has been suggested that such a change would aid the University’s educational mission. On the contrary, such a disempowering move would only signal to students that we do not trust them to behave as responsible adults. If we set such a dismal expectation, we’ll find that our students will meet that expectation. Our educational mission will then have failed utterly.

I do not doubt that careful review can identify productive ways to update the Code for current times. However, discarding our entire judicial structure is not the way proceed.

This effort to replace the Code strikes me as part of a broader pattern that trades away opportunities for learning and growth in favour of short-term expediencies. This error was the motivation behind the university’s effort in the 1990s to ban freshmen from Risley and other programme houses. We fought that effort with reasoned argument, and eventually the university listened. I hope and trust that the university is listening now.

Matthew Belmonte Department of Human Development

The Code of Conduct and all other University policy exists to protect the University - not the students, faculty, and staff. I say this as a 30 year officer with the Cornell Police and as a trade unionist. If I arrest a student for shoplifting a book at the Campus Store, the students receives a campus appearence ticket to the Judicial Administrator. This takes about 10 minutes. If I arrest a 20 year old factory worker from downtown Ithaca for the exact same crime, that person is handcuffed, taken to Barton Hall, fingerprinted, photographed, processed over several hours, transfered to IPD, and finally makes bail or is remanded to jail. The important point here is that it is the student who is waiving his constitutional rights to due process. This is a privilege - try it the next time you’re arrested. It is the the worker who has the right to remain silent, the right to an attorney, etc. He also may end up with a criminal record while the student will not. Having witnessed first hand the workings of the local criminal courts and the office of the J.A. I’d be inclined to seek justice and wisdom with the latter - if it’s my elite and privileged position to choose. Finally, by joining a union, I and my co-workers have introduced public law into our private workplace. University policy doesn’t apply to us, we all have the right to representation, we negotiate all conditions of employment, and discipline is decided ultimately by an outside arbitrator. This is my recommendation for all staff. Faculty have tenure. Students pay to come here and, as Melville says, “there is all the difference in the world between paying and being paid”. Part of what is bought is the right to waive due process. Generally all felonies must be processed in the criminal courts and all geopraphical jurisdictions adherred to - though, as in all love and law, negotiation prevails. Back in 1984 we arrested 1500 students, faculty, and staff for civil disobedience related to South African divestment. Many of the cases initially went downtown until the local powers kicked them back up on the Hill. Why should the good taxpayers of Ithaca foot the bill to adjudicate the collective conscience of a private, tax-exempt institution? Imagine the public outcry if every one of these accused demanded their constitutional right to due process.

Can the aspirational statements be separate from the procedural code?

I feel that he enrollment of a student at Cornell is a voluntary entrance into the academic community. By such entrance, the student voluntarily assumes the obligations of performance and behavior which are imposed by the university community relevant to its lawful missions, processes, and functions. These obligations may be higher than those imposed on all citizens by civil and criminal law, and the university should reserve the right to adjudicate students to secure compliance with these higher obligations. Therefore I feel it is completely appropriate for the university administration to assume the responsibility for ensuring compliance to the culture that it may wish to create.

Re: Proposal to include “behavior constituting a threat to self” among the offenses punishable by the Campus Code of Conduct (hereafter “the Code”; see Krause Report, 27).

No one has commented on this aspect of the report yet, that I can tell, but it should not be allowed to slip through the cracks.

Ms. Krause’s suggestions here are extremely dangerous. She is, in effect, advocating a disciplinary solution to a medical problem (in the case of students’ mental illness and related problems of conduct), and hence the “criminalization” of certain medical conditions. This can hardly comport with “best practices” and I cannot even begin to enumerate the problems with such an approach. Harm to self has no place in a disciplinary code of conduct, “educational” or otherwise. Clearly, suicidal tendencies and related issues of self-harm are of particular concern to the Cornell community, but addressing it in the Code— with threats of forced leaves of absence, suspension, or expulsion—is exactly the wrong approach. The only benefit of such an approach is limiting the liability of the University, as in the cold calculation that it is not the University’s problem (legally) if a student commits suicide or harms himself while not currently enrolled as a student. Clearly, the University avoids serious legal and ethical headaches by this kind of disciplinary approach to mental health, but all other effects—most importantly those on student health—are decidedly negative.

As I know from experience, a student faced with suspension or expulsion simply WILL NOT seek University-based help for his or her mental illness problems. Universities who suspend or expel students facing mental illness assume (wrongly) that those students will have adequate family support, medical coverage, and financial resources to address their problems on their own once they have been removed from the university community. They do not. This issue has been covered extensively by the Washington Post, most recently in the case of George Washington University student Jordan Nott. I am shocked that Ms. Krause (and presumably the other CU administrators with whom she consulted) seems to be completely unaware of this case, or any other similar ones. A simple Lexis-Nexis Guided News search for “Jordan Nott” within the Washington Post returns the full-text(s) of the relevant articles(newest articles listed first):

1. GWU Settles Lawsuit Brought by Student Barred for Depression, The Washington Post, November 1, 2006 Wednesday, Final Edition, Metro; B05, 290 words

2. GWU Settles With Man Who Was Barred for Depression, The Washington Post, November 1, 2006 Wednesday, Final Edition, Metro; B02, 290 words

3. GWU’s Misplaced Priorities, The Washington Post, March 15, 2006 Wednesday, Final Edition, Editorial; A18, 395 words

4. Depressed? Get Out!, The Washington Post, March 13, 2006 Monday, Final Edition, Editorial; A14, 376 words

5. GWU Suit Prompts Questions Of Liability; School Barred Depressed Student, The Washington Post, March 10, 2006 Friday, Final Edition, A Section; A01, 1172 words, Susan Kinzie, Washington Post Staff Writer

Unfortunately, Jordan Nott’s case is not an anomaly. I know of numerous other cases of disciplinary action taken against students with depression, just among my own friends and acquaintances.

Furthermore, the disciplinary approach to mental health puts faculty in an impossible position. Do instructors report a student with potential mental health problems to the administration, knowing that they could face suspension, expulsion, or damning notes added to their permanent university records? Will we face disciplinary action if we fail to do so, or if it turns out that we missed certain tell-tale signs through lack of training? If the University’s approach to student mental health is (in any way) disciplinary, then the faculty will essentially become the first and last resort for a student who is struggling with mental illness. Students will be in fear of disciplinary action if they seek help though other channels, including Student Health, and those fears, unfortunately, are completely justified by the actions of universities across the country.

While we instructors will certainly do the best we can in these situations, we lack the training and the resources to fulfill this role. Far from the increased discipline proposed in the Krause report, what is needed is an extremely well-funded Student Health program, staffed with medical professionals (not “peer-volunteers” as one of Cornell’s ridiculous programs is administered), with failsafe protections for the anonymity of students seeking help.

I disagree in the stongest terms possible with the proposal to include “behavior constituting a threat to self” in the list of offenses for a revised Code, and I am appalled that the author of this report even suggested such a thing.

Here’s a question: what about Academic Integrity (entirely missing in the Krause report)?

While I have had no experience with Cornell JA in my five years here, I have had multiple encounters with breaches of Academic Integrity as an instructor in Freshman Writing Seminars. Based on my (admittedly) personal experience, Academic Integrity seems to be a much more common and serious problem than many of the aspects of student conduct regulated by the Code, or discussed in the proposed revisions.

It seems a little ridiculous to me to engage in a wholesale overhaul of the Code of Conduct while leaving the system that addresses Academic Integrity untouched. Our current AI system, in my opinion, is gravely flawed and nearly broken. It places an immense burden—of time, effort, and stress—on instructors, often with little or no visible result at the end of the process. An instructor with more than one AI violation in a given semester will find his or her time and energy completely monopolized by this burdensome (and essentially toothless) system.

Many people at Cornell are not aware of this, but under the current system students are essentially given one “freebie” AI violation. If they do not repeat (or rather, if they do not get caught again, or if an instructor does not take on the burdensome task of dealing with a violation through official channels) all records of the first violation are destroyed.

It flies in the face of the University’s mission to tolerate such behavior, much less to systematically excuse every single first (reported) violation.

In my experience, Academic Integrity breaches occur REGULARLY at Cornell. These breaches strike at the heart of the University’s mission, and I view them as much more serious than the vast majority of issues addressed in the proposed changes to the Code of Conduct.

I urge the administration to include a review of its Academic Integrity policies and procedures alongside the current effort to overhaul of the Campus Code.

One good place to start would be to look at the “Honor” Codes at schools such as Haverford, Davidson, and the University of Virginia. To me, an ideal overhaul of Cornell’s current Campus Code would do away with any jurisdictional overlappings with local civic authorities (e.g. underage drinking, etc.) and completely re-frame our Campus Code of Conduct in terms of honor, trust, and integrity. Perhaps, as true community standards, such a revised Code would be subject to regular re-affirmation by votes of the entire campus community.

As an administrator of an off-campus program (Cornell in Washington), I can only say that it has been extremely helpful to us to have a quasi-legal entity to consult with and refer to. Unlike the situation on campus, where the Campus Police are a part of the Cornell family and have the best interests of students at heart, that is not the case in the District of Columbia. We would be loathe to call in the DC Police unless the situation were truly serious, i.e. drug dealing. However, having a legalistic code (which backs up our own Rules and Regulations) is very important. The threat of being referred to the Judicial Administrator is a great deterrent, on one hand. On the other hand, having the ability to discuss alcohol, behavioral and other student problems with the JA has been key in resolving problems over the years. We all try to use situations and infractions as learning experiences, but I believe that young people need to know that there are consequences to their behavior and a legal code is more in keeping with real life.

I thought it was important to present the off-campus perspective and need, which is considerably different from that on campus. As the University becomes more global, these considerations also become more important.

The Cornell Law Students Association (CLSA) has submitted comments in a pdf document that does not fit into the forum, but is posted on the CJC website. Friday, 16 February 2007 CLSA Memo Concerning Campus Code