Welcome News from Cornell: Negotiations on New Judicial Code Restart
February 20, 2008
Two weeks ago, we posted an update on The Torch about renewed efforts by Cornell University President David Skorton to implement a new judicial code. As we explained with the help of Cornell Law student Andy Cowan back in September 2006, the new code proposal, commonly known as the "Krause Report," is shockingly repressive in many respects, as it would roll back crucial due process protections and significantly weaken the university's commitment to free speech. Since the Krause Report's suggestions had seemingly been shelved last March, the recent news that President Skorton was attempting to resuscitate some of the report's worst features (over the objections of both Cornell's University Assembly (UA) and its Codes and Judicial Committee (CJC)) came as a particular disappointment.
Thankfully, Andy (who serves as Vice Chair of the CJC) writes this week with more positive news about newly initiated negotiations between President Skorton's administration and the UA over remaining points of contention. Andy writes:
The good news is that we have achieved a substantial detente with the President. CJC and UA met with him for half an hour today and he emphasized his commitment to working within a framework of shared governance between the administration and the community. Last week UA remanded the code to the CJC to reconsider in light of the President's response, and the president has sent University Counsel and his Vice Presidents to meet with the committee. We welcome their participation, as they are the ones who have to implement the code and advise the President on whether to sign or veto our conclusions—they should have been involved from the beginning. In our meeting, the President noted his right to veto legislative acts of the UA, but he also indicated that he would consider it "a failure of shared governance" and "silly" to attempt to enact through the trustees what had been rejected by the UA/CJC. Immediately after our meeting with the President, the CJC sat in a regularly scheduled meeting with University Counsel and within an hour had resolved all but three of our differences. Those three will take several weeks to get through. And following the usual process, all of our conclusions must be reviewed by the University Assembly, President, and Trustees before being enacted. Briefly:
1) Right to remain silent. The president had asked for us to include language indicating that an accused cannot halt the process by exercising the right to remain silent. Just as in a normal trial, the hearing board will hear all the evidence, although the accused does not testify. Although this has always been the practice, we added language to make it more explicit. The Krause Report and the President's report also referenced an "obligation to cooperate." We agreed to add an aspirational statement that witnesses to code violations should cooperate with JA investigations, but not to make it a binding obligation. University Counsel agreed that this was satisfactory, and we will discuss the precise language next week.
2) Oversight by hearing board for voluntary separation. There was no conflict on this point, only a misunderstanding. University Counsel accepted our original recommendation that when a student agrees to a "plea bargain" with suspension or expulsion, the decision must be approved by a hearing board chair to guard against abuses of authority. (Example: Skippy the Evil Judicial Administrator knows that he can't win a case at a hearing board, but he really wants to get the student on a harsh sanction, so he brings the student into his office and says "This is really egregious and if you go to a hearing board I'll recommend expulsion, but we can settle this here and now with a six-month suspension. There's the dotted line.")
3) Proceeding where criminal charges are pending. The CJC would have generally deferred hearing board proceedings while charges are pending, the President wrote "the university cannot cede or defer to external agencies or proceedings where its own interests are at stake. Therefore, the approach in the Krause Report is accepted." We proposed leaving discretion in the JA, adding the "cannot cede or defer" language as a guideline to the JA, but further asking the JA to consider "whether justice counsels withholding the exercise of University jurisdiction until public officials have disposed of the case by conviction or otherwise." Counsel indicated that the administration would accept this approach (which does not substantially change current practice).
4) Interim suspension. We would have given the President authority to suspend a student or staff member pending a hearing "in extraordinary circumstances and for the purpose of ensuring public order and safety." The President asked to add "or avoiding serious disruption of the educational environment." The CJC approved the change over the dissenting votes of Grad Student rep Nighthawk Evensen and myself. We felt that the language was unduly vague.
5) Off-campus misconduct. We gave "the President or his designee" power to determine when off-campus jurisdiction is appropriate. The President preferred to designate the responsible individuals directly in the code, and we agreed.
6) Confidentiality of proceedings and records. We made a purely typographical change that does not affect anybody's substantive rights (although you might argue that they should have more substantive rights and the standard is unduly vague, that standard was not at issue in this discussion).
The three issues that remain are whether an accused should have a right to counsel, what should be the standard of proof, and whether the President or the hearing board should have final say over penalties. We are still negotiating on those issues, and expect to do so for several weeks to come.
We're pleased to hear from Andy that negotiations have restarted, and the willingness to continue discussions demonstrated by the administration is a welcome development. Unfortunately, we at FIRE see far too little of this kind of cooperative effort. As always, we'll keep you posted.