Cornell's Repressive, Regressive Conduct Code Proposal

At Cornell University, students and faculty members alike are voicing displeasure with a proposal for a new Campus Code of Conduct.

Last November, then-Interim President Hunter R. Rawlings III commissioned Barbara Krause, a senior advisor, to undertake a comprehensive review of the existing Code of Conduct and propose changes in an effort to recalibrate what some consider out-of-date policy. Her proposals, aggregated in a document known as the Krause Report, were released this past April, and are now online and available for public review.

While Cornell has yet to take an official position on the recommendations contained in the Report, the school has been actively soliciting comment from members of the community and other concerned parties. President David J. Skorton has said that the Report requires the school’s “scrutiny and collective consideration,” as it “challenges [Cornell] to weigh a number of complicated issues.” In addition to holding school-wide meetings to discuss the proposals, Cornell is accepting public comment online.

What exactly do the changes entail? A summary of the major proposals can be found here, but it’s worth reviewing a few of the most significant – and ominous – changes, as usefully summarized by Andy Cowan, a law student at Cornell, for the Cornell Law Student Association.

Off-Campus Jurisdiction
Currently, Cornell will take action for off-campus misconduct only if the President specifically invokes jurisdiction for “exceptionally grave misconduct.” The new Office of Student Conduct would have jurisdiction over any off-campus activity that poses a “direct and substantial threat to University’s educational mission or to the health, safety, or property of the University or its members,” without requiring the approval of the President.

Relationship with the Criminal Justice System
The current code ordinarily defers internal action until criminal proceedings have been resolved, based on a principle of avoiding dual punishment and conserving University resources. The proposed draft reverses the presumption, and ordinarily prosecutes internal disciplinary action immediately regardless of any criminal proceeding.

Sanctions
In addition to the current list of available sanctions (warning, probation, community service, suspension, expulsion, etc), the proposed draft adds a provision that certain offenses (including violence and “bias-motivated offenses”) will ordinarily lead directly to expulsion or “significant suspension.”

Procedural Formality
Generally reduced.  Instead of hearings there would be “disciplinary conversations” for most offenses.  Instead of appeals to a review board, decisions would be reviewable only by a single “conduct review officer” in the Office of Student Conduct.  The new code "will require those who find comfort in the current ‘legalities’ [such as the rights to silence and an attorney, and the burden of proof, discussed infra] to find comfort instead in the overall new cast of a disciplinary system whose ultimate goal is to support the educational mission of Cornell University.”  (Krause Report 11)

Right to an attorney
Currently, students accused of misconduct may be advised and represented by any person of their choosing. This can include an attorney, a friend, or the Judicial Codes Counselor.  The proposed draft completely eliminates the right to an advocate. The accused student must speak for him or herself, or not at all (but see the right to remain silent, infra.) Accused students will still be permitted an advisor, but only Cornell students, faculty, and staff may serve as advisors. Students who are separately charged with a crime for the same alleged course of conduct will still be permitted their attorneys, but only as advisors, not as advocates.

Right to remain silent
The current code has a right to remain silent, stated explicitly.  An accused student may stand silent at the hearing and allow his or her attorney (or other advocate) to conduct the proceedings for the defense. The proposed draft eliminates all references to such a right and instead provides, “All members of the University community are required to cooperate with the Student Disciplinary System.” The Krause report explicitly states that students should not be subject to further sanction or adverse inferences for a failure to speak, but the proposed draft code does not say that.

Standard of Proof
Current: Clear and Convincing Evidence
Proposed: Preponderance of the Evidence

Amendment Authority
Currently, the University Assembly (consisting of students, faculty, and staff) is charged with continually reviewing and updating the code, subject to presidential veto. By state law, regulations for the maintenance of the public order are controlled by the trustees, but the UA still serves an advisory function. The Krause Report proposes to eliminate community input from the process and charge the University Policy Office with the task of maintaining the code.

Free Speech
The current code includes a section on Responsible Speech and Expression, which largely imports the US Supreme Courts [sic] freedom of speech jurisprudence into Cornell policy (note that as a private institution, Cornell is not a state actor bound by the first amendment). The proposed draft largely eliminates this section as unnecessary, replacing it with two sentences indicating a general philosophical commitment to Free Speech at the university.

Civil Disobedience
Current: “Non-violent civil disobedience can be an honorable way of expressing moral outrage” (except when it interferes with the free speech of others)
Proposed: “Members of the University community who engage in acts of civil disobedience (as opposed to lawful, peaceful protest) must anticipate that they will face sanctions.”
The proposed draft further provides that it would be inconsistent with the notion of civil disobedience for the University not to punish a civil-disobedient student (impliedly, even if the University or the particular administrators/hearing board members agree with the student).

As one can readily see, there exists ample reason for worry. Here at FIRE, we have already received several letters from concerned members of the Cornell community. Staff members and students alike have expressed anxiety over the proposed changes—and for good reason. The Krause Report’s proposals would sharply erode many of the core protections and rights afforded to students and faculty by the current system.

FIRE urges members of the Cornell community to read the report, consider the immense gravity of the suggestions therein, and then make use of the avenues for comment provided. Once essential liberties like due process and freedom of speech are lost, they will, as always, prove exceptionally difficult to win back.