Following OCR Directive, Cornell Threatens Students’ Due Process Rights in Sexual Assault Cases

By November 23, 2011

Cornell University is in the process of making changes to its policies and procedures on sexual assault that would significantly harm the due process rights of students accused of such offenses. As reported by the Cornell Daily Sun last week, these changes have been prompted by the Department of Education’s Office for Civil Rights’ (OCR’s) "Dear Colleague" letter of April 2011, and have resulted in much campus debate on the issue.

FIRE has been leading the charge, as Torch readers know well by now, to oppose and point out the fundamental problems with OCR’s mandate, which, most centrally, requires that universities adjudicating allegations of sexual assault and sexual harassment use the "preponderance of the evidence" standard of proof. This weak evidentiary standard equates to a "more likely than not" basis for a finding (or 50.01 percent likelihood that a person committed an offense), and pales in comparison to the strong due process protections traditionally afforded to individuals accused of such offenses in our criminal justice system. As we have pointed out, this is an evidentiary standard appropriate for adjudicating parking tickets, not complex and difficult allegations that have long-term repercussions for both the accused and the accuser.

OCR now also requires that universities afford an accuser in these types of cases the right to appeal a finding or punishment, even though such a requirement equates to a form of "double jeopardy" (prohibited in our criminal justice system), whereby an accused student stands to face the same serious allegations all over again. As we have argued at length, this too is a deprivation of due process and fundamental fairness.

Responding to OCR’s new mandates, the Daily Sun reports that the Codes and Judicial Committee (CJC) of Cornell’s University Assembly (UA) last week debated whether to recommend a temporary amendment to the Campus Code of Conduct that the UA approved in May. That amendment lowered the standard of proof in sexual assault cases to the "preponderance" standard, and also gave complainants the same right of appeal as accused students. As the Daily Sun article points out, this amendment not only went through in immediate response to OCR’s April directive, it skipped the process of the CJC’s deliberation of its merits, even though "[t]he CJC is charged with making recommendations to the U.A. about proposed changes to the Code of Conduct."

It seems, therefore, that at least some members of the UA were in a panic to be in compliance with OCR’s newfound requirements, and had no problem with stunting Cornell’s normal process for making changes to the Code of Conduct in order to achieve that goal. This rushing through without due deliberation of an important policy change that strips students of significant due process rights is certainly unfortunate.

The Daily Sun reports, however, that the CJC ended last week’s meeting by postponing its decision on a potential recommendation of the amendment until its next meeting. If that means that the decision-makers at Cornell have more time to consider the merits of the amendment, and its implications for campus justice, that’s a good thing. And judging from the Daily Sun article, there is a significant amount of debate going on at Cornell regarding the move to meet OCR’s mandate.

Some are advocating on behalf of the shift:

Victim advocates applauded the lower standard, which they had been pushing for before the Department of Education letter was released.

Laura Weiss, director of the Women’s Resource Center, said sexual assault cases are often based on "he said, she said" testimony and include little physical evidence. At the same time, such assaults can be devastating and may ruin the victim’s experience at Cornell, she said.

"Cornell is not a right; it’s a privilege to be here," Weiss said. "We can have a higher standard for being here, and in having a higher standard, we can have a lower burden of proof. I think those things are compatible."

Weiss is making a common mistake here by conflating Cornell’s "higher standard" of behavior with lowering the standard of proof necessary to convict someone of violating that standard. What’s more, she ignores the problem of wrongful accusations. If a university disciplinary panel, using the preponderance standard, decides that an accusing student is slightly more credible than a student who has in fact been wrongfully accused, and therefore reaches a finding of guilt, the outcome of the case has been affected, but the fact remains that the student is in actuality still innocent (remember, we are stipulating that this is a false allegation). All lowering the standard of evidence has produced in this scenario is an easier path to finding the student guilty—but since he or she didn’t actually commit the offense, there was nothing he or she could have done to further adhere to Weiss’s "higher standard."

Thankfully, others at Cornell question the wisdom of setting apart sexual assault allegations in this manner and treating them so differently:

"If we’re going to treat something as unique in its content, we need to understand whether it is," said Prof. Risa Lieberwitz, collective bargaining, who is a member of the Codes and Judicial Committee. "If there were some kind of racially motivated assault, that’s also very serious," but under the current system, it would require a higher standard of proof.

Prof. [Kevin] Clermont, who is also on the CJC, agreed.

For some serious offenses we have one scheme, and for other offenses we have another scheme," he said. "So we’ve got this careful unitary code, and then we’ve got this slapdash set of requirements laid on top of it."

Finally, the Daily Sun article points out that a move to follow the OCR directive would, in comparison to the situation at other schools, be particularly impactful on student rights at Cornell:

Compared to its peer universities, Cornell is in an unusual position regarding the implementation of the new evidence standard and appeal rights.

Unlike many other universities, Cornell’s Code of Conduct is based on the criminal justice system – it affords a variety of rights and protections to accused students.

"We normally accord certain kinds of procedural protections to people who have been charged with serious offenses," Prof. Lieberwitz, from the CJC, said. "There’s a certain incongruity to saying that these serious charges should have lower standards of proof."

For this reason in addition to the many reasons FIRE has already stated for opposing OCR’s mandate, I hope that the CJC ultimately decides not to recommend the amendment at Cornell. The Daily Sun reports that the CJC will meet again at the end of the month to create a recommendation for the UA, so we’ll see what happens. In the meantime, our thanks to the Daily Sun for its helpful coverage of this important matter.