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Professor rightly cautions Cornell on celebrating its FIRE due process rating

Last week, FIRE released our groundbreaking new report, Spotlight on Due Process, which rated the disciplinary policies of 53 top universities on whether they contained basic elements of fair procedure, such as the guarantee of a presumption of innocence, adequate notice of charges, and a right to appeal.

What we found is that very few schools cleared even the lowest bar of basic fairness. Of the 53 schools we rated, 45 received a D or F rating.

Last week, The Cornell Daily Sun reported on the fact that Cornell University had tied for the highest score in our report with a B rating — but Cornell Law School professor Kevin Clermont shared some extremely important caveats about that rating with The Sun.

Prof. Kevin Clermont … told The Sun that Cornell’s “comfort and pride should be restrained.” Clermont noted that FIRE’s study only considered written policies, not how those policies are implemented.

“My experience is that Policy 6.4 [which governs sexual misconduct complaints], as opposed to the Campus Code, is not administered fairly,” he said. “The rules are not observed, or at the least they are stretched.”

Clermont is correct that there is often a disconnect between written policy and reality.

FIRE has reviewed dozens of lawsuits against the schools we rated, filed by students who were suspended or expelled for sexual misconduct. Many of these suits contain breach of contract allegations, with students arguing that schools failed to follow their own written policies when it came to adjudicating claims of sexual misconduct.

Notably, several lawsuits have been filed against Cornell by accused students, some of whom were subjected to a previous version of Policy 6.4 that did not even afford students a hearing, and some of whom allege Cornell did not follow its own written policies.

It is, in short, no reason for optimism — as Clermont observes:

“The rest of the country is in very bad shape. This should not, however, be a source of comfort or pride for Cornell,” he said.

FIRE could not agree more. Whether a school received a high or low score due process score in our recent report, students need to understand that the protections we analyzed are necessary but not sufficient to ensure fair process.

If you are passionate about ensuring a fair process for your classmates, consider starting a Student Defenders program at your school. And as always, FIRE is happy to work collaboratively with faculty and administrators to help revise policies at no cost.

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