The Foundation for Individual Rights and Expression (FIRE) conducts an annual rating of 53 major colleges in terms of the due process rights provided to students. In the 2022 rankings, Cornell University was the only one to receive an “A” rating.
The report grades each college’s judicial procedures based upon ten different rights provided to accused students. Because most campuses, including Cornell, have different procedures for Title IX sexual assault violations, non-Title IX Policy 6.4 (covering discrimination and harassment not based upon sex) violations and other non-academic misconduct, a separate grade is assigned to each. Cornell won an “A” for the Student Code of Conduct procedures and “B” for Cornell’s Policy 6.4 procedures.
FIRE reported, “For the first time in the history of FIRE’s Spotlight on Campus Due Process report, a single policy, at Cornell University, received an A grade. This means that the policy provides more than 8 of the 10 elements that FIRE considers critical to a fair procedure. Of the other 154 policies rated at the 53 schools in this report, not one earns higher than a B.”
By “due process,” FIRE means a set of procedural protections that ensure the accused fair treatment in the proceedings that decide possible consequences. Without due process, an accused person might be treated like a witch put on trial in a Monty Python movie. Cornell’s student conduct process wants to see guilty people held accountable, but it also seeks to treat everyone in a fair manner, even if they are guilty. Due process seeks to minimize the chances that an innocent person will be mistakenly or unfairly punished.
Cornell’s due process protections trace back to the procedures adopted by the University Senate in the early 1970s. In December 1968, seven black students disrupted activities in several buildings on campus and were brought before the then-existing judicial board. As their case was processed, students protested the lack of fairness and community involvement in creating those procedures, which culminated in the occupation of Willard Straight Hall on April 19, 1969. In response, the Cornell community adopted state-of-the-art procedures which, although since modified, still earn the “A” rating from FIRE today.
The U.S. Department of Education, under Title IX, then set informal standards requiring each college receiving federal aid to set up a separate procedure to handle sexual assault or harassment cases. Without community involvement, Cornell adopted Policy 6.4, a process to handle sex discrimination, harassment, and assault complaints. Policy 6.4 was then expanded to cover allegations of discrimination or harassment against various groups beyond just women.
While the general misconduct procedures are administered by the Office of Student Conduct and Community Standards, the Policy 6.4 procedures are administered by the Title IX Coordinator (as required by the federal policy). Policy 6.4 uses a “preponderance of the evidence” standard instead of a “clear and convincing evidence” to reach a verdict. “Preponderance of evidence” means that the accused is more likely than not responsible, while “clear and convincing evidence” is a much higher standard. Student Code cases are tried before hearing panels made up of students, faculty and staff, while Policy 6.4 cases are decided by the Title IX Office.
In 2020, the Trump Administration adopted a final rule which provided more due process rights to those accused under Title IX procedures. Instead of improving the due process rights of all people under the Policy 6.4 process, Cornell developed a separate procedure to comply with the final rule and left the rest of Policy 6.4 cases with less due process. So, Cornell has three different procedures, earning an “A” and two “B”s.
Ryan Ansloan, the primary author of the FIRE report, told the Cornell Review, “By becoming the first school in the five-year history of the report to have a policy that earns an A grade, Cornell has made history. Going forward, Cornell should extend these protections to all of its policies and must live up to this admirable commitment to provide fundamental due process rights to all students, both in policy and in practice.”
The Biden administration has proposed a roll back of the due process rights in the current Title IX final rule. If adopted, any new Biden rule changes would prompt a further rewrite of Policy 6.4.
Finally, there have been cases at Cornell, such as a Title IX case brought against physics Prof. Mukund Vengalattore, where Cornell failed to apply any of its written procedures. That prompted a judge on the U.S. Court of Appeals for the Second Circuit to write earlier this year:
“Vengalattore’s allegations, if supported by evidence, provide one such example of the brutish overreach of university administrators at the expense of due process and simple fairness. His allegations, if corroborated, would reveal a grotesque miscarriage of justice at Cornell University.”
Despite the quality of its Student Code of Conduct procedures, Cornell still has a ways to go when it comes to Policy 6.4. Like any Cornell student, we can accept the “A” on the prelim and still work harder to improve our other due process grades going forward.
