Many in the media continue to talk about actor Will Smith walking on stage at the Academy Awards and slapping Chris Rock in the face. Despite this violent act, no criminal charges were filed against Smith. This episode highlights the inability of the Academy to take decisive action and mirrors the problem Cornell faces in similar circumstances when regulating student misconduct.
Everybody knows that Smith’s conduct was illegal. California Penal Code Section 242 defines battery as “any willful and unlawful use of force or violence upon the person of another.” It is important to note that an individual may be charged with battery even if there is no injury. The new Student Code of Conduct IV(B) defines assault as “Any unwelcome physical contact, including but not limited to, striking, slapping, hitting, biting, punching, shoving, or kicking;”
Suppose Cornell wanted to throw the book at Smith, if he were a student, it could add charges under Student Code of Conduct IV(U) that prohibits “violation of any federal, state, or local law, regulation, or ordinance.” Harassment IV(J), Hazing IV(K) and Unauthorized Entry or Use of Space IV(T) were also violated.
Free Speech. Rushing the stage and slapping the speaker because he said something that Smith found offensive is particularly serious because that conduct strikes at the heart of Cornell’s educational mission. The audience was entitled to hear Chris Rock’s comments even if they were offensive to Will Smith and his wife. Most of the free speech protections in the former Campus Code were repealed by the new Student Code, so the fact that Smith was trying to stop Rock’s speech is not relevant under the new code.
Selective Enforcement. In fact, there are no plans to criminally prosecute Will Smith, even though his actions were undisputedly illegal. Will Smith refused to leave the award ceremony, despite being asked at the time. Chris Rock did not press charges, nor did the Academy. The local District Attorney did not want to get involved. However, like Cornell, the Academy has its own internal disciplinary procedures, and Will Smith resigned from the Academy in the face of possible disciplinary action by the Academy.
If this were a Student Code case, there is no prosecutor to exercise discretion as to whether to bring charges. The Judicial Administrator (the former prosecutor) office was abolished in August, so it is up to any member of the Cornell community to press charges if Will Smith had been a Cornell student.
Public comments have focused upon the racial implications of the incident. For example, what would have happened if Chris Rock had insulted Mel Gibson instead of Will Smith? Fox News asked Gibson about this, but he refused to comment. American justice is supposed to be color blind, but the current political climate would find a white attacking Chris Rock far more problematic than it finds Will Smith’s attack. Is such a double standard fair? The Student Code rejects the “color blind” approach of the prior Campus Code and provides, “In determining the appropriate sanctions for a violation of sections addressing assault and endangerment, harassment, and hazing, the decision-maker shall consider whether the behavior towards an individual has been demonstrated to have been was motivated by a person’s or group’s age, race, ethnicity, creed, color, national origin, sexual orientation, military status, political affiliation, sex, gender identity or expression, disability, predisposing genetic characteristics, familial status, or marital status.” How a hearing panel will apply that rule is harder to predict than the outcome of the Oscar votes. Such a subjective provision should not be in any fair conduct code.
Off-campus jurisdiction. Suppose Will Smith was a current Cornell student attending the Oscar ceremony in Hollywood. The new Student Code is so over-reaching that his conduct would be subject to prosecution back in Ithaca. Section III(A)(2) allows Cornell to assert jurisdiction “regardless of the location of the conduct” if it is a threat to “safety of individuals (whether affiliated with the University or not),”
Politics and Justice Don’t Mix. The Will Smith / Chris Rock episode shows why it is important to separate conduct adjudications from politics and policymaking. The Academy’s power structure is simply ill-equipped to handle this case. People who are offended by Chris Rock’s humor do not want to see Will Smith sanctioned. The people who invited Will Smith to receive an Oscar did not want to see him removed before he received his award. No matter what actions the Academy took, it would be a public relations disaster. The Academy’s reputation has been diminished as a result.
Cornell was in a similar situation when it did not take judicial actions against black students who disrupted a class and took over Willard Straight Hall in 1968-69 and paid a public relations price for that. So, the resulting Campus Code of Conduct and judicial system, which remained in effect for five decades, carefully removed these matters from Day Hall control. The system operated under the University Senate and then the University Assembly. Last August, the Trustees replaced that independent system with a system that is managed by Marla Love, Dean of Students. If Dean Love’s staff wants to see a prosecution under the Student Code, it can find a student, faculty or staff member with some knowledge to bring charges against the student. If a member of the Cornell community wants to score points with public opinion, he or she can bring the case without any encouragement from Dean Love’s staff. Worse, the panel deciding the punishment can consider the race of the accused and the victim. The problem is that the new system lacks the legitimacy of being controlled by the Cornell Community and its viability depends solely on Dean Love’s reputation.
Group Accountability. Cornell’s system adds to unfairness by its “group accountability.” Suppose Will Smith was a member of a Cornell team or club. The entire team or club could be punished for Smith’s lone impulsive action just because he happened to be a member. Although Smith’s actions are not disputed, in most cases there will be conflicting evidence of what happened and whether the group encouraged or condoned the action. If the DA would try Smith in California courts, the DA would need to prove that Smith was guilty “beyond a reasonable doubt.” However, at Cornell, groups can be found guilty under a “preponderance of the evidence standard” which means that it is only 51% likely that the group was guilty as charged.
In sum, the new Student Code and its enforcement system is a slap in the face of Cornell students.
This article was written by a member of the Cornell community who requested to stay anonymous.
