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Hearing Board Clears Cornell Student Who Leaked Documents

Thu 20 April 2017 News Releases

By Nicholas Bogel-Burroughs and Drew Musto

A hearing board of five Cornellians determined on Wednesday night that a student did not violate the Campus Code of Conduct when he shared internal working group documents with The Sun, concluding a case that thrust the campus judicial process into the spotlight.

The Office of the Judicial Administrator accused Mitch McBride ’17 in March of violating two sections of the Code by sharing internal documents from the Admissions and Financial Aid Working Group with The Sun that showed the University was considering a host of measures to reduce its burden of providing financial aid.

Those charges, after they were first reported in The Sun this week, brought sharp rebukes from several faculty members, including one Law School professor who helped revise the Code a decade ago and said the University was attempting to “stretch the Code” to encompass actions that it does not cover.

The University Hearing Board — composed of three students, one faculty member and one staff member — spent hours listening to arguments from McBride and Associate Judicial Administrator Christina Liang as well as witness testimony from eight witnesses, including the accused student.

Members of the board, including the chair, Prof. Timothy DeVoogd, who does not vote, deliberated for 30 minutes in 163 Day Hall before determining that McBride had not violated either section of the Code.

“There was a strong sense of the Hearing Board that the particular actions of Mr. McBride were wrong, but not covered by the Code,” DeVoogd said after reading the verdict.

The UHB is a group of five formed by randomly selecting from the 45 members of the University Hearing and Review Boards.

Neither party can appeal a ruling of “not responsible,” according the Campus Code of Conduct. Liang declined to comment after the ruling was announced.

Because the UHB did not impose a penalty and because the University was the complainant in the case, “the decision of the UHB for this incident is final,” Judicial Administrator Michelle Horvath said in an email.

“The university will respect the long-standing University Hearing and Review Boards processes,” John Carberry, director of media relations, said in a statement earlier this week. He added that the release of internal documents “is detrimental to the stakeholder process and limits the ability of the university to investigate all possible policy options.”

Wednesday’s arguments largely centered around whether the documents McBride shared with The Sun were confidential and, if so, whether sharing confidential documents falls under a section of the Code that the OJA argued makes it a violation to “misuse” documents.

McBride was charged with two sections of the code: One makes it a violation “To forge, fraudulently alter, willfully falsify, or otherwise misuse University or non-University documents” and the other compels students “to comply with any lawful order of a clearly identifiable University official acting in the performance of his or her duties.”

The Hearing Board’s ruling means its members chose to narrowly define the phrase, “otherwise misuse University documents,” apparently heeding McBride’s argument that any wide interpretation could lead to a slippery slope.

As for the accusation that McBride failed to comply with a “lawful order,” it seemed that in the end, the OJA could not prove that McBride was definitively told to keep the documents private, and even so, it was not clear that such an order from Dean Barbara Knuth, who chaired the working group, would have been a lawful order.

Knuth ignored two reporters’ questions when she walked through Day Hall moments after the verdict was announced.

During the hearing, Knuth testified that she had “made it clear that the documents [were] for consideration by members” of the working group and were “considered private and confidential.”

Asked by one of the members of the UHB how sure she was that she had told McBride the documents were confidential, Knuth said, “I’m positive.”

The 43 leaked pages were from a February draft report discussing potential cost-saving measures for Cornell to “fairly address need across socioeconomic groups.”

The report showed that the working group was reviewing nine potential measures, including admitting more international students who did not require financial aid, graduating students with more debt and considering transfer students’ financial needs during the admissions process.

Knuth said on Wednesday that it was vital internal documents be kept private so members of the working group would feel comfortable proposing a wide range of ideas and because “we don’t want our competitor schools to know what our specific processes are for administering financial aid.”

McBride reiterated at the hearing what he had previously told The Sun, that he shared the documents because he thought the community should be involved in the working group’s decisions, which could potentially have vast implications for how admissions and financial aid are handled.

“I believed that even though it was the ostensible goal of the committee to promote fairness, the way Dean Knuth defined that to the committee was that the highest income brackets were paying too much and have too high a burden,” McBride said, claiming that Knuth believed richer students’ burdens “should be reduced and the burden would be transferred to the poorer students and that would make the system more fair.”

Knuth directly contradicted this account, telling the UHB that “McBride was arguing [for] less generous aid for our lowest-income families and our students from underrepresented minority populations.”

Asked about Knuth’s comments, McBride’s attorney, Alan Sash, called it a “[BS] gig” intended to divert the UHB away from the issue of whether the senior violated the Code.

The testimony of the other six witnesses, five current students and one recent graduate, formed a picture of a somewhat casual atmosphere surrounding the working group, with some members saying Knuth told them the draft documents were confidential and some saying they were never told as much. All witnesses testified that there was a general understanding that the documents should remain private.

Gabe Kaufman ’18, chair of the University Assembly and a member of the working group, testified that McBride’s release of the documents may have caused “fundamental damage” to “the relationship between the student body and administration.”

Nonetheless, Kaufman made it clear that he and the other working group members never signed any confidentiality agreements, adding that he did not remember being told that the documents were confidential or to keep information from the working group confidential.

As McBride awaited the verdict in a quiet hallway, he grew more and more concerned that the UHB would rule against him. He said the questions board members asked, which largely focused on why he felt compelled to disclose the documents rather than the definition of the Code, concerned him the most.

When the verdict was read shortly after 9:30 p.m., however, he celebrated with his attorney as well as Judicial Codes Coordinator Kendall Karr, a law student who made McBride’s case during the hearing. Sash was allowed to sit in the room for the hearing but was forbidden from addressing the UHB.

“This is all I’ve been thinking about for a month,” said McBride, who has been accepted into Georgetown Law and was worried about the impact a guilty verdict could have on his burgeoning legal career.

“This has taught me a lesson that people in power need to be held to account, and I think that law is the mechanism to do it,” he said.

Immediately after the ruling, McBride called his parents, who he said first found out he had been cleared by following The Sun’s live blog of the proceedings.

“They were just so happy,” he said. “They’ve been worrying about this constantly, too. It’s just been hard on my whole family.”

The public hearing on Wednesday was the first in recent memory for many involved in the campus judicial process, and may be one of only a handful of times a hearing has been made public. The open nature shed light on the campus judicial procedure, leading many students and faculty to claim that the OJA was overreaching in its prosecution.

Prof. Kevin Clermont, law, was a member of the team that revised the Code in 2007 and 2008 and previously told The Sun that neither of the provisions McBride is accused of violating apply to the circumstances of his case.

“Cornell is trying to stretch the Code to reach behavior that the Code does not cover,” he said.

Prof. William Jacobson, law, said after the verdict that he was “glad the Board took seriously its obligation to enforce the Code as written, not as the administration wished it had been written.”

Cornell and the OJA’s actions “put at risk an innocent person’s reputation and career,” Jacobson said in an email. “Some self-reflection is in order at Day Hall.”

Students piled into a second-floor room of Uris Hall on Wednesday afternoon where the hearing was broadcast live to a group of 60 people. Dozens more filled the hallway outside, waiting for others to give up their spots.

The streamed audio was of poor quality and the UHB ultimately reversed its initial position, allowing two reporters to sit in the Day Hall room during the trial.

Inside Uris Hall, Matthew Battaglia ’16, chair of the University Assembly Codes and Judicial Committee, and others argued that the hearing should have been held in a room that could accommodate all members of the public.

“I think that it’s absolutely appropriate to raise a procedural objection that we are not following the rules that have been set out on campus,” said Joel Cisne, the administrative chair of the UHRB who had the unenviable task of acting as a liaison between the Uris Hall viewing room and the Day Hall proceedings.

Christian Brickhouse ’17 asked how “public” was being defined by the OJA, “considering we are in a separate room where we can’t hear, we won’t be provided transcripts, and may or may not be allowed to broadcast [the proceedings] outside of this room, where only 60 people can be.”

“It is certainly not a public hearing,” added Aravind Natarajan, grad, who called the set-up an “absolute disappointment.”

“Everybody is definitely disappointed,” Natarajan said during one of the breaks. “People came here to understand what’s happening … and we’ve certainly made no progress in that direction.”

“I’ve been involved in student government at Cornell since 2010 and this is the single worst abuse of power that I have ever witnessed,” said Paul Berry, grad. “The procedures and policies of this institution are rotten and in desperate need of reform.”

Matters gradually improved when the audio quality was adjusted and the Graduate Professional Student Assembly and Student Assembly subsidized pizza for the attendees.

The rowdiest moment of the night came when Kaufman testified and, asked by Liang to describe his relationship with McBride, said the two were “former friends.” Every future inquiry about a witness’s relationship to McBride drew snickers from the Uris Hall crowd.

Only about 10 people were left in the room when the decision was announced, five hours after the hearing began, and most celebrated the verdict.

Prof. Richard Bensel, government, a member of the Faculty Senate and an outspoken critic of the case against McBride, stood outside of the hearing room in Day Hall at the beginning of the procedure and, after the verdict, said the ruling was “a confirmation of good sense and justice.”

“But the conduct of the OJA in attempting to disable the defense by attempting to deny the assistance of counsel, prohibit the testimony of defense witnesses, and close the hearing to the public,” Bensel added in an email, “is simply inexcusable in an open university community that welcomes and, in fact, utterly depends on the presentation of contrary and competing opinions.”

The OJA had previously objected to McBride calling Clermont, the law professor who helped revise the code, as a witness, and Chair DeVoogd upheld that decision.

Prof. Elizabeth Sanders, government, said the prosecution “was a travesty from start to finish.”

“The charges were absurd and should never have been brought,” she wrote in an email after the verdict. “The fact that they denied entry to Prof. Clermont, an expert and contributing author of the Code, indicates a remarkable level of arrogance and vindictiveness.”

“We must work to reform the JA process and the irresponsible power of Cornell officials who do not believe in anything approaching shared governance, free speech, or democratic process,” Sanders said.

Karr, who argued successfully for McBride during the hours-long proceeding, said there are many improvements that should be made to the campus judicial system.

“Hopefully, any errors or things that are problematic [in the Code] can be addressed in the future through all of the parties that interact with the Code,” Karr said.

McBride acknowledged after the proceedings that as the hearing continued into the night, he became more nervous and, because of the UHB members’ comments, thought the Hearing Board would find him responsible.

“They were saying what I did was so wrong and I didn’t think the Code was being talked about,” he said.

“Even if people think what I did was wrong, … the Code does not apply.”

McBride, hugging and high-fiving friends in Day Hall shortly after 10 p.m., said he felt vindicated.

“I’m just finally glad that the Code is upheld,” he said. “That’s the vindication.”