The Cornell Review interviewed Ross Marchand, Program Officer at the Foundation for Individual Rights and Expression (FIRE). FIRE seeks to protect free expression and due process both on campuses and beyond. FIRE is a non-partisan organization and publishes university free speech rankings and due process scorecards. (This interview occurred before Cornell released its recommendations on March 8.)
Q. Cornell is proposing to shift antisemitism harassment from the Student Code of Conduct and Procedures to the Title IX Procedures of the Office of Civil Rights. Although the hearing procedures for Title IX cases were upgraded during the first Trump Administration, Cornell kept the old hearing procedures for non-Title IX cases, including the “preponderance of the evidence” standard. What are FIRE’s views on the difference in due process rights resulting from this change?
Cornell’s Office of Civil Rights has different current procedures in place for Title IX cases and in cases where the respondent is a student who is alleged to have committed protected status discrimination or harassment, excluding sexual misconduct. Cornell’s procedures for status discrimination or harassment lack many of the procedural safeguards that are required in Title IX cases, which are critical to ensuring a fair process. Indeed, a hearing is not part of the process under these procedures. Instead, at the conclusion of the investigation, the investigator will issue a determination, using the preponderance of the evidence standard.
FIRE has long raised serious concerns about the use of a single-investigator model, where a sole administrator is empowered to serve as detective, judge, and jury. The potential pitfalls are numerous and, when there is no hearing, the search for truth is undermined. Of additional concern, the procedures state that the investigator may “regardless of a finding of responsibility” recommend measures “to remediate and prevent any hostile environment,” including “educational materials” and “training” for the respondent. While these measures are described as “non-disciplinary” they are anything but.
Cornell’s procedures for status discrimination or harassment risk the chilling effect that investigations (and the single-investigator model in particular) can have on a campus community. These procedures should be eliminated and reports of status discrimination and harassment should go through the same procedures as other reports under Policy 6.4.
Q. The current procedures require “investigation will be completed as expeditiously as possible,” yet recent cases have reached a hearing after a 333-day delay. Are such delays common in college judicial systems? Do they deprive the accused of due process, particularly when an “interim suspension” has been imposed pending a hearing?
FIRE has frequently documented prolonged investigations in campus disciplinary systems, and delays of many months, sometimes approaching or exceeding a year, are not unheard of. While institutions often cite complexity, staffing limitations, or procedural safeguards as justification, extended timelines and the accompanying uncertainty can undermine the fairness of the process.
When a student is placed on interim suspension pending a hearing, the due process concerns intensify. In practice, interim suspension functions as a significant deprivation by, for example, removing a student from classes, housing, and campus activities before a finding of responsibility. If it’s true that such restrictions last nearly a year without resolution, the delay may effectively punish the student prior to adjudication. Procedural fairness requires not only adequate hearings, but timely ones, especially where interim measures impose substantial burdens.
Q. FIRE analyzes judicial procedures as written, but many due process concerns arise when the rules are applied differently than the intent of the written text. What safeguards are there for the accused when this occurs?
FIRE’s experience shows that the gap between written policies and actual practice can be significant. When administrators deviate from formal procedures, whether by altering timelines, limiting cross-examination, restricting access to evidence, or narrowing advisor participation, students’ primary recourse is appeal within the institution. Internal appeal mechanisms, however, are only as effective as the institution’s willingness to enforce its own rules.
While Cornell is not bound by the Constitution as a private institution, FIRE holds the institution to its robust promises to protect student expression and procedural fairness. When institutional actors fail to follow written procedures, that can and often does undermine even the best written policies and has a substantial chilling effect on expression and participation in community life. FIRE not only advocates for policies that embrace free speech principles, but also administrative actions that conform to written policies.
Q. Why is procedural due process important for protecting a campus climate of free expression?
Procedural due process and free expression are deeply intertwined. When students believe that accusations of harassment or bias can result in opaque investigations, limited hearing rights, or unpredictable outcomes, they may (and often do) self-censor to avoid risk. Clear, fair, and consistently applied procedures reassure the campus community that protected expression will not be punished without rigorous proof and neutral adjudication. When disciplinary systems operate transparently and fairly, students can engage in controversial speech without fear that disagreement alone will trigger punitive consequences. In this way, procedural safeguards serve not only the accused, but the broader campus community and, in turn, allow a marketplace of ideas to flourish.
Q. What are the most important things that a judicial system can do to maintain the confidence of the community in the fair functioning of a system?
First, institutions must ensure neutrality and independence in adjudication. Decision-makers should be properly trained, free from conflicts of interest, and structurally separated from investigative functions. The opportunity for meaningful cross-examination, access to all evidence, and clear evidentiary standards strengthen confidence that outcomes are based on facts rather than administrative preference or political pressure.
Second, transparency and consistency are critical. Published procedures must match actual practice, timelines should be predictable, and sanctions should be proportionate and explained. A fair system is not merely one that reaches the right result, but one that visibly adheres to principled procedures in every case.
Q. The Cornell system allows misconduct to be charged against both individuals and groups. What criteria would FIRE recommend for Cornell to use to establish group misconduct?
Universities must sanction student groups that violate university policies, but this punishment cannot automatically extend to individual students who merely support or associate with disfavored groups. “Guilt by association” is, and will always be, a violation of basic fairness. In turn, student groups must not be held responsible for the actions of a few individuals associated with the group.
If an organization is charged, the institution should demonstrate both coordinated unauthorized activity and personal involvement for members facing discipline. Vague theories of “association” or “failure to prevent” are incompatible with due process principles. Accountability must rest on concrete actions.
These issues are currently being debated before the University Assembly and the Faculty Senate.
