by Claude Opus 5.5
Is the university’s disciplinary jurisdiction grounded in contract, in community membership, or in a public mandate under Title IX? Does the ground constrain what sanctions are legitimate?
When Cornell’s hearing panel expelled and suspended students in the case behind these seminars, it exercised a power that is easy to take for granted. A university is not a state. It cannot imprison, fine or compel anyone outside its membership. Yet it claims authority to investigate alleged crimes, hold hearings, make findings of fact and impose consequences that can alter the course of a life. What grounds that authority? Three candidates dominate: contract, community membership and a public mandate under Title IX. They are not mutually exclusive, but they differ in what they imply about the limits of legitimate sanction.
Contract
On the contractual view, a student and a private university enter an agreement. The student pays tuition and agrees to abide by the institution’s code of conduct; the university provides education and agrees to follow its own published procedures. Disciplinary authority is a term of the bargain. American courts have largely adopted this framing for private institutions. In New York, review of private university discipline typically asks whether the institution substantially complied with its own rules and whether its decision was arbitrary or capricious, rather than whether constitutional due process was observed.
The contractual ground constrains sanctions in a distinctive way: by reference to what was promised. Legitimate sanctions are those the code specifies, imposed through the procedures the code describes. This has a liberal appeal. It treats students as autonomous parties who accepted known terms. But it is thin. Contracts of adhesion, drafted unilaterally by the institution and accepted as a condition of enrolment, are weak sources of genuine consent. And the contractual view places almost no substantive limit on sanctions: if the code says that a reflection paper is the appropriate response to a given finding, or that expulsion is, the contract is satisfied either way. Contract tells us which sanctions are permissible but not which are fitting.
Community membership
On the associational view, a university is a community with its own purposes, chiefly education and inquiry, and norms that make those purposes possible. Membership carries obligations, and the community may protect itself and its norms by setting conditions on membership, suspending it or withdrawing it. This view has deeper roots in the idea of the academy as a self-governing body, and it explains why disciplinary bodies are composed of faculty and staff rather than lawyers.
The associational ground yields substantive constraints. The community’s authority extends to the conditions of membership, so its characteristic sanctions are exclusionary or conditional: probation, suspension, expulsion, restrictions on access to residences or activities. Its warrant for retributive punishment is weaker. A community can say “you may not remain among us” without claiming the authority to inflict suffering proportionate to desert. On this view, expulsion is not a lesser criminal penalty but a different kind of act: the community’s judgement that someone’s conduct is incompatible with continued membership. That explains why expulsion can be legitimate without a conviction, but it also limits what the university can claim to be doing. It is not doing justice for the crime; it is protecting the community and its norms.
A public mandate under Title IX
On the third view, the university’s authority in sexual misconduct cases derives partly from federal law. Title IX conditions federal funding on non-discrimination on the basis of sex, and sexual harassment and assault have been treated as forms of discrimination. Institutions that are deliberately indifferent to known harassment can be liable. Regulations specify procedures, including, under the 2020 rules Cornell applied, live hearings with cross-examination. On this view, the university acts in part as a delegate of public policy, required to respond to sexual misconduct in order to secure equal access to education.
This ground also constrains sanctions, but in a forward-looking direction. The mandate is to end discrimination, prevent recurrence and remedy its effects on the complainant’s access to education. Sanctions are legitimate insofar as they serve those ends. A sanction that leaves the complainant facing the respondent on campus may fail the mandate; a sanction that goes beyond what is needed to secure equal access may exceed it. Retribution is not part of the Title IX mandate at all.
Does the ground constrain sanctions?
Yes, and the three grounds pull in different directions. Contract constrains procedurally but permits almost any sanction the code lists. Community membership licenses exclusion but not retribution. The Title IX mandate licenses whatever is needed to secure equal access and prevent recurrence, and requires the university to be effective, not merely compliant.
This divergence helps explain the public reaction to Cornell. Much criticism has been retributive in character: the sanctions were said not to match the gravity of what was alleged. But none of the three grounds gives a university authority to punish in the retributive sense. Insofar as the critics demand retribution, they are asking the institution to do something it lacks the authority to do, and are arguably directing at the university a demand properly addressed to the criminal law. On the other hand, the Title IX mandate and the associational view both support the criticism if the sanctions left the complainant’s access to education compromised or failed to protect the community.
A pluralist answer
The most plausible position is that the university’s authority rests on all three grounds, layered. Contract supplies procedural legitimacy; community membership supplies the authority to exclude; the public mandate supplies an obligation to respond effectively to sex-based harm. Each constrains differently. A legitimate sanction must be authorised by the code, fitting for a community’s judgement about membership, and adequate to secure equal access and prevent recurrence. On this view, expulsion for serious sexual misconduct is clearly within the university’s authority; a sanction that is chiefly educational may be legitimate when the community’s and the mandate’s aims are met by it, but not when it leaves the complainant’s equal access unprotected. And no sanction is legitimate if presented as retribution for a crime, because that is the state’s office, not the university’s.