by Claude Opus 5.5
Whose interests should a hearing panel composed of faculty and staff be understood to represent? Is the ideal of impartiality coherent for an institution adjudicating its own members?
Cornell’s Title IX hearing in the case behind these seminars reportedly ran for twelve days and heard from more than thirty witnesses. The panel that decided it, like most American campus panels, was drawn from the university’s own faculty and staff. The arrangement raises an old question in a new setting. The principle that no one should be a judge in their own cause, nemo iudex in causa sua, is one of the foundations of natural justice. A university adjudicating its own students, with its own reputation, finances and legal exposure at stake, seems to strain it. This discussion asks whom such a panel should be understood to represent, and whether impartiality is even a coherent ideal in this setting.
Four candidates
There are at least four answers to the question of representation.
The institution. Panel members are employees. On a cynical view, they represent their employer’s interests: avoiding liability, protecting reputation and maintaining relationships with donors and powerful student groups. If that is what they represent, impartiality is impossible by design.
The academic community. On an associational view, panel members represent the community of scholars and students whose norms have allegedly been violated. They are not agents of the administration but peers exercising the community’s self-governance, somewhat as a jury represents the conscience of the wider community.
The parties. On a procedural view, the panel represents no one; it holds the balance between complainant and respondent, each of whom is a member of the community with equal standing.
The law. Under Title IX, the panel discharges a federal obligation to respond to sex discrimination. On this view, it represents a public interest in equal access to education, and acts in a quasi-public capacity.
These are not exclusive, but which one is primary matters, because it determines what counts as a conflict of interest and what impartiality requires.
Is impartiality coherent?
It is tempting to say that impartiality requires a decision-maker with no connection to the parties or the institution. But that cannot be right as a general principle. Criminal judges are employees of the state, which is a party to every prosecution. Military courts-martial are staffed by members of the armed forces. Professional regulators include members of the profession. In each case, the solution has not been to abandon institutional affiliation but to build structural independence within it: security of tenure, separation from the prosecuting arm, rules on recusal, reasoned decisions and appellate review.
Impartiality is better understood as having several dimensions. Personal impartiality means that a decision-maker has no stake in the outcome or relationship with the parties. Structural impartiality means that the decision-maker is insulated from pressure by any party, including the institution. Perspectival impartiality, the ideal of a view from nowhere, means judging without the influence of one’s social position. The first two are achievable within institutions if appropriately designed. The third is more contested. Iris Marion Young argued that perspectival impartiality is an illusion that tends to privilege dominant perspectives, and that fairness is better served by a plurality of viewpoints than by the pretence of none.
On this analysis, impartiality is coherent for an institution adjudicating its own members, but only as personal and structural impartiality, achieved through design, not as a given.
What makes campus panels distinctive
Campus panels face pressures that criminal courts are better insulated from. The institution is itself exposed: a finding for or against a respondent may be cited in litigation against the university, and Cornell is now a defendant in the complainant’s civil suit. Panel members may know the parties, the student organisations involved, or colleagues who taught them. They usually lack security from administrative influence of the kind judges enjoy. And they operate under federal rules that have changed repeatedly, which may encourage defensive compliance rather than independent judgement.
These pressures do not necessarily point in one direction. An institution under pressure from survivor advocates may lean towards findings of responsibility; one concerned about litigation from respondents may lean the other way; one concerned about donors or prominent groups may lean towards leniency. What they share is that the institution’s interests, whatever they are, can intrude.
Whom should the panel represent?
The most defensible answer is that the panel should represent the academic community’s norms, exercised on behalf of all its members, including both parties, and discharging a public obligation under Title IX. It should not represent the institution’s corporate interests. That distinction, between the university as a community and the university as a corporation, is the key. A panel drawn from faculty and staff can plausibly speak for the community; it cannot legitimately speak for the corporation’s risk management.
Design implications
Several design features would make that answer credible. Panel members should be insulated from the administration’s legal and communications functions. They should be subject to recusal rules covering relationships with parties and organisations. Panels could include external members, such as trained adjudicators from other institutions, to reduce the influence of local interests. Decisions should be reasoned and reviewable. And the university’s public statements about cases should come from officers who were not involved in adjudication, so that the institution’s defence of itself is visibly separate from its judgement of its members.
Conclusion
A campus hearing panel should be understood to represent the academic community and its obligations to all its members, not the institution’s corporate interests. Impartiality is coherent in this setting, but only in its personal and structural forms, and only if built in through design. Without that design, the panel is exposed to the charge that it judges in its employer’s cause. Whatever the merits of Cornell’s decisions in this case, the widespread suspicion of them is, in part, a judgement on that structure.