GUEST ROOM | Kotlikoff Makes the Rules; He Needs to Follow Them Too

James Grimmelmann is the Tessler Family Professor of Digital and Information Law at Cornell Tech and Cornell Law School. He can be reached at james.grimmelmann@cornell.edu.

President Kotlikoff’s recent behavior raises serious questions about whether he can be trusted behind the wheel of a car — and also whether he belongs at the helm of a major university. His Friday statement to the Cornell community about the Thursday incident in which he bumped a student with his car was disingenuous and deceptive. He should correct the record and accept responsibility for his dangerous driving.

Specifically, Kotlikoff wrote:

“They continued to follow me to my car and then surrounded the car, banging on the windows, blocking the car, and shouting. I waited until I saw space behind the car and then, using my car’s rear pedestrian alert and automatic braking system, was able to slowly maneuver my car from the parking space and exit the parking lot.”

Based on the videos published by The Sun and on the security video released by the University, this passage is false or misleading, in three ways:

1. The videos do not show anyone "banging on the windows" and the audio does not contain the sounds of banging or "shouting." The car was not “surrounded” until after he began driving. Taking the University at its word that the security video is "complete footage of the parking lot interactions," Kotlikoff's claims are false.
2. The videos show that a person (identified by The Sun as a Cornell student) was stationary behind the car in its path of travel when Kotlikoff backed up, and that he backed the car up into them several times.His claim that "I waited until I saw space behind the car" is explicitly false.
3. His claim that "using my car’s rear pedestrian alert and automatic braking system, [I] was able to slowly maneuver my car from the parking space and exit the parking lot" is materially misleading. A reasonable reader of this passage would be under the false impression that Kotlikoff used his car's safety features to avoid striking anyone.

If Kotlikoff were a Cornell student being investigated for a Student Code of Conduct violation, his conduct as depicted in the videos would appear to violate section B, which prohibits "[a]ny unwelcome physical contact,” "[a]ny physical action that … endangers the … safety of another person," and "[a]ny action that threatens or endangers the … safety of any person or causes reasonable apprehension of such harm." His subsequent statement would appear to violate section N, which prohibits "furnish[ing] false information to the University with intent to deceive" and section O, which prohibits "[f]alsification, distortion, or misrepresentation of information" in a Code of Conduct investigation.

In addition, the videos appear to establish all of the elements of several torts and crimes. Based on the evidence currently available, President Kotlikoff committed assault: an intentional act that puts another person in reasonable fear of imminent harmful or offensive physical contact and battery:  an intentional act that results in unconsented harmful or offensive physical contact. Section 120.20 of the New York Penal Code makes it a crime (reckless endangerment in the third degree) to "recklessly engage[] in conduct which creates a substantial risk of serious physical injury to another person." If he had given his statement to an FBI agent, it might have violated the federal false statements statute.

A Cornell student who intentionally drove their car into someone else and then lied about it would be subject to disciplinary action — and rightly so. Of all people in the Cornell community, President Kotlikoff is the last one who should take the law into his own hands. If he needed an escort from CUPD to drive his car out of the parking lot safely, he could have gotten one. If he believed that the protestors following him were engaged in unprotected harassment and intimidation, he could have followed University processes to deal with that misconduct, rather than engaging in misconduct of his own.

If Kotlikoff were treated the same way as students are under the Student Code of Conduct Procedures, he might well be immediately suspended from coming to campus, except to go to his office, housing, dining or health services. This “temporary” suspension would last until he received a full hearing — perhaps in six months or more. He would have the right to present his own evidence and arguments in his defense. But one thing he would not do — which no leader can ethically do — is sit in judgment in his own case and exonerate himself.

This is not a difficult case. University administrators should not endanger the physical safety of community members, and they should be honest and candid in their communications with the University community. A president who cannot respect these basic standards of non-violence and integrity lacks the moral authority to hold other Cornellians to them. If President Kotlikoff is unwilling to live by the rules the rest of us must follow, he should resign and give up the presidency to someone who can.

Correction, May 7 3:43 p.m.: This article has been updated to more accurately reflect Professor Grimmelmann's biography.

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