April 13, 2010

Because I Can…

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In Healy v. James, a unanimous Supreme Court proclaimed that free speech and the First Amendment apply with just as much force in college as they do in real life. This principle certainly holds moral force at every university, but it only holds legal force at public universities.

Too often, at private universities such as Cornell*, references to the First Amendment sound nice rhetorically, but under pressure they hold as much weight as a harshly-worded resolution passed by the U.N. Security Council (read: not much at all).

In his response to R. 44, the Student Assembly’s “non-discrimination” resolution, President David Skorton deserves praise both for stating that the First Amendment often informs university policy and also for noting that the First Amendment protects offensive speech.

However, while Skorton added a note that “‘constitutional’ considerations do not control how the policy issues raised by the S.A. proposal should be resolved,” he has set no guidelines on when Cornell should ignore the First Amendment.

If the First Amendment protections the government extends to both public and private universities such as Cornell has both moral and legal force, then why should the First Amendment protections that Cornell extends to its students on campus have only moral force?

Past attempts by the S.A. to defund The Cornell American (a conservative publication that merged with The Cornell Review) have been supported by former President Hunter Rawlings, and one particularly egregious attempt was based on a resolution sponsored by the President of the Cornell Democrats.

Likewise, any topic related to Israel and Palestine will inflame tensions, an administrative assistant once tried to remove a pro-life display from the Engineering Quad and given how many woman he has offended (intentionally or not), Sun sex columnist Jeff K. ’10 should feel fortunate that he writes for a publication that does not receive funding from the S.A.

Now as a Lutheran, one can imagine I do not find myself agreeing with Jeff K. often. Yet no matter how much I may disagree with Jeff, I will still vigorously defend his right to express his own views.

Too often, when people defend the suppression of the First Amendment at Cornell, they do it not by arguing that Cornell should ignore the First Amendment, but by merely arguing that Cornell can ignore the First Amendment. Or instead, they use an alternative interpretation of the First Amendment that does not protect free speech and would quickly be shot down by the courts if Cornell were a public university.

Technically, as a private university, Cornell can legally censor students in most of the examples I have cited above. And while The Sun is independent from Cornell, in theory, Cornell could still refuse to distribute The Sun on its campus or refuse to provide The Sun with the addresses it needs to mail its Freshmen Issue to incoming students each summer.

When we label Cornell a private university, which word do we assign more importance to: private or university? Of course, the answer would be university, and we must keep in mind this unique educational context when setting policy for the university.

For example, Merced College in California has a sexual harassment policy written for private corporations, where telling “sexual … stories” is probably a bad idea. However, while we all acknowledge that sexual harassment is bad, this same policy made no sense in a university, where topics of a sexual nature will inevitably come up in classrooms.

When Adam Kissel of FIRE (The Foundation for Individual Rights in Education) came to speak at Merced, he discovered firsthand the issues with this policy. Some faculty wondered if they should avoid sexual topics in class to stay in compliance with the policy, and in particular professors in English and Gender Studies expressed the most concern.

Likewise, in the realm of government, everyone pays taxes, and the party in power decides how to spend these taxes. In the realm of education, however, should the student activity fee go to the groups who have the most power and to the students in the majority? Or should it go to all student organizations so long as they follow viewpoint-neutral guidelines?

All students pay into the student activity fee, including religious fundamentalists, including flag-burners and including radical activists from all ends of the spectrum. In a university, these students deserve a piece of the pie when the student activity fee is distributed among student groups.

The Supreme Court unanimously came to the same conclusion in Board of Regents of Univ. of Wis. System v. Southworth. Students argued that a mandatory student activity fee violated their right to free speech since it funded organizations with which they disagree. The Supreme Court disagreed, upholding this fee only on the condition that funds were distributed to organizations in a viewpoint-neutral manner.

For these reasons, I have grave concerns about President Skorton’s proposed compromise, where the S.A. will recognize groups no matter how “outdated” their ideas seem, but it will also set stricter standards for funding. It raises an inevitable question: If a group’s viewpoints are protected to the point where the university will recognize them as an independent student organization, then why can they set a different set of rules for funding this organization?

Unfortunately, this compromise could set a precedent that could be applied to other groups besides the Christian fellowship Chi Alpha. The moment any group generates controversy, the S.A. could fall back on this compromise. The common argument in this situation is: “We can recognize these groups, but why should they receive students’ money?” Regardless of where existing policy stands or will stand in the future, the inevitable conclusion of this line of thinking is obvious. Its chilling effects on free speech is obvious.

And the inevitable counter-argument when First Amendment issues are raised, the argument that Cornell is a private university, is obvious.

*Astute readers will point out that Cornell, as a land grant university, is both a public and a private university. I acknowledge this but do not have the space in this column to address that argument.

Mike Wacker, a senior in the College of Engineering, is a former Sun Assistant Web Editor. He may be reached at mwacker@cornellsun.com. Wack Attack appears alternate Wednesdays this semester.

Original Author: Mike Wacker