Cornell University should provide members of independent student organizations the same First Amendment rights they would be entitled to in the real world.
If Cornell were a public university, I would not have to advocate for these rights; this world would be reality. In Healy v. James, the Supreme Court firmly refuted the idea that “First Amendment protections should apply with less force on college campuses than in the community at large,” making it clear with this stance that they “break no new constitutional ground.”
As Speaker of the House (and Cornell’s convocation speaker) Nancy Pelosi once said, “It is a decision of the Supreme Court … so this is almost as if God has spoken. It’s an elementary discussion now.”
Given Cornell’s unique status as both a public and private university, ambiguity exists in terms of what Cornell legally must do. No ambiguity, however, should exist in terms of what Cornell should do, especially if it values academic freedom and the marketplace of ideas.
This bold stance would not unnecessarily jeopardize Cornell’s (partially) private status. The First Amendment did not grant more power to the government; it restricted their power to ensure the peoples’ rights. Likewise, Cornell is not ceding power to the government, but rather to their students for the protection of their rights.
Where the First Amendment does not apply, of course, Cornell should maintain its independence. It can even prevent any organization from reserving rooms on campus. But if it allows, yet regulates, room reservations, consistent with Widmar v. Vincent, it should impose only “content-neutral” regulations.
Unfortunately, the non-discrimination resolution the Student Assembly barely passed runs counter to these principles. I am not concerned about the 22(000) protected classes of individuals it lists. I am concerned that, regardless of how many (million) classes it protects, it will fundamentally alter the delicate balance between the First and 14th Amendments.
In comments to the S.A., Rev. Kenneth Clarke of Cornell United Religious Work spoke of the conflict between these two amendments. And when the University Assembly tacked a similar issue, President David Skorton requested that the proposal be amended to protect “free speech, freedom of association and religious freedom.”
The authors of the non-discrimination resolution, Andrew Brokman ’11 and Matt Danzer ’12, have put in some extra effort, amending the resolution to ensure that a club sport — an “exclusive club” which does not “provide an opportunity for all students to participate fully,” to quote their letter to the editor — can discriminate based on height or weight as it relates to athletic ability. They have not, however, put any effort into the text of the resolution to address the issues raised by Clarke and Skorton, and reviewed after the fact in The Sun’s Feb. 22 editorial.
We may disagree on how to set this balance between the First and 14th Amendments, but I know that a contract for independent organizations which omits First Amendment protections cannot accomplish this goal. Brokman and Danzer can talk all they want about protecting members’ rights, but they cannot pick and choose which ones they want to protect.
If this resolution truly “does not censor thought or beliefs,” then why not add First Amendment protections? After all, if this resolution does not conflict with the First Amendment, and if Brokman and Danzer want to ensure that members have rights, then they have nothing to lose by adding these protections.
Organizations found in violation of this clause have everything to lose, however. Brokman confirmed to me via e-mail that such organizations can lose University recognition and all the benefits that come with it. These benefits not only include student money, the only benefit mentioned in Brokman’s and Danzer’s letter, but also other privileges the two neglected to list: reserving rooms on campus, participating in the Student Activities Fair and appearing on the list of organizations on the Student Activity Office’s website, among others. These losses would threaten the very existence of offending organizations.
Cornell should not recognize that all groups have First Amendment rights, but create two separate levels of these rights. In Forsyth County v. Nationalist Movement, the Supreme Court declared unconstitutional the practice of adjusting security fees based on how controversial free speech may be and how much police protection it could require. If those variable security fees put an undue burden on free speech, then imagine the chilling effect this resolution could have.
As a corollary, restricting Student Assembly Finance Commission funding is not an option. Democrats have to pay the student activity fee even though some of it goes to Republican groups. Republicans fund Democrats, religious students fund atheists and atheists fund religious students. SAFC funding does not imply that Cornell endorses each group it funds; it merely gives each organization the resources to express itself, including Christian organizations with different theological beliefs than Chi Alpha.
In the context of public universities, forcing individuals to fund groups they disagree with does not inherently violate free speech. So long as funds are distributed in a “viewpoint neutral” manner, the Supreme Court upheld the constitutionality of mandatory student activity fees in Board of Regents of Univ. of Wis. System v. Southworth. The right to be recognized under the First Amendment and the right to receive student funding (subject to viewpoint-neutral regulations) are inseparable.
The Student Assembly can pass as many resolutions condemning organizations such as Chi Alpha as it desires, and it can act against them if their actions are external and not internal within the organization. However, no matter how strongly the S.A. disagrees with their beliefs, it would be a mistake to impose its own beliefs on any organization.
Mike Wacker, a senior in the College of Engineering, is a former Sun Assistant Web Editor. He may be reached at firstname.lastname@example.org. Wack Attack appears alternate Wednesdays this semester.