Just over one month ago, 22 students occupying Day Hall were arrested for trespassing University property. On Thursday morning, the University told students staging an encampment on the Arts Quad that they were at risk of similar consequences.
Vice President of University Relations Joel Malina released a statement announcing that students were “dishonest” in their event registration and in violation of University policy for pitching tents. According to the statement, Climate Justice Cornell obtained permission for an art installation on the Arts Quad until 8 p.m., but did not receive authorization to pitch tents.
“[Individuals protesting] were then told that if the tents were not taken down promptly, they would be subject to disciplinary action,” Malina wrote in the statement. “They did not comply, and suspensions, for students, and Human Resources referrals, for faculty and staff, will be issued.”
The protest comes as college students across the nation have assembled similar pro-Palestine encampments. Police action has been taken at peer institutions such as Columbia University, Yale University and Princeton University.
As students navigate complex legalities surrounding First Amendment rights and unique university expression policies, The Sun examined the key policies that outline Cornell protesters’ legal rights.
Cornell as a Private Institution
The First Amendment guarantees citizens’ rights to free speech, religion, press, assembly and petitioning. Congress is prohibited from establishing any laws to restrict such rights. However, this does not stop private entities from enacting such restrictions.
“One broad principle to keep in mind is that the First Amendment, by its terms, only applies to the government, so private entities don’t have to obey the First Amendment,” said Prof. Nelson Tebbe, the Jane M.G. Foster Professor of Law.
While Cornell is considered as a private institution, five of its nine undergraduate colleges and schools receive some level of funding from New York State. This ambiguity has once sparked a legal dispute regarding Cornell’s entity status that reached the New York State Court of Appeals.
Stoll v. New York State College of Veterinary Medicine at Cornell University (1996), centered around the Freedom of Information Law, which allows the public to request access to any records kept by public or government-sponsored entities. The issue at hand was whether a Cornell professor could access records kept by the University per FOIL after Cornell initially denied the request.
Stoll reached the Court of Appeals of the State of New York, where the court focused on whether the state or private entities possessed administrative authority over the publicly funded colleges, determining whether the University is public or private.
According to Tebbe, although Cornell is a land grant university and receives funding from New York State, this legal precedent has established the University as a private entity. While there is no legal obligation for Cornell to strictly uphold students’ First Amendment rights, Tebbe stated that many universities still voluntarily adopt First Amendment free speech and expression principles. Notably, Cornell selected Freedom of Expression as the theme for the 2023-2024 academic year.
Deciphering the Interim Expressive Activity Policy
While the First Amendment protects free speech and expression, Tebbe noted that there are some exceptions. He explained how governments may impose restrictions on the time, place and manner of protests or other expressive activities, for example, including through requiring permits or adherence to regulations. These restrictions are acceptable so long as they “remain viewpoint-neutral” and leave open “avenues for communication.”
The Interim Expressive Activity Policy adapts similar restrictions. Announced on Jan. 24, the policy states that Cornell students are prohibited from attributing any speech to the University. This is because Cornell is a non-profit organization, so federal tax law prohibits the University from engaging in political campaign activities.
Any form of expression must also not compromise public safety, impede the free movement of people or vehicles, damage University property or interfere with regular University operations, as stated in the policy.
In the Event Planning clause, the policy places limits on the timing of demonstrations with “amplified sound” and the use of sticks, poles and other items that could be used as weapons. Registration of outdoor events is “strongly encouraged, but not required,” while outdoor camping requires registration, is prohibited from lasting more than one week and must comply with public health requirements.
Should students violate any of the clauses, they will be “referred to the appropriate office for disciplinary action.” Students may also face civil or criminal penalties for engaging in activity that violates the Interim Expressive Policy.
As a private institution, Cornell has jurisdiction to enforce the policy.
Providing Identification to Cornell Police
Before the 24 Day Hall protestors were arrested, Cornell Police requested many of them to hand over identification. Protesters do not have to comply with this request under both the First and Fourth Amendment, which protects people from unreasonable searches and seizures. Additionally, the state of New York has no laws that require citizens to show their ID to police when asked.
It is important to note that citizens may be detained until they are identified if they refuse to provide identification. One instance where it is beneficial to give police identification is when one is arrested.
If a protest is peaceful, officers are prohibited from conducting extended searches that consist of collecting identification. However, because the officers who arrested Day Hall protestors are affiliated with Cornell and not the Ithaca Police Department, which is a government entity, the Cornell Police officers are part of the private institution and have jurisdiction to enforce private policies, namely the Interim Expressive Activity Policy.
“During expressive activity events, University officials such as the Cornell Police may request individuals (students, staff, faculty) to produce their University-issued identification card if/when their actions are counter to University policy or the Student Code of Conduct, or they violate local, state or federal law,” wrote Cornell Media Relations in a statement to The Sun.
Prof. Sujata Gibson, law, principal attorney at The Gibson Law Firm, explained the gravity of potential free expression infringements in a written statement to The Sun. Gibson previously served as assigned counsel for the Day Hall demonstrators through Tompkins County Assigned Counsel.
“There may be campus-based rules that would allow for the Cornell Police to ask for identification in cases where no arrest has taken place on or within campus. But, even in such cases, there could be a First Amendment violation if certain speech or demonstrators were targeted, or if it appeared that the requests were intended to or did chill lawful demonstrations,” Gibson wrote in an email to The Sun.
Some encampment protestors have proudly stated their participation in civil disobedience, which the American Civil Liberties Union defines as “peaceful but unlawful activity as a form of protest,” citing the occupation of private property as an example.
Protesters should expect to be arrested in this situation, according to the ACLU.
Avery Wang ’27 and Ben Leynse ’27 contributed reporting.