The following is an abridged version of the comments that were submitted by Prof. Risa Lieberwitz, ILR to the Cornell Committee on the Interim Expressive Activity Policy on September 3, 2024. The full comments have been endorsed by the Cornell University Chapter of the American Association of University Professors. Prof. Lieberwitz is President of the Cornell AAUP Chapter.
This Committee on the Interim Expressive Activity Policy should apply a philosophy that values the broadest protection of academic freedom and freedom of expression as central to the public mission of the University. Academic freedom protects a broad range of teaching, research, extramural speech (on or off campus, concerning issues that may or may not be within faculty disciplinary expertise) and institutional governance-related intramural speech. The Committee should strengthen the Cornell Policy Statement on Academic Freedom and Freedom of Expression, rather than adding restrictions to it.
Without such protection, faculty, student and staff speech is subject to restrictions in the name of civility, order on campus or avoidance of conflict with legislators or other politicians. Without independence of thought and expression, our teaching, research and debate is chilled, watered down and loses the legitimacy that only academic freedom and freedom of speech can provide.
Further, there are serious concerns with both the procedural and substantive aspects of the IEAP.
First, there must be full and meaningful participation by all shared governance bodies in the review and decision-making process of revising the IEAP. According to the Cornell University bylaws, the faculty senate has jurisdiction over questions of educational policy that is general in nature. This would include an Expressive Activity Policy that affects academic freedom and freedom of expression inside and outside the classroom.
Respecting the role of the Faculty Senate will bring faculty expertise and experience into the process and is essential to bring legitimacy to this process. At the March 13, 2024 Faculty Senate meeting, then-Provost Kotlikoff made statements confirming the importance of the Faculty Senate’s role in considering an Expressive Activity Policy, including the Faculty Senate’s vote on any proposed or finalized policy. As recorded in the verbatim minutes of the March 13 Faculty Senate meeting, then-Provost Kotlikoff stated that “the role of the faculty and faculty senate in discussing and voting on this subsequent full policy, finalized policy is fully acknowledged. So, I don’t — I don’t see an issue there.”
Given the crucial role of higher education institutions in a democratic society, great weight must be placed on the interests of faculty and students to engage in free and open speech and debate. The traditional First Amendment “strict scrutiny” test is well suited to recognize these strong interests, whether or not the speech occurs in public or private institutions of higher education. This would require the University administration to prove that it has a compelling interest in restricting speech and that the restriction is the “least drastic” (or narrowest) means possible to further that compelling interest.
Content-neutrality is a minimum requirement for any restrictions on freedom of expression, but is not nearly sufficient for the University to show a compelling interest in imposing a narrowly drawn restriction. Further, speech about controversial issues is inherently disruptive, including in public events such as invited speakers, or in protests or demonstrations. There must be much more than disruption, discomfort or inconvenience to justify restrictions on speech. There should be a heavy burden of proof on the University administration to provide clear and convincing evidence of imminent threats to health or safety.
Two examples illustrate the overly broad nature of the restrictions of the IEAP.
First, the Revised IEAP removed the “expectation” of registration of outdoor public events after faculty and students raised widespread objections about the chilling effect on speech and the surveillance mechanism created by requiring registration. However, the Revised IEAP continues to overly privilege registered outdoor events in ways that restrict expression, stating, “By choosing to register, organizers enable the university to…reduce the potential for unintended conflict with other scheduled activities.” However, the existence of a registered event is not a compelling basis for restricting speech, nor is prohibition of a protest at the same time as the registered event the narrowest means for achieving any interests of the administration. As the former Campus Code of Conduct provided, “The presence of a counter-protest does not itself constitute a disruption to a University function or authorized event. Moreover, those who oppose a speaker may thus make their views known.”
Another example of overly broad restrictions is the blanket prohibition of “heckling” speakers. This imposes a form of “civility” that broadly excludes speech that may be annoying or cause discomfort, but which does not automatically silence the speaker or prevent other audience members from hearing the speaker. There may be a point where heckling progresses to silencing a speaker, at which point there would likely be a basis for restricting it. However, protecting speech requires a more nuanced approach than a blanket prohibition on heckling.
Another substantive concern relates to Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color and national origin in programs and activities receiving federal financial assistance. The Cornell administration’s use of Title VI as a justification for the IEAP, however, is misleading, as academic freedom and freedom of expression are protected by Title VI, Title IX, and Cornell Policy 6.4. Speech at protests or in a classroom that a listener finds offensive does not, in itself, constitute hostile environment harassment. The US Department of Education states that it “interprets Title VI and its implementing regulations consistent with free speech and other rights protected under the First Amendment to the U.S. Constitution. Nothing in Title VI or regulations implementing it requires or authorizes a school to restrict any rights otherwise protected by the First Amendment. Neither Title VI nor its implementing regulations require schools to enact or enforce codes that punish the exercise of such rights.” Further, Cornell’s policy limits the definition of “harassment” based on “protections afforded by principles of free speech and academic freedom.”
Any Cornell policies restricting speech must be enforced only with full due process protections. This past year there have been instances of selective enforcement, misuse of Cornell policies on temporary suspensions and ad hoc processes used to target faculty for their speech. The lack of due process is unfair, causes significant harm to individuals subject to punitive measures without fair and reliable procedures, creates a chilling effect on students, faculty and staff, and undermines the legitimacy of University policies and their enforcement.
Cornell acted hastily in its unilateral imposition of the IEAP. It is now up to this Committee to ensure that academic freedom, freedom of expression, due process and shared governance are respected in revising, reviewing and voting on any Expressive Activity Policy and any accompanying enforcement and sanctions measures.
Risa L. Lieberwitz is a Professor of Labor and Employment Law in the School of Industrial and Labor Relations. She researches academic freedom in the university, freedom of speech, due process and the “corporatization” of the university. She is the President of the Cornell University Chapter of the American Association of University Professors. She can be reached at [email protected].