Background
From 1970 until December 10, 2020, Cornell had a Campus Code of Conduct that was equally applicable to students, faculty, staff and other invitees onto campus. This document had detailed limitations on the time, place and manner of exercising free expression on campus. These rules were adopted by Cornell’s Board of Trustees because New York State had adopted the Henderson Law requiring every college in the state (both public and private) to have such rules.
The Campus Code of Conduct was written in the first instance by the University Assembly (U.A.) with the Trustee ratifying those rules to the extent they complied with the Henderson Law.
About a decade ago, many universities were adopting “speech codes” which allowed a school to punish students for saying hurtful things. Some people advocated for Cornell to adopt a speech code, but the University Assembly voted down the proposal.
Early in President Pollack’s administration, she appointed various task forces to study Cornell’s Campus Climate, and again surfaced the idea of a speech code to outlaw “hate speech.” Some advocated making the Campus Code less legalistic or specific. Others said the enforcement of the Campus Code should emphasize educational values rather than deterrence or punishment.
Finally, some argued that the faculty and staff should not be subject to any code of conduct and certainly should not be under the same conduct expectations as students.
Although those pressing for these reforms were largely anonymous, the people most visible in advancing these attacks on the then current system were Dean of Students Marla Love, University Counsel Madelyn Wessel, and the Presidential Advisors on Diversity & Equity (PADE). Wessel quickly retired, leaving many holding Dean Love accountable.
On December 10, 2020–over the strong objection of the University Assembly and others–the Board of Trustees, repealed the Campus Code of Conduct and adopted a student only code, which did not cover time, place and manner limits. This also meant that Cornell had nothing to show New York State for its rules applicable to faculty, staff or visitors. Responsibility for conduct was transferred from the U.A. to Vice President Ryan Lombardi.
In January 2024, while many campuses were coping with Gaza-related protests, President Pollack unilaterally adopted an Interim Expressive Activity Policy, with no stated enforcement mechanism. The shared governance groups condemned this action, and the Cornell Committee on Expressive Activity was asked to study the matter over the summer.
The New Proposal
The Committee issued a cover email report and suggested new text to replace the Interim Expressive Activity Policy. The cover email was sent to all students, faculty and staff. It announces that the Committee will consult with a long list of shared governance bodies. This implies that it does not recognize the provision in the U.A. charter that makes the U.A. and its Campus Codes Committee the lead on “campus codes of conduct.”
The cover email announces a meeting in the Memorial Room on December 3 from 12:00 p.m. to 1:30 p.m. and asks for all comments by December 9.
The cover email claims that the Committee will consider all comments before “submitting them to be finalized in accordance with the university’s policy review process.” This seems to be a rejection of actions taken by shared governance bodies to assert that those bodies should have the final edit. It also ignores the question of whether the final policy will be a part of Cornell’s Rules for the Maintenance of Public Order (which requires Trustee approval.)
The Report could have easily been written by a group of lawyers, and in fact several lawyers were on the Committee. Some of the key findings are:
1) “Many of the provisions currently housed in Cornell’s interim expressive activity policy are not special to expressive activity but pertain to all activities on campus.“To allow the greatest room for freedom of expression, content-neutral time, place, and manner restrictions should be narrowly tailored to the interests they protect, and they should leave open adequate alternate channels for expression.”
2) “Our policy does not pertain to the classroom setting.” The Interim Policy only covered the outdoors, but the final policy must address the indoors (except for the classroom.)
3) “Neutrality with respect to the content and viewpoint of expression is essential in implementing time, place, and manner rules to ensure that the university administration does not prefer one set of views or voices over others. Neutrality in the regulation of individual expression does not prevent the university administration or other community members from disagreeing, even in the strongest terms, with the content of that speech.”
4) Although the restrictions must be applied in a content neutral way, the Committee is still carrying forward “harassment directed at members of protected groups” being treated differently than harassment of non-protected groups.
5) Cornell’s event scheduling system will be used for protests, ending the Interim Policy that allowed for unscheduled outdoor protests. However, “Ho Plaza can be used for spontaneous protests and demonstrations by Cornell affiliates.”
6) “Regulations of camping on campus should focus on health, physical safety, and competing use of space.” So, encampments will be regulated.
7) “Wearing masks or face coverings is not prohibited on Cornell’s campuses. University personnel may ask an individual to present a campus ID and/or briefly unmask to establish a campus affiliation.”
8) Special settings, including patient care and clinic settings, living spaces, libraries, laboratories and offices, and dining halls, should be subject to more strict limitations on expressive activity than other areas of the campus. (The report seems to assume that a protest is against Cornell as a whole, when it could be directed against one clinic or professor.)
9). “The measures used to address time, place, and manner violations follow the disciplinary structures already in place for students, faculty, and staff. For students, all alleged conduct violations are handled under the Student Code of Conduct and its procedures within the Cornell Office of Student Conduct and Community Standards (OSCCS).” However, this ignores the large gap for adjudicating cases involving faculty, staff and visitors. It also ignores the practical political necessity of separating judicial functions from Day Hall.
10) The Committee would also clarify the use of “temporary suspensions.”
Although the op-ed pieces will flow over every aspect of the report, it is clear that major battlelines have been drawn. Will the new system be subject to Trustee approval? How will it handle organizations vs. individuals who violate the rules? Will case law be allowed to develop so as to assure consistency over time? How can the policy be fine tuned over time? The current U.A. charter specifies the Campus Codes Committee in that role, but the report envisions a new, separate committee. The Cornell Graduate Students United, in contrast, demands that this all be the subject of a collective bargaining agreement with that union.
Although the policy has only one paragraph about enforcement, it is so vague as to be harmful. Either the document specifies an adjudication mechanism or it does not.
On the whole, the report represents a thoughtful reexamination of the area, but much work remains to gain a community consensus on such complex and troubling issues.
