On June 9, the Foundation for Individual Rights and Expression (FIRE), a free speech advocacy group, responded to a Cornell Review article comparing the Chicago Statement to Cornell’s free expression policies. Cornell has adopted a Mission Statement, Core Values, and a Policy Statement protecting free expression.
Certain alumni are asking the university to also adopt the Chicago Statement. To that end, a Cornell Review contributor proposed that a neutral third party, such as FIRE, compare the documents to see if Cornell has already earned the right to be added to the list of 99 universities that have adopted the Chicago Statement.
FIRE obliged. In an email to the Review, FIRE noted Cornell’s documents fail in one key area: how free expression rights intersect with allegations of bias or harassment.
What is unprotected “genuine harassment?”
On the one hand, most universities want to defend free expression for faculty, students, and staff so that they can discuss and explore any idea, even if it is unpopular or upsetting. On the other hand, the Federal Government requires universities to enforce rules against bias or harassment. (Cornell’s implementation of this requirement is Policy 6.4.) There is a line between protected speech and illegal bias or harassment. If a university gets the line wrong, it can be sued by students or investigated by the U.S. Department of Education.
Each university draws the line differently. The Chicago Statement says,
The University may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.
So, the Chicago Statement says “genuine harassment” is not protected speech, without expressly incorporating the large body of First Amendment case law.
Read More: Does Cornell already follow the Chicago Statement?
Ohio University’s version also excludes “genuine harassment and threats,” but adds a footnote to “Davis v. Monroe County….(describing unprotected harassment under Title IX as ‘harassment that is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.’)”
The University of Maryland System excludes just “unlawful harassment”:
With certain exceptions, such as threats of physical violence and unlawful harassment, free speech is protected by the United States Constitution.
MIT adopted its own version of the Chicago Statement on Dec. 21, 2022. MIT’s version says:
MIT does not protect direct threats, harassment, plagiarism, or other speech that falls outside the boundaries of the First Amendment.
So, MIT promises to protect whatever the First Amendment protects.
Cornell’s Policy Statement offers a far more detailed exclusion:
[I]n the context of instruction or research [speech] will not be considered prohibited conduct unless this speech or expression meets the definition of discrimination or protected-status harassment under Cornell policies and procedures, and also meets one or both of the following criteria: a reasonable person in the setting would find it to be abusive or humiliating toward a specific individual or specific individuals, or it persists despite the reasonable objection of the specific individual or individuals targeted by the speech.
FIRE claims that this test, which protects much less than is protected by the Davis test, disqualified Cornell from being added to the list of Chicago Statement schools. By getting very specific, Cornell is opening the possibility that students will be disciplined for Constitutionally-protected speech. FIRE comments, “This should be clarified to state that unless expression violates university policy or would otherwise violate the law (such as qualifying as a true threat or defamation), the university will not punish the speech.”
Cornell’s position
There are three arguments supporting Cornell’s current Policy Statement. First, Cornell claims to be a private university that is not required to honor the First Amendment rights of its students, faculty or staff. However, the courts have never decided whether Cornell is private or public for this purpose, particularly for its four statutory colleges. Also, Cornell has never been willing to give its endowed college students less rights than those granted to students in the four statutory colleges.
Second, this language is a limitation on “the definition of discrimination or protected-status harassment.” The Title IX regulations expressly incorporate the Davis test to protect students, so it is not needed to be repeated here. However, there are more categories of protected-status harassment than just sexual harassment, and Cornell’s policies do not offer Davis protections for harassment based upon race, religion, etc.
Third, the Davis test of “severe, pervasive, and objectively offensive” applies only to students harassing other students. If a faculty or other employee is accused of harassment, the test is “severe, pervasive, or objectively offensive.” The Policy Statement seems to be based on this standard, and yet applies it equally to students, faculty and staff (to the detriment of students.) So, although the quote tries to offer a safe harbor of protected speech, the language does not say whether this is the minimum that is being protected or the maximum. FIRE is assuming that any ambiguity will be used to defeat free expression rights.
Related: University Assembly passes resolution that could curtail free speech, Pollack says no.
This all boils down to what is the general rule and what is the narrow exception to that rule. The Chicago Statement makes protection of free expression the general rule with an exception for “genuine harassment” which should be interpreted narrowly. The Cornell Policy Statement gives equal weight to both:
The University is committed to protecting academic freedom and to creating a learning, living, and working environment free of discrimination, harassment, and sexual and related misconduct.
The Policy Statement then goes on to make anti-discrimination or protected-status harassment prohibition the general rule with narrowly applied exceptions that it must be directed to specific individuals or if the objectionable behavior stopped when requested by its target. The whole paragraph, in turn, is limited to “academic freedom” and “the context of instruction or research,” leaving most of university life unprotected.
The Policy Statement is supposed to support free expression. Yet, it has so many caveats that it may have a chilling effect that deters free speech.
Where does Cornell go from here?
As Mary Griffin of FIRE recommends,
Concerned students, faculty, and alumni should build upon these positive steps and urge the institution to improve its speech codes, continue to educate its students on the principles of free speech, and take the next step to officially endorse the robust, and carefully articulated Chicago Statement.
Perhaps the Faculty Senate or other shared governance groups could work to make the Policy Statement more like the Chicago Statement – leaving the specifics to other less aspirational documents.
Next, FIRE has published a detailed review and critique of many of Cornell’s speech-related policies, and Cornell’s 2022-23 free expression theme year is an appropriate time to give each careful consideration. The University Assembly’s Campus Codes Committee should rise to this task.
Finally, all of this can get legalistic and technical to the point of being confusing to students, particularly those that decide guilt or innocence when serving on the University Hearing Board and the University Review Board. These board members as well as the Title IX Office and the Office of Student Conduct and Community Standards should receive specialized training each year in order to fully protect the free speech rights of anyone accused of code or policy violations. It is ironic that annual DEI training is explicitly required for them while protection of free expression training is not.
Cornell’s existing free expression policies attempt to protect free speech. However, Cornell’s attempt to dive into the specifics of what constitutes genuine or illegal harassment detracts from its effort to build a campus with robust free expression.
