On May 31, President Pollack acknowledged but did not approve University Assembly Resolution 7: “Protecting the Right to Free Expression,” issuing the following statement: “I am explicitly neither accepting nor rejecting UA#7. While there are parts of the resolution that are very much aligned with the university’s official policy on free expression, there are other parts that are problematic.”
The resolution, originally titled “Protecting the Right to Protest,” has drawn criticism from President Pollack, alumni, and free speech advocates for its use of ambiguous language that could foreseeably be used to expand prohibitions on free expression as well as endorse forms of protest that violate existing Cornell policy.
For example, lines 40-44 of the resolution state:
“…any kind of communication that attacks or discriminates against a person or a group based on who they are, such as their race, religion, gender, gender identity, sexual orientation, ethnicity, disability status, socioeconomic status, or national origin, always violates our values and Cornell’s Code of Conduct, and should be condemned wherever and whenever it occurs.”
University Assembly Resolution 7
President Pollack noted issues with this clause in her response:
There is no “Cornell Code of Conduct.” There is a Student Code of Conduct and the aforementioned Cornell Policy Statement on Academic Freedom of Speech and Expression. Both were carefully crafted to address, among many things, the tensions that can exist between free expression and a commitment to being a community of belonging, and they cannot be overridden by blanket language in the UA resolution about what may or may not violate “Cornell’s Code of Conduct.” In particular, the Student Code of Conduct and our core values specifically protect even speech that some may find offensive and notes that even offensive conduct is not always harassment.
Cornell President Martha Pollack
In a statement to the assembly, Arthur Spitzer ‘71, who co-founded the Cornell chapter of the New York Civil Liberties Union five decades ago, expressed concern regarding the ambiguity of terms like “attacks” and “discriminates”:
Many people interpret criticism directed at them (or at a group to which they belong) as an “attack,” and many people interpret policy positions at odds with their own policy positions about issues involving race, religion, gender, etc., as “discrimination.” For example, many people would label a speaker’s defense of the Supreme Court’s decision reversing Roe. v. Wade as an “attack” on women, and a speaker’s criticism of the Supreme Court’s decision that same-sex marriage is constitutionally protected as an “attack” on [LGBTQ] people. Many would label opposition to DEI expectations for faculty hiring and promotion as a form of racial discrimination, and would label opposition to trans women competing on women’s college athletic teams as a form [of] anti-trans discrimination. It is not clear whether Resolution 7 agrees with those characterizations, but I think it is certain that people who want to suppress such speech will assert that it does…
Arthur Spitzer ’71
The resolution’s use of the phrase “our values” has drawn criticism from a group of alumni for implying the existence of an “enforceable orthodoxy at Cornell.” In a statement to the assembly, Robert Platt ‘73, J.D. ‘76, and Eli Lehrer ‘98, vehemently pushed back against the resolution’s seeming assumption that “there are a clear set of undebatable ‘values’ which can never be challenged.” This assumption, the alumni argued, “contradicts the definition of a university.”
The resolution also drew significant criticism for appearing to endorse shouting down controversial speakers, a form of protest – known as the “heckler’s veto” – that is prohibited by Cornell’s policies.
Lines 50-52 of the resolution state that “freedom of speech does not mean freedom from consequences for one’s words, and any attempts to prevent students, faculty, and employees from holding others accountable for their words should be condemned wherever and whenever it occurs” (emphasis added).
In her response, President Pollack called these lines “problematic”:
Consider for example, the case of a group of students shouting down a speaker whose words they find objectionable. That could be viewed as their “holding that speaker accountable,” and thus, per this resolution, attempts to stop them from their disruptive behavior should be condemned. But, of course, our aforementioned policies specifically prohibit such interfering with the speaker’s lawful exercise of freedom of speech.
Cornell President Martha Pollack
Spitzer concurred with this assessment:
“Accountable” is a word of many meanings. When people say, “Trump should be held accountable for January 6,” they usually mean he should be convicted of a crime and sent to prison. Of course, a speaker who violates the Code of Conduct can be held accountable (i.e., punished) by the disciplinary system after due process. But in what ways might individual students, faculty, and employees hold speakers “accountable” for their words?… I think this will be widely understood on campus as meaning that speakers can be “held accountable” by being blocked or disrupted.
Arthur Spitzer ’71
Cornell’s policies prohibiting the “heckler’s veto” were put to the test last year when Cornell students heckled conservative political commentator Ann Coulter ‘84 off stage during a speech at the Cornell Law School. Cornell quickly apologized to Coulter, and according to President Pollack, all of the student hecklers were referred to the Office of Student Conduct and Community Standards for punitive actions. Whether any punishments were actually meted out was not disclosed.
Spitzer also pointed out the resolution’s “curious juxtaposition of speech and protest as antithetical activities.” He referred to lines 54-55 of the resolution, which state that “our community must learn to strike a delicate balance between the rights of those who wish to speak, and the rights of those who wish to protest:”
Protest, of course, is a form of speech, and speech is the means by which protesters articulate their concerns. But the Resolution apparently uses “protest” to mean protest against speech. Thus, in its “Resolved” clauses, the Resolution calls upon the administration to “safeguard free expression and the [apparently contrary] right to protest,” and supports efforts to ensure “accountability” (whatever that means) “for speech that violates our values”… As Resolution 7 is drafted…I fear it will send the message that “speech that violates our values” – meaning the values held by most students and faculty – should be subject not only to reasoned opposition, but also to some unspecified form of “accountability” by students, faculty, and employees…
Arthur Spitzer ’71
Resolution 7 was introduced to the assembly on March 21 by Isaac Chasen ‘23 and Shelby Williams ’25. Chasen is the co-president of the American Civil Liberties Union at Cornell. Williams is the Student Assembly’s Undergraduate Representative to the University Assembly.
Earlier this year, Williams co-sponsored Student Assembly Resolution 31: “Mandating Content Warnings for Traumatic Content in the Classroom,” which was rejected by President Pollack and Provost Kotlikoff for the “chilling effect” it would have on faculty’s speech.
The administration’s swift and principled defense of free speech quickly entered the growing national debate about free speech and censorship on college campuses, leading the New York Times to publish a front-page article titled “Should College Come With Trigger Warnings? At Cornell, It’s a ‘Hard No.’”
The statements made by Spitzer and the group of alumni were submitted to the assembly on April 23. None of their suggestions were adopted. At its April 25 meeting, the assembly’s chair, Duncan Cady ‘24, clarified that the resolution was drafted with an understanding that “hate speech is not free speech.” What constitutes “hate speech” here is unclear. The Student Code of Conduct makes no mention of “hate speech.” Instead, the Student Code defines harassment:
Because of protections afforded by the principles of free speech and academic freedom, expression will not be considered harassment unless the expression also meets one or both of the following criteria:
Cornell Student Code of Conduct
- It is meant to be either abusive or humiliating toward a specific person or persons; or
- It persists despite the reasonable objection of the person or person targeted by the speech.
The Review reached out to Professor Richard Bensel, UA Chair of the Campus Codes Committee, for his interpretation of the Student Code’s stance on offensive speech. Bensel responded:
I think the difference of opinion turns, for one thing, on the word “meant” under [clause 1]. For many people at Cornell, “meant” is interpreted as the judgment of the recipient or target of speech and, as a corollary, so are the judgements associated with “humiliating” and the intended target. Such interpretations imply that speech can be controlled by the listener without any effective appeal by the speaker. That is a serious problem in a community in which minority views are often rejected out of hand as “humiliating” or “abusive.” One of the interesting things about this line of discussion is that [it] is not the majority in any community whose speech needs protecting, but the minority.
Professor Richard Bensel
At the April 25 meeting, Isaac Chasen ‘23, one of the drafters of the resolution, expressed opposition to adding a clause prohibiting the “heckler’s veto,” despite it already being prohibited by the Student Code.
Chasen and other assembly members also opposed adopting the Kalven Report, a document that argues a university should refrain from taking official stances on “political and social issues of the day” in order to avoid chilling speech. The Kalven Report is widely lauded by free speech organizations, including the Foundation for Individual Rights and Expression (FIRE). In her acknowledgement, President Pollack referenced an alternative approach to this issue of institutional neutrality authored by former Cornell Law School Dean Eduardo Peñalver ‘94.
During the same April 25 UA meeting, Graduate and Professional Student Representative Michelle Heeney argued that speech can be considered an action, and expressed concern about the “free speech absolutist language” used in the resolution:
I don’t agree that we completely and unequivocally support free speech, free expression…It’s not about the content, but the impact on our community. And there, as was being said, there’s some real impact that words can cause, there’s a real effect upon our community that words can cause and I think it’s important that we don’t abdicate our responsibility to deal with the complexity of free speech, hate speech.
Michelle Heeney, Graduate and Professional Student Representative to the University Assembly
Once again, the definition of the term “hate speech” is unclear.
Notwithstanding her critiques, President Pollack commended the UA for “its interest in working with the administration and others across campus to help foster a greater appreciation for free expression in all its complexities.”
Similarly, Spitzer praised the first seven “whereas” clauses as “a very strong statement about the value of free expression on a university campus.” He also suggested changes to the resolution:
I hope the Assembly will not adopt the Resolution as submitted, but will revise it to make clear that peaceful speech must be protected even if some people label it as an “attack” or as “discrimination” (as long as it doesn’t violate the [Student Code of Conduct]), and that actions to hold speakers “accountable for their words” are protected if they involve peaceful and non-disruptive expression, but not otherwise.
Arthur Spitzer ’71
For now, the fate of Resolution 7 remains uncertain. It was passed by the 2022-23 assembly, but the incoming University Assembly has a very different cast of characters. The incoming assembly may choose to make revisions and send it back to President Pollack for approval. In its current state, however, the resolution is “Not approved.”
Correction: An earlier version of this story identified Arthur Spitzer as the Senior Counsel for the D.C. American Civil Liberties Union. His comments were not submitted in that capacity; the D.C. ACLU has no opinion about Resolution 7. Additionally, this story has been updated to clarify that Heeney’s comments were made at the April 25 University Assembly meeting.
