Following the recent debate over an Student Assembly (SA) proposal for trigger warnings, Cornellians should examine how much Cornell already regulates speech between students.
President Pollack and Provost Kotlikoff criticized SA Resolution 31 because, “it would unacceptably limit our students’ ability to speak, question, and explore, lest a classroom conversation veer into an area determined ‘off-limits’ unless warned against weeks or months earlier.”
Similarly, Cornell promised students free expression when it adopted core values in 2019.
“We value free and open inquiry and expression—tenets that underlie academic freedom—even of ideas some may consider wrong or offensive. Inherent in this commitment is the corollary freedom to engage in reasoned opposition to messages to which one objects.” Further, to build a “community of belonging,” Cornell promises that students should “feel empowered to engage in any community conversation.“
Cornell University’s ‘Core Values’
And on January 27, 1999, then-President Hunter Rawlings wrote:
In a vibrant academic community such as Cornell, we confront each year a number of challenging intellectual, cultural and social issues. We do so in an atmosphere of freedom characterized by open, candid and often vehement exchange of ideas. Faculty, staff and students are encouraged to express themselves on a wide variety of subjects, and as a result we have a yeasty mixture of debate and dissent that contributes to Cornell’s character as a first-rate research university.
Cornell President Hunter Rawlings III
There is a historical flip side to all of this freedom. As Prof. Carl Becker wrote in 1940, Cornell’s tradition is freedom and responsibility. Becker wrote that Cornellians have a responsibility to promote “good will and humane dealing among men.” Unfortunately, Cornell has instead enacted a complicated and much-misunderstood enforcement mechanism under Title IX and Cornell Policy 6.4 that regulates all communications between students — online, face-to-face, in classrooms, in the dorms, outside, and even off-campus.
The Battle Over Who Gets to Balance Freedom and Responsibility
On June 18, 2018, President Pollack’s Commission on the Campus Climate issued its final reports, including a report from its Subcommittee on Regulation of Free Speech and Harassment. The report proposed rewriting the Campus Code of Conduct into a small set of vague rules. Such rules make the parameters of acceptable speech and behavior unclear, which induces a chilling effect. In the broader U.S., the law tends not to chill free speech because anything that is not expressly illegal is protected.
The 2018 report noted that the Code’s specificity limited “the university’s ability to respond to problematic student conduct that falls short of a code violation that would merit punishment.” The report also acknowledged the problem that surveys showed that students (particularly conservatives) self-censor and that the then-current Campus Code struck a balance between protecting free speech rights and the ability to respond to bias incidents. However, stated the report, “How to strike the proper balance among these values in considering the proper process for implementing the changes we recommend is not a question on which we were asked to opine.”
President Pollack approved the 2018 report straight from the subcommittee, rather than letting the University Assembly (UA) review and adopt it. In fact, the report itself expressed doubt that the CU Assemblies would adopt anything as radical as what was being proposed. In 1970, the Trustees had given UA had jurisdiction over campus codes of conduct, which made the decision of whether or not to implement the report’s proposal the UA’s decision. Accordingly, implementation of the report’s prescriptions was left to the University Assembly and its Codes and Judicial Committee.The UA and the CJC fought the plan for three years, until the Trustees removed the UA’s power over these matters in December 2020.
At the time of the 2018 subcommittee report, the Campus Code of Conduct had a clear and simple definition for each violation, making it easy to show whether or not the accused had violated it. For example, harassment was defined as “to harass another person (1) by following that person or (2) by acting toward that person in a manner that is by objective measure threatening, abusive, or severely annoying and that is beyond the scope of free speech.” The Campus Code’s definition was modeled after the New York state statute for criminal harassment.
A decade earlier, the UA rejected criminalizing “hate speech” or enacting a “speech code;” accordingly, there was no rule to make just saying words a violation. Instead, the 2018 report recommended something more vague and sweeping: “A hostile environment exists when the conduct is sufficiently severe, persistent, or pervasive that it unreasonably interferes with, limits, or deprives an individual’s participating in or benefiting from the university’s education or employment“ [emphasis added]. In essence, the report recommended only one of the three harassing qualities (“severe, persistent or pervasive”) need be present to establish a hostile environment that qualifies as “harassment,” even if within “the scope of free speech.”
Realizing that some problematic speech may not rise to a Code violation, the 2018 report recommended, “Offensive conduct that does not by itself amount to harassment as defined above may be the basis for educational or other non-punitive interventions to prevent such conduct from becoming harassment if it were repeated or intensified.“ Yet, as with trigger warnings, the fear of any “intervention” can have a “chilling effect” on speaking out.
Punishing Constitutionally Protected Speech
Although most people think of Title IX and Policy 6.4 as addressing sexual assault, their reach is far broader. At Cornell, Policy 6.4 covers a hostile environment based upon “protected status” which is a long list of characteristics, including, “ability, age, ancestry or ethnicity, color, creed, gender, sex/gender identity or expression, immigration or citizenship status, marital status, national origin, neurodiversity, race, religion, religious practice, sexual orientation, socioeconomic status, or weight.” Generally, “hostile environment” cases are based upon things that people say, especially conversations between students. Somehow a line must be drawn between the “yeasty mixture of debate and dissent” that is protected and other “hurtful” language or images that can be punished under Policy 6.4.
In 1999, the U.S. Supreme Court decided how to draw the line in student-to-student harassment in Davis v. Monroe County Board of Education.
Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect.
Davis v. Monroe County Board of Education
The problem is that Cornell does not use the Davis test and is ready to punish students for Constitutionally protected speech. The result is that, at Cornell, almost any “hurtful” speech is punishable “harassment” because it can be construed as creating a hostile environment.
Standard of Proof
In order to avoid a “chilling effect” by over-regulating something as ethereal as speech, the courts apply a “proof beyond a reasonable doubt” standard in criminal cases. For violations of the Student Code of Conduct, Cornell applies the slightly easier “clear and convincing evidence” standard. If the alleged misconduct cannot be shown with “clear and convincing evidence,” then the accused will not be held accountable. However, under Policy 6.4, the “preponderance of evidence” standard is used. This leaves students subject to false accusations of creating a “hostile environment” because the complaining student just has to be slightly more believable than the accused student.
Who Holds the Hearing and Decides the Facts
Finally, since the Magna Carta, people have taken comfort in being tried before a jury of their peers. In the case of the Student Code of Conduct, the hearing is decided by a panel consisting of three students, a faculty member, and a staff member. Policy 6.4 does not even allow that measure of protection against a false conviction. Instead, employees of the Title IX Office sit in judgment of any disputed facts.
In recent press reports about SA Resolution 31, which would mandate trigger warnings, the advocates claimed that no enforcement mechanism is in place if a professor or TA fails to give a proper warning. However, under the current misapplication of Policy 6.4, a professor or TA could be punished for traumatizing a complaining student by just saying something offensive, or showing an offensive image, regardless of whether a warning was given.
Anonymous Reporting
Policy 6.4 cases are traumatic for both the complaining party as well as the accused student. However, Cornell allows for people making the complaints to stay anonymous when reporting a bias incident. During 2021-22, 112 bias incidents were reported and categorized. An additional 30 were found to be unmerited, leaving 21% of investigated bias incidents to be false alarms. Of the 75 valid bias complaints, we do not know how many resulted in a person being held accountable.
Students have the right to know whether their words without further action can be punished, and they have a right to due process, fair treatment, and an appeal when they have been accused of wrong-doing.
Given the unconstitutional overreach of Policy 6.4 into protected speech, is it any wonder that students report in surveys that they “self-censor” and are hyper-careful to avoid offending language in any conversation on campus? Students not only avoid offending words but more importantly, they avoid discussing controversial topics.
President Pollack and Provost Kotlikoff have earned praise in the national media for rejecting SA Resolution 31. But to complete the needed clean-up, they should reduce the scope of Policy 6.4 and employ the standard of the Davis test to prevent the policy from chilling student speech.
Correction: a previous version of this article misstated “Policy 6.4” as “Rule 6.4.” It has since been updated.
