On December 9, Cornell Martha Pollack issued a three sentence long statement that hopes to put to rest the pressures being placed upon college presidents regarding a highly complex issue. The statement reads in its entirety:
“Over the past few days, a number of universities, including Cornell, have been asked by members of Congress to make clear their policies around genocide. Genocide is abhorrent, and Cornell condemns calls for the genocide of any people. An explicit call for genocide, to kill all members of a group of people, would be a violation of our policies.”
It was issued by Cornell President Martha Pollack. Because this is now “official Cornell policy,” violating it effectively becomes a violation of Section H(2) of the Student Code of Conduct.
A tense semester
Since October 7, pro-Palestinian students and community members have engaged in frequent demonstrations on the Cornell campus claiming that Israel was engaging in genocide of Palestinian people located around Gaza. In general, the demonstrators sought a boycott of organizations and companies which they viewed as being supportive of Israel.
Advocates of Israel claim that chants like “From the River to the Sea, Palestine shall be free” are, in effect, calls for genocide – the killing of all Jews in Israel. Similarly, advocates of an immediate cease fire in Gaza claim that continued armed conflict will result in genocide of Palestinians – the killing of all Palestinians in Palestine.
Neither group expressly advocated for the “genocide” of the other group.
On November 16, the Office of Civil Rights (OCR) of the U.S. Department of Education announced that it is investigating Cornell and six other schools ”for possible discrimination based on shared ancestry or ethnic characteristics.”
On December 1, 2023, a group of pro-Palestinian protesters symbolically tried President Pollack in absentia and found her guilty of “genocide against Palestinian civilians.”
On December 5, 2023, the Presidents of MIT, Harvard, and the University of Pennsylvania testified before the House Committee on Education and the Workforce. In particular, members of the Committee questioned whether a call for the genocide of all Jewish people would violate the codes of conduct of those three universities. Pollack did not testify at that hearing, and Cornell has not adopted a “speech code.”
On December 9, New York Governor Kathy Hochul sent a letter to all colleges in New York State, which said in part:
As Governor of New York, I want to reinforce that colleges and universities not in compliance with federal and state laws protecting students against discrimination can be deemed ineligible to receive state and federal funds. I assure you that if any school in New York State is found to be in violation, I will activate the State’s Division of Human Rights to take aggressive enforcement action and will refer possible Title VI violations to the federal government.
Furthermore, Governor Hochul was “shocked” that the three presidents testifying on December 5 “fail[ed] to clearly and unequivocally denounce antisemitism and calls for genocide of the Jewish people on their college campuses.”
Cornell operates four SUNY units: the New York State College of Veterinary Medicine (Vet School), the New York State College of Agriculture and Life Sciences (CALS), the New York State College of Human Ecology (HumEc), and the New York State School of Industrial and Labor Relations (ILR).
These four Cornell colleges operate in buildings owned by New York State. The governor’s letter and press release drew a link between “calls for genocide of the Jewish people” and creating a hostile environment. Left unsaid is that any state or federal enforcement action is limited by the First Amendment.
New policy’s reach yet to be determined
President Pollack’s statement clarifying Cornell’s policy leaves several questions unanswered, such as the extent of the policy’s reach. What about, for example, off-campus events? In general, the Student Code applies to off-campus violations. On December 8, Jerry Seinfeld (who happens to be Jewish) performed a stand-up comedy show in Syracuse’s Landmark Theatre. Hundreds of pro-Palestinian protestors showed up at the theater in an effort to halt his show, chanting that Seinfeld was “complicit in genocide.”
Although most of the organizers of that protest lived in Syracuse, if some Cornell students were among the protesters, would they have violated Cornell’s policies? The case against them would be stronger if the protestors made hateful remarks about Seinfeld being Jewish.
The ‘genocide policy’ may be used to target pro-Israel students
The policy statement defines genocide as a call “to kill all members of a group of people.” This definition is incredibly broad. Would the chants on campus be a call for genocide or in any way go beyond what is protected under the First Amendment? The presidents of Harvard, MIT, and Penn would say it is a matter of context, but the governor of New York and certain members of Congress will not accept that notion, no matter what the Brandenburg v. Ohio or Davis v. Monroe County Supreme Court cases might hold.
There is an odd linkage here of genocide to the notion of anti-semitism. Obviously, limitations on speech must be applied in a content neutral manner. It should not matter which group is being targeted with genocide advocacy – Jews, Palestinians, Armenians, Uyghurs, et cetera.
Once “advocacy of genocide” becomes a violation that can be adjudicated on campus, it is more likely that it will be used to go after pro-Israel than pro-Palestinian students. At Cornell, currently any student can bring a complaint for violations of the Student Code, and the hearing panels of those cases are 3/5ths students.
Additionally, last week’s Harvard Harris poll results show that 60% of college-aged people blame Israel “for committing genocide against those in Gaza,” while older people have the opposite view. It would not be unforeseeable that pro-Palestinian activists would be able to bring cases against pro-Israel advocates and receive a favorable result from hearing panels made up of peers sympathetic to the Palestinian cause.
Which Policy is Being Addressed?
Cornell has a long history of shared governance. Amendments to various codes of conduct require action (or at least consultation) with various committees and deliberative bodies. There is no indication that such a process occurred. Rather, this new “policy” is announced as an overlay or gloss on other pre-existing, unspecified policies.
It is worth noting that this new policy would most probably be applied to undergraduate student speech. For faculty, academic freedom does not allow any topic, even genocide, to be beyond permissible discussion in either the academic setting or in extramural statements.
For graduate students, who recently voted to form an NLRB union, Cornell cannot limit the political advocacy of that union or its members. Indeed, graduate student unions on other campuses have advocated in favor of Hamas.
For non-academic employees who want to protest or demonstrate away from their job station while they are “off the clock,” they have free expression rights that cannot be abridged with a new genocide exception.
Finally, there are due process problems for students accused of genocide advocacy. Would this be handled under the Student Code of Conduct procedures or the Title IX procedures? If Title IX procedures, would it be Hearing Process A or Hearing Process B? Additionally, under existing Cornell policy, behavior reaches the threshold of harassment if it targets specific individuals. The Cornell Policy Statement on Academic Freedom and Freedom of Speech and Expression (which was adopted by both the Faculty Senate and Trustees) has this important safe harbor:
“Based on the protections afforded by academic freedom, speech and other expression in the context of instruction or research 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.”
Other than President Pollack or Jerry Seinfeld, no “specific individuals” are being targeted by all of the chanting and shouting. Rather, the speech is directed at groups of people. So, even if the advocacy were to fall under the new Genocide Policy, it would not be considered “prohibited conduct,” unless the new policy supersedes Cornell’s rules on academic freedom.
Pollack’s policy statement leaves a confusing mess
In sum, this is a confusing mess that will have a chilling effect upon free expression at Cornell. Most people question whether President Pollack or Jerry Seinfeld are advocating for genocide. Even fewer people would believe that sticking the genocide label on either individual justifies harassing or abusing Pollack, Seinfeld or anyone willing to stand up for them.
While issuing the December 9 statement may get Governor Hochul off Cornell’s case, it will not have the impact advocates might hope it will achieve. It is also unclear where enforcement of the measure stands, as well as whether it supersedes existing Cornell policy on academic freedom. All in all, Pollack’s statement creates a minefield in higher education, with massive implications on speech and due process.
