President Skorton finally released his response to Resolution 44, which passed the SA by one vote. It’s not 100% clear yet what all this means, but a preliminary reading of his email- addressed to Rammy Salem- seems to suggest that he is not going to sign the resolution because 1) it extends protections to previously unprotected groups, and 2) it limits the free speech of campus religious organizations. Here’s an importantl excerpt:
Consequently, my judgment is that the following approach is most appropriate for Cornell regarding membership and leadership practices of independent organizations: (1) The current policy embodied in the IO agreement should be retained: student organizations, without exception, are required to comply with the university’s non-discrimination policy in all respects when determining their membership. (2) In its leadership practices, religious organizations may continue to limit officer posts to those members who conform to centrally and genuinely held religious beliefs of the organization; thus, the group’s legally recognized prerogative to engage in “religious discrimination” in this limited regard is permitted to take precedence over the policy against sexual orientation discrimination.
However, in the next paragraph Skorton clearly states that the SA should be able to have some discretionary power in deciding which groups get SAF funding:
With respect to entitlement for funding, however, I believe it would be appropriate for the SA, in the exercise of its delegated authority to administer and allocate SAF funds, to consider imposing more rigorous standards for all student organizations. The SA may determine following further deliberation to condition qualification for SAF subsidies on compliance with the non-discrimination policy without exception (i.e. regarding both membership and leadership practices). Thus, student religious organizations that choose not to comply with the sexual orientation provision would not be eligible for SAF funding, but would nevertheless continue to have access to university space and services as a recognized IO. This issue deserves further thoughtful review by the SA.
The second to last last sentence is crucial. Groups that do not comply with certain provisions (in this case he only specifies the sexual orientation provision) will not get funding, but they would still be able to recruit members, hold meetings, etc. Thus he has basically finds a middle ground to appease both camps.
Read the entire email after the jump (no word from the Daily Stun yet, whose editors showed strong support for it).
I acknowledge and thank you for forwarding the Student Assembly (SA) Resolution #44 that proposes to modify provisions of the Agreement for Independent Student Organizations dealing with non-discrimination. I greatly appreciate the careful thought that you and your SA colleagues have devoted to this vitally important and complex issue. For the reasons indicated below, I accept most of what you propose and ask that you reconsider other aspects.
Cornell’s current policy dealing with non-discrimination is broad and effective: it bans all forms of legally prohibited discrimination in all University educational programs and activities and employment. This non-discrimination policy was adopted by the highest body of the University, the Cornell Board of Trustees, and has university-wide application in all policy related documents and agreements. The current policy prominently appears in university catalogues, brochures, handbooks, other policy documents, contracts and agreements. And several university offices make it their business to enforce the policy including the Offices of Workforce Diversity and Inclusion, University Counsel, Human Resources, and Student and Academic Services.
Since the Trustees-approved policy already encompasses all categories of “legally prohibited” discrimination, it is not clear to me (and presumably would not be clear to the Board) why the SA wishes to add several other categories of non-discrimination. The University is not empowered to formulate public policy; and should not add prohibitions that exceed those adopted by authorized federal, state, and local bodies.
The SA’s proposal to expand the categories of non-discrimination in the IO agreement — by adding “height,” “ancestry,” “immigration status,” “religious practice,” “socioeconomic status,” and “weight” — extends well beyond the Trustees-approved policy.* So, I do not accept this aspect of the SA resolution, and consequently I ask the SA to reconsider it.
The second feature of the SA resolution proposes to change the agreement which all independent student organizations are required to sign as a condition to being “recognized” by the University and being accorded access to University facilities and services. Currently the salient provision embodied in the IO agreement bans discrimination (per the university non-discrimination policy) in the student organization’s “membership” practices; but it recognizes discretion of religious-based student organizations to choose their own “leaders” in conformance with centrally held religious tenets. SA Resolution #44 proposes to apply the non-discrimination ban (including sexual orientation non-discrimination) in all phases of IO activities: at the “membership” and “leadership levels;” and both where the organization simply seeks “recognition” (i.e. access to university facilities and services) and where, in addition, it seeks Student Activity Fee (SAF) “funding.”
May Cornell as an institution make these policy judgments without legal constraint? Yes, it may. Should the University adopt these consequential changes in how it deals with independent student organizations, particularly “religious” organizations, as the SA advocates? Yes, in some key respects I believe the SA’s recommended revisions should be accepted. But I also ask that the SA reconsider other aspects, in order to address conceivably competing policy interests between the University (and its Student Assembly) and student religious organizations.
The issues the SA resolution raises are complex; more so than they should be since it seems unassailable that all organizations, secular and sectarian, should readily embrace broad principles of non-discrimination. But when constitutional rights are perceived to pertain the stakes from all sides tend to take on different dimensions.
It is important, however, to understand that “constitutional” considerations do not control how the policy issues raised by the SA proposal should be resolved. As Cornell University Counsel James Mingle advises, the U.S. Constitution constrains governments (at the federal, state, and local levels) regarding certain governmental actions that affect individuals and entities. Private corporations and universities — and Cornell University is both — are not compelled by law to recognize or extend constitutional rights to individuals or organizations. However, many private universities, including Cornell, typically have chosen to do so as a matter of policy.
When considering the basis and boundaries of such rights, private universities typically look to clearly established constitutional law (as developed by the courts) for guidance. And when determining how such constitutionally recognized rights as freedoms of speech, press, association, and religion should inform and/or be incorporated into university policy documents, private universities (including Cornell) are cognizant, as they should be, of their own First Amendment right as a private university of academic autonomy to determine appropriate educational policy.
Taking these critical considerations into account here, there is a conflict, as the SA acknowledges, between the non-discrimination provision regarding sexual orientation on the one hand, and the leadership practices of some student religious organizations which proclaim that homosexual conduct is inimical to the group’s genuinely held religious beliefs. This position may strike many of us as outdated, indeed offensive; but First Amendment principles protect even offensive speech and, within certain limits, recognize the right of private associations to tailor their membership and leadership practices. The University’s task is to take measure of the institutional and individual interests that are implicated by SA Resolution #44, and to decide how Cornell in its discretion should determine educational policy governing its relationship with and funding of independent student organizations.
Consequently, my judgment is that the following approach is most appropriate for Cornell regarding membership and leadership practices of independent organizations: (1) The current policy embodied in the IO agreement should be retained: student organizations, without exception, are required to comply with the university’s non-discrimination policy in all respects when determining their membership. (2) In its leadership practices, religious organizations may continue to limit officer posts to those members who conform to centrally and genuinely held religious beliefs of the organization; thus, the group’s legally recognized prerogative to engage in “religious discrimination” in this limited regard is permitted to take precedence over the policy against sexual orientation discrimination.
With respect to entitlement for funding, however, I believe it would be appropriate for the SA, in the exercise of its delegated authority to administer and allocate SAF funds, to consider imposing more rigorous standards for all student organizations. The SA may determine following further deliberation to condition qualification for SAF subsidies on compliance with the non-discrimination policy without exception (i.e. regarding both membership and leadership practices). Thus, student religious organizations that choose not to comply with the sexual orientation provision would not be eligible for SAF funding, but would nevertheless continue to have access to university space and services as a recognized IO. This issue deserves further thoughtful review by the SA.
We note that the U.S. Supreme Court is considering a case (during the current spring 2010 term) involving a public university’s imposition of sexual orientation non-discrimination policy that a student religious organization claims conflicts with its free association rights to choose its own leaders and select its voting members. Although as a unit under the aegis of a private university the SA is not legally obligated to follow constitutional law court decisions, the Supreme Court’s airing of the competing policy interests — and judgment as to which should prevail — may help inform the SA’s discussion as it reconsiders the elements of its resolution.
Sincerely,
David J. Skorton
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