FIRE Letter to Cornell University President David J. Skorton

By May 12, 2009

May 12, 2009

President David J. Skorton
Office of the President
300 Day Hall
Cornell University
Ithaca, New York 14853

Sent via U.S. Mail and Facsimile (607-255-9924)

Dear President Skorton:

The Foundation for Individual Rights in Education (FIRE; www.thefire.org) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, freedom of conscience and religion, and freedom of association on America’s college campuses.

FIRE is concerned about the threat to freedom of religion, expressive association, and legal equality posed by the decision of Cornell University’s Student Assembly Finance Commission (SAFC) to investigate and punish a religious student organization for requiring that its leaders adhere to the organization’s sincerely held religious beliefs, the resolution of Cornell’s Student Assembly (SA) to support that decision and participate in the investigation, and the SA’s recent resolution to make it easier to punish the organization for maintaining its beliefs. Before the university, or the Student Assembly on its behalf, takes further action against the group, FIRE must warn Cornell about its obligation to uphold students’ right to expressive association in accordance with its own promises of free expression, if not also the First Amendment.

An expressive organization, whether it is religious, political, or something else, must be allowed to limit its leadership to people who share the group’s beliefs. The College Democrats must not be forced to maintain a leader who no longer is a Democrat or rejects various Democratic political beliefs, a Muslim group must not be forced to maintain a leader who no longer believes in tenets of Islam that the group deems important, and a Christian group must not be forced to maintain a leader who no longer agrees with the specific Christian doctrine of the group.

If Cornell is to allow expressive organizations to exist on its campus at all, it must allow religious organizations to exist, to define their missions, to select their own leaders, and to establish policies, practices, and associations with other groups in

pursuit of their goals. No group can control the delivery of its message if it is unable to determine its expressive purpose, membership, and activities. In mandating that a group accept a leader who explicitly denies one of the group’s beliefs, Cornell University essentially establishes its own denomination of each religion on campus. The promulgation of a "Cornell-approved" denomination of Islam, of Christianity, of Judaism, and of every religion will result in an enforced religious orthodoxy whereby certain beliefs are deemed acceptable and others unacceptable.

This is our understanding of the facts. Please inform us if you believe we are in error.

Chi Alpha Christian Fellowship is an "independent" student organization at Cornell, as are most student organizations not affiliated with a university department or unit. According to an April 23, 2009, article in The Cornell Daily Sun, Chi Alpha Christian Fellowship asked a student leader to step down from his leadership position earlier this year after he explicitly denied being in agreement with the beliefs of the group. The student, known to other leaders in the group to be gay, had signed an agreement with the group agreeing to uphold its beliefs, which forbid homosexual activity but not orientation. The group had never asked him to step down because of his orientation. After he decided he no longer agreed with the group’s beliefs about homosexual conduct, however, he was no longer deemed qualified for leadership of the group, and as a matter of belief he was asked to step down. He was not required to stop being a member of the group, which is open to all students without regard to their beliefs or their protected-class status, and he in fact continued to be a member of the group.

On or about April 23, following an April 21 decision of the Co-Chairs of SAFC, SAFC’s Executive Committee temporarily suspended the group’s funds for ten days pending an investigation that could lead to revocation of SAFC funding entirely. On the evening of April 23, according to an April 24 article in the Sun, the SA passed Resolution 41, which endorsed the decision. The resolution also requested "the Student Activities Office, in conjunction with the Student Assembly, to investigate Chi Alpha Christian Fellowship’s potential violation of any university policies." Dean of Students Kent Hubbell is quoted saying that "[w]e should work diligently and quickly so this doesn’t have to happen again," and that Cornell United Religious Work, a department of Cornell’s Division of Student and Academic Services, would participate in the investigation as well.

SAFC’s Executive Committee held a hearing on this matter on April 27. Following the hearing, SAFC’s Executive Committee lifted the temporary revocation of funds and ceased action to permanently revoke funds from Chi Alpha Christian Fellowship. On April 29, however, Cornell’s University Assembly (UA) passed a resolution that was said to make it possible for organizations like Chi Alpha Christian Fellowship to be punished for expressing their beliefs in the future. The resolution recommended this change to the Campus Code of Conduct:

In Section 3.4.A.1.c, titled Violations: Title 3, Article II.A.1.c. To harass or discriminate against another person in a manner that would violate Cornell University Policy 6.4 if it were applicable.

Policy 6.4 states, in relevant part:

Cornell University prohibits its faculty, staff, and students from engaging in any form of prohibited discrimination or protected status (including sexual) harassment, and expects these individuals to refrain from committing acts of bias within the university’s jurisdiction. The university has processes to provide redress and remediation to individuals who believe they have been the victims of these acts. Members of the university community who have relevant information must cooperate with the university’s investigations into prohibited discrimination, protected status harassment, or bias activity.

These actions by the SA, SAFC, and UA, as well as the official university investigation by Cornell’s administration, violate the rights of Chi Alpha Christian Fellowship as guaranteed by Cornell’s own policies. Cornell’s Campus Code of Conduct promises freedom of expressive association, providing that it is a violation of Cornell regulations "to interfere with or attempt to interfere with the lawful exercise of freedom of speech, freedom of movement, freedom of peaceable assembly, or other right of an individual" [sic].

In addition, to the extent that Cornell (because of its unique blending of public and private colleges) is or advertises itself as a public campus guided by free speech principles, Cornell is bound to the spirit, if not also to the letter, of the First Amendment. Instructive on the legal and moral issues involved are, for example, Keyishian v. Board of Regents, 385 U.S. 589, 605-06 (1967) ("[W]e have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government’s ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment"); Healy v. James, 408 U.S. 169, 180 (1972) ("[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools’") (internal citation omitted); Widmar v. Vincent, 454 U.S. 263, 268-69 (1981) ("With respect to persons entitled to be there, our cases leave no doubt that the First Amendment rights of speech and association extend to the campuses of state universities").

At Cornell, "independent" student organizations such as Chi Alpha Christian Fellowship sign an "Agreement for a Contracted Independent Organization," which states in part:

Provided the organization meets certain membership requirements, the University is willing to provide certain benefits to certain organizations ("IO’s"). However, these benefits should not be misinterpreted as meaning that these organizations are part of or controlled by the University, that the University is responsible for the organizations’ contracts or other acts or omissions, or that the University approves of the organizations’ goals or activities.

Thus, it is clear that Chi Alpha Christian Fellowship, speaking for itself as an expressive religious association, does not speak for Cornell. The agreement also includes a non-discrimination provision with regard to determining membership (not leadership), given here in full:

Non-discrimination
The IO shall not discriminate on the basis of race, color, religion, national origin, disability, gender, citizenship, sexual orientation, or age when determining its membership. Notwithstanding these requirements, a club sport may restrict membership based on gender where selection for such clubs is based upon competitive athletic skill or the activity involved is a contact sport. Organizations may also make requirements based on vocal range or quality which may result in a chorus or choruses of one or predominantly one gender. In determining cases of discrimination it is not sufficient to look merely to the constitution of the IO. Its actual practices and operations are also relevant.

Chi Alpha Christian Fellowship clearly does not violate this provision in mandating that all of its leaders, regardless of sexual orientation, maintain beliefs in accordance with the group’s beliefs. Nor should the amendment to the Campus Code of Conduct proposed by the UA be interpreted to provide any new ability to prosecute religious or political organizations from limiting their leadership positions to people who hold the organizations’ beliefs.

In addition, the SA resolution inappropriately cites Cornell’s "Open Doors, Open Hearts, and Open Minds" policy, subtitled "Cornell’s Statement on Diversity and Inclusiveness," as justification for punishment. Notwithstanding that this statement appears to be an aspirational policy rather than part of Cornell’s disciplinary code, the policy reads, in part:

Free expression is essential to [Cornell’s] mission, and provocative ideas lawfully presented are an expected result. An enlightened academic community, however, connects freedom with responsibility. Cornell stands for civil discourse, reasoned thought, sustained discussion and constructive engagement without degrading, abusing, harassing, or silencing others. Cornell is committed to act responsibly and forthrightly to maintain an environment that opens doors, opens hearts and opens minds.

Indeed, religious diversity is equally important, and religious belief is protected from discrimination at Cornell. Religious groups often do want to open others’ hearts and minds to the doctrines of their faith. Although the SA resolution apparently means well in focusing on the exclusion from leadership of the student in question, the SA violates the very policy it invokes as justification by investigating or punishing the practice of those religious beliefs with which it disagrees. The SA apparently seeks an orthodoxy of belief under which it and Cornell have the power to decide which beliefs are responsible or irresponsible, reasoned or unreasoned, but such a mandated orthodoxy is unacceptable in a free society or at any university that respects freedom of conscience and freedom of expressive association.

Likewise, the SA resolution misquotes and inappropriately cites SAFC’s policy on "Ethical Conduct" for student organizations that receive SAFC funding. The resolution quotes the policy’s provision on "Harassment and Abuse of Power," which states:

Cornell University and the Student Assembly Finance Commission support an environment in which harassment of others is not tolerated. Any student acting on behalf of a student organization may not use positions of authority to influence others to perform inappropriate or illegal acts, or violate SAFC, or University regulations, policies or practices.

The resolution changes the meaning of this provision to "may not use positions of authority to influence others," leaving out the words "to perform inappropriate or illegal acts." The policy is also incorrectly cited. Even if it can be applied against a student group rather than a student leader who has abused his or her power, the exclusion of the student in question is not anything like harassment, and to treat it as such trivializes real harassment. Most of all, contrary to the apparent intent of the UA resolution, discrimination in leadership on the basis of relevant belief, by a belief-based organization, does not violate university policies, nor does it constitute influencing others to do so. In fact, the situation is the opposite of what the SA imagines: The SA and SAFC leaders may have abused their own power in limiting the freedoms of Chi Alpha Christian Fellowship.

Also, it is important to understand that in contrast to "independent" student organizations, the SA is an official agent of the university. In particular, as its own resolution suggests, the SA is a "university" student organization, which is a designation that identifies its official affiliation with the university. According to its website, the SA has legislative authority over the policies of the Office of the Dean of Students and the Department of Campus Life, and establishes the undergraduate Student Activity Fee and guidelines for its distribution. Insofar as it is an agent of Cornell, the SA is bound to the same moral and legal obligations and principles to which Cornell is bound.

The principles of legal equality and autonomy for expressive associations with regard to membership criteria are exemplified in the U.S. Supreme Court’s decision in Boy Scouts of America v. Dale, 530 U.S. 640, 647-648 (2000). In this decision, the Court pointed out that "implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends" (internal citation and quotations omitted). This right, the Court proclaimed, is "crucial in preventing the majority from imposing its views on groups that would rather express other, perhaps unpopular, ideas." Consequently, the Court held that "forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association if the presence of that person affects in a significant way the group’s ability to advocate public or private viewpoints."

In addition, the Court has ruled that public institutions are required to grant religious organizations equal access to campus facilities (see Widmar v. Vincent, 454 U.S. 263 (1981)), and are also required to grant religious organizations equal access-on a viewpoint-neutral basis-to student fee funding. See Board of Regents v. Southworth, 529 U.S. 217 (2000); Rosenberger v. University of Virginia, 515 U.S. 819 (1995). To the extent that Cornell is or advertises itself as a public institution, it is legally or morally bound by the Court’s clear pronouncements with respect to this issue.

Cornell should be aware that FIRE has successfully concluded religious liberty and freedom of association cases at both public and private universities facing situations similar to this one. For example, after FIRE intervened on behalf of a broad interfaith coalition of Muslim and Christian student organizations, The Ohio State University agreed to change a "nondiscrimination" policy that prohibited religious student organizations from making critical decisions based on religious criteria. Tufts University derecognized a Christian student group for wanting to selectively admit leaders based on religious beliefs regarding homosexuality. After FIRE interceded, Tufts eventually decided to respect its students’ legal and moral rights to religious liberty and freedom of association. You may wish to read more about FIRE’s efforts to defend religious freedom and freedom of association on these and other campuses across the nation online at www.thefire.org/religiousliberty and www.thefire.org/freespeech.

Cornell should also be aware that by picking and choosing what religious beliefs student groups are allowed to have, Cornell will effectively be replacing those groups’ own religious doctrine and dogma with a different set of doctrine and dogma that is to be enforced by Cornell and its agents. This is a bizarre choice for a university that presumably wishes to maintain a secular identity that is neutral towards the diverse religious beliefs held by its students. Is Cornell or its Student Assembly prepared to, for instance, punish Muslim groups on campus that enforce a discriminatory belief that women may not lead prayers in a congregation that includes men? Will Cornell or its agents punish a Catholic organization that enforces a discriminatory belief that women may not be priests, or an Orthodox Jewish organization that enforces a discriminatory belief that women may not be rabbis? If not, is this because Cornell’s orthodoxy demands that some kinds of discrimination are religiously valid while others are not? If Cornell wishes to be in the business of picking and choosing which religious beliefs are acceptable, it will inevitably face more questions like these-which is why the vast majority of secular institutions in the United States refuse to interfere with such matters of belief and instead follow a policy of religious tolerance.

If the Cornell community is truly to represent a diverse set of ethnic, cultural, and religious backgrounds, surely there should be a place at the table for religious groups that require their members and leaders to maintain certain standards of faith and conduct, regardless of the beliefs that Cornell would prefer them to have. As Justice Robert Jackson wrote in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943), "[I]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Compelled speech and compelled association flatly contradict the principles of free speech and free association, are utterly inconsistent with the role of a university as a "marketplace of ideas," and simply cannot be enforced at any institution that holds itself to the principles of freedom and diversity. Let Catholics be Catholic, Muslims be Muslim, and Evangelicals be Evangelical, without requiring them to abandon their requirements of religious belief.

FIRE requests that Cornell act immediately to correct this ongoing injustice by directing SA, SAFC, and UA, as agents of Cornell, to stop attempting to prosecute Chi Alpha Christian Fellowship for exercising its essential rights of freedom of religion and association.

We hope to see this matter resolved with fairness and common sense. Because of the continuing threat to Chi Alpha Christian Fellowship’s rights, we request a response to this letter by Wednesday, May 27, 2009, by 5:00 p.m.

Sincerely,

Adam Kissel

Director, Individual Rights Defense Program

 

cc:

Susan H. Murphy, Vice President for Student and Academic Services, Cornell University

Kent L. Hubbell, Dean of Students, Cornell University

Kwangwon Lee, Advisor, Chi Alpha Christian Fellowship, Cornell University

Ari Epstein, Assistant Director, Office of Assemblies, Cornell University

Ryan Lavin, President, Student Assembly, Cornell University

Nikki Junewicz, Vice President for Public Relations, Student Assembly, Cornell University

Eric Shannon, LGBTQ Representative, Student Assembly, Cornell University

Asa Craig, Arts and Sciences Representative, Student Assembly, Cornell University

Chris Basil, Executive Vice President, Student Assembly, Cornell University

Greg Mezey, Vice President for Finance, Student Assembly, Cornell University

Yuliya Neverova, Co-chair, Student Assembly Finance Commission, Cornell University

Varun Gehani, Co-chair, Student Assembly Finance Commission, Cornell University

Lauren Rosenblum, Vice President for Public Relations, Student Assembly Finance Commission, Cornell University

Ben Schreff, Vice President for Internal Operations, Student Assembly Finance Commission, Cornell University

Cailen Casey, Vice President for External Relations, Student Assembly Finance Commission, Cornell University

Emlyn Diakow, SAFC Liaison, Student Assembly Finance Commission, Cornell University

 

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