Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America’s top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at Cornell University, which FIRE has given a red-light rating for maintaining policies that clearly and substantially restrict free expression on campus.
Since Cornell is a private university, not directly bound by the First Amendment, we must first examine whether students enrolling at Cornell would have a reasonable expectation of free speech rights. Cornell’s Campus Code of Conduct provides that
Because it is a special kind of community, whose purpose is the discovery of truth through the practice of free inquiry, a university has an essential dependence on a commitment to the values of unintimidated speech. To curb speech on the grounds that an invited speaker is noxious, that a cause is evil, or that such ideas will offend some listeners is therefore inconsistent with a university’s purpose.
The Campus Code also provides that it is a violation of university policy "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."
Based on these commitments, particularly the fact that the university refers to freedom of speech as the "right of an individual" at the university, Cornell’s students and faculty have every reason to believe they would have the same free speech rights at Cornell as they would at any of New York’s public universities, where the First Amendment is applicable.
Unfortunately, as with so many universities, Cornell’s policies belie the commitments it has made to individual rights.
Cornell’s discriminatory harassment policy suffers from a flaw found in many university harassment policies: while the policy initially provides a definition of harassment that reasonably approximates the legal standard for harassment, it later provides a list of examples of harassment that explicitly include protected speech. Cornell’s policy, for example, states that examples of harassment include "making bias-motivated jokes or statements" when such jokes or statements are "direct and based upon a person’s EEO-protected class status." In other words, any ethnic, gender, or religion-based joke or insult constitutes harassment on Cornell’s campus so long as it is directed at a particular individual. This is a far cry from true harassment, which—as we have explained so many times—is only conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Cornell also maintains a statement on "bias related incidents," which it defines as "an event which has the effect of demeaning or degrading an individual or a group and is motivated in whole or in part by the perpetrator’s bias." The statement further provides that "If you experience or observe any activity which might be perceived as a biased activity, you are expected to report the incident…The incident will be documented and investigated, referred to the appropriate office, and responded to as is appropriate." While the statement does not specify whether bias incidents alone can form the basis for disciplinary action, it promises to investigate all reports of such incidents. Given that the definition of a "bias related incident" includes protected speech ("demeaning" or "degrading" expression, however deplorable, is constitutionally protected unless it falls within one of just a few narrow categories of speech, such as true harassment or threats), the university’s promise to investigate all such complaints necessarily means that protected expression will be subject to investigation. This, in and of itself, is enough to chill free speech on Cornell’s campus, since students will almost certainly wish to avoid the negative educational effects that would result from being subjected to any sort of disciplinary investigation. This chilling effect is inconsistent with the open atmosphere that should prevail on a campus "whose purpose is the discovery of truth through the practice of free inquiry."
Cornell’s policy on Responsible Use of Electronic Communications also contains vague and overbroad prohibitions that threaten protected speech. First, the policy prohibits "Posting or otherwise disseminating personal or sensitive information about an individual(s)." This is worded much too broadly. While the university may legitimately prohibit the dissemination of certain types of "personal or sensitive information" (such as, for example, student Social Security numbers) there are other types of "personal or sensitive information" that may not only be permissible to disseminate but may also be of importance (such as, for example, the fact that a candidate for student body treasurer has a past conviction for fraud). This is a classic example of overbreadth—while including some legitimate prohibitions, the policy also sweeps in protected expression. The Responsible Use policy also contains the following impermissibly vague prohibition: "Posting hate speech regarding a group’s race, ethnicity, religion, gender, or sexual orientation (generally does not constitute a violation of the Responsible Use policy, but may under certain circumstances)." The policy does not go on to explain what the "certain circumstances" are, leaving students to guess both at what the university might mean by "hate speech" and under what circumstances such hate speech might be punishable. Contrary to popular belief, "hate speech" is not a category of unprotected expression; as with "biased" expression, it is only unprotected if it falls into a few narrow categories of speech such as harassment.
Stay tuned next week for information on the state of free speech at Washington University in St. Louis.